ELASTIFILE TERMS OF SERVICE AGREEMENT

Effective: August 7, 2018

Last Revised: September 20, 2018

Version: 1.1

PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS (TOGETHER WITH ANY EXHIBITS AND/OR ORDER FORM(S) ATTACHED HERETO AND THE PROVISIONS OF THE PRIVACY POLICY AVAILABLE AT
[https://www.elastifile.com/privacy-policy], COLLECTIVELY THE “AGREEMENT”) BEFORE DOWNLOADING, INSTALLING OR USING THE ELASTIFILE SOLUTION (AS SUCH TERM IS DEFINED). BY CHOOSING “I ACCEPT” (OR ANY SIMILAR BUTTON WHICH INDICATE YOUR CONSENT TO THIS AGREEMENT), OR OTHERWISE BY INSTALLING, HAVING INSTALLED, OR USING THE SOLUTION, CUSTOMER (AS DEFINED BELOW) IS ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU MAY NOT AND WILL NOT BE ABLE TO INSTALL THE SOLUTION UNTIL YOU HAVE ACCEPTED THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, PLEASE EXIT THE INSTALLATION PROCESS AND THE INSTALLATION PROCESS WILL NOT BEGIN. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE MANDATORY LAW.

THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOLUTION AND ITS USE, BETWEEN THE PARTY EXECUTING THE ORDER FORM (THE “CUSTOMER”) AND ELASTIFILE INC. (“ELASTIFILE”), AS OF THE EFFECTIVE DATE STATED IN THE ORDER FORM, AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. CUSTOMER WILL HAVE THE RIGHTS SET FORTH BELOW FOR SO LONG AS CUSTOMER COMPLIES WITH THE TERMS OF THIS AGREEMENT.

YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOLUTION FOR THE PURPOSE IT IS INTENDED FOR AS DESCRIBED IN THE DOCUMENTATION (DEFINED BELOW) AND FOR YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOLUTION.

 

1 DEFINITIONS.

1.1 “Affiliate” means any entity which controls, is controlled or is under common control with either of the parties. Any entity shall be deemed to “control” another entity if it owns directly or indirectly more than 50% of the outstanding voting securities or capital of other entity or other comparable equity with respect to an entity other than a company.

1.2 “Authorized Server” means any cloud instances and/or storage devices capable of running the Solution, in each case, pre-approved in writing by Elastifile.

1.3 “Documentation” means the instructions, user guides, manuals and release notes provided by Elastifile, at any time, in printed and electronic form, that describe the installation, operation, use or technical specifications of the Solution.

1.4 “Order Form” means Elastifile’s standard order form for purchasing Subscriptions.

1.5 “New Version” means any new version of the Solution as defined and numbered by Elastifile, that Elastifile may from time to time introduce and market generally as a licensed product distinct from the Solution, and which Elastifile may make available to the Customer.

1.6 “Solution” means the Elastifile cloud filing system software solution identified in the Order Form, and all Updates thereto. For the purpose of this Agreement the term “Solution” shall include any related Documentation subscribed by Customer as identified in the Order Form.

1.7 “Updates” means any unspecified updates, service patches, or releases made to the Solution from time to time which may enhance or improve on existing features, or functions, modules, and technology which are generally made available by Elastifile to its customers at no additional costs. These Updates may contain, among other things, error corrections, bug-fixes, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Solution, and excludes New Versions and/or Upgrades.

1.8 “Upgrades” any New Version, service patches, or releases which involve the addition of new features and/or new capabilities beyond the scope of the features and/or capabilities of the Solution identified in the Order Form and provided on the Effective Date.

1.9 “User” means an individual and its Affiliates’ employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer to use the Solution according to the terms and conditions of this Agreement.

 

2 RIGHTS AND REQUIRMENTS RELATED TO THE SOLUTION

2.1 The type and scope of subscription to use the Solution by Customer will be determined in the Order Form (the “Subscription”) and shall include the storage capacity that Customer shall be entitled to deploy in connection with the Solution (“Storage Capacity”), and the term of the Subscription (the “Term”). If Customer wishes to add Storage Capacity or to extend the Term, purchase of an additional Subscription is required. Any deployment in excess of the Storage Capacity subscribed under the applicable Order Form may incur additional charges and/or require Customer’s purchase of additional Subscription, all as detailed in the Order Form.

2.2 Subject to payment of the fees under a valid Order Form, the activation, installation and use of the Solution shall be enabled remotely on Authorized Servers following the download of the Solution. If an Authorized Server becomes non-operable, the Solution may be installed on a substitute Authorized Server.

2.3 Software Minimum Requirements. The Customer acknowledges and agrees that the use of the Solution may require compatible public cloud infrastructure, hardware, internet access, and certain software as further detailed in the Elastifile ECFS Deployments Guides, available at [https://support.elastifile.com/support/solutions/folders/42000098604](“ ECFS Deployment Guides”). The ECFS Deployment Guides may change from time, to Elastifile’s sole discretion, however Elastifile shall not make changes to the ECFS Deployment Guides which materially adversely impact the Customer’s ability to use the Solution as on the Effective Date. Notice of any changes to the ECFS Deployment Guides shall be provided by Elastifile. Due to the fact that the use of the Solution involves hardware, software, and internet access, as applicable, Customer’s ability to use the Solution may be affected by the performance of these factors. Customer acknowledges and agrees that such adhering to and implementing such requirements are Customer’s sole responsibility.

2.4 Verification and Reporting. At Elastifile’s written request, which shall be no more than once in each three (3) month period, Customer shall provide Elastifile with a signed statement: (a) verifying that the Solution and Documentation are being used pursuant to the provisions of this Agreement; and (b) identifying Authorized Servers on which the Solution is installed and running. At Elastifile’s written request and at a mutually agreed time, which shall be no more than once in each three (3) month period, Customer shall grant Elastifile access to Customer’s sites and/or Authorized Serves(s) in order to audit the use of the Solution. Such audit shall be conducted during Customer’s regular business hours and without impairing Customer’s business operations. If such audit establishes that Customer has used the Solution beyond the deployment permitted in this Agreement and in applicable Order Form(s), Elastifile reserves the right to charge Customer for the costs of performing the audit in addition to 125% of the standard list price for such additional use of the Solution.

2.5 Updates and New Versions. From time to time, Elastifile may offer Customer Updates or New Versions of the Solution. Customer acknowledges that when migrating to a New Version certain technical errors may arise. Elastifile will use reasonable efforts to rectify the errors as soon as reasonably possible.

 

3 ACCESS AND USE OF THE SOLUTION

3.1 Subject to the terms and conditions of this Agreement and Customer’s compliance herewith, including, payment of the applicable fees under a valid Order Form, Elastifile hereby grants Customer a revocable, nonexclusive, nontransferable, non-sublicensable, limited right during the Term, to access and use, and allow its Users to access and use, the Solution, solely for Customer’s internal business purposes, and use the Solution in machine-readable, object code form only, all in accordance with the terms and conditions set forth in this Agreement and the Order Form. The foregoing rights are limited to the type of Subscription set forth on the applicable Order Form(s).

3.2 Elastifile may make available Documentation to Customer for its internal business purposes and solely in connection with the use of the Solution during the Term. Customer may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered as Elastifile’s confidential information. Unless the Documentation is separately referred to herein, all references in this Agreement to the Solution shall include the Documentation.

3.3 Any rights not explicitly granted herein are reserved. This Agreement only gives the Customer limited rights to use the Solution as explicitly set forth in this Agreement. Elastifile reserves all other rights. Customer may use the Solution only as expressly permitted in this Agreement except if otherwise required under applicable law. Customer must comply with all technical protections in the Solution that only allow Customer to use it in certain ways.

3.4 Customer will not, and will not permit others to: (i) work around any limitations or technical protections in the Solution; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) the Solution and/or any part thereof, or create any derivative work based on the Solution; (iii) make more copies of the Solution, or use the Solution in connection with any unauthorized cloud instances or storage devices, other than specified in this Agreement and applicable Order Form(s); (iv) test the Solution or use the Solution in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise publish or made available the Solution to the public; (v) sublicense, transfer, rent, lease or lend the Solution;
(vi) use the Solution to operate a service bureau or software service or for commercial software hosting services; (vii) disclose the Solution, its underlying software, or its sources by any means of dissemination;
(viii) represent that Customer possesses any proprietary interest in the Solution; (ix) directly or indirectly, take any action to contest Elastifile’s intellectual property rights or infringe them in any way; or (x) use the Solution for the purpose of building a similar or competitive product or software, provide services similar or substantially similar to those provided by Elastifile or in any other manner competing with Elastifile.

3.5 Customer’s use of hardware or software to: (i) pool connections; (ii) re-route information; or (iii) reduce the number of devices or individuals that directly access or use the Solution (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of subscriptions that Customer is required to purchase in order to use or run the Solution.

3.6 Third Party Software.

3.6.1 The Solution contains proprietary software provided by third parties as well as certain open source software components as further detailed in Section 3.6.3 below. Third party proprietary software is licensed under the applicable license terms attached thereto and if no such terms are attached then, such software is licensed under the terms of this Agreement and accordingly, the restrictions contained in this Agreement shall apply to such third party proprietary software providers and third party proprietary software as if they were Elastifile and the software respectively.

3.6.2 Certain functionality in the Solution may require that Customer separately contract with a third party software or data provider in order to fully use such functionality, including, without limitation, third party provider(s) of cloud instances and/or storage devices. Elastifile makes no representations or warranties with respect to such third party providers and any agreement with such third party providers will be strictly between Customer and the third party provider. Customer acknowledges and agrees that Elastifile will have no obligation or liability with respect to Customer’s contract with such third parties.

3.6.3 Open Source Licenses. The Solution includes certain open source code software and materials that are subject to their respective open source licenses (“Open Source Licenses”). Such Open Source Licenses contain list of conditions with respect to warranty, copyright policy and other provisions. By executing this Agreement, Customer undertakes to strictly comply with the terms and condition of the Open Source Licenses. In order to comply with the Open Source Licenses please read the respective licenses or notices which are available as at www.elastifile.com/support/open_source_statement.pdf. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this Agreement, the provisions of the Open Source Licenses shall prevail.

3.7 Export Restrictions. Customer acknowledges that the Solution may be subject to United States export jurisdiction. Customer will comply with all applicable national and international laws that apply to Customer’s use of the Solution, including United States Export Administration Regulations, as well as end user, end use and destination restrictions which may be issued by the United States and other governments.

 

4 CUSTOMER DATA

4.1 All data stored or managed by means of the Solution is Customer data. Customer data will be imported from different source systems that Customer uses and may need further transformation. Customer is required to have legal access to such data. Customer is required to comply with all applicable data protection laws and regulations, including, without limitation, the EU General Data Protection Regulation (“GDPR”), and with the terms and conditions applicable to the different source systems that Customer uses. It is the Customer’s responsibility to employ all measures necessary to protect any and all data and information by security safeguards appropriate to the sensitivity of the information against such risks as loss or theft, unauthorized access, disclosure, copying, use, modification or destruction, and to have a data security and recovery plan and procedures as applicable. Under no circumstances will Elastifile be liable for any loss of or damages to Customer data or any data that is transferred or used by Customer by means of the Solution. It is explicitly agreed that all such data shall always reside on Customer’s Authorized Servers and systems and there is no contemplated transfer of Customer data to Elastifile hereunder.

4.2 With the exception of the personal contact information, required by Elastifile and provided by Customer, Customer hereby represents and warrants that it shall not provide Elastifile with any information which may be deemed Personal Information, as such term is defined in the Privacy Policy or under any applicable law, or any information which is related to children under the age of 13, or any health, financial, or insurance data or other data subject to specific regulatory or statutory protection regimes, including without limitation information which is regulated under the Children Online Privacy Protection Rule (COPPA) and the Health Insurance Portability and Accountability Act (HIPAA). Without derogating from the aforementioned, and in the event that Customer’s data includes any information, which may be deemed as personally identifiable information under any applicable law, Customer hereby represents and warrants that Customer has provided sufficient notices and obtained necessary or advisable consents required from any party and have otherwise the lawful basis upon which to share such information with Elastifile, its affiliates, and make any and all uses as otherwise contemplated under this Agreement. Customer agrees (i) to maintain the security of any security or access information used by Customer to access the Solution; and (ii) to remain at all times fully responsible for all activities that occur through Customer’s account in connection with Customer’s User Data.

4.3 Certain information about Customer or collected on behalf of Customer, including the User data, is subject to Elastifile’s Privacy Policy, available at https://www.elastifile.com/privacy-policy. By execution of an Order Form, Customer consents to the collection and use of information as described herein and/or in Elastifile’s Privacy Policy, as may be amended by Elastifile from time to time.

 

5 FEES

5.1 Customer shall pay the amount of fees due to Elastifile as set forth in the Order Form. Payment shall be due in accordance with the payment schedule set forth in the Order Form. Any payment or part of a payment that is not paid by Customer to Elastifile when due shall constitute sufficient cause for Elastifile to suspend its performance hereunder and terminate this Agreement, provided that a seven (7) days prior notice was provided. All fees shall be non-cancellable and the sums paid non-refundable except in the case of termination of the Agreement by Customer for breach by Elastifile (pursuant to the terms of this Agreement) in which case Customer shall be entitled to a refund of prepaid fees on a prorated basis from the termination date.

5.2 Unless otherwise specifically stated in the Order Form, any discounts provided will apply only to the specific term they were granted. Professional Services are optionally available to Customer subject to payment of applicable fees. Customer is solely responsible for payment of any taxes resulting from the access and use of the Solution, excluding any taxes based directly upon Elastifile’s net income. If any such taxes are required to be withheld, Customer shall pay an amount to Elastifile such that the net amount payable to Elastifile after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.

 

6 SUPPORT SERVICES; PROFESSIONAL SERVICES.

6.1 Subject to Customer’s compliance with the terms and conditions of this Agreement and the Order Form, Elastifile shall provide the standard support and maintenance services in accordance with Elastifile’s Support and Maintenance Terms available at [https://support.elastifile.com/support/solutions/articles/42000035866-elastifile-standard-support-terms] (“Support Services“). The Support Services provided may require Customer to grant Elastifile remote access to the Authorized Server(s) and Customer’s systems in order to allow Elastifile to provide such Support Services. Granting access to Elastifile to Customer Servers for maintenance and support is in Customer’s control and sole discretion; Customer acknowledges that Elastifile shall not be liable for failure to provide support and maintenance if Customer chooses not to grant Elastifile such access.

6.2 The Support Services do not include, however, any configuration, integration, training, customization or other services (“Professional Services”) ordered by Customer with respect to the Solution or use thereof by Customer in its system or in accordance with its requirements or specifications. If Customer desires any Professional Services with respect to the Solution, such Professional Services shall be subject to payment and governed by a separate professional service agreement.

 

7 WARRANTY; DISCLAIMERS

7.1 Limited Warranty. Elastifile warrants, for Customer’s benefit alone, that the Solution, as provided by Elastifile, if operated as directed and in accordance with the Documentation, shall operate substantially in accordance with the functional specifications in the Documentation.

7.2 Disclaimers. THE SOLUTION IS COMPLEX COMPUTER SOFTWARE. ITS PERFORMANCE WILL VARY DEPENDING ON THE AUTHORIZED SERVERS ON WHICH IT IS INSTALLED, SOFTWARE INTERACTIONS, THE CONFIGURATION OF THE SOFTWARE AND OTHER FACTORS. THE SOLUTION IS NEITHER FAULT TOLERANT NOR FREE FROM ERRORS, CONFLICTS OR INTERRUPTIONS. ELASTIFILE DOES NOT WARRANT OR GUARANTEE THAT THE SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SOLUTION WILL OPERATE ERROR-FREE, THAT CUSTOMER’S USE OF THE SOLUTION WILL BE UNINTERRUPTED, THAT IT WILL BE COMPATIBLE WITH ALL OF CUSTOMER’S EQUIPMENT OR SOFTWARE CONFIGURATIONS OR THAT ELASTIFILE WILL CORRECT ALL ERRORS IN THE SOLUTION. IN ADDITION, THE WARRANTY IN SECTION 7.1 ABOVE DOES NOT COVER, AND ELASTIFILE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR PROBLEMS CAUSED BY MODIFICATIONS OR CUSTOMIZATIONS TO THE SOLUTION MADE BY CUSTOMER OR ANY OTHER THIRD PARTY ACTING ON CUSTOMER’S BEHALF, OR EVENTS BEYOND ELASTIFILE’S REASONABLE CONTROL. THE WARRANTIES STATED IN SECTION 7.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE SOLUTION AND DOCUMENTATION. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1 ABOVE, THE SOLUTION AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, AND ELASTIFILE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF TITLE, NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS; NO ELASTIFILE PARTNER, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.

7.3 Exclusive Remedies. For any breach of the warranties contained in Section7.1, Customer’s exclusive remedy, and Elastifile’s entire and sole liability, shall be to use reasonable commercial efforts repair or adjust the Solution so that it operates as warranted; provided that (i) Customer has fully paid all applicable fees, (ii) Customer is not otherwise in breach of this Agreement, and (iii) Customer has reported in writing to Elastifile the claimed failure promptly upon discovery. If Elastifile is unable to repair or adjust the Solution, Customer will be entitled to terminate this Agreement and recover any prepaid unused amount of the Subscription fees covering the remainder of the Term after the effective date of termination. Elastifile may disclaim any obligation or liability under this Section 7 if Elastifile determines that the Solution has been: (i) altered, modified, or serviced other than by Elastifile; (ii) improperly installed or used in a manner other than as specified in the Documentation; or (iii) if Customer violated the terms of this Agreement. If the Solution is installed on or used in conjunction with (A) hardware, then the warranty shall apply only if the Solution is used on or in conjunction with the unmodified version of the hardware with which the Solution was designed to be used as described in the Documentation; and (B) cloud instance(s), then the warranty shall apply only if the Solution is used on or in conjunction with the cloud instance (s) that were approved in writing by Elastifile.

 

8 INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION

8.1 No rights other than those expressly set forth herein shall pass to the Customer. Customer acknowledges and agrees that the Solution and the Documentation, including any related services and any revisions, corrections, modifications, enhancements and/or upgrades thereto, are Elastifile’s property protected under copyright laws and treaties. Customer further acknowledges and agrees that all right, title, and interest in and to the Solution, including associated intellectual property rights (including, without limitation, copyrights, trade secrets, trademarks, etc.), evidenced by or embodied in and/or attached/connected/related to the Solution (including, without limitation, the code) Documentation and any related services, are and shall remain with Elastifile. This Agreement does not convey to Customer an interest in or to the Solution, but only a limited right of use revocable in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of Elastifile’s intellectual property rights under any law. Customer understands and acknowledges that the Solution contains or includes proprietary confidential information and trade secrets of Elastifile. Customer will not knowingly do anything to impair Elastifile proprietary rights in the Solution or seek to acquire or register any rights in Elastifile’s proprietary marks, copyrights or information.

8.2 Each party agrees to keep confidential and to use only for purposes of performing its obligation under this Agreement or as otherwise permitted under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). The receiving party agrees that it shall hold all confidential information in confidence and shall safeguard the confidential information with at least the same degree of care that it takes to protect its own information of a similar nature, which in no event shall be less than a reasonable standard of care. The parties acknowledge that unauthorized disclosure or use of confidential information may give rise to irreparable injury, which may not be adequately compensated by damages. The parties agree and acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this confidentiality obligation by the receiving party and that the disclosing party shall be entitled to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity. Notwithstanding any of the foregoing, Customer acknowledges and agrees that the Solution and any information related thereto (including the Documentation and pricing and payment terms in the Order Form) shall be deemed to constitute confidential information of Elastifile. Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.

8.3 Marks and Use of Elastifile’s Name. This Agreement does not grant the Customer any rights to Elastifile’s trademarks or service marks. Customer will not remove or modify any markings or any notice of Elastifile’s proprietary rights from any Solution or Documentation. Customer agrees that Elastifile may include its name in lists, presentations, webpages and displays used by Elastifile which generally describe its customers.

8.4 Feedback. Elastifile shall have a royalty-free, worldwide, irrevocable, license, for the duration of the applicable intellectual property rights, to use and incorporate into the Solution and/or Documentation any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Users or Affiliates.

 

9 INDEMNIFICATION

9.1 Indemnification by Elastifile.

9.1.1 Infringement Indemnification. Subject to the limitations set forth in Section 10 below, Elastifile shall defend, indemnify and hold Customer and its employees, officers and directors harmless at Elastifile’s sole cost and expense, for any claim, suit or proceeding brought against Customer which alleges that the Solution, as delivered and used in accordance with the terms of this Agreement, infringes any third party patent, copyright or other intellectual property right. Elastifile will pay the amount of any adverse final judgment or settlement, provided that Customer gives Elastifile written notice promptly following receipt of notice of such claim, suit or proceeding, and full information and reasonable assistance in its defense or settlement. Elastifile shall be entitled to direct such defense and to settle or otherwise dispose of such claim, suit or proceeding as it sees fit, provided that any settlement intended to bind Customer shall not be final without Customer’s written consent, which consent shall not be unreasonably withheld.

9.1.2 Limitations on Indemnity Obligations. Elastifile shall have no liability for any claim of infringement based upon: (i) modification of the Solution by any party other than Elastifile; (ii) use by Customer of a superseded or altered release of the Solution or Documentation if such infringement would have been avoided by the use of a current unaltered release of the Solution or Documentation that Elastifile provides to Customer; (iii) the combination, operation or use of any Solution furnished under this Agreement with software, data, cloud instances, storage devices, hardware or other materials not furnished by Elastifile if such infringement would have been avoided by the use of the Solution and Documentation without such software, data, hardware or other materials or data; or (iv) any trade secret claim, where Customer acquires the trade secret: (A) through improper means; (B) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (C) from a person (other than Elastifile) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. Customer agrees to defend and hold Elastifile and its licensors, and their respective employees, officers and directors harmless against any loss, cost or expenses incurred as a result of a claim based on the foregoing.

9.1.3 Remedies. Without in any way limiting Elastifile’s obligations to indemnify and defend Customer under Section 9.1, if an injunction is obtained in such action against Customer’s use of the Solution, Elastifile shall, at its option and expense, either: (i) obtain for Customer the right to continue to use the Solution; (ii) replace the Solution with a product with substantially equivalent functionality; or (iii) modify the Solution so that it becomes non-infringing, while maintaining substantially equivalent functionality. If (i), (ii) or (iii) above are not commercially practical, then Elastifile shall refund amounts up to the Subscription fees paid for the infringing Solution based on straight-line amortization of the Solution over a five (5) year period beginning on the due date for the license fees set forth in the applicable Order Form. This Section 9.1.3 states Elastifile’s entire liability and Customer’s exclusive remedy for infringement.

9.2 Indemnification by Customer. Customer agrees, at its own expense, to indemnify, defend and hold harmless Elastifile and its officers, directors, employees, agents and affiliates, from all liabilities, claims, alleged claims, loss and damages (of every kind, whether known or unknown and suspected or unsuspected) including reasonable attorney’s fees, asserted by third parties, and related in any way to: (i) Customer’s breach of any term or condition of this agreement; and/or (ii) any rights of a third party with regard to Customer data, including privacy or intellectual property rights. Elastifile will provide customer with written notice of such claim, suit or action, will permit customer to participate in the defense thereof, provided that customer shall cooperate fully with such defense.

 

10 LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL OR EQUITABLE BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS SUBSIDIARIES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR BUSINESS INFORMATION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES) ARISING IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SOLUTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ELASTIFILE’S MAXIMUM AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID FOR THE SOLUTION GIVING RISE TO THE CLAIM AS SET FORTH IN THE APPLICABLE ORDER FORM. THE FOREGOING LIMITATION WILL NOT APPLY TO LIABILITY CAUSED BY ELASTIFILE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.

 

11 TERM AND TERMINATION. The Customer will have the rights set forth herein for so long as the Customer complies with the terms of this Agreement. This Agreement automatically terminates if Customer breaches its terms and such breach is not cured within thirty (30) days of Elastifile’s written notice of breach or is not able to be cured. Sections 3, 5, 7, 8, 9, 10, 11 and 12 will survive any termination or expiration of this Agreement. Upon

any expiration or termination of this Agreement, Customer shall (a) cease using the Solution and Documentation; and (b) to the extent applicable, return the Solution and Documentation and any copies thereof to Elastifile and/or certify in writing such destruction. This requirement applies to copies of the Solution and Documentation in all forms, partial and complete, in and on all types of media and computer memory, and whether or not modified or merged into other materials.

 

12 GENERAL

12.1 Customer Reference. Customers hereby consents to Elastifile using its name and logo to identify Customer as a customer of Elastifile, such as use on Elastifile’s web site and marketing materials. This consent terminates upon termination of this Agreement.

12.2 Severability. In the event any provision or part of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, it shall be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion shall not affect the enforceability of the other provisions hereof.

12.3 Waiver. No waiver of any breach of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

12.4 Assignment. Customer may not assign any of its rights or obligations hereunder without Elastifile’s prior written consent. Elastifile may assign or transfer (I) its rights to receive money under this Agreement to any third party without limitation subject only to prompt written notice to Customer, and (ii) any and all other rights and obligations and undertakings hereunder in connection with a sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void.

12.5 Entire Agreement. This Agreement, including any referenced written addenda, Order Forms and exhibits constitutes the entire agreement between the Parties and supersedes all previous agreements or representations, written or oral, with respect to its subject matter. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party.

12.6 Governing Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California as if performed wholly within California and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts located in California. The Parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.

12.7 Attorney’s Fees. In any suit or proceeding between the Parties relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.

12.8 Informal Dispute Resolution. Except for the right of either Party to apply to a court of competent jurisdiction for injunctive relief, if any dispute arises between the Parties, the Parties shall first attempt to resolve such dispute among themselves prior to resorting to any formal legal action. Either Party may notify the other Party in writing of the occurrence of a dispute and establish a mutually convenient time and place to discuss the dispute. In any event, the meeting shall occur within a commercially reasonable period of time (which period shall not exceed fifteen (15) days from the date of the notice) and shall take place between Elastifile’s appointed individual and Customer’s equivalent representative. If the meeting does not resolve the dispute, either Party may then give the other Party written notice that the dispute continues. Within a commercially reasonable period of time after such notice, which period shall not exceed fifteen (15) days from the date of such notice, designated executives of both Parties shall meet to discuss the issue at a mutually convenient time and place. Such executives of each Party shall be a senior executive of such Party. If the dispute has not been resolved within a reasonable period of time thereafter, then either Party may pursue applicable remedies under this Agreement, at law, or in equity.

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