SAAS END USER LICENSE AGREEMENT (EULA)
E-Laborative Technologies Ltd. ("ELAB")
provides customer workforce management, website creation and management,
content management, web hosting and other Software as a Service (SaaS)
subscription services as further described in this Agreement and on the Website
under specific subscription plans offered by ELAB. The ELAB
services are provided through ELAB’s SaaS platform via elaborative.com (the "Website"),
and will be hosted by ELAB on a domain of the customer’s choice (ie:
YourDomainChoice.com). This Agreement applies to any one signing up
to create an account in order to access and use the ELAB services provided
under the terms of this Agreement.
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS
ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE
APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE
SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY
EXECUTING A PURCHASE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE
TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND
WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO
ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II)
SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS
AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT
THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR
SERVICES.
- DEFINITIONS
"Customer Data" has the meaning given
in Section 4.2;
"Customer Site" means the website
Customer builds through use of the ELAB Service or imports to the ELAB Service
using ELAB utilities which is hosted on ELAB’s servers.
"Documentation" means "how to" user
guides and reference materials on the Website for the ELAB Service;
"Fees" means the applicable
subscription fees payable by Customer to ELAB for the right to receive access
to the ELAB Service and Support Services, all as further described on the
Website and in the Documentation;
"Intellectual Property" means all rights in
any invention, discovery, improvement, utility model, patent, copyright,
trademark, industrial design or mask work right, and all rights of whatsoever
nature in computer software and data, Confidential Information, trade secrets
or know-how and all intangible rights or privileges of a nature similar to any
of the foregoing, in every case in any part of the world whether or not
registered, and shall include all rights in any applications and granted
registrations for any of the foregoing rights;
"Pattern Data" means non-personally
identifiable information, data and reports derived from or compiled through the
ELAB Service, including but not limited to demographics data, mobility
patterns, location data and trend data such as aggregated data and statistics
indicating frequency of use and popularity of the services. For greater
certainty, Pattern Data is data that does not identify a specific customer or
its end users and is data which does not relate to a specific customer’s
business (including data relating to a specific customer’s locations that
receive the Services).
"ELAB Service" means the core ELAB
Software as a Service (SaaS) offering made available on a subscription-basis
through ELAB’s proprietary SaaS technology and platform. The ELAB Service includes
access to core modules and added modules for workflow management, customer
experience management, website creation and management, content management,
website hosting, e-commerce, and other features and functionality made
available by ELAB from time to time;
"Support Services" means any services and
features provided by ELAB in support of or supplemental to the ELAB Service as
further described in Section 3 and in more detail in the Support section of the
Website;
"Services" means collectively the
"ELAB Service" and the "Support Services";
"Term" has the meaning given
in Section 6.1;
"Third Party Software" has the meaning given
in Section 2.9; and
"Website" means www.elaborative.com
or such other custom URL as configured by ELAB for You where information and
access to the ELAB Service is available.
- SAAS LICENSE TERMS
- SAAS Subscription. The Elaborative
Tools System and its components are made available and licensed on a seat
basis as "Software as a Service" (SAAS) There is no physical software
installation or license rights to physical copies of code or proprietary
technologies beyond Your subscription to the SaaS tools system and
components You subscribe to, as outlined in the Statement of Work.
- Creating an Account. After execution
of a contract, ELAB may require you to create an account on the
Elaborative.com website to store information about You. This
information may include your company name, address, main contact person
including that person’s telephone number, email address and contact
preferences. In addition, ELAB may set You up with access to the
Elaborative Change Request system, to facilitate and expedite change
requests, work orders, or general requests, once the SaaS setup and
customization phase is complete. In addition, administrators of the SaaS
system will each be set up with their own administrative seat, with login
credentials and access to high level administrative functions in the
system. The creation of admin accounts in the SaaS tools system will be done
during the setup and customization phases.
- Creating a Website; APIs; Custom
Services.
Through the capabilities of the ELAB Service, you will be able to create and
customize your SaaS website and web tool set in order make use of the
customer workforce management, website creation and management, content
management, website hosting and other features offered as part of the ELAB
Services. For custom integration and development support, please refer to
Section 9.3 on professional services. You may also be able to
develop your own modules using the ELAB API for further terms on use of
our API please see Section 10 below.
- Trial License. You may evaluate
and use certain specified modules in the ELAB Service on a trial,
evaluation basis for the period of time indicated at the time of
selecting your subscription plan. For greater certainty, trials are at
the discretion of ELAB and ELAB reserves the right to cancel or terminate
a trial immediately at any time on provision of written notice to
You. ELAB hereby grants to Customer and Customer hereby accepts a
non-exclusive, non-transferable, royalty-free, license, during the trial
evaluation period, to use the ELAB Service for evaluation purposes only,
subject to the terms and conditions of this Agreement. ELAB shall
provide to Customer without charge, reasonable email support requested by
Customer for the trial evaluation period in connection with the use and
operation of the ELAB Service.
- Commercial License. Subject to
payment of the applicable Fees, ELAB hereby grants to Customer a
non-exclusive, non-transferable internal SaaS license to use and access
the Website and user interface for the purpose of using the ELAB Service
and the Support Services during the Term. Customer shall be entitled to
use the modules provided in the subscription plan selected and purchased
by Customer. On creation of your account, you will be able to
create your own login details enabling direct access to its Services for
multiple levels of access by Customer’s permitted users. Customer
will have the ability to trial, subscribe, suspend and unsubscribe from
modules (both paid and free modules depending on Customer’s
subscriptions) of the ELAB Service.
- License Restrictions. All
software provided is licensed as Software as a Service; not
sold. You shall use the Services solely as contemplated in this
Agreement and shall not license, sublicense, sell, resell, lease,
transfer, assign, distribute, time share or otherwise make the ELAB
Service available to any third party without the written consent of ELAB.
You shall not: (a) modify, translate, reverse engineer, decompile,
disassemble, or create derivative works based on the ELAB Service except
to the extent expressly agreed upon in writing by ELAB or to the extent
that enforcement is prohibited by applicable law notwithstanding a
contractual provision to the contrary; (b) circumvent any user limits or
other use restrictions that are built into the Services (c) access the
Services in order to (i) build a competitive product or Services; or (ii)
copy any proprietary ideas, features, functions or graphics of the ELAB
Service.
- Restrictions on Use of the
Services.
You shall not (a) use, or permit the use of, the Services for an illegal
purpose, criminal offence, intellectual property infringement, harassment
(including annoying or offensive transmissions), or in a manner that
would cause interference with network operations; (b) resell, remarket,
transfer or share the Services or receive any charge or other benefit for
the use of the Services; attempt to bypass ELAB ’s network, or
re-arrange, disconnect, remove, repair or otherwise interfere with any
Services or facilities; or (c) remove any proprietary notices, labels, or
marks from the ELAB Technology or modify, alter, or deface
any of the trademarks, servicemarks, or other intellectual property made
available through the Services nor use any of the foregoing except for
the specific purpose for which such intellectual property is made
available to You.
- Lawful purposes. You will at any
and all times meet Your obligations hereunder, as well as any and all
laws, regulations and policies that may apply to the use of the Services
in Your country, including applicable rules that govern the export or
import of software and laws relating to collection and use of personal
information. You agree to use the Services solely for lawful purposes
only. In this respect You may not, without limitation (i) use the
Services to manage any illegal operations, (ii) use any type of spider,
virus, worm, trojan-horse, time bomb or any other codes or instructions
that are designed to distort, delete, damage or disassemble the
technology underlying the Services (including our proprietary software
which may be available for download on the ELAB website), (iii) send any
unsolicited commercial communication not permitted by applicable law; or
(iv) endanger any part of any system or Internet connection of ELAB or
any third party through your use of the ELAB Service.
- Third Party Software. The technology
underlying the ELAB Service may incorporate and embed software and other
technology owned and controlled by third parties. Any such third party
software or technology that is incorporated in the ELAB Technology falls
under the scope of this Agreement. Such third party software is licensed;
not sold and will be provided to You on the license terms of this
Agreement unless additional or separate license terms apply as indicated
at the time of account access.
- SERVICE TERMS
- Provision of ELAB Service.
Conditioned on the terms and conditions of this Agreement and payment of
the Fees, ELAB shall make the ELAB Service and the Support Services
available to Customer during the term of the Customer’s subscription.
- General Service Warranties. ELAB represents
and warrants that during the Term (i) it will provide the ELAB Service
and Support Services in a manner consistent with general industry
standards reasonably applicable to the provision thereof; and (ii) the ELAB
Service shall perform materially in accordance with the
Documentation. For greater certainty, ELAB does not warrant that
Customer’s use of the Service will be error-free or uninterrupted.
- ELAB Service Responsibilities. The ELAB
Service has built in help features to assist Customer in troubleshooting
and resolving problems encountered while using the ELAB Service.
For matters that cannot be resolved ELAB may be contacted on the contact
information set out on the Website under ‘Support’. ELAB shall use
commercially reasonable efforts to (i) maintain the security and
integrity of the ELAB Service and the Customer Data; and (ii) make the ELAB
Service available twenty-four (24) hours a day, seven (7) days a week,
except for: (a) planned downtime; or (b) any unavailability caused by a
force majeure event (see further section 13.1).
- Incremental Services. From time
to time, additional ELAB or third-party functionality (such functionality
being deemed not to be part of the ELAB Service) may be made available by
ELAB to Customer (in the case of third-party functionality, such
functionality being made available on a pass-through basis pursuant to
terms specified by the third-party provider of such functionality), and
which additional functionality may be purchased by Customer for
additional fees in accordance with any additional terms and conditions
specified by ELAB.
- Service Limitations. The ELAB
Service is not a back-up service and accordingly ELAB will not be
responsible for any lost data due to server crashes or other events
outside of ELAB’s reasonable control. However, ELAB maintains a
15-day continuous backup of all data on its servers to minimize the
impact of any server issues.
- Resource Limitations. The
resources available with ELAB Service are limited, per Subscription, as
follows:
- #1 (limit 1 domain) If required,
additional domain licenses can be purchased
- #2 (50gb disk space) If required,
additional disk space can be purchased
- PROPRIETARY RIGHTS, DATA TERMS AND
CONFIDENTIALITY.
- Exclusive Ownership. Except for the
rights and licenses granted in this Agreement, You acknowledge and agree
that any and all intellectual property rights to or arising from the
software and technology used to provide the Website and ELAB Service are
and shall remain the exclusive property of ELAB and its licensors.
Nothing in this Agreement is intended to transfer any such IP rights to,
or to vest any such intellectual property rights in, You. You are only
entitled to the limited use of the intellectual property rights granted
to You in this Agreement. You will not take any action to jeopardize,
limit or interfere with ELAB's intellectual property rights. Any
unauthorized use of ELAB 's intellectual property rights is a violation
of this Agreement as well as a violation of intellectual property laws
and treaties, including without limitation copyright laws and trademark
laws.
- Customer Data. As between You
and ELAB, You own and retain ownership of customer content. You provide,
store and process through the ELAB Service including personal information
about Customer Site users and metrics specific to Customer Site ("Customer
Data"). You hereby grant ELAB a worldwide, royalty-free,
and non-exclusive license during the term of your subscription to access
Customer Data in order to: (i) provide the Services, including storing,
hosting and management of such content; and (ii) create Pattern Data. You
understand that ELAB , in performing the required technical steps to provide
the Services, may need to (a) transmit or distribute Customer Data over
various public or private networks and in various media; and (b) make
such changes to Customer Data as are necessary to conform and adapt that
Customer Data to the technical requirements of connecting networks,
devices, Services or media. You confirm and warrant to ELAB that
you have all the rights, power and authority necessary to grant the above
Content License and that use of the Content in the manner contemplated
will not breach the rights of any third party. ELAB will not publish or
share confidential Customer Data with any third parties, without
consent. Further information on confidentiality is included in section
5.
- Content Responsibilities. Customer
is responsible for any and all content provided hereunder and for
compliance with this Agreement including obtaining all necessary
licenses, permissions and consents to enable all material comprising
Client Data to be made available to ELAB for ELAB to transmit, host and
store. For greater certainty, Customer shall: (i) have sole
responsibility for the accuracy, quality, integrity, legality,
reliability, and appropriateness of all Customer Data; (ii) use
commercially reasonable efforts to prevent unauthorized access to, or use
of, the ELAB Service and notify ELAB promptly of any such unauthorized
access or use; and (iii) comply with all applicable local, provincial,
state, federal and foreign laws in using the ELAB Service.
- Suggestions. ELAB shall have
a royalty-free, worldwide, transferable, sublicensable, irrevocable,
perpetual, unrestricted license to use and/or incorporate into its
products, services and business any suggestions, enhancement requests,
recommendations or other feedback provided by You relating to the
operation of the Services.
- CONFIDENTIALITY
- Definition of Confidential
Information.
As used herein, "Confidential Information" means all confidential and
proprietary information of a party (the "Disclosing Party") disclosed to
the other party (the "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, including the terms and conditions of this
Agreement, the Customer Data, the Software, business and marketing plans,
technology and technical information, product designs, and business
processes. Confidential Information shall 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) was
independently developed by the Receiving Party without breach of any
obligation owed to the Disclosing Party; or (iv) is received from a third
party without breach of any obligation owed to the Disclosing Party.
- Obligations. The Receiving
Party shall not disclose or use any Confidential Information of the
Disclosing Party for any purpose outside the scope of this Agreement,
except with the Disclosing Party's prior written permission. Each
party agrees to protect the confidentiality of the Confidential
Information of the other party in the same manner that it protects the
confidentiality of its own proprietary and confidential information of
like kind (but in no event using less than reasonable care).
- Compelled Disclosure. If the Receiving
Party is compelled by law to disclose Confidential Information of the
Disclosing Party, it shall provide the Disclosing Party with prior notice
of such 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.
- Remedies. If the
Receiving Party discloses or uses (or threatens to disclose or use) any
Confidential Information of the Disclosing Party in breach of
confidentiality protections contained in this Agreement, the Disclosing
Party shall have the right, in addition to any other remedies available
to it, to seek injunctive relief to enjoin such acts, it being
specifically acknowledged by the parties that any other available
remedies may be inadequate.
- TERM AND TERMINATION
- Services Period and Renewals. Subscriptions
are for periods of time selected at the time you execute your contract
with ELAB (such as annual or multi year subscriptions).
Subscriptions will auto-renew at the end of the then current term unless
or until your subscription is terminated pursuant to Sections 6.2 or 6.3
below ("Term"). You may update your subscription
preferences at any time through Your account.
- Termination by Customer, Early
Termination Clause. If You are dissatisfied with (i) the Services; (ii)
the Agreement; or (iii) any policy or practice of ELAB in operating the
Services, You may terminate the Services. Termination is effective
immediately from the date You contact ELAB ("Termination
Date"). Termination of the Services will not entitle you to a
refund of any amounts prepaid for the Services. If you wish to
terminate the service before the end of your license period, You will be
responsible for paying a termination fee equal to one-half (50%) the
remaining SaaS licencing amount due for the remainder of the agreed upon
SaaS license period, at the same user levels and configuration from the
beginning of the license agreement. This early termination fee shall be
due immediately.
- Services Suspension or Termination
by ELAB.
Without limiting other remedies, ELAB may limit, suspend, or
terminate this license and Your use of the Services, prohibit access to
the Website and delete Your user account and/or user ID, with immediate
effect, if any outstanding invoices are more than 30 days past due, if we
think that You are in breach of this Agreement, creating problems, legal
liabilities (actual or potential), acting inconsistently with respect to
our policies (which can be found in the Privacy Policy) infringing
someone else's intellectual property rights, engaging in fraudulent,
immoral or illegal activities, or for other similar reasons. ELAB shall
effect such termination by providing notice to You to the email address
You have provided (if any), and/or by preventing Your access to Your
account.
- Effect of Termination. Upon termination
of this Agreement, the Services shall terminate and ELAB will terminate
Your account thirty (30) days after a failure to renew your subscription,
if You have closed your account or if this Agreement is terminated for
any other reason. ELAB will not be liable in respect of any damage
caused by the termination of this Agreement or closure of your account.
- Final Termination Data Export. Upon
completion of termination of the SaaS subscription and payment of any
early termination fees, ELAB will, at customer’s request, export
customer data in a flat file .csv format for the customer’s records.
This data shall include locations, educators, event data, class types,
and other information that is the exclusive ownership of the customer.
- PAYMENT TERMS
- Fees. Services are
purchased for subscription terms with payment for the specific period
being due and payable in advance. The setup and customization fees are
outlined in the Statement of Work document. Technical support, hosting,
and maintenance is included in the monthly SaaS licensing fees.
Professional services, further customizations, and upgrades beyond the
scope of the SOW are available on a time and materials basis, or fixed
quote basis as agreed with ELAB in an order form or quotation provided by
ELAB to You.
- Payment & Charges. Your access to
and use of the Services is subject to Your payment of the applicable fees
due for the Services selected by You ("Fees") set out on
the Website and all other applicable amounts, charges and taxes indicated
to You when You purchase Services (or otherwise notified to You by ELAB
from time to time) when you use the ELAB Service or noted on Your invoice.
Unless otherwise stated on the Invoice, all invoiced amounts are due within
30 days. Receipts for purchased Services will be delivered to You
electronically.
- Taxes. You are
responsible for paying any applicable governmental sales, use,
value-added, commodity, harmonized and other taxes imposed on Your
purchase or use of the Services. To the extent ELAB is required to
collect such taxes, the applicable tax will be added to Your billing
account.
- Transaction Processing, Automatic
Renewal.
ELAB will cause transactions in respect of Your purchase of Services to
be processed, and applicable fees owed by You to be collected. All
subscriptions will automatically renew with the same user levels as
current month, and for a duration equal to the previous signed agreement.
Relevant fees will be processed and charged to You in full unless You
notify ELAB at least thirty (30) days in advance of the anniversary of a
renewal period that you wish to discontinue the Services. Recurring
payments for periodic subscriptions are processed on the account
anniversary date for any subscriptions.
- CHANGES TO SOFTWARE, SERVICES AND
AGREEMENT
- Updates to Agreement. ELAB reserves
the right to modify this Agreement at any time by publishing the revised
Agreement on the Website and/or providing a copy of this Agreement by
email. The revised Agreement shall become effective within ten (10)
business days of such publication or provision to You, unless You
expressly accept the revised Agreement earlier. Your express acceptance
or Your continued use of the Services after expiry of the notice period
of ten (10) business days (being weekdays excluding any statutory
holidays in Ontario), shall constitute Your acceptance to be bound by the
terms and conditions of the revised Agreement.
- Changes to ELAB Technology. ELAB may alter,
update or upgrade the ELAB Technology from time to time. Updates
and upgrades to core framework and plug-ins will be processed
automatically.
- Changes to Fees and Services. ELAB may need to
change the Services, Services fees, amounts, charges or other aspects of
the Services in the future. Your SaaS license agreement term will lock
in your costs for the given term, however, at the end of the agreed upon
term, any changes to pricing or services will take effect. If pricing
changes will be assessed for future renewals, You will be given notice,
via email, of at least 30-days to evaluate the changes. If you do not
object to changes and request a termination of the services within
30-days via an email response, your acceptance will be automatically
assumed, and new service changes and charges will apply for automatic
renewals or future monthly licensing fees.
- SUPPORT AND MAINTENANCE
- Technical Support. Depending on the
type of Services(s) ordered, ELAB will provide basic support for the
Services and will (i) use commercially reasonable efforts to make the
Services available during the hours specified except for: (a) planned
downtime, or (b) any unavailability caused by circumstances beyond ELAB
's reasonable control, including without limitation, acts of God, acts of
government, flood, fire, earthquakes, civil unrest, acts of terror,
strikes or other labor problems (other than those involving ELAB
employees), or Internet Services provider failures or delays, and (iii)
provide the Services only in accordance with applicable laws and
government regulations.
- Maintenance Services. ELAB will
provide updates and upgrades to the technology underlying the Website
from time to time to provide new features and improvements, bug fixes and
error corrections which will be available across the ELAB platform.
- Professional Services. One-off
consulting and professional Services beyond the scope of the agreed upon
Statement of Work, may be requested and agreed with ELAB, including further
customization of features, upgrades and assistance with custom technology
builds. If any work product or deliverables are generated through the
provision of Professional Services under this Agreement ("Deliverables"),
the parties will determine ownership of such Deliverables in the purchase
order executed for the Professional Services. Notwithstanding the
generality of the foregoing, any enhancements, modifications or other
customizations to the ELAB technology will be owned by and vest in ELAB
exclusively including all title and interest in and to all Deliverables
including the benefit of all copyrights, trademarks, patents, trade
secrets or other intellectual property rights pertaining thereto.
- ELAB APIS
- API License. Subject to the
terms and conditions of this Agreement, ELAB grants You a non-exclusive,
non-transferable license for Your use of ELAB’s application program
interfaces ("APIs") to develop software applications that will
interface with the ELAB platform ("Applications"). You acknowledge
that the APIs contains confidential information and know-how and You
shall not use such confidential information or know-how except to the
extent necessary to exercise the rights granted to You hereunder.
If You use open source software in conjunction with the APIs, You must
ensure that Your use of such open source software does not: (i) create,
or purport to create, obligations on ELAB with respect to the Software;
or (ii) grant, or purport to grant, to any third party any rights to or
immunities under ELAB’s intellectual property or proprietary rights in
the APIs.
- API License Restrictions. For
greater certainty, You shall not, except to the extent permitted under
Section 10.1:
- disclose any performance, benchmarking,
or feature-related information about the APIs;
- distribute, lease, rent, grant a
security interest in, assign, or otherwise transfer the APIs;
- create a subset, superset or other
derivative work of the APIs;
- disclose, transfer or otherwise provide
to any third party any portion of the APIs or confidential information
or know-how, except as explicitly permitted herein.
- develop an Application using the APIs
and any open source software that results in any program file(s) that
contain code from both the APIs and any open source software (including
without limitation libraries), if the open source software is licensed
under a license that requires any "modifications" be made
freely available. You also may not combine the APIs with programs
licensed under the GNU General Public License ("GPL") in any
manner that could cause, or could be interpreted or asserted to cause,
the APIs or any modifications thereto to become subject to the terms of
the GPL;
- violate any law, statute, ordinance,
contract or regulations;
- include any viruses, Trojan horses,
worms time bombs or other computer programming routines that may (or are
intended to) damage, interfere with or expropriate any system or data.
- Application Guidelines. Any
Application created using the API must be submitted for review by ELAB
prior to being made available for use with the ELAB Service. ELAB
reserves the right to restrict use of any Application on the ELAB Service
which does not meet ELAB’s approval at any time.
- Title. All right,
title, and interest (including all intellectual property rights) in, to
and under the APIs (including all copies thereof) shall remain with ELAB.
You shall retain all ownership rights (including all intellectual
property rights) in any Applications that You create and utilize with the
APIs and ELAB Service, except that all ownership rights (including all
intellectual property rights) to any element of the APIs incorporated
into or embodied in Your Applications shall remain with ELAB and its
licensors. Title to any custom applications created jointly with ELAB
will be agreed in a separate statement of work and professional services
agreement.
- LIABILITY PROVISIONS
- NO WARRANTIES. ELAB CANNOT
GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL
OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE
SOFTWARE AND ALL ELAB TECHNOLOGY ARE PROVIDED "AS IS"
WITH NO WARRANTIES WHATSOEVER; ELAB DOES NOT MAKE ANY EXPRESSED,
IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT
TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS
OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. ELAB
FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ELAB
TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY,
SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET
LOSS, NOR DOES ELAB WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE
INTERNET.
- LIMITATION OF LIABILITY. TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ELAB NOR ANY OF ITS
AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS
SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY
DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR
TO ANY SERVICES PROVIDED TO YOU BY ELAB (INCLUDING ITS AFFILIATES,
LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY
INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR
PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA,
REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS,
WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR
STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF ELAB
(INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR
DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR
THEY ARE FORESEEABLE. IN NO EVENT SHALL ELAB ’S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR
UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU
HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU
HEREUNDER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
- THE LIMITATIONS IN THIS SECTION SHALL
APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL
CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE
TOTAL CUMULATIVE LIABILITY OF ELAB (INCLUDING ITS AFFILIATES, LICENSORS,
SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON
OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO ANY
SERVICES PROVIDED TO YOU BY ELAB (INCLUDING ITS AFFILIATES, LICENSORS,
SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE
SERVICES, EXCEED THE FEES PAID BY YOU TO ELAB FOR THE SERVICES COMPONENT
GIVING RISE TO THE CLAIM.
- THE DISCLAIMER OF REPRESENTATIONS,
WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN
ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE
DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION
OF LIABILITY, NEITHER ELAB NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD
GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY
WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO
IMMEDIATELY CEASE USE OF SUCH SERVICES.
- INDEMNIFICATION.
- Customer Indemnity. You agree on
demand to indemnify, defend and hold ELAB, its affiliates and ELAB
staff harmless from and against any and all liability and costs,
including reasonable attorneys' fees incurred by such parties, in
connection with or arising out of Your (a) violation or breach of any
term of this Agreement or any applicable law or regulation, whether or
not referenced herein, or (b) violation of any rights of any third party,
or (c) misuse of the Services.
- ELAB Indemnity. ELAB shall
defend You against any claim, demand, suit, or proceeding made or brought
against You by a third party alleging that the use of the Services as
permitted hereunder infringes or misappropriates the intellectual
property rights of a third party, and shall indemnify You for any damages
finally awarded against, and for reasonable attorney's fees incurred by,
You in connection with any such claim; provided, that You (a) promptly
give ELAB written notice of the claim; (b) give ELAB sole
control of the defense and settlement of the claim; and (c) provide to ELAB
all reasonable assistance, at ELAB ‘s expense.
- GENERAL TERMS
- Force Majeure. Except for
each party’s obligations to pay money, neither party shall be deemed to
be in breach of this Agreement for any failure or delay in performance
caused by reasons beyond its reasonable control, including but not
limited to acts of God, earthquakes, wars, terrorism, communication
failures, strikes or shortages of materials.
- Customer Services. For assistance
with questions regarding this Agreement or the Services, if You have
other enquiries, or if You require further assistance regarding use of the
Services provided by us, please contact us using the contact details
located here: support@ELABORATIVE.com.
- Logos. ELAB may
refer to You in ELAB ’s customer list and may use Your corporate name and
logo for this purpose. For the avoidance of doubt, ELAB will not use Your
name, logo, any other trademark or trade-name of Yours for any other
purposes without Your prior consent.
- Third Party Relationships. ELAB or its
business partners may present Services offerings, advertisements or
promotional materials via the Services. Your dealings with, or
participation in promotions of any third-party business partners via the
Services are solely between you and such third party and your
participation is subject to the terms and conditions associated with that
offering, advertisement or promotion. You agree that ELAB is not
responsible or liable for any loss or damage of any sort incurred as the
result of any such dealings or as the result of the presence of such
third parties via the Services.
- Third-party Services. The Services may
present links to third-party Web sites or third-party Services not owned
or operated by us. We are not responsible for the availability of these
third-party sites or Services or their contents. You agree that we are
not responsible or liable, directly or indirectly, for any damage or loss
caused by or in connection with your use of or reliance on any content of
any such third-party site or Services or goods or Services available
through any such third-party site or Services.
- Entire Agreement. The terms and
conditions of this Agreement constitute the entire agreement between You
and ELAB with respect to the subject matter hereof and will supersede and
replace all prior understandings and agreements, in whatever form,
regarding the subject matter.
- Severability & Waiver. Should any term
or provision hereof be deemed invalid, void or un-enforceable either in
its entirety or in a particular application, the remainder of this
Agreement shall nonetheless remain in full force and effect and the
invalid, void or unenforceable portion will be severed from the
Agreement. If ELAB does not take action against all breaches
of this Agreement, it does not mean that it waives its right at a later
time to enforce the same.
- Assignment. You are not
allowed to assign this Agreement or any rights hereunder without the
prior written consent of ELAB, such consent not to be unreasonably
withheld. ELAB is allowed at its sole discretion to assign this Agreement
or any rights hereunder to any third party, without giving prior notice.
- Applicable Law and Venue. This Agreement
shall be governed by and construed in accordance with the laws of California,
in the Unites States of America without giving effect to any conflict of
laws or provisions whether contained in U.S. law or the laws of Your
current state or country of residence. Any legal proceedings arising out
of or relating to this Agreement will be subject to the jurisdiction of
the courts of the province of California, in the Unites States of America.
Each party hereby waives any right to jury trial in connection with any
action or litigation in any way arising out of or related to this
Agreement.
