Elate Terms of Service

2.    OUR RESPONSIBILITIES

2.1.    Provision of the Services. We will make the Services available to You pursuant to this Agreement and the applicable Order Forms, provide Our standard support for the Services to You at no additional charge, or upgraded support if You pay Us an additional fee (in accordance with the different service levels We may provide, subject to an additional fee), and use commercially reasonable efforts to make Elate available twenty-four (24) hours a day, seven (7) days a week, except for:
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(a)     Planned downtime (but We will try to give You at least eight (8) hours electronic notice and to schedule this downtime during the weekend hours i.e., 6:00 p.m. Friday to 5:00 a.m. Monday Central Standard time); and

(b)     Any unavailability caused by circumstances beyond Our reasonable control, including without limitation act of nature, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (excluding Our employees), Internet service provider failure or delay, supporting software failures, act of government, or denial-of-service attack.

You acknowledge that We may from time to time in Our sole discretion issue updates or upgrades, or other amendments, to the Services and automatically update or upgrade the version of the Services that You are using. You consent to such automatic updating or upgrading, and agree that this Agreement will apply to all such updates, upgrades or amendments, unless such upgrade, update or amendment is accompanied by a separate license in which case the terms of that license will govern.

Notwithstanding anything to the contrary in this Agreement, We will make the Website available to you on an as-is basis, and We reserve the right to withdraw or amend the Website, and any service or material We provide on the Website, in Our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict or terminate access to some parts of the Website, or the entire Website, to Users for any or no reason in our sole discretion.

2.2.    Our Policies. We may maintain and publish policies regarding Our Service levels (i.e. up- time), data protection, and usage and other subject matter. We may occasionally modify and update these policies and, when We do, We will prominently post the new policies in the Service and/or email You a copy. Once published by Us, the updated policy will be effective and become Our policy relative to its subject matter, replacing and superseding the old policy. These policies, as updated from time-to-time, are hereby incorporated and form part of this Agreement. It is Your responsibility to stay current and on-side all Our policies. We will provide You with thirty (30) days prior written notice of any changes to Our policies (which notice may include a post in the Service), and in the event that any terms or conditions of the modified policies are less favorable to You than the version being replaced, You may terminate this Agreement on thirty (30) days prior written notice, which notice must be sent within thirty (30) days of the date of Our notice of the change.

2.3.    Compliance with the Terms. Our obligation to provide the Services, and Your rights to use the Services, are subject to and conditioned on Your compliance with all of the terms and conditions of this Agreement, including any terms in the Order Form(s) and any of Our Policies.
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3.    USE OF SERVICES
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3.1.    License Options. We offer the Elate Service in several license types. The products and license types applicable to You, and the features of such license type, are set forth in the Order Form. In the event that the Order Form provides for a specific number of Users, Your license to use the Service is limited to the specified number of Users. You must enter into one or more Order Forms to use the non-Website portions of the Services.

3.2.    Beta Services. From time to time, We may offer a Beta version of the Service. You acknowledge that the Beta version may be an untested, non-functional, and/or partly functional version of the Service. If You elect to use the Beta, You do so at Your own risk. We do not warrant that the Beta features will be provided with due care. You will not rely upon the functionality of the Beta features for any purpose whatsoever.
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The Beta features will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to the Beta features. BETA SERVICES, WHERE OFFERED, ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
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3.3.    Your Responsibilities. You will comply with any and all responsibilities set forth in the law, among any applicable statutes under state or federal law. In addition, You will also:

(a)     Be responsible for Users’ compliance with this Agreement;

(b)     Be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data;

(c)     Prevent unauthorized access to or use of Elate Services, and notify Us promptly of any such unauthorized access or use;

(d)     Use Elate Services only in accordance with this Agreement and associated User Documentation, applicable laws and government regulations; and

(e)     Comply with the terms with which You use the Elate Services.

You are fully responsible for Your Data, including without limitation for complying with all laws applicable to Your Data. You acknowledge and agree that all Your Data is at Your sole responsibility and risk.

You shall assume sole responsibility for:

(a)     the selection of the Services and the results You thereby intend to achieve;
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(b)     the implementation of correction suggestions and any other suggestions or recommendations provided by the Services;
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(c)     the completeness, accuracy, consistency and quality of Your Data and all other information which originates from You;
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(d)     the compliance with any third-party property rights or copyrights and privacy rights or any other third-party rights with regard to Your Data and its transfer to Us; and
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(e)     the infrastructure, software and functional capability of the Internet access used by You.
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3.4.    Usage Restrictions. You covenant and warrant that You will not:
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(f)     Make the Elate Service available to, or use the Elate Service for the benefit of, anyone other than You or Users and to not exceed any limitation on the number of Users as set forth in any Order Form;

(g)     Sell, resell, license, sublicense, distribute, rent or lease the Elate Service, or include the Elate Service in a service bureau or outsourcing offering;
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(h)     Use the Elate Service to store or transmit infringing, libelous, pornographic, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
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(i)     Use the Elate Service to store or transmit Malicious Code;
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(j)     Interfere with or disrupt the integrity or performance of the Elate Service or third-party data contained therein;
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(k)     Attempt to gain unauthorized access to the Elate Service or its related systems or networks;
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(l)     Permit direct or indirect access to or use of the Elate Service in a way that circumvents a contractual usage limit;
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(m)     Copy the Elate Service or any part, feature, function or user interface thereof, or create derivative works of the Elate Service or any part, feature, function or user interface thereof;
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(n)     Frame or mirror any part of the Elate Service, other than framing on Your own intranet(s), extranet(s) or otherwise for Your own internal business purposes or as permitted in this Agreement;
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(o)     modify, translate, decompile, bootleg, disassemble, or extract the inner workings of any software constituting part of the Elate Service, or otherwise attempt to discover the source code of any such software;
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(p)     copy the look-and-feel or functionality of the Elate Service;
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(q)     Access the Elate Service in order to build a competitive product or service, or reverse engineer the Elate Service (to the extent such restriction is permitted by law) or;
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(r)     Use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Elate Service in a manner that sends more request messages to the Elate Service servers than a human can reasonably produce in the same period of time by using a conventional web browser.
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You agree that We may terminate providing the Service, and/or your access thereto, immediately, if You are found to be in violation of this Section 3.4.



4.    FEES AND PAYMENT

4.1.    Fees. You will pay all fees specified in Order Forms and otherwise owing in respect of Your use of Our Services. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancelable and fees paid are non-refundable. Unless otherwise provided in an Order Form, the subscription term for any Elate Services shall begin on the date of such Order Form.

4.2.    Invoicing and Payment. You will provide Us with valid and updated payment information, or with a valid purchase order or alternative document reasonably acceptable to Us. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net ninety (90) calendar days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

4.3.    Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).

4.4.    Suspension of Service and Acceleration. If any amount owing by You under this Agreement for Our services is thirty (30) or more calendar days overdue (or fifteen (15) or more calendar days overdue in the case of amounts You have authorized Us to charge to Your payment card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Our services (including without limitation the provision of the Service) to You until such amounts are paid in full. We will give You at least seven (7) calendar days’ prior notice that Your account is overdue, in accordance with Section 12.3 (Manner of Giving Notice), before suspending services to You.

4.5.    Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your subscriptions hereunder (excluding taxes on Our income or property). If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

4.6.    Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features of the Services, or dependent on any oral or written statement (with the exception of written statements set out in Order Forms) made by Us regarding future functionality or features of the Services.

4.7.    Platform Fee True-Up. You agree that the pricing for the Elate Services is based upon the number of Users and platform edition. In the event that the number of Users for Your organization increases during the course of a license term, We shall be entitled to receive a pro- rated increase in fees charged in any Order Form based upon the relevant pricing tiers for Your organization’s increase.



5.    PROPRIETARY RIGHTS AND SERVICES

5.1.    Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Elate Services, including all of Our/their related intellectual property rights. The Elate Services are licensed, not sold, and You do not acquire any rights of ownership in the Elate Services. No rights are granted to You hereunder other than as expressly set forth herein.

5.2.    License to Use the Elate Services. Subject to the terms and conditions of this Agreement, We hereby grant to You a personal, non-exclusive, non-transferable, non- sublicensable, revocable, limited license to use the Elate Services for Your Internal business purposes only, in the manner described in this Agreement and in the Documentation and for the term defined in this Agreement. Upon termination or expiration of an Order Form for any reason, You must cease all use of the Elate Services granted pursuant to such Order Form.

5.3.    License by You to Host Your Data and Applications. You grant Us a worldwide, limited-term, sublicensable license to host, copy, transmit and display Your Data, as necessary for Us to provide the Elate Services in accordance with this Agreement. Subject to the limited licenses granted herein (including the rights granted to Us in Section 7.3 (Benchmarking and Aggregated Data Use) below), We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data.
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5.4.    Use of Name. We may use Your name and logo in listings of Our customers, including on Our website with Your express written approval. Upon written approval We agree to follow any usage guidelines that You provide to Us for use of Your name and logo. We agree that We shall not issue any press-release or imply that You endorse Us or Our products without Your express written approval.
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5.5.    Work Product. All copyrights, patents, trade secrets or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, approaches, know-how, methodologies or works of authorship developed or created by Us during the course and in the scope of performing the Elate Services (collectively, the "Work Product") shall belong exclusively to Us; You hereby irrevocably assign and transfer to Us, as of the time of creation of the Work Product, any and all right, title or interest You may have in such Work Product. We agree that Your Confidential Information (as defined below) shall belong exclusively to You. Notwithstanding the foregoing, We agree that We do not have the right to reuse or allow others to use Your Confidential Information that is included in any Word Product.

5.6.    License by You to Use Your Feedback. You grant to Us a worldwide, perpetual, irrevocable, transferable, sublicensable royalty-free license to, at Our sole discretion, use and incorporate into the Elate Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Elate Services.



6.    CONFIDENTIALITY
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6.1.    Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Elate Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
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6.2.    Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third-party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section.
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In particular, You acknowledge that the Elate Services and the Documentation contain valuable proprietary information and trade secrets and that unauthorized or improper use of the Elate Services and/or the Documentation will result in irreparable harm to Us for which monetary damages would be inadequate and for which We will be entitled to immediate injunctive relief.
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6.3.    Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
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6.4.    Applicability for Website-Only Users. If You use only the Website and do not use any other of our Services, then the obligations in this Section 6 are modified such that only We are the Disclosing Party and only You are the Receiving Party. In those circumstances We will not have any obligations under this Section 6.



7.    DATA PROTECTION
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7.1.    Relationship of the Parties: To the extent that Your Data contains personal data / personally identifiable information about any individual ("Personal Data"), You acknowledge that We will process that Personal Data only as a data processor acting on behalf of You (You being the data controller) and in accordance with the requirements of this Agreement. We will process the Personal Data in accordance with Your instructions under applicable privacy law(s) and will not assume any responsibility for determining the purposes for which and the manner in which the Personal Data is processed. You warrant to Us that You have the right to provide any such personal data/ personally identifiable information to us, and We have the right to use the personal data/ personally identifiable information for the purposes of providing the Elate Services; and You have provided all necessary notices to, and obtained all necessary permissions and informed consents from any data subjects to whom the personal data/ personally identifiable information relates to, including without limitation in compliance with all applicable privacy and other laws.
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7.2.    Our Privacy Policy. Our Privacy Policy, available here (https://www.goelate.com/privacy- policy), is incorporated into this Agreement by reference. You agree, on behalf of Yourself and Your Users, that We may collect, use, process and store data about You and Your Users, including without limitation Your business contact information (such as names, business phone numbers, and business e-mail addresses, and other categories of information processed in connection with the Service) and information about Your and Your Users’ usage of the Service, in accordance with Our Privacy Policy. You are responsible for ensuring that Your Users accept the privacy practices described in Our Privacy Policy.
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7.3.    Benchmarking and Aggregated Data Use: Notwithstanding what is stated elsewhere in this Agreement, You agree that We may process Your Data and data about You and Your Users to improve the Service, to analyse data and provide benchmarks, to create and compile anonymized, aggregated datasets and/or statistics, provided that such analysis, aggregated benchmarks, datasets and other similar uses do not allow the identification of You or individual Users by third parties. The rights and licenses granted to Us under this Section are perpetual.
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7.4.    Subprocessing. You authorize Us to subcontract processing of Your Data under this Agreement to a third party provided that: (a) We flow down Our obligations to protect Your Data, to any subcontractor We appoint, so that the data processing terms of the subcontract are no less onerous than the data processing terms set out in this Section 7.
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7.5.    Data Processing Indemnification. You shall defend, indemnify and hold harmless Us from and against any and all claims, actions, liabilities, losses, damages and expenses which arise from third party claims which arise directly or indirectly out of or in connection with data processing activities under or any other services in connection with this Agreement, including without limitation those arising out of any third party demand, claim or action, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any part of applicable data protection and/or privacy laws.
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7.6.    Data Security. We implement reasonable administrative, technical and physical controls to help safeguard the confidentiality, integrity and availability of Your Data. We cannot guarantee data security, however. Neither people nor security controls (including encryption systems) are foolproof. In addition, individuals may commit intentional crimes, make mistakes, or fail to follow policies. If applicable law imposes any non-disclaimable duty (if any), You agree that the standard used to measure Our compliance with that duty will be one of negligence.



8.    REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
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8.1.    Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2.    Our Limited Warranties. We warrant that:
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(a)      This Agreement, the Order Forms and associated User Documentation accurately describe the applicable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data;

(b)      We will not materially decrease the overall security of the Service during a subscription term;

(c)      The Service will perform materially in accordance with the applicable Documentation

(d)      We will not materially decrease the functionality of the Service during a subscription term; and

(e)      The Elate Service will not introduce Malicious Code into Your systems.

For any breach of an above warranty, Your exclusive remedies (and Our entire liability) are those described in Sections 11.2 (Termination) and 11.3 (Refund or Payment upon Termination). The foregoing warranties do not apply to the Website, which is provided “as-is”.
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8.3.    Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE, OR SUITABILITY; ANY WARRANTY RELATING TO ANY THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING THE SERVICES; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY CONSULTING OR BUSINESS SERVICES OR RECOMMENDATION WE MAY MAKE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES, WHERE OFFERED, ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. WE DO NOT WARRANT THAT THE ELATE SERVICES MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE ELATE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE. YOU AGREE THAT WE WILL HAVE NO RESPONSIBILITY (OR RELATED LIABILITY) FOR BACKING UP YOUR DATA OR ANY INFORMATION THAT YOU PROVIDE TO US.
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8.4.    High-Risk Application Disclaimer. The Services are not designed or intended for use in or for the purposes of hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Services could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities"). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.



9.     MUTUAL IDEMNIFICATION

9.1.    Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third-party alleging that: (i) Our breach of Section 6 (Confidentiality); or (ii) the use of the Elate Services (other than the Website) in accordance with this Agreement infringes or misappropriates such third-party’s intellectual property rights in the agreed country of delivery (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You:
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(a)     Promptly give Us written notice of the Claim Against You;
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(b)     Give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability); and
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(c)     Give Us all reasonable assistance, at Our expense.
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If We receive information about an infringement or misappropriation claim related to the Elate Service, We may in Our discretion and at no cost to You (i) modify the Elate Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Limited Warranties), (ii) obtain a license for Your continued use of the Elate Service in accordance with this Agreement, or (iii) terminate Your subscriptions for the Elate Service upon thirty (30) calendar days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement, is asserted by a company, which exercises control over You or which is controlled by You, results from use of the Service in combination with any product or service not supplied or approved by Us, Your modification of the Services, or Our compliance with Your written specifications or directions, including the incorporation of any software or other materials or process provided by or requested by You. The foregoing indemnification obligations will not apply to You if you only use the Website and not other Elate Services.
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9.2.    Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third-party alleging that Your Data, or Your use of the Elate Service in breach of this Agreement, infringes or misappropriates such third-party’s intellectual property rights or other rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We:
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(a)      Promptly give You written notice of the Claim Against Us; and
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(b)      Give You all reasonable assistance, at Your expense.
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Without limiting Your obligation to indemnify in accordance what is stated above, We shall have the right (but no obligation), at Our discretion, to defend and/or reconcile the Claim Against Us alongside You and to participate in all legal and other actions related to the Claim Against Us. You may not settle any Claim Against Us unless it unconditionally releases Us of all liability.
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9.3.    Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.



10.    LIMITATION OF LIABILITY
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10.1.    Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT ANY DAMAGES FOR A BREACH BY EITHER PARTY OF SECTION 6 (CONFIDENTIALITY), ANY OBLIGATION BY EITHER PARTY UNDER SECTION 9 (MUTUAL INDEMNIFICATION) YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT). IF A COURT DETERMINES THAT THIS LIMITATION OF LIABILITY IS NOT PERMITTED UNDER APPLICABLE LAW, THEN THIS SECTION WILL AUTOMATICALLY BE AMENDED TO LIMIT OUR LIABILITY TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
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10.2.    Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.



11.    TERM AND TERMINATION
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11.1.    Term of Agreement. This Agreement commences on the date You first accept it and continues until the purchased subscription to use the Elate Service hereunder has expired or has been terminated, or, with respect to Your use of the Website, for so long as you continue such use. The term of the subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Your subscription will automatically renew for additional period equal to the expiring subscription term or one (1) calendar year (whichever is shorter), unless either party gives the other notice of non-renewal at least fifteen (15) calendar days before the end of the subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least ninety (90) calendar days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
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11.2.    Termination. A party may terminate this Agreement for cause, which includes, without limitation, the following: (i) upon thirty (30) calendar days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) if a right to terminate the Agreement is explicitly set forth in this Agreement. In addition, we may terminate this Agreement with respect to Your right to use the Website at any time, and You may terminate this Agreement with respect to Your right to use the Website at any time by ceasing use of the Website. Upon termination or expiration of this Agreement for any reason all applicable licenses and other rights granted to You will immediately terminate. All paper copies of training or know-how and electronic copies of similar material will be destroyed by You and You will certify such destruction in writing.
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11.3.    Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.2 (Termination), We will refund You any prepaid fees covering the remainder of the term of the Agreement after the effective date of termination negating any discounts applied should You terminate early within a Discount Period. A Discount Period is defined by this Agreement to be a discount given to You by subscribing for more than a twelve (12) month duration. Early termination by You will negate any Discount Period applied at original signing. If this Agreement is terminated by Us in accordance with Section 11.2 (Termination), You will pay any unpaid fees covering the remainder of the term of the Agreement. In no event will termination relieve You of Your obligation to pay any fees payable to Us prior to the effective date of termination.
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11.4.    Your Data Portability and Deletion. Upon request by You made no later than ninety (90) calendar days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for Your export or download in a format as described to You in User Documentation. After that 90-day period, We will have no obligation to maintain or provide Your Data, and will delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the User Documentation, unless legally prohibited. This Section does not apply to You if you only use the Website; in that circumstance we will have no obligation to retain your data or make it available to you except as required by applicable law.
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11.5.    Surviving Provisions. Sections 4 (Fees and Payment), 5 (Proprietary Rights and Licenses), 6 (Confidentiality), 7 (Data Protection), 8.3 (Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.3 (Refund or Payment upon Termination), 11.4 (Your Data Portability and Deletion), 11.5 (Surviving Provisions), 12 (Governing Law and Jurisdiction, Notices) and 13 (General Provisions) and any other terms that by their nature should survive the termination or expiration of this Agreement will survive any termination or expiration of this Agreement.


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12.    GOVERNING LAW AND JURISDICTION, NOTICES.
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12.1.    This Agreement shall be governed by and construed in accordance with the internal laws of the state of Indiana. The courts of the state of Indiana in the county of Marion and the United States District Court for the Southern District of Indiana shall have exclusive jurisdiction over any such lawsuit arising between the parties.
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BOTH PARTIES KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT THE PARTIES MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.
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12.2.    General. Notices to the parties should be addressed to the parties and addresses listed in the signature block of this Agreement, as the same may be updated by either party by written notice to the other party.
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12.3.    Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
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12.4.    Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of legal rules, and to the exclusive jurisdiction of the applicable courts above.


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13.    GENERAL PROVISIONS
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13.1.    Export Compliance. The Elate Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied- party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

13.2.    Anti-Corruption. You represent and warrant that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will promptly notify Us of same.
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13.3.    Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of the Elate Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. You acknowledge and agree that We may modify or amend this Agreement at any time, upon any or no prior notice to You. Such modifications or amendments will be effective upon being posted to Our website, so We encourage you to check this Agreement regularly for any changes. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) any associated User Documentation.

13.4.    Assignment. You may not assign this Agreement, or any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). Notwithstanding the aforesaid, You may assign this Agreement in its entirety, without Our consent, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets. We may freely assign this Agreement, or any of Our rights or obligations hereunder, whether by operation of law or otherwise, without Your prior written consent. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the aforesaid, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.5.    Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.6.    Third-Party Beneficiaries. Our licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable licensed technology. There are no other third-party beneficiaries under this Agreement.

13.7.    Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

13.8.    Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

13.9.    Attorney Fees. You hereby agree that in the event any action is necessary for Us to enforce any rights or remedies arising out of or related to this Agreement, including the collection of any fees or charges due to Us under this Agreement, You will be responsible for the payment of any reasonable costs and attorneys’ fees incurred in connection with said action, including pre-suit investigations and demands, district court litigation, appeals and collection efforts following entry of a judgment in said action.

13.10.    Publicity. Without the prior express written consent of the other party, which consent shall not be unreasonably withheld, a party shall not originate any publicity, news release, technical article, advertising or other announcement, written or oral, whether to the public press or otherwise (each, an “Announcement”), relating to performance under this Agreement or the existence of this Agreement, except where required by law and except that We may publicly announce and otherwise identify (including on the Website) You as being Our customer. If required by law to make any Announcement, a party shall always (a) consult with the other party in connection with such Announcement a reasonable time prior to its release to allow such other party to comment thereon and to prevent its release if so permitted by law; and (b) promptly provide the other party with a copy of the released Announcement and all materials relating thereto.
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13.11.    Access to Elate Services by Competitors and Others. Except with Our prior written consent, You may not access Elate Services if You are Our direct competitor. In addition, regardless of whether or not You are our direct competitor, You may not, except with Our prior written consent, access Elate Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.

13.12.    Subcontractors. You agree that We may subcontract any or all of Our obligations under this Agreement.