Vendor Terms and Conditions

NOT FOR EDITING OR NEGOTIATION

Version Effective Date: May 2024

This Vendor Terms and Conditions, including all attachments, any Addendum (as defined below), schedules and exhibits, and documents at referenced URLs, all of which are incorporated herein by this reference (collectively, this "Agreement"), is entered into by and between the Elastic entity ("Elastic"), and the entity identified as the "Vendor" ("Vendor") on the first Order Form signed by both Parties referencing this Agreement.

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN VENDOR AND ELASTIC. VENDOR IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM. BY SIGNING AN ORDER FORM, VENDOR CONFIRMS THAT VENDOR HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. UNLESS A NEGOTIATED MASTER SERVICES AGREEMENT (THE "MSA") HAS BEEN EXECUTED BETWEEN THE PARTIES.

1. 1. Definitions. The following terms shall have the meanings assigned to them in this Section 1, or where such terms are first underlined herein:
   1. (a) "Elastic Confidential Information" shall have the meaning given to such term in Section 9(a).
   2. (b) "Prior Work" shall mean (a) any elements of any product of Vendor or its licensors in existence prior to this Agreement that is used in developing the Work Product, (b) any portions of which are imbedded therein, but specifically excluding any Elastic Confidential Information and (c) any improvements to or modifications made outside of this Agreement to any of its commercially available products by Vendor or Vendor's licensors; provided that all Prior Work must be clearly identified in the SOW.
   3. (c) "Work Product" shall mean all innovations, discoveries, techniques, inventions, designs, improvements, original works of authorship, developments, concepts, know-how or trade secrets, expressions of ideas or formulae, algorithms, processes, technical information and other technology, whether or not patentable and improvements thereto, made, created, or reduced to practice by Vendor, solely or jointly with Elastic, in connection with the performance of this Agreement.
   4. (d) "Intellectual Property Rights" shall mean any rights with respect to intellectual property and includes, without limitation, as required by the context, (i) patents, patent applications and other patent rights; (ii) copyrights, copyright registrations and copyright rights, including moral rights; (iii) trade secrets and other intellectual property rights with respect to confidential or proprietary information; (iv) other intellectual property rights with respect to inventions, discoveries, and/or improvements thereto, and/or expressions of formulae, algorithms, processes, technical information and other technology; (v) other intellectual and industrial property rights, whether or not subject to statutory registration or protection; and (vi) all rights under any license or other arrangement with respect to the foregoing.
2. 2. Services & Goods. During the term of this Agreement, Vendor will provide to Elastic certain services & goods (the "Services") as set forth in an applicable Elastic purchase order ("Elastic Purchase Order" or "PO"), applicable ordering document ("Ordering Document") or Statement of Work ("SOW"), executed by the parties and referencing and subject to this Agreement. Vendor represents that Vendor is duly licensed (as applicable) and has the qualifications, the experience, and the ability to properly perform the Services. Vendor further represents and warrants that the Services shall be performed in strict accordance with the requirements of this Agreement, applicable professional standards, and all applicable laws, including but not limited to all applicable data protection laws. Vendor shall use Vendor's best efforts to perform the Services such that the results materially conform with the specifications set forth in the applicable SOW.
3. 3. Fees. As consideration for the Services to be provided by Vendor and other obligations, Elastic shall pay to Vendor the amounts specified in applicable PO, Ordering Document, or SOW. Invoiced amounts will be due and payable sixty (60) days from the receipt of a correct invoice, shared to ap@elastic.co. Vendor shall include the relevant Purchase Order number on all invoices it submits to Elastic. Failure to include such Purchase Order number on any invoice may delay payment by Elastic. Notwithstanding anything in this Agreement, Elastic shall not be responsible for or liable for any fees or interest on payments that are late as a result of Vendor's failure to comply with this section.
4. 4. Expenses. Vendor shall not be authorized to incur on behalf of Elastic any expenses without the prior consent of Elastic unless otherwise permitted in an applicable PO, Ordering Document, or SOW. As a condition to receipt of reimbursement, Vendor shall be required to submit to Elastic reasonable evidence that the amount involved was expended and related to Services provided under this Agreement.
5. 5. Term and Termination. Vendor shall serve as a Vendor to Elastic for a period commencing on the Effective Date and continuing for a period as set forth in an applicable Elastic purchase order ("Elastic Purchase Order" or "PO"), applicable ordering document ("Ordering Document") or Statement of Work ("SOW") unless terminated in accordance with this Agreement. For the clarity of Section 5 any references to auto-renewal clauses in an Ordering Document is deemed null and void. Elastic may terminate this Agreement at any time upon thirty (30) days' written notice to Vendor. In the event of such termination, Vendor shall be paid for any portion of the Services that have been performed prior to the effective date of such termination. Either party may terminate immediately in case of a material breach of this Agreement by the other party which is not cured within 30 days after receipt of such written notice detailing the scope and nature of the material breach. In the event of such termination - except with respect to termination by Elastic for uncured material breach by Vendor - for which Elastic shall not be required to pay for the Services the subject of such material breach, Vendor shall be paid for any portion of the Services that have been performed prior to the effective date of such termination. In the event of such termination by Elastic, Vendor shall reimburse Elastic for all pre-paid unused Services.
   1. (a) Termination Assistance. In the event of Termination by either party, the Vendor agrees to provide reasonable assistance in performing the Service to facilitate the transition assistance, which may include but not limited to providing guidance, completing Work Product and providing transition support. This Termination Assistance provision shall remain in effect throughout the term including any renewals without any charge to Elastic and shall deliver the services or the extracted data in a format mutually agreed by the parties.
6. 6. Independent Contractor. Elastic and Vendor shall be independent contractors under this agreement, and nothing herein or in any PO, Ordering Document, or SOW shall be construed as creating an employment relationship between Elastic and Vendor.
   1. (a) Method of Provision of Services. Vendor shall be solely responsible for determining the method, details and means of performing the Services. Vendor may not, without the prior written consent of Elastic, employ or engage the services of subcontractors to perform the Services required by this Agreement. Vendor shall not engage any subcontractors to provide the Services unless approved in writing by Elastic prior to engaging such subcontractor. Vendor shall remain fully responsible and liable for any and all Services under this Agreement, including any and all Services of subcontractors.
   2. (b) No Authority to Bind Elastic. Neither Vendor, nor any partner, agent or employee of Vendor, has authority to enter into contracts that bind Elastic, or create obligations on the part of Elastic without the prior written authorization of Elastic.
   3. (c) No Benefits. Vendor acknowledges and agrees that Vendor (or Vendor's employees, if Vendor is an entity) will not be eligible for any Elastic employee benefits and, to the extent Vendor (or Vendor's employees, if Vendor is an entity) otherwise would be eligible for any Elastic employee benefits but for the express terms of this Agreement, Vendor (on behalf of itself and its employees) hereby expressly declines to participate in such Elastic employee benefits.
   4. (d) Withholding; Indemnification. Vendor shall have full responsibility for applicable withholding taxes for all compensation paid to Vendor, its partners, agents or its employees under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Vendor's self-employment, sole proprietorship or other form of business organization, and Vendor's partners, agents and employees, including state worker's compensation insurance coverage requirements and any immigration visa requirements. Vendor agrees to indemnify, defend and hold Elastic harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on Elastic by the relevant taxing authorities with respect to any compensation paid to Vendor or Vendor's partners, agents or its employees.
   5. (e) Fictitious self-employment. Vendor hereby represents and warrants that (i) it is aware of how so-called fictitious self-employment may arise or occur and the consequences thereof, and (ii) the Services it provides to Company under this Agreement are not predominantly the only services it provides and that it provides similar services to other entities to an extent that would prevent fictitious self-employment occurring under this Agreement. Vendor agrees to indemnify, defend and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such fictitious self-employment arising from circumstances that are in the Vendor's sphare of responsibility and/or organization, including any liability for, or assessment of, any taxes or social contributions imposed on the Company by the relevant authorities.
7. 7. Supervision of Vendor's Services. All of the services to be performed by Vendor, including but not limited to the Services, will be as agreed between Vendor and Elastic. Vendor will be required to report to an individual ("Supervisor") designated by Elastic concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the Supervisor.
8. 8. Consulting or Other Services for Competitors. Vendor represents and warrants that Vendor does not presently perform or intend to perform, during the term of the Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any way involve products or services which would be competitive with Elastic's products or services, or those products or services proposed or in development by Elastic during the term of the Agreement. If, however, Vendor decides to do so, Vendor agrees that, in advance of accepting such work, Vendor will promptly notify Elastic in writing, specifying the organization with which Vendor proposes to consult, provide services, or become employed by and will provide information sufficient to allow Elastic to determine if such work would conflict with the terms of this Agreement, the interests of Elastic or further services which Elastic might request of Vendor. If Elastic determines that such work conflicts with the terms of this Agreement, Elastic reserves the right to terminate this Agreement immediately.
9. 9. Confidential Information.
   1. (a) Elastic Information. Vendor agrees at all times during the term of this Agreement and thereafter, to hold in strictest confidence, and not to use, except for the benefit of Elastic to the extent necessary to perform Vendor's obligations to Elastic under this Agreement, or to disclose to any person (including any employees of Vendor except as expressly permitted under this Agreement), firm, corporation or other entity without written authorization of Elastic, any Elastic Confidential Information. Vendor shall disclose Elastic Confidential Information only to those of its employees who: (a) have a need to know that information to perform Vendor's obligations to Elastic under this Agreement, and (b) have agreed in writing to non-disclosure obligations substantially similar to those in this Agreement. Vendor further agrees not to make copies of such Confidential Information except as authorized by Elastic. Vendor understands that "Elastic Confidential Information" means any Elastic proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, suppliers, customer lists and customers (including, but not limited to, customers of Elastic on whom Vendor called or with whom Vendor became acquainted in connection with the performance of Services under this Agreement), personal data (as defined in Section 10), prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets or other business information disclosed to Vendor either directly or indirectly in writing, orally or by drawings or observation of parts or equipment or created by Vendor during the performance of Services. Vendor understands that Elastic Confidential Information includes, but is not limited to, information pertaining to any aspect of Elastic's business which is either information not known by actual or potential competitors of Elastic or other third parties not under confidentiality obligations to Elastic, or is otherwise proprietary information of Elastic or its customers or suppliers, whether of a technical nature or otherwise. Further, during the term of the Agreement and at any time following termination of the Agreement for any reason, with or without cause, Vendor shall not use any Elastic Confidential Information to attempt to negatively influence any of Elastic's clients or customers from purchasing Elastic products or services or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of Elastic. Vendor further understands that Elastic Confidential Information does not include any of the foregoing items which has become publicly and widely known and made generally available through no wrongful act of Vendor or of others who were under confidentiality obligations as to the item or items involved.
   2. (b) Prior Obligations. Vendor represents and warrants that Vendor's performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by Vendor in confidence or in trust prior to commencement of this Agreement. Vendor warrants that Vendor has the right to disclose and/or use all ideas, processes, techniques and other information, if any, which Vendor has gained from third parties, and which Vendor discloses to Elastic or uses in the course of performance of this Agreement, without liability to such third parties. Notwithstanding the foregoing, Vendor agrees that Vendor shall not bundle with or incorporate into any deliveries provided to Elastic herewith any third party products, ideas, processes, or other techniques, without the express, written prior approval of Elastic.
   3. (c) Third Party Information. Vendor recognizes that Elastic has received and in the future will receive confidential or proprietary information from third parties subject to a duty on Elastic's part to maintain the confidentiality of such information and to use it only for certain limited purposes. Vendor agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Vendor's work for Elastic consistent with Elastic's agreement with such third party.
10. 10. Personal Data Processing.
    1. (a) Elastic Vendor DPA. To the extent that Vendor processes information that relates to an identified or identifiable natural person and which is protected as "personal data," "personal information," or "personally identifiable information" under applicable Data Protection Laws ("Personal Data") as a service provider or processor (as applicable) on behalf of Elastic in connection with this Agreement (collectively "Elastic Personal Data"), Vendor shall comply with the terms and conditions of the Elastic Vendor Data Processing Addendum located at https://www.elastic.co/agreements/vendor-dpa which is incorporated herein by reference. Vendor must provide Elastic, via email notice to procurement@elastic.co, with a current list or link to any third party data processor engaged by Vendor to process Elastic Personal Data on Elastic's behalf to assist in fulfilling Vendor's obligations with respect to providing the Services pursuant to this Agreement ("Sub-processor") before disclosing Elastic Personal Data to such Sub-Processor. The list must include each Sub-processor's legal name, location(s) of processing, descriptions of processing, and instructions for communicating to Elastic any updates to this list.
    2. (b) Lead Data. To the extent that Vendor discloses or shares Personal Data with Elastic in connection with this Agreement, Vendor represents and warrants that: 1) it has the rights as required by law to disclose or share such Personal Data with Elastic; 2) it has provided proper notices and choices to individuals and obtained proper consents from individuals (where necessary) regarding such collection and disclosure as may be required under any applicable Data Protection Law; 3) that Elastic may use any or all of the Personal Data so disclosed or shared for its own purposes, including but not limited to developing and marketing Elastic products and services; and 4) that Elastic may further provide any or all of the Personal Data to third party vendors that provide certain functions and other services for Elastic, including but not limited to marketing in connection with Elastic's products and services.Following the disclosure of such Personal Data from Vendor to Elastic, Elastic shall be deemed a controller or business (as applicable), with respect to such Personal Data. For the avoidance of doubt, following such disclosure to Elastic, Vendor shall not be a processor or act as a services provider on behalf of Elastic. Rather, each party shall be deemed an independent controller or business with respect to its processing of such Personal Data and shall comply with all of their respective obligations under applicable Data Protection Laws in such role. "Data Protection Laws" means all data protection and privacy laws and regulations effective and applicable to the respective party in its role related to the processing of Personal Data pursuant to this Agreement including, but not limited to, the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ("GDPR"), the EU Privacy and Electronic Communications Directive 2002 (ePrivacy Directive), the Data Protection Act 2018 and the GDPR as saved into UK law by virtue of section 3 of the UK's European Union (Withdrawal) Act 2018 (UK GDPR), the Swiss Federal Data Protection Act of 19 June 1992 and its Ordinance (Swiss DPA), the Privacy and Electronic Communications (EC Directive) Regulations 2003 as they continue to have effect by virtue of section 2 of the UK's European Union (Withdrawal) Act 2018, the Canadian Anti Spam Law (CASL), the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA), the United States Federal Telephone Consumer Protection Act (TCPA) and Telemarketing Sales Rule (TSR), the United States The Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 CAN-SPAM), the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. (2018) as amended by the California Privacy Rights Act of 2020 (CPRA) (together the CCPA), and any other US state privacy or data protection laws that have been enacted at the time of the parties execution of the Agreement, in each case as may be amended, superseded or replaced.
       
       In this Section, the terms "controller", "processor" and "process" will bear the meanings given to them in GDPR), and "business", "service provider", and "share" shall have the meanings given to them under the CCPA.
11. 11. Artificial Intelligence. Vendor agrees that it will not employ, use, or otherwise implement any artificial intelligence ("Artificial Intelligence" or "AI" or "Generative AI") in conjunction with this Agreement or providing the Services without express prior written consent of Elastic. Additionally, Vendor will not allow any AI or GAI to "learn" from any Elastic data or other information sets without the express prior written consent of Elastic.
12. 12. Returning Elastic Documents. Vendor agrees that, at the time of termination of this Agreement, Vendor will deliver to Elastic (and will not keep in its possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory notebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the aforementioned items, developed by Vendor in connection with the performance of the Services or otherwise belonging to Elastic, or its successors or assigns.
13. 13. Indemnification.
    1. (a) Vendor Indemnification. Vendor shall defend, indemnify and hold harmless Elastic, and its Affiliates, and each of their officers, directors, employees and agents (herein collectively referred to as "Elastic Indemnified Parties") from and against any and all third party claims, demands, suits, actions and proceedings, including any related liabilities, obligations, losses, damages, judgments, settlements, expenses, (including reasonable attorneys' fees) and costs (collectively "Third Party Claims"), incurred by, borne by or asserted against any of the Elastic Indemnified Parties in any way relating to, arising out of or resulting from: (i) personal injury or damage to tangible property caused by any willfully or intentionally wrongful, or negligent, act or omission of any employee, agent or subcontractor of Vendor relating to this Agreement, (ii) Vendor's failure to perform or improper performance of the provisions of this Agreement and any negligence or willful misconduct of Vendor; or (iii) actual or alleged infringement of any Intellectual Property Rights by the Services, including any Prior Work and Work Product, or any other performance delivered pursuant to this Agreement.
    2. (b) Elastic Indemnification. Elastic shall indemnify and hold harmless Vendor from and against any and all Third Party Claims incurred by, borne by or asserted against Vendor in any way relating to, arising out of or resulting from (i) personal injury or damage to tangible property caused by any willfully or intentionally wrongful, or negligent, act or omission of any employee, agent or subcontractor of Elastic relating to this Agreement and (ii) Elastic's failure to perform or improper performance of the provisions of this Agreement and any negligence or willful misconduct of Elastic.
    3. (c) Conditions. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Third Party Claim, the party to be indemnified (the "Indemnified Party") will notify the other party (the "Indemnifying Party") of such Third Party Claim in writing; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced thereby. The Indemnifying Party will assume the defense and settlement of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party at the Indemnifying Party's sole risk and expense; provided, however, that the Indemnified Party (i) may join in the defense and settlement of such Third Party Claim and employ counsel at its own expense, and (ii) will reasonably cooperate with the Indemnifying Party in the defense and settlement of such Third Party Claim. The Indemnifying Party may settle any Third Party Claim without the Indemnified Party's written consent unless such settlement (A) does not include a release of all covered claims pending against the Indemnified Party; (B) contains an admission of liability or wrongdoing by the Indemnified Party; or (C) imposes any obligations upon the Indemnified Party other than an obligation to stop using any infringing items.
    4. (d) If the Indemnifying Party fails to assume the defense of such Third Party Claim in a timely manner or, having assumed the defense of such Third Party Claim, fails reasonably to contest such Third Party Claim in good faith, the Indemnified Party, without waiving its right to indemnification, may assume the defense, and the Indemnifying Party will reasonably cooperate with the Indemnified Party in the defense and settlement of such Third Party Claim. The Indemnified Party may settle such Third Party Claim without the Indemnifying Party's written consent unless such settlement (i) does not include a release of all covered Third Party Claims; (ii) contains an admission of liability or wrongdoing by the Indemnifying Party; or (iii) imposes any obligations upon the Indemnifying Party other than an obligation to stop using any infringing items. The Indemnifying Party will be liable for all costs and expenses incurred by the Indemnified Party in connection with the defense and settlement of any Third Party Claim pursuant to this Section.
    5. (e) Intellectual Property Remedies. In the event of a claim that is subject to indemnification under Section 12(a) (relating to infringement), and in addition to Vendor's obligations in Section 12, Vendor shall, at its expense, either (a) procure for Elastic the right to continue use of the affected Services, including any Prior Work and Work Product, or any component thereof; (b) replace the affected Services, including any Prior Work and Work Product, with functionally equivalent (including the look and feel) non-infringing products or services; or (c) modify the affected Services, including any Prior Work and Work Product to be non-infringing and functionally equivalent (including the look and feel). If Vendor cannot accomplish any of the foregoing within a reasonable time after using commercially reasonable efforts, then in addition to Vendor's obligations in this Section 12, Elastic may terminate this Agreement for cause and Vendor will refund to Elastic any unused monies pre-paid by Elastic for the Services, including any Prior Work and Work Product, under the applicable SOW.
14. 14. Compliance with Laws. Both parties acknowledge they are aware of, understand, and have complied and will comply with all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act ("FCPA") and the U.K. Bribery Act. You acknowledge that the Elastic Products and technologies related thereto are subject to the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control. You agree to notify us if your Products are controlled under such export control laws and regulations with any classification other than EAR99, prior to making such Products available to us under this Agreement. Each party agrees to comply with all such export control laws and regulations in connection with its performance of this Agreement, and will not export, re-export, otherwise transfer any of the other party's goods, software or technology or disclose any Product or related technology of the other party to any person contrary to such laws or regulations. Each party agrees to provide the other party with necessary information related to the export of its Products as the other party may reasonably request. You acknowledge that remote access to an Elastic Product may in certain circumstances be considered a re-export of such Product, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. Vendor shall not use personnel or resources located in any country subject to trade sanctions imposed or administered by the European Union or US Office of Foreign Assets Control in the course of providing services to Elastic. Vendor to ensure and comply with latest security and privacy documentation, necessary for the service they are providing and shall provide a copy of their latest SOC2 Report or ISO certification to Elastic.
15. 15. Conflicts with this Agreement. Vendor represents and warrants that neither Vendor nor any of Vendor's partners, employees or agents is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Agreement. Vendor represents and warrants that Vendor has not granted and will not grant any rights or licenses to any Prior Work or technology that would conflict with Vendor's obligations under this Agreement. Vendor will not knowingly infringe upon any Prior Work of any former client, employer or third party in the performance of the Services required by this Agreement.
16. 16. Work Product. Elastic owns all interest in all Work Product, together with any Prior Work or a portion thereof is incorporated in a Work Product, Vendor hereby grants to Elastic a non-exclusive, perpetual, royalty free, fully paid up, irrevocable license, with the right to sublicense through multiple tiers, to use, copy, install, perform, display, modify and create derivative works of any such Prior Work in connection with the Work Product in which they are incorporated. The foregoing license does not authorize Elastic to separate Prior Work from the Work Product in which it is incorporated for creating a standalone product for marketing to others. Vendor hereby assigns to Elastic all interest that Vendor has or acquires in the Work Product (including all Prior Work embodied in or practiced by the Work Product). To the extent the preceding sentences in this Section 14 do not provide Elastic with all interest in the Work Product (including all Prior Work embodied in or practiced by the Work Product), Vendor hereby grants Elastic an irrevocable, perpetual, nonexclusive, worldwide, paid-up license to create derivative works based on the Work Product and use, execute, reproduce, display, perform, distribute, make, have made, sell, offer to sell, import, and otherwise dispose of the Work Product and those derivative works, by means of any media or delivery technology now known or hereafter devised, with the right to sublicense and assign to others those rights, to the same extent as if Elastic owned all the Prior Work in the Work Product. Vendor hereby waives (and shall cause all applicable authors to waive) any moral rights (including rights of integrity and attribution) in and with respect to the Work Product. Vendor shall not use the Work Product except to perform Vendor's obligations under this Agreement. Vendor shall promptly disclose to Elastic all Work Product, and shall take all actions reasonably requested by Elastic (including the execution, acknowledgment, and delivery of documents) to effect, perfect, or evidence Elastic's ownership rights in the Work Product (including the Prior Work embodied in or practiced by the Work Product) and to confirm the assignments stated in this Section.
17. 17. Insurance. During the Term of this Agreement, Vendor will maintain in full force and effect: (a) commercial general liability insurance (or equivalent third party liability insurance) covering bodily injury and property damage, with limits of at least USD $1,000,000 per occurrence and USD $2,000,000 in the aggregate, or the equivalent in local currency; (b) worker's compensation and employer's liability insurance with the statutory limits (if applicable in the jurisdiction) or compliance with any compulsory workplace injury social scheme or government program; and (c) professional liability insurance (or the equivalent, if available in the local market), with limits of at least USD $1,000,000 per occurrence and USD $5,000,000 in the aggregate, or the equivalent in local currency. Vendor will maintain all such insurance with reputable carriers. Upon Elastic's written request, Vendor shall provide Elastic with evidence of insurance. Furthermore, Vendor shall provide at least thirty (30) days' written notice to Elastic prior to any cancellation, reduction or material change in coverage.
18. 18. Limitation of Liability.
    1. (a) Excluded Damages. IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. (b) Damages Cap. EXCEPT WITH RESPECT TO (I) A PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 9 (II) VENDOR'S OBLIGATIONS UNDER SECTION 10, AND (III) VENDOR'S OBLIGATION UNDER SECTION 12, IN NO EVENT SHALL EITHER PARTY'S TOTAL, CUMULATIVE LIABILITY UNDER ANY ORDERING DOCUMENT EXCEED THE AMOUNT PAID OR PAYABLE BY ELATISTIC TO VENDOR UNDER THIS AGREEMENT FOR THE AFFECTED PRODUCTS, SUPPORT SERVICES, AND/OR SERVICES DELIVERED AND/OR MADE AVAILABLE TO ELASTIC UNDER SUCH ORDERING DOCUMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY.
19. 19. Elastic Code of Conduct. The Vendor agrees to comply with Elastic's Vendor Code of Conduct located at https://www.elastic.co/pdf/elastic-global-vendor-code-of-conduct.pdf, or has adopted and will comply with its own code of conduct that embodies the principles of Elastic's Vendor Code of Conduct.
20. 20. Miscellaneous.
    1. (a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties.
    2. (b) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
    3. (c) Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without regards to any conflict or choice of law principles. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the federal or state courts located in Santa Clara County, California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
       
       For Vendors located outside the USA, this Agreement shall be construed and enforced in accordance with the laws of The Netherlands, without regards to any conflict or choice of law principles. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the competent courts located in Amsterdam, The Netherlands, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding.
    4. (d) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, 48 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or facsimile number as set forth below, or as subsequently modified by written notice, with an email copy to legal@elastic.co.
    5. (e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
    6. (f) Successors and Assigns. Vendor may not assign this Agreement without the prior written consent of Elastic. This Agreement will be binding upon each party's permitted successors and assigns.
    7. (g) Survival. The following Sections shall survive the expiration or termination of this Agreement: Sections 6(c), 6(d), 9, and 10 - 16 of this Agreement); and any other provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, and any other provision that by its nature may reasonably be presumed to survive any termination or expiration of this Agreement.
    8. (h) Force Majeure. Notwithstanding anything in the Agreement to the contrary, neither party will be liable for any failure or delay in performing an obligation under the Agreement due to any cause beyond its reasonable control, including any acts of God, accident, riots, war, terrorist act, actual or potential threat to public health applicable to a group or groups of people (including without limitation, epidemic and pandemic (e.g., COVID-19), whether or not new, ongoing or recurring), quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, or national strikes ("Force Majeure Event"). Should either party cancel or postpone the Services due to a Force Majeure Event, Vendor shall refund to Elastic, upon Elastic's written request, all amounts paid under the Agreement with respect to such Services, and Elastic shall have no further payment obligations under the Agreement.
    9. (i) Trademarks. Any rights transferred, or license(s) granted in the Agreement, to Vendor with respect to Elastic's trademarks, service marks, trade names, logos, brands and related or similar identifying marks (the "Logos"), are hereby deleted from the Agreement and shall have no force or effect. To the extent the Agreement includes any licenses in favor of Vendor with respect to the Logos, Elastic hereby grants to Vendor, a limited, revocable, non-exclusive, non-transferrable, license, without right of sublicense, to use the Logos during the term of the Agreement solely to identify Elastic as a sponsor of the Event. Vendor will only use such Logos as permitted by Elastic in writing. Except as specifically set forth in the preceding sentences, Vendor will not acquire rights to and/or any interest in the Logos or in any other intellectual property owned by Elastic or its Affiliates. All goodwill arising from Vendor's use of the Logos shall inure to Elastic.
    10. (j) Entire Agreement. This Agreement, together with the Exhibits and any Ordering Document or SOW referencing this Agreement, is the entire agreement between the parties with respect to the subject matter hereof and no alteration, modification or interpretation hereof shall be binding unless in writing and signed by the parties hereto. Any prior understandings and agreements between the parties regarding such subject matter are merged herein and superseded hereby. In the event of any conflict between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) this Agreement, (ii) an applicable Addendum (including any exhibits, attachments and addenda thereto), and (ii) an applicable Ordering Document or SOW (but only for the transaction thereunder).