MASTER SERVICES AGREEMENT

Emerald X, LLC dba Elastic Suite (“Elastic Suite“) provides Services (defined below) subject to this Master Services Agreement available here at Elasticsuite.com/MSA (“Agreement”). The effective date (“Effective Date“) of this Agreement is the earlier of the date you (“Customer“) enters into this Agreement and the date Customer first accesses the Services.

1. Definitions.  For purposes of this Agreement, the terms listed below shall have the following meanings:

    

   • “Affiliate” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.
   • “Cloud Software” means cloud-based Software-as-a-Service and Hosting Services, individually and collectively.
   • “Confidential Information” means with respect to either Party, any information disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, on or after the Effective Date of this Agreement, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information, including without limitation materials or information related to requests for proposal, quotes, or  Elastic Suite’s Software and Services. If the Receiving Party agrees to receive any personally identifiable information from the Disclosing Party, such information shall be considered Confidential Information of the Disclosing Party. Notwithstanding the foregoing, if the Parties entered into a confidentiality/non-disclosure agreement prior to the Effective Date, the information disclosed under such agreement shall be deemed to be Confidential Information hereunder.
   • “Content” means the data provided by Customer to use a Service.
   • “Data Protection Laws” means any and all applicable laws, statutes, directives, regulations or ordinances in any relevant jurisdiction relating to privacy, security, and the collection, protection, processing or usage of Personal Information.
   • “Deliverable” means any deliverable created or developed by Elastic Suite for Customer pursuant to an applicable SOW.
   • “Documentation” means the applicable specifications and user documentation accompanying Services or Software.
   • “Hosting Services” means the hosting environment, including the infrastructure and operating environment, provided by Elastic Suite enabling Customer to access Software that will not be delivered via SaaS.
   • “Losses” means costs, damages, expenses, or liabilities.
   • “Network Connectivity” means those services that: (a) enable or facilitate phone calls or other means of communication or data transmission; (b) provide a connection to the internet; or (c) constitute colocation services.  Network Connectivity may also include fixed, defined, or dedicated communications routes for voice or data transmission between the hosting environment and Customer’s data center, office, individual stations, phones, or other devices.
   • “Party” means either Elastic Suite or Customer, individually as the context indicates; and “Parties” means Elastic Suite and Customer, collectively.
   • “Personal Information” means (i) any information relating to an identified or identifiable natural person; and/or (ii) any information that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal Information shall not include information or data that is anonymized, de-identified and aggregated so that it does not identify a specific person.
   • “Professional Service(s)” means consulting, installation, implementation, and training services to be provided by Elastic Suite pursuant to an SOW.
   • “Service(s)” means the Cloud Software, Professional Services, Software or other services to be provided by Elastic Suite pursuant to an SOW.
   • “Software” means software owned by Elastic Suite and used to support the SaaS services.   All references in this Agreement to purchases of Software are intended by the Parties to mean purchases of licenses to Software.
   • “Software-as-a-Service” or “SaaS” means a subscription-based service consisting of the ability to use, and receive support in connection with, Elastic Suite licensed Software in the hosting environment as described in an SOW.
   • “Statement of Work” or “SOW” means a document executed by the Parties pursuant to this Agreement, which outlines the subscription period, quantities, applicable charges, description and other terms of the Elastic Suite services and licenses, including documents previous defined as Order Form prior to January 1, 2024.
   • “Subscription Term” means the term described in the applicable SOW.
2. Ordering Procedure. Customer and its Affiliates may purchase Services by entering into an SOW with Elastic Suite or its Affiliates, as applicable. All Services ordered under a SOW shall be governed by the terms of this Agreement. Customer will ensure that all employees and Affiliate of Customer complies with the terms of this Agreement and any applicable SOWs, including but not limited to obligations regarding the payment of all fees due thereunder. Customer and any Customer Affiliate that purchases Services under this Agreement shall be jointly and severally liable for any breach of this Agreement by any Customer Affiliate.

    

3. Change Control. At any time prior to acceptance of a Deliverable, the Customer may request a modification to such Deliverable. Such request shall be in writing (email acceptable with written confirmation of receipt) and shall describe in reasonable detail the requested modification. Within five (5) Business Days of receipt of such written notice, Elastic Suite shall provide to the Customer an amended SOW, reflecting the change and any resulting changes to fees.a. If the amended SOW is agreed, the parties’ authorized representatives execute such the amended SOW, and it shall be deemed to be incorporated into the original SOW.

   b. If the parties fail to agree on the SOW, Elastic Suite shall be entitled to proceed with the Services in accordance with the original SOW.
    

4. Acceptance Process. Once a Deliverable is submitted to CUSTOMER’s Project Manager, the Customer Project Manager has five (5) Business Days to accept or reject such Deliverable. If Customer does not respond in writing by the end of the fifth (5th) Business Day after initial submission, the Deliverable will be deemed accepted. If Customer rejects a Deliverable, Customer shall, at the time of rejection, provide an explanation of why such Deliverable was not accepted.  Elastic Suite shall then, without any additional charge to CUSTOMER, address any issues and resubmit such Deliverable and the applicable Deliverable to Customer for approval and Customer shall then approve or reject such Deliverable.

    

5. License and Access Right. Subject to Customer’s payment of the applicable fees, during the applicable Service Terms, Elastic Suite will provide Customer with the Services described in one or more SOWs on a subscription basis. Subject to the terms and conditions herein, Customer has a nonexclusive, non-sublicensable, non-transferrable,  royalty-free license to (i) access and execute Elastic Suite Cloud Software on Elastic Suite’s application server over the Internet, and (ii) transmit data related to Customer’s use of the Cloud Software over the Internet.  Products supplied may be a proprietary product of Elastic Suite or other party, whose product Elastic Suite is licensed or authorized to provide to Customer. Elastic Suite expressly reserves all rights not expressly granted to Customer herein, including but not limited any background IP rights and beta products.  Customer acknowledges and agrees that in order to provide the Cloud Services, Elastic Suite may engage subprocessors, including for the purpose of providing the Hosting Services or processing Customer data.a. Subject to the restrictions on use as set forth herein, Customer will have access to the Software and Elastic Suite’s application server solely for the purpose of using the Software for its intended purpose and in accordance with all applicable laws and the specifications set forth in any documentation relating to the Software provided by Elastic Suite.

   b. Customer will use the Software only for its internal business operations and will not permit the Software to be used by or for the benefit of any third party other than Customer or Customer’s Affiliates, as described in the Other than to its Affiliates, Customer will not have the right to transfer or assign rights to access or use the Software, except as expressly provided herein.

   c. Customer will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users, or (iii) permit access to the Software through a single identification or password code being made available to multiple users on a network.

   d. Where any Affiliate of Customer uses the Software for its internal business purposes during the Term, Customer will ensure that each Affiliate complies with the applicable terms of this Agreement and all use of the Software by Affiliate will be deemed to be use by the Customer.

   e. Customer shall not: (a) publish, disclose, copy, rent, lease, modify, loan, distribute, sell, resell, transfer, assign, alter or create derivative works based on the Services or Software or any part thereof; (b) reverse engineer, decompile, translate, adapt, or disassemble the Services or Software including to: (i) build or create a competitive product or service, and (ii) build or create a product or services using similar ideas, features, functions or graphics of the  Services or Software, nor shall Customer attempt to create the source code from the object code for the Software; (c) permit any third party to access the Services or Software  except as expressly permitted herein or under an SOW; or (d) create any unauthorized Internet “links” to the Software or “frame” or “mirror” any content of the Software.

   f. Customer is solely responsible for monitoring its use of the Services or Software for possible unlawful or fraudulent usage, and shall notify Elastic Suite immediately if it becomes aware or has reason to believe that the Services or Software are being fraudulently used. Customer acknowledges and agrees that its failure to notify Elastic Suite may result in the suspension of Customer’s right to use and access the Services or Software.

   e. Elastic Suite may modify the Software from time to time, but shall use commercially reasonable efforts not to modify the Software in a way that will result in a material reduction in the quality or functionality thereof, except (i) where required by applicable law, (ii) where such reduction was reasonably necessary for the integrity or security of the Software or any data contained therein or processed thereby, or (iii) where such reduction was reasonably necessary to avoid third-party liability.

    

6. Invoicing, Payment Terms, and Taxes.

   a. Elastic Suite shall invoice Customer as described in each SOW. Customer shall reimburse Elastic Suite for preapproved expenses associated with Professional Services (e.g., travel expenses) in accordance with Elastic Suite’s travel and expense policy and such expenses shall be invoiced monthly in arrears. Customer shall pay to Elastic Suite all fees or other costs due hereunder in the currency stated in the invoice in U.S. Dollars (or another denomination if stated in an SOW), and upon receipt of Elastic Suite’s invoice, unless otherwise stated in a SOW.  With respect to any amount due to Elastic Suite which is not paid within thirty (30) days following the due date of Elastic Suite’s invoice, Elastic Suite may apply interest at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment.  Without waiving any of its rights or remedies under the Agreement or at law, Elastic Suite reserves the right to suspend delivery of or access to Software or performance of Services until any amounts that are outstanding and past due are paid in full by Customer.  In limited circumstances, Elastic Suite may, in its sole discretion, accept a Customer purchase order for certain Services.  Customer purchase orders, if any, are provided for Customer’s administrative purposes only, and any preprinted terms on Customer purchase order will not add to, modify, or have any effect on the terms of this Agreement.

   b. Customer shall, in addition to the other amounts payable under this Agreement, bear and pay all sales and other taxes, federal, state or otherwise, however designated that are levied or imposed by reason of the transactions contemplated hereunder, but excluding taxes on Elastic Suite’s income.  Without limiting the foregoing, if any such taxes are imposed upon and paid by Elastic Suite, Customer shall reimburse Elastic Suite within thirty (30) days of receipt of an invoice from Elastic Suite for such amount.  If, at any time, Customer claims that its purchase of Software or Services hereunder is exempt from any taxes, it shall be Customer’s responsibility to provide Elastic Suite with the appropriate tax exemption certificate(s).  In the absence of valid proof of exemption, Elastic Suite reserves the right to charge Customer for, and Customer agrees to pay, the applicable taxes.

7. Term and Termination.
   
   a. This Agreement shall commence on the Effective Date and continue until terminated in accordance with this Section 7 (the “Term”). Unless otherwise provided herein or in an SOW, the termination of this Agreement will not operate to terminate any existing SOWs, and the terms of this Agreement shall continue to govern such SOWs until completion or the earlier termination of such SOWs in accordance with this Agreement.

    

   b. In the event that the Parties elect not to enter into a new SOW at the expiration of any existing SOW, such SOW will automatically renew for successive one (1) year periods and shall include an increase of annual fees of 8%, unless either Party gives the other Party at least ninety (90) days written notice of termination prior to expiration of the then current term.

   c. Either Party may terminate this Agreement or an SOW for material breach, upon written notice to the other Party setting forth the circumstances giving rise to a material breach and the effective date of termination, if the other Party fails to cure a material breach of this Agreement or an SOW, respectively, within thirty (30) days after receiving such notice.

   d. This Agreement will terminate, effective upon delivery of written notice by either Party to the other Party: (a) upon the institution of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of debts of the other Party; (b) upon the making of an assignment for the benefit of creditors by the other Party; or (c) upon the dissolution of the other Party.

8. Ownership.

   
   a. No title or ownership of the Services or Software shall be transferred to Customer by way of this Agreement or the applicable Elastic Suite has sole right to and ownership of, all intellectual property rights in and to: (a) the Services, Software and Documentation, and all modifications, enhancements, improvements, adaptations, translations thereof; (b) the trademarks, service marks, and trade names associated with the Services or Software; (c) Benchmark Data; and (d) all other Elastic Suite supplied material developed for use in connection with the Services or Software generally, exclusive of the Content. 

   b. The Services and Software contain material that is protected by United States and international copyright law and trade secret law, and by international treaty provisions. All rights not expressly granted to Customer herein are reserved to Elastic Suite. Customer shall not remove any proprietary notice of Elastic Suite from any copy of the Software.  Customer may make a reasonable number of copies of the Documentation, provided such reproductions shall include any copyright or proprietary labels, legends or notices placed upon or included in the Documentation by Elastic Suite. 

   c. Customer has sole ownership of the Content, including all intellectual property rights related thereto. Elastic Suite is not responsible for validating the Content for accuracy, correctness or usability. Customer grants to Elastic Suite a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy, store and display the Content to provide the Services to Customer, and for the purpose of improving and enhancing the overall user experience of the Services. Customer acknowledges and consents that Elastic Suite may share the Content with its Affiliates. Elastic Suite will not sell, rent, or lease Content to others.

   d. Elastic Suite may collect and aggregate anonymous data about use of the Services by Customer for purposes of improving Elastic Suite’s services, including research and marketing (“Benchmark Data”).  Elastic Suite will ensure that its collection and use of Benchmark Data will not include any personally identifiable information or information confidential to Customer.  Elastic Suite shall own all Benchmark Data.

   e. Customer grants to Elastic Suite a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into Elastic Suite’s services any suggestions, recommendations or other feedback specifically relating to the services as Customer may elect in its discretion to provide,  provided that any such feedback shall be treated as Confidential Information under this Agreement.

    

9. Warranties.

   a. Elastic Suite Warranties for Software. During the Subscription Term, Elastic Suite warrants to Customer that: (a) Elastic Suite is the owner of, and has the right to supply, the Software; and (b) the Software does not contain any virus, Trojan horse, or other similar code knowingly introduced by Elastic Suite. Customer’s sole and exclusive remedies and Elastic Suite’s sole obligations for Elastic Suite’s breach of the warranty in this Section are as follows: (i) for a breach of the warranty in this Section 9.a, the indemnity in Section 7 of the Agreement; and (ii) for a breach of the warranty in this Section 9.a, the prompt removal by Elastic Suite of any such virus or disabling code at Elastic Suite’s sole cost and expense.

   b. Elastic Suite Warranty for Professional Services. Elastic Suite warrants that Professional Services will be performed in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices prevailing. Customer’s sole and exclusive remedy and Elastic Suite’s sole obligation for Elastic Suite’s breach of the warranty in this Section is Elastic Suite’s reperformance of the non-conforming Professional Services, provided that Customer notifies Elastic Suite of a non-conformity in this Section during the thirty (30) day period following Elastic Suite’s completion of the applicable Professional Services.

   c. .Elastic Suite’s Disclaimer of Warranties.       EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR A SOW, (a) NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY ELASTIC SUITE TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED; AND (b) ELASTIC SUITE DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, ELASTIC SUITE’S EFFORTS OR ANY SOFTWARE OR SERVICES PROVIDED BY ELASTIC SUITE OR ANY INFRASTRUCTURE PROVIDER  WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR DOES ELASTIC SUITE WARRANT THAT THE OPERATION OF THE SOFTWARE OR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

   d. Customer Warranties. Customer warrants to Elastic Suite that: (a) Customer is the owner or authorized licensee of the Content, and has secured all necessary licenses, consents, authorizations and waivers for the use of the Content; (b) the Content and Customer’s use of the Software at all times complies with the terms of the Agreement and SOWs as applicable; (c) Customer and its Affiliates, agents and data providers have all of the necessary rights and permissions under all applicable laws, regulations and industry guidelines for the disclosure and use of Elastic Suite Software and Services and (d) Customer shall not use the facilities or capabilities of the Software to conduct any illegal activity or engage in any other activity which infringes upon the rights of Elastic Suite or any third party. If Customer breaches any of the warranties contained in this Section, Elastic Suite may, in addition to any other rights it may have in law or equity, exercise its right to suspend Customer’s access to the Software.

    

10. Confidential Information.

    a. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own proprietary information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party and shall not use or reproduce in any form the Disclosing Party’s Confidential Information, except as required to exercise its rights and discharge its responsibilities set forth in this Agreement.  The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.

    b. Customer acknowledges that the Software and other data on Elastic Suite’s application server embodies user interface (UI), logic, design and coding methodology that constitute valuable confidential information that is proprietary to Elastic Suite and the restrictions on such confidential information shall survive the termination of this Agreement. Customer will safeguard the right to access the Software and other software installed on Elastic Suite’s application server using the same standard of care that Customer uses for its own confidential materials.

    c. The term “Confidential Information” does not include any information as to which the Receiving Party is able to demonstrate: (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b) was already known by the Receiving Party prior to the time of disclosure under this Agreement; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party’s Confidential Information.

    d. The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to: (a) its and its Affiliates’ officers, directors, employees, consultants, and subcontractors who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement; and (b) external auditors and legal advisors (collectively, “Representatives”). The Receiving Party’s disclosure of the Disclosing Party’s Confidential Information to its Representatives shall not require the prior written consent of the Disclosing Party, however, prior to any such disclosures, the Receiving Party will inform the Representatives of the confidential nature of the Disclosing Party’s Confidential Information and the non-disclosure requirements and limitations on use set forth herein. The Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Section 10 and to prevent any unauthorized disclosure of the Disclosing Party’s Confidential Information by any of them.  The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.

    e. Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to an SOW made pursuant to applicable law, regulation or legal process, provided that: (a) to the extent permitted under applicable law, the Receiving Party gives the Disclosing Party prompt written notice of such SOW so that the Disclosing Party has an opportunity to seek a protective SOW, confidential treatment, or other appropriate remedy to such SOW; (b) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective SOW or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority, subject to any protective SOW or confidential treatment obtained by the Disclosing Party.

    f. Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party will irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from monetary damages alone in an action at law.  Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party.

    g. Upon the written request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party such of its Confidential Information (and all copies thereof) as the Disclosing Party may request, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and (b) cease all further use of such Confidential Information.

     

11. Indemnification.

    a. Elastic Suite Indemnification of Customer. Elastic Suite shall indemnify, defend, and hold harmless Customer from and against any Losses resulting from or arising out of a Third Party Claim (“Claims) against Customer to the extent that such Claim alleges the infringement of such third party’s U.S. patent or copyright by the Software. The foregoing indemnity shall not apply if the infringement arises out of: (a) specifications or designs furnished by Customer and implemented by Elastic Suite at Customer’s request; (b) the Services or Software being modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device, data, software or service not supplied or approved by Elastic Suite in writing; (c) the modification to Services or Software by any person or entity other than Elastic Suite; or (d) use of Services or Software other than in accordance with its Documentation.

    b. If a Claim for which Customer is entitled to be indemnified under Section 11.a above has occurred, or in Elastic Suite’s opinion is likely to occur, Elastic Suite shall, at Elastic Suite’s expense, do one of the following: (a) procure for Customer the right to continue using the affected Services or Software; (b) replace with non-infringing alternates or modify the relevant Services or Software so that it becomes non-infringing but its functionality after modification is substantially equivalent; (c) accept the return of the affected Software, and refund to Customer the fees for the affected Software  amortized by an equal annual amount over the period beginning from the date of Acceptance of the affected Software; or (d) cease providing the Services and refund any prepaid fees applicable to the period after the Services has ceased.  The collective obligations of Elastic Suite pursuant to Section 7.1 and this Section 7.2 state the sole and exclusive liability of Elastic Suite, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.   

    c. Customer Indemnification of Elastic Suite. Customer shall indemnify, defend, and hold harmless Elastic Suite from and against any Losses resulting from or arising out of any Third Party claim (“Claim”) brought against Elastic Suite alleging Customer’s violation of any and all applicable laws in connection with Customer’s use of the Content, Services or Software.

    d. Indemnification Procedure. Promptly after a Party obtains knowledge of the existence or commencement of a Claim for which it is entitled to be indemnified under Section 11  above (the “Indemnified Party”),  the Indemnified Party will notify the other Party (the “Indemnifying Party”) of such 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 or liability increased thereby.  The Indemnifying Party will have exclusive control of the defense and settlement of such Claim; provided, however, that the Indemnified Party may join in the defense and settlement of such Claim and employ counsel at its own expense, and will reasonably cooperate with the Indemnifying Party in the defense and settlement of such Claim.  The Indemnifying Party may settle any 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 cease using any infringing items.

     

12. Limitation of Liability.

    IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

    ELASTIC SUITE’S TOTAL LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT TO CUSTOMER OR ANY OTHER PERSON WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO ELASTIC SUITE DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OR ACT OR OMISSION GIVING RISE TO THE CLAIM.

13. Notices.  With respect to notices permitted or required under this Agreement related to the following matters, such notices must be in writing and delivered by personal delivery, by registered or certified mail (return receipt requested), or by internationally recognized overnight delivery service: (a) notices of breach; (b) notices of termination; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given: (i) on the date of delivery when delivered personally, (ii) one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service, and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in Sections 10(a) through 10(c) may also be delivered by email, and will be deemed given upon personal reply acknowledging receipt.  Notices will be sent to the addresses below or to such other address as either Party may specify in writing.

     

14. General Provisions.

    a. Elastic Suite may assign, subcontract, or otherwise transfer any of its rights or obligations under this Agreement. Customer shall not assign, sublicense or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement (including its license with respect to the Applications) to any third party without Elastic Suite’s prior written consent, which consent will not be unreasonably withheld or delayed; provided, however, that Customer may assign this Agreement pursuant to a transfer of all or substantially all of CUSTOMER’s business and assets, whether by merger, sale of assets, sale of stock or otherwise, provided that such transferee assumes and agrees in writing to be bound to the terms and conditions of this Agreement. In the event of such assignment, Customer will provide Elastic Suite with 30 days prior written notice thereof. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns.

    b. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other Party for any purpose. This Agreement shall not be construed as creating or implying and agency relationship, joint venture or partnership between the Parties.

    c. Force Majeure. If and to the extent that a party’s (the “Hindered Party”) performance of any of its obligations under this Agreement is prevented, hindered, or delayed by fire, flood, earthquake, elements of nature or acts of God, pandemic or epidemic, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, acts of any Governmental Authority, strikes, lockouts, labor disputes, communication delays or failures, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, market disruptions, or any other cause beyond the reasonable control of the Hindered Party (each, a “Force Majeure Event”), and such non-performance, hindrance, or delay could not have been prevented by reasonable precautions, then the Hindered Party will be excused for such non-performance, hindrance, or delay of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues, on condition that the Hindered Party must continue to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans, or other means. The Hindered Party shall promptly notify the other Party of the occurrence of any Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. The occurrence of a Force Majeure Event does not excuse, limit, or otherwise affect CUSTOMER’s obligation to pay any fees payable to Elastic Suite.

    d. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.

    e. Each Party shall perform its obligations in a manner that complies with all applicable laws and regulations, compliance with which is required of such Party or for which such Party is responsible hereunder.

    f. The Software may be subject to export laws and regulations of the U.S. and other jurisdictions, and Customer shall comply with all applicable export and import control laws and regulations. Customer shall not permit access to, or use of, the Software by a person or in a country embargoed by, or in violation of, any applicable export laws or regulation.

    g. No provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to, or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.

    h. Any dispute, claim, or controversy between the parties arising out of or relating to this Agreement or the performance of the Software, whether in contract, tort, or otherwise, and the parties’ rights, remedies, and obligations under this Agreement, are to be construed in accordance with and governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without giving effect to the State of New York’s conflict of laws rules. To the extent that any claim or dispute proceeds in court rather than in arbitration, Customer hereby submits to the jurisdiction of the federal and state courts located in New York County, NY, and waives all objections to venue or inconvenient forum, and any right to assert lack of personal jurisdiction.

    i. Any and all disputes or claims arising out of or relating in any way to this Agreement, the Software, and/or representations made by Elastic Suite will be resolved in binding arbitration by a single neutral arbitrator, rather than in court. This includes any disputes or claims concerning any prior agreement between the same parties or affiliated parties. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court and must follow and enforce the Agreement as a court would. Arbitrations will be conducted by the American Arbitration Association (AAA) pursuant to its Commercial Arbitration Rules, which are available at www.adr.org. If Customer commences an arbitration, Customer will be responsible for filing fees and arbitrators’ fees as set forth in the AAA rules. To commence an arbitration, Customer must send written notice to Elastic Suite attn.: Legal Department, 100 Broadway, 14th Floor, New York, NY 10005, and to the AAA, fully describing any and all claims. If Elastic Suite commences arbitration against CUSTOMER, Elastic Suite will be responsible for filing fees and may provide written notice to Customer at any physical or email address Customer provided in connection with this Agreement. If an in-person hearing is required by the AAA rules or the arbitrator, the hearing will take place in New York County, NY, except as otherwise agreed by the parties or ordered by the arbitrator. An arbitration award may be enforced by any court with competent jurisdiction. Any and all proceedings to resolve claims or disputes will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration the parties waive any right to a jury trial. This section shall survive any termination of this Agreement.

    j. In the event of any conflict or inconsistency between the terms of: (a) this Agreement and any SOW, the terms of the Agreement shall prevail; except to the extent that an SOW specifically states that specified terms in the SOW supersede specified terms in the Agreement, in which case such superseding terms will apply only to that SOW; and (b) any two SOWs, the terms of the SOW with the most recent date shall prevail. The Parties agree that if a URL contained in this Agreement does not work or has stopped working, it will notify the other party and Elastic Suite will then repair or create a new URL to replace the URL.

    k. Marketing Cooperation. Customer agrees to allow Elastic Suite to use CUSTOMER’s name and logo in its marketing materials, including but not limited to, Elastic Suite’s website, press releases, advertisements etc. Elastic Suite will provide copies of all marketing material to Customer prior to any distribution or publication of materials.  Customer shall have the right to modify and approve any such materials prior to their use. Such approval shall not be unreasonably withheld.

    l. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement. 

    m. This Agreement, any SOWs executed hereunder represent the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede any other agreement or understanding, written or oral, that the Parties may have had with respect thereto. No provision of this Agreement may be modified or amended except by a written instrument duly executed by each of the Parties.