Terms of Use / End User License Agreement (EULA)

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.  

  1. 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.

  1. SAAS LICENSE TERMS

    1. 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.    

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. 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.

    8. 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.

    9. 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.

  2. SERVICE TERMS

    1. 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.

    2. 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.

    3. 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).

    4. 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.

    5. 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.

    6. Resource Limitations.  The resources available with ELAB Service are limited, per Subscription, as follows:
    1. #1 (limit 1 domain) If required, additional domain licenses can be purchased
    2. #2 (50gb disk space) If required, additional disk space can be purchased
       

  1. PROPRIETARY RIGHTS, DATA TERMS AND CONFIDENTIALITY.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

  1. CONFIDENTIALITY

    1. 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.

    2. 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).

    3. 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.

    4. 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.

  1. TERM AND TERMINATION

    1. 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.

    2. 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.  

    3. 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.

    4. 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.

    5. 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.

  2. PAYMENT TERMS

    1. 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.

    2. 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.

    3. 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.

    4. 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.

  3. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT

    1. 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.

    2. 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. 

    3. 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.

  4. SUPPORT AND MAINTENANCE

    1. 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.

    2. 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.

    3. 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.

  5. ELAB APIS

    1. 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.

    2. API License Restrictions.  For greater certainty, You shall not, except to the extent permitted under Section 10.1:
      1. disclose any performance, benchmarking, or feature-related information about the APIs;
      2. distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the APIs;
      3. create a subset, superset or other derivative work of the APIs;  
      4. 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.  
      5. 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;
      6. violate any law, statute, ordinance, contract or regulations;
      7. 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.

    3. 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.

    4. 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. 

  6. LIABILITY PROVISIONS

    1. 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.

    2. 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.

    3. 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.

    4. 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.

  7. INDEMNIFICATION.

    1. 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.

    2. 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.

  8. GENERAL TERMS

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. 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.

    8. 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.

    9. 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.