ELASTIFILE TERMS OF SERVICE AGREEMENT

Effective: August 7, 2018

Last Revised: December 28, 2018

Version: 1.2

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. DEFINITIONS.

2. RIGHTS AND REQUIREMENTS RELATED TO THE ELASTIFILE SOLUTION

3. ACCESS AND USE OF THE ELASTIFILE SOLUTION

4. CUSTOMER DATA

5. FEES

6. SUPPORT SERVICES; PROFESSIONAL SERVICES.

7. WARRANTY; DISCLAIMERS

8. INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION

9. INDEMNIFICATION

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.

12. GENERAL

Appendix A
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.

***