ELASTIFILE TERMS OF SERVICE AGREEMENT
Effective: August 7, 2018
Last Revised: December 28, 2018
PLEASE READ CAREFULLY THE FOLLOWING AGREEMENT WHICH RELATES TO THE RIGHT TO USE THE ELASTIFILE SOLUTION.
CUSTOMER ACCEPTS AND AGREES TO THE AGREEMENT BY INSTANTIATING THE ELASTIFILE SOLUTION VIA A CLOUD SERVICES PROVIDER, BY AUTHORIZING A MANAGED ELASTIFILE SOLUTION OR OTHERWISE USING THE ELASTIFILE SOLUTION OR ELASTIFILE SOFTWARE.
IF CUSTOMER DOES NOT AGREE TO THE AGREEMENT, ELASTIFILE DOES NOT CONSENT TO USE OF THE ELASTIFILE SOLUTION OR ELASTIFILE SOFTWARE, AND CUSTOMER MUST EXIT THE INSTANTIATION PROCESS AND NOT MAKE ANY USE OF THE ELASTIFILE SOLUTION OR ELASTIFILE SOFTWARE. CUSTOMER HEREBY WAIVES 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.
THE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER AND ELASTIFILE AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. SUBJECT TO THE PROVISIONS OF THE AGREEMENT, CUSTOMER WILL HAVE THE RIGHTS SET FORTH BELOW FOR SO LONG AS CUSTOMER COMPLIES WITH THE AGREEMENT.
1.1 “Acceptable Use Policy” means the policy attached hereto as Appendix A which may be amended from time to time, and may be later set out in a linked document.
1.2 “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.
1.4 “Authorized Server” means any cloud instances and/or storage devices managed by Elastifile capable of running the Elastifile Solution that are enabled through a Cloud Service Provider.
1.5 “Cloud Service Provider” means an entity that provides a cloud based storage solution, such as Google, Amazon Web Services, Microsoft Azure and other similar cloud providers.
1.6 “Customer Data” means all content placed in the Elastifile Solution by Customer or its agents.
1.7 “Documentation” means the instructions, user guides, manuals and release notes provided by Elastifile in printed and electronic form that describe the installation, operation, use or technical specifications of the Elastifile Solution.
1.8 “EAP” means Elastifile’s Early Access Program, which allows Customer to use the Elastifile Solution during its development process.
1.9 “Elastifile Software” means the computer code, typically in binary form, but including scripts and other human readable code that may be provided by Elastifile as part of any licensed version offered by Elastifile.
1.10 “Elastifile Solution” means the Elastifile cloud file system software solution identified in the administration interface to a Cloud Service Provider that enables a cloud version of the Elastifile Software, and all Updates thereto. For the purpose of the Agreement the term “Elastifile Solution” shall include any related Documentation, and if applicable, a Managed Elastifile Solution.
1.11 “Managed Elastifile Solution” means a version of the Elastifile Solution operating on a Cloud Service Provider instance operated by Elastifile for the benefit of a Customer.
1.12 “New Version” means any new version of the Elastifile 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 Elastifile Solution, and which Elastifile may make available to the Customer.
1.13 “Normal Working Hours” means the regular business hours when Elastifile has live support available, which may vary depending on the location of the Customer.
1.14 “Open Source License(s)” means third party owned software that is licensed under licenses provided by such third parties. The Open Source Licenses included in the Elastifile Solution are available at www.elastifile.com/support/open_source_statement.pdf which may be periodically updated.
1.16 “Professional Services” means any configuration, integration, training, customization or other non-automated personal services provided by Elastifile, excluding Support Services.
1.18 “Scheduled Maintenance Window” means the period of time, typically in the very early morning hours and on weekends, when Elastifile may perform system level maintenance, such as server restarting and upgrading, data maintenance and other typical system level procedures. The Elastifile Solution may be unavailable during the Scheduled Maintenance Window.
1.19 “Service Level Objectives” means the objectives Elastifile manages to as described at https://www.elastifile.com/service-slo. There are no Service Level Objectives for EAP or Test Versions.
1.20 “Storage Capacity” means amount of disk or cloud based storage that Customer shall be entitled to deploy in connection with the Elastifile Solution.
1.21 “Subscription” means the type and scope of subscription to use the Elastifile Solution by Customer based upon the service elections Customer makes in the Cloud Service Provider’s administration dashboard which will describe the Term of such subscription, Storage Capacity, and as applicable any Service Level Objectives associated with such Subscription.
1.22 “Support Services” means the support and maintenance services described at https://support.elastifile.com/support/solutions/articles/42000035866-elastifile-standard-support-terms as they may be amended from time to time.
1.23 “Term” means the period of time Customer may use the Elastifile Solution subject to the earlier termination as provided herein.
1.24 “Test Version” means an instance of the Elastifile Solution designated for testing and evaluation during service instantiation. Any version of the Elastifile Solution that is offered without charge is deemed to be a Test Version.
1.25 “Updates” means any unspecified updates, service patches, or releases made to the Elastifile 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 Elastifile Solution, and excludes New Versions and/or Upgrades.
1.26 “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 Elastifile Solution provided during initial instantiation of the Elastifile Solution.
1.27 “User” means an individual and its Affiliates’ employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer to use the Elastifile Solution according to the Agreement.
2. RIGHTS AND REQUIREMENTS RELATED TO THE ELASTIFILE SOLUTION
2.1 Subject to Customer’s compliance with the Agreement, other than the rights associated with a Managed Elastifile Solution (see Section 2.7 below), Customer has a license during the Term to use the Elastifile Solution up to the Storage Capacity in accordance with the Documentation that the Customer has selected or that is stated in the applicable order document, dashboard or other configuration panel. 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 will incur additional charges.
2.2 Subject to payment of the fees to Elastifile the Elastifile Solution shall be enabled on Authorized Servers. If an Authorized Server becomes non-operable, the Elastifile Solution may be installed on a substitute Authorized Server.
2.3 Software Minimum Requirements. The Customer acknowledges and agrees that the use of the Elastifile Solution may require compatible public cloud infrastructure, hardware, internet access, and certain software which shall be set forth in the Documentation, which may be modified from time to time, however Elastifile shall not make changes to the Documentation which materially adversely impact the Customer’s ability to use the Elastifile Solution in existence on the date the Customer instantiates an instance of the Elastifile Solution in a Cloud Services Provider. Elastifile shall ensure the environment meets all software minimum requirements in a Managed Elastifile Solution.
2.4 Verification and Reporting. Except for a Managed Elastifile Solution for which this section does not apply, 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 verifying that the Elastifile Solution and Documentation are being used pursuant to the provisions of the Agreement. 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 Servers in order to audit the use of the Elastifile Solution. Such audit shall be conducted during Customer’s regular business hours and without adversely impairing Customer’s business operations. If such audit establishes that Customer has used the Elastifile Solution beyond the deployment permitted in the Agreement, 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 Elastifile Solution.
2.5 EAP and Test Versions. Customer may be able to instantiate a version of the Elastifile Solution that is in the EAP or is a Test Version. The EAP and Test Version instances are provided “AS IS” “WHERE IS” without any warranty. Customer’s sole right and remedy in respect of a claim of a defective instance in EAP or defective Test Version instance shall be to terminate use of such instance. Any use of production data in the EAP or in a Test Version is at Customer’s sole risk.
2.6 Acceptable Use. The Elastifile Solution may only be used for valid legal purposes, and Customer agrees to comply with the Acceptable Use Policy. Elastifile has no duty to police Customer’s use of the Elastifile Solution, however, Elastifile has the right to suspend use of the Elastifile Solution in the event of a breach of the Acceptable Use Policy, or in the event Customer takes actions or fails to take actions that materially and adversely impact Elastifile, so long as Elastifile limits such suspension to the accounts or locations causing such material adverse impact, and only for so long as such material adverse impact is applicable.
2.7 Managed Services. If Customer has subscribed to a Managed Elastifile Solution service Customer’s sole right is to obtain services from Elastifile which shall comprise Elastifile configuring, deploying and proactively managing, monitoring and maintaining an Elastifile Solution for Customer.
3. ACCESS AND USE OF THE ELASTIFILE SOLUTION
3.1 Subject to the terms and conditions of the Agreement and Customer’s compliance herewith, including, payment of the applicable fees, 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 Elastifile Solution, solely for Customer’s internal business purposes, and use the Elastifile Solution in machine-readable, object code form only, all in accordance with the Agreement. The foregoing rights are limited by the terms of the applicable Subscription.
3.2 Elastifile may make available Documentation to Customer for its internal business purposes and solely in connection with the use of the Elastifile 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 the Agreement to the Elastifile Solution shall include the Documentation.
3.3 Any rights not explicitly granted herein are reserved. The Agreement only gives the Customer limited rights to use the Elastifile Solution as explicitly set forth in the Agreement. Elastifile reserves all other rights. Customer may use the Elastifile Solution only as expressly permitted in the Agreement. Customer shall not circumvent any technical protections that limit use of the Elastifile Solution in accordance with the Agreement.
3.4 Customer will not, and will not permit others to: (i) work around any limitations or technical protections in the Elastifile Solution; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) the Elastifile Solution and/or any part thereof, or create any derivative work based on the Elastifile Solution; (iii) make more copies of the Elastifile Solution, or use the Elastifile Solution in connection with any unauthorized cloud instances or storage devices, other than specified in the Agreement; (iv) test the Elastifile Solution (other than on a Test Version or in the EAP to determine whether the Elastifile Solution meets Customer’s requirements) or use the Elastifile 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 Elastifile Solution to the public; (v) sublicense, transfer, rent, lease or lend the Elastifile Solution; (vi) resell the Elastifile Solution in substantially the form in which Elastifile is licensing it to Customer (i.e., essentially, rebrand the Elastifile Solution); (vii) disclose the Elastifile Solution, its underlying software, or its sources by any means of dissemination; (viii) represent that Customer possesses any proprietary interest in the Elastifile 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 Elastifile 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 Elastifile 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 Elastifile Solution.
3.6 Third Party Software.
3.6.1 The Elastifile Solution and Elastifile Software 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 Agreement and accordingly, the restrictions contained in the 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 Elastifile 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 Elastifile Solution includes Open Source Licenses. By executing the Agreement, Customer undertakes to comply with the terms and conditions of the Open Source Licenses. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of the Agreement, the provisions of the Open Source Licenses shall prevail.
3.7 Export Restrictions. Customer acknowledges that the Elastifile Solution may be subject to United States export restrictions. Customer will comply with all applicable national and international laws that apply to Customer’s use of the Elastifile 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 Customer Data is solely owned by Customer. Customer will comply with all applicable data protection laws and regulations, including, without limitation, the EU General Data Protection Regulation (“GDPR”) as applicable. Elastifile has no duty to review or audit Customer Data to determine its legality or the manner or method of its use or storage, and Elastifile is not liable for any act or omission of the Customer or any of its other agents or contractors, that cause or result in any loss of Customer Data, unauthorized access to, or exceeding of authorized access in respect of, any Customer Data.
4.2 With the exception of the personal contact information required by Elastifile and provided by Customer to permit Elastifile to provide the Elastifile Solution to Customer, Customer hereby represents and warrants that it shall not provide Elastifile with any information which may be deemed Personal Information 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 Data includes any Personal Information, Customer hereby represents and warrants that Customer has provided sufficient notices and obtained necessary 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 the Agreement. Customer agrees (i) to maintain the security of any security or access information used by Customer to access the Elastifile Solution; and (ii) to remain at all times fully responsible for all activities that occur through Customer’s account in connection with Customer Data.
5.1 Customer shall pay the amount of fees due either to the applicable Cloud Service Provider, if the Elastifile Solution is provided through a consolidated billing system by such Cloud Service Provider, or if not, directly to Elastifile. Any payment or part of a payment that is not paid by Customer when due shall constitute sufficient cause for Elastifile to suspend its performance hereunder and terminate the Agreement, provided that a seven (7) days prior notice (by email) 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 Agreement) in which case Customer shall be entitled to a refund of prepaid fees on a prorated basis from the termination date.
5.2 Any discounts provided will apply only to the specific Term for which 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 Elastifile 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 the Agreement.
6. SUPPORT SERVICES; PROFESSIONAL SERVICES.
6.1 Subject to Customer’s compliance with the Agreement, Elastifile shall provide the Support Services as described herein or if a Support Services agreement is referenced as part of the Agreement, in accordance with that Support Services agreement. 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 any Customer Servers for Support Services is in Customer’s control and sole discretion; Customer acknowledges that Elastifile shall not be liable for failure to provide Support Services if Customer chooses not to grant Elastifile access to Customer Servers, if applicable. Elastifile will comply with all reasonable written policies provided by Customer for remote access. All Support Services are provided during Elastifile’s Normal Working Hours, or by email for after Normal Working Hours. Elastifile may suspend the Elastifile Solution for maintenance during the Scheduled Maintenance Window. In a Managed Elastifile Solution, Elastifile may manage all support internally without notice to Customer.
6.2 The Support Services do not include any Professional Services ordered by Customer with respect to the Elastifile 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 Elastifile Solution, such Professional Services shall be subject to payment and governed by another agreement.
7. WARRANTY; DISCLAIMERS
7.1 Limited Warranty. Elastifile warrants, for Customer’s benefit alone, that the Elastifile 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 ELASTIFILE 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 ELASTIFILE SOLUTION IS NEITHER FAULT TOLERANT NOR FREE FROM ERRORS, CONFLICTS OR INTERRUPTIONS. ELASTIFILE DOES NOT WARRANT OR GUARANTEE THAT THE ELASTIFILE SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE ELASTIFILE SOLUTION WILL OPERATE ERROR-FREE, THAT CUSTOMER’S USE OF THE ELASTIFILE 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 ELASTIFILE 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 ELASTIFILE 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 ELASTIFILE SOLUTION AND DOCUMENTATION. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 7.1 ABOVE, THE ELASTIFILE 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. Customer’s exclusive remedy, and Elastifile’s entire and sole liability and obligation, shall be to use reasonable commercial efforts repair or adjust the Elastifile 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 the 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 Elastifile Solution within a reasonable time, Customer will be entitled to terminate the 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 Elastifile 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 the Agreement. The above warranties shall apply only if the Elastifile Solution is used on or in conjunction with the cloud instance(s) set up through the administrative interface of a Cloud Service Provider.
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 Elastifile Solution and Elastifile Software and the Documentation, including any related services and any revisions, corrections, modifications, enhancements and/or upgrades thereto, are Elastifile’s property protected under copyright, trade secret, patent and other laws and treaties. Customer further acknowledges and agrees that all right, title, and interest in and to the Elastifile Solution and Elastifile Software, including associated intellectual property rights (including, without limitation, patents, copyrights, trade secrets and trademarks), evidenced by or embodied in and/or attached/connected/related to the Elastifile Solution and Elastifile Software (including, without limitation, the source code) Documentation and any related services, are and shall remain with Elastifile. The Agreement does not convey to Customer an interest in or to the Elastifile Solution and Elastifile Software, but only a limited revocable license to use the Elastifile Solution and Elastifile Software in accordance with the terms of the Agreement. Nothing in the Agreement constitutes a waiver of Elastifile’s intellectual property rights under any law. Customer understands and acknowledges that the Elastifile Solution and Elastifile Software contains or includes proprietary confidential information and trade secrets of Elastifile. Customer will not knowingly do anything to impair Elastifile proprietary rights in the Elastifile Solution and Elastifile Software 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 the Agreement or as otherwise permitted under the Agreement, any proprietary or confidential information of the other party disclosed pursuant to the 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 Elastifile Solution and Elastifile Software, the results of any testing permitted herein, and any information related thereto (including the Documentation and pricing and payment terms) shall be deemed to constitute confidential information of Elastifile. Upon any termination of the 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 the Agreement. Notwithstanding the above, a party may store confidential information in its backup storage devices until it is overwritten in the normal course of backup storage rotation. The obligations in this section survive any expiration or termination of the Term, regardless of claim of breach.
8.3 Marks and Use of Elastifile’s Name. The 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 and prospective customers.
8.4 Feedback. Elastifile shall have a perpetual, royalty-free, worldwide, irrevocable, sublicensable and transferable license and right to use and incorporate into the Elastifile Solution and Elastifile Software and/or Documentation any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Users or Affiliates.
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 Elastifile Solution and Elastifile Software, as delivered and used in accordance with the terms of the Agreement, infringes any third party patent, copyright or other intellectual property right. Customer shall give Elastifile prompt written notice following receipt of notice of such claim, suit or proceeding, full information regarding the claim, 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 Elastifile Solution and Elastifile Software by any party other than Elastifile; (ii) use by Customer of a superseded or altered release of the Elastifile Solution and Elastifile Software or Documentation if such infringement would have been avoided by the use of a current unaltered release of the Elastifile Solution and Elastifile Software or Documentation that Elastifile provides to Customer; (iii) the combination, operation or use of any Elastifile Solution and Elastifile Software with software, data, cloud instances, storage devices, hardware or other materials either not furnished by Elastifile or not contemplated in the Documentation, if such infringement would have been avoided by the use of the Elastifile Solution and Elastifile Software 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 Elastifile Solution and Elastifile Software, Elastifile shall, at its option and expense, either: (i) obtain for Customer the right to continue to use the Elastifile Solution and Elastifile Software; (ii) replace the Elastifile Solution and Elastifile Software with a product with substantially equivalent functionality; or (iii) modify the Elastifile Solution and Elastifile Software 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 prepaid amounts of Subscription fees not yet used. This Section 9.1.3 states Elastifile’s entire liability and Customer’s sole and 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 the Agreement; (ii) any breach of Customer Data to the extent caused by Customer or a Customer Affiliate and/or (iii) 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 NOT PROHIBITED 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 THE AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE ELASTIFILE SOLUTION AND ELASTIFILE SOFTWARE, 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 THE AGREEMENT WILL BE LIMITED TO THE FEES PAID FOR THE ELASTIFILE SOLUTION IN THE 12 MONTHS PRECEDING THE ACCRUAL OF THE CLAIM; PROVIDED THAT THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT CAUSED BY ELASTIFILE’S FRAUD OR SUBJECTIVE BAD FAITH. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THE AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.
11. TERM AND TERMINATION.
11.1 The Customer will have the rights set forth herein for so long as the Customer complies with the terms of the Agreement. Elastifile may terminate the Agreement if Customer breaches the Agreement or any other agreement with Elastifile), provided that to the extent such claim is curable, such termination shall not be effective if such breach is cured within thirty (30) days of Elastifile’s written notice of breach. Sections 1, 3.3, 3.4, 5 (to the extent fees remain unpaid), 7.2, 7.3, 8, and 9 through 12 will survive any termination or expiration of the Agreement. Upon any expiration or termination of the Agreement, except as provided in Section 11.2 below, Customer shall (a) cease using the Elastifile Solution and Elastifile Software and Documentation; and (b) to the extent applicable, return the Elastifile Solution and Elastifile Software and Documentation and any copies thereof to Elastifile and/or certify in writing such destruction. This requirement applies to copies of the Elastifile Solution and Elastifile Software 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. Customer may not place additional or new Customer Data in the Elastifile Solution or Elastifile Software after the effective date of termination.
11.2 CUSTOMER IS ADVISED THAT UPON TERMINATION, ELASTIFILE HAS NO DUTY TO MAINTAIN ANY COPIES OF CUSTOMER DATA, AND UPON DESTRUCTION OF THE PARTICULAR CLOUD INSTANCE ON WHICH SUCH DATA WAS STORED, SUCH DATA WILL BE PERMANENTLY AND IRRETRIEVABLY DELETED. ELASTIFILE IS NOT LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR THE DESTRUCTION OF CUSTOMER DATA AFTER THE END OF THE TERM.
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 the Agreement.
12.2 Severability. In the event any provision or part of the 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 the 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 the 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. The Agreement, including any referenced written addenda, 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. The Agreement may be modified by Elastifile by giving notice to Customer via the Cloud Service Provider administration dashboard, by email, or by other reasonable electronic means to the last known contact addresses of Customer. Such modification shall be effective retroactively with respect to the on the 15th calendar day after the first notice thereof (the “Notice Period”), unless Customer within such Notice Period gives written notice to Elastifile that it does not accept such modification and ceases all use of the Elastifile Solution granted herein.
12.6 Governing Law. The validity, interpretation, and performance of the 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 the Agreement.
12.7 Attorney’s Fees. In any suit or proceeding between the Parties relating to the 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 the 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 the Agreement, at law, or in equity.
Acceptable Use Policy
ACCEPTABLE USE OF ELASTIFILE SOLUTION. Customer agrees as follows in respect of the acceptable and unacceptable uses of the Elastifile Solution. Customer will not and agrees not to:
1. Use or attempt to use the Elastifile Solution for any illegal, abusive or unethical activities as determined by Elastifile in Elastifile’s sole discretion, which include by example and not limitation, bullying or harassing third parties, illegal stalking, transmission of or storage of pornographic material, invasion of privacy, defamation, infringement of another person’s copyright, trade secret, patent, trademark or other intellectual property rights, hacking or cracking (gaining unauthorized use of a computer), distributing computer viruses or other malware, gambling, harassment of another or distribution of other harmful materials, code, programs or scripts, disclosing “insider trading” information, national secrets, or other information prohibited or restricted from disclosure.
2. Use the Elastifile Solution to send or permit a User to send unsolicited bulk mail messages (“junk mail” or “spam”). This includes bulk-mailing of commercial advertising, information announcements, charitable solicitations and political solicitations. Such material may only be sent to those who have specifically requested it or as authorized by applicable law, provided that if Customer asserts that Customer’s activities are authorized by applicable law, Customer shall provide an opinion of reputable counsel establishing a basis upon which Customer actions are taken. Malicious or threatening e-mail is also prohibited. Normally Elastifile will assume that Customer is in compliance with this provision, however, if an upstream provider blacklists Elastifile’s IP range or mail server as a result of activities Elastifile traces to Customer, Elastifile will presume that Customer is in violation of this provision.
3. Breach any applicable data protection statute by, for example, sending or storing personal information (as defined in applicable data protection statutes) in an unencrypted form.
4. Impersonate another person, falsify the source of TCP/IP packets, spoof any portion of an email or TCP/IP header, or misrepresent authorization to act on behalf of others. All messages and packets transmitted via the Elastifile Solution should correctly identify the sender and source; Customer may not alter the attribution of origin in electronic mail messages or posting.
5. Undermine the security or integrity of computing systems or networks or gain unauthorized access or control over Elastifile’s computers or any other person’s computers.
6. Permit another person to use Customer resources or the Elastifile Solution to conduct any of the matters Customer is prohibited from doing.
7. Distribute any files in any peer-to-peer or file sharing arrangement, where it is possible that in such file sharing process any of the Elastifile Solution may be used to distribute copyrighted materials to or from persons who are not authorized to receive, copy, distribute or use them.
8. Take any action that would cause Elastifile to violate any terms of an upstream service provider’s or Cloud Service Provider’s acceptable use policy.
9. Conduct any security scans, penetration tests, or any kind of monitoring or vulnerability test on the Elastifile Solution or any of Elastifile’s infrastructure at any time (collectively a “Service Scan”), unless Elastifile pre-consents in writing in Elastifile’s sole discretion. If Elastifile detects such Service Scan by Customer or any Affiliate or a User, Elastifile may immediately and without notice suspend Customer’s (or the User’s) access to the Elastifile Solution.
10. Engage in any activity disruptive or abusive towards Elastifile’s other customers or to Elastifile Solution operations, including and not limited to:
10.1. Distribute or post any virus, worm, Trojan horse, or computer code intended to disrupt Elastifile Solution, destroy data, destroy or damage equipment or disrupt Elastifile Solution operations;
10.2. Degrade or impair the operation of Elastifile Solution servers and facilities or the servers and facilities of other network hosts or users;
10.3. Post messages or software programs that consume excessive CPU time or storage space;
10.4. Use the Elastifile Solution for mining crypto currencies or for any similar computer intensive “mining” operations. In this section “cryptocurrency” means bitcoin, ether or Ethereum, any cryptocurrency listed at https://en.wikipedia.org/wiki/List_of_cryptocurrencies and any similar or later developed currency system based on a blockchain technology;
10.5. Subvert, or assist others in subverting, the security or integrity of any of Elastifile Solution, facilities or equipment; and/or
10.6. Place false, fraudulent, materially incomplete or misleading information on the Elastifile Solution.
11. The above list of acceptable and unacceptable uses of the Elastifile Solution is not intended to be exhaustive, but rather illustrative of the range of unacceptable uses. Elastifile has the right in Elastifile’s sole discretion to determine whether any particular conduct is an acceptable use of the Elastifile Solution. In cases where Elastifile determines Customer engaged in conduct that Customer reasonably believed did not violate this policy in good faith, Elastifile will endeavor to provide Customer electronic notice of such determination that such conduct is not an acceptable use, and provided Customer cease such conduct not later than 24 hours after such notice, Customer will not be considered to be in breach of this Acceptable Use Policy.