ELASTIC CLOUD TERMS OF SERVICE | END USER LICENSE AGREEMENT
THESE ELASTIC CLOUD TERMS OF SERVICE (THE "TERMS") ARE PART OF A LEGAL CONTRACT BETWEEN APU Commercial Information Systems or an authorized distributor of the APU products ("APU", "WE" OR "US") AND PERSONS OR ENTITIES ("YOU") SUBSCRIBING FOR AN ACCOUNT ("ACCOUNT") TO USE THE ELASTIC CLOUD SERVICE FOR WHICH YOU ARE SUBSCRIBING (THE "ELASTIC CLOUD SERVICE").
THE TERMS, TOGETHER WITH ANY ADDITIONAL TERMS AND CONDITIONS AND/OR POLICIES REFERENCED AND INCORPORATED HEREIN, OR WHICH INCORPORATE THESE TERMS AND CONDITIONS, PROVIDE ALL OF THE TERMS AND CONDITIONS INCLUDED IN A LEGALLY BINDING CONTRACT BETWEEN YOU AND APU (THE "AGREEMENT") THAT GOVERNS YOUR USE OF ELASTIC CLOUD SERVICE FOR WHICH YOU HAVE RSUBSCRIBED. IF YOU SUBSCRIBE FOR AN ACCOUNT ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO APU THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.
APU RESERVES THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT BY POSTING MODIFIED TERMS AND CONDITIONS, ALONG WITH AN EFFECTIVE DATE FOR MODIFIED TERMS. OTHERWISE, YOU AGREE THAT THE AGREEMENT BETWEEN YOU AND APU MAY ONLY BE MODIFIED BY A WRITTEN AMENDMENT SIGNED BY AN AUTHORIZED EXECUTIVE OF APU.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS IN THE AGREEMENT, YOU MAY NOT SUBSCRIBE FOR AN ACCOUNT OR USE THE ELASTIC CLOUD SERVICE. BY SUBSCRIBING FOR AN ACCOUNT AND/OR USING THE ELASTIC CLOUD SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT.
In order to use an Elastic Cloud Service, you must first subscribe for one or more Accounts for such Elastic Cloud Service, and you are responsible for maintaining the security of your Account (including, but not limited to, login credentials, security-keys and the correct configuration of access control lists), and you are fully responsible for all activities that occur under your Account, and any other actions taken in connection with your Account. You agree to immediately notify APU of any unauthorized use of your Account, or any other breaches of security of which you become aware. APU will have no liability for any acts or omissions on your part, including any damages of any kind incurred as a result of such acts or omissions. You may not subscribe multiple Accounts to simulate or act as a single Account or otherwise access an Elastic Cloud Service in a manner intended to avoid incurring fees. Your Account will be your main point of contact for the Elastic Cloud Service. Any notifications regarding an Elastic Cloud Service will be sent to the email address registered with your Account.
In connection with Your use of the Elastic Cloud Service, You and/or Your end users may enable the ingestion of information, content and data (collectively, "Content") to, or may retrieve Content from, such Elastic Cloud Service. You are fully responsible for the content, accuracy and completeness of such Content, and any loss, liabilities or damages resulting from the Content, regardless of the nature of the Content including, without limitation, whether the Content consists of, including but not limited to, data, text, graphics, audio, video, or computer software. You are solely responsible for backing up or otherwise making duplicates of Content. You represent and warrant to APU that: You own or have the necessary licenses to provide the Content to Elastic, and the provision of the Content to, and use of the Content by, APU as contemplated herein will not infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; the Content does not contain any executable Malware (defined below); and You have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the Content, whether requested to do so by APU or otherwise.
To the extent that You Communicate any Content relating to an identified or identifiable individual ("Personal Data") to APU, or APU obtains any Personal Data from You, APU agrees that it (and/or its contractors) will not knowingly collect, access, use, store, disclose, transfer or otherwise process (collectively, "Process" or "Processing") any such Personal Data except for the purposes of this Agreement, including without limitation, to implement and deliver an Elastic Cloud Service and its features and associated services, provide customer support, and help You prevent or address service or technical problems; as expressly permitted by You in this Agreement or otherwise; or as compelled by law.
You shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the Processing of Personal Data of any individual whose Personal Data Processed is by You (including, without limitation, by disclosing the Personal Data to APU) in connection with Your use of or access to the Elastic Cloud Service and its features and associated services. For purposes of this Agreement, You are a "data controller" and APU is a "data processor" with respect to Personal Data, as these terms are defined in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("GDPR" or "General Data Protection Regulation").
By submitting Content to APU, You hereby grant APU a sublicensable, royalty-free, and non-exclusive right to reproduce, modify, adapt and publish the Content solely for the purpose of enabling APU to provide You with the applicable Elastic Cloud Service. If You wish to delete Content from Your Account, APU will use reasonable efforts to remove it, but You acknowledge that backups, caching or references to the Content may not be made immediately unavailable.
You are solely responsible for deleting or retrieving Content from the Elastic Cloud Service prior to termination of the applicable Account for any reason. If APU terminates Your Account, APU will provide You a reasonable opportunity to retrieve Your Content from the applicable Elastic Cloud Service, if requested in writing. Such a request must be sent by email to APU within seven (7) days after You receive notice regarding the termination. In any event, Content will be deleted from such Elastic Cloud Service no earlier than fourteen (14) days after the termination date identified in the applicable notice regarding such Account has been sent to You.
APU may collect and compile Service Analysis Data (defined below) and use such Service Analysis Data for security, product and operations management and for research and development.
"Service Analysis Data" is information other than Content that may be collected or compiled by APU using session tracking and analytics technology in connection with Your acquisition or use of an Elastic Cloud Service.
APU reserves the right, but has no obligation, to monitor all of the content, data or information uploaded on any Elastic Cloud Service by third parties ("Third Party Content"), and is not responsible for any such content, data or information. APU does not represent or imply that that such Third-Party Content is accurate, useful or non-harmful. You must take all precautions necessary to protect Yourself and Your computer systems from viruses, worms, Trojan horses, and other harmful or destructive materials.
APU disclaims any responsibility for any harm resulting from the use any Elastic Cloud Services including, without limitation, resulting from any Third-Party Content.
Elastic Cloud Service Support Services
During the term of this Agreement and, subject to your compliance with these Terms, APU will provide to You, and You hereby granted the right to use the Elastic Cloud Service. APU may from time to time modify the features and functions of the Subscription.
During of this Agreement and, subject to your compliance with these Terms, APU will provide You with Standard Support Services, solely for Your internal use and are subject to limitations described in the Support Services Policy. In addition, You agree not to: use the Support Services to supply any consulting, support or training services regarding any Elastic Cloud Service to any third party; or use Support Services to obtain support for any use of Elastic software that is offered as a service by any third party.
You declare that any knowing failure to comply with these terms will be deemed a material breach of this Agreement. In the event of any failure to comply, APU may, without prejudice to any other remedies available hereunder, at law or in equity, suspend the provision of Support Services to You if You fail to cure such breach within fifteen (10) days after receipt of written notice thereof.
This Agreement grants You a limited right to use the applicable Elastic Cloud Service and by no way any transfer to You any intellectual property rights, and all right, title and interest in and to any Elastic Cloud Service and the applicable Support Services will remain (as between the parties) solely with APU or its third-party suppliers.
You are required to pay a fee for the right to access and use the Elastic Cloud Service. APU reserves the right to require up-front payment for some features or functions. You agree to pay the then-prevailing fees for the Resources that you use. Any outstanding balance becomes immediately due and payable upon termination of your use of the Elastic Cloud Service for any reason. Prices are exclusive of all sales, use, value added and excise taxes. You are responsible for paying all taxes and government charges, if any, in your own jurisdiction.
Late payments will bear interest at the rate of 1% per month (or the highest rate permitted by law, if less). You are responsible for paying all reasonable expenses and attorneys’ fees that APU incurs in connection with collecting unpaid amounts that are past due. APU reserves the right to terminate your right to access and use the Elastic Cloud Service for failure to timely pay amounts due. In order to dispute any amount billed to you for your use, you must do so within ten (10) days of being billed for such amounts, or you will be deemed to have waived your right to dispute such amounts.
APU may change its fees and payment policies at any time, provided that such changes will apply upon the start of the next billing cycle. Changes to the fees or payment policies will be communicated via our established communication channels.
Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature ("Confidential Information"). Confidential Information includes materials and all communications concerning APU’s business, including but not limited to employee lists, product strategies, information security policies and procedures (and reports relating thereto), development activities, design and coding, and interfaces with the Elastic Cloud Service, and anything provided by APU in connection with the Support Services including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made. Confidential Information also includes any notes, summaries, analyses of the foregoing that are prepared by the receiving party.
The parties shall at all times, both during the term of this Agreement and thereafter keep in trust and confidence all Confidential Information of the other party using commercially reasonable care (but in no event less than the same degree of care that the receiving party uses to protect its own Confidential Information) and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties other than to affiliates or as necessary to carry out its duties under this Agreement without the other party’s prior written consent, provided that each party shall be allowed to disclose Confidential Information of the other party to the extent that such disclosure is approved in writing by such other party, or necessary to enforce its rights under this Agreement.
The obligations of confidentiality shall not apply to information which has entered the public domain or is otherwise publicly available, except where such entry or availability is the result of a party’s breach of this Agreement; prior to disclosure hereunder was already in the receiving party’s possession without restriction as evidenced by appropriate documentation; subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or was developed by the receiving party without any use of any of the Confidential Information as evidenced by appropriate documentation.
Notwithstanding anything to the contrary herein, each party may disclose the other party’s Confidential Information in order to comply with applicable law and/or an order from a court or other governmental body of competent jurisdiction, and, in connection with compliance with such an order only, if such party: unless prohibited by law, gives the other party prior written notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party written notice of such disclosure promptly after complying with that order and fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, or confidential treatment, or taking other measures to oppose or limit such disclosure.
Each party must not release any more of the other party’s Confidential Information than is, in the opinion of its counsel, reasonably necessary to comply with an applicable order.
You shall use each Elastic Cloud Service in compliance with all applicable laws, including export control and data privacy laws. You shall not: execute or attempt to execute any computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs ("Malware") in any Elastic Cloud Service or use any Elastic Cloud Service to transmit Malware; use any Elastic Cloud Service to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party; access or use any Elastic Cloud Service to compete against Elastic; access or use any Elastic Cloud Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services; except as expressly permitted herein, make access to any Elastic Cloud Service through Your account available to any third party; sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, any Elastic Cloud Service; interfere with or disrupt the integrity, security or performance of any Elastic Cloud Service or third-party data contained therein; attempt to gain unauthorized access to any Elastic Cloud Service or any associated systems or networks; modify, make derivative works of, disassemble, decompile or reverse engineer any Elastic Cloud Service or any component thereof; or use any Elastic Cloud Service in furtherance of the violation of the rights of others.
If APU believes, in its sole discretion, that You have violated or attempted to violate this Agreement, or that Your use of a Elastic Cloud Service presents a material security risk, APU may suspend access to such Elastic Cloud Service until the violation has been corrected. APU will use reasonable efforts to provide You with advance written notice prior to implementing such suspension and will work with You to resolve the underlying issue.
If Your use of a Elastic Cloud Service materially degrades the performance of such Elastic Cloud Service for other customers, as determined solely by APU, APU reserves the right to throttle or pause Your use of such Elastic Cloud Service, with or without prior notice.
You will, at Your expense defend, or at Your option settle, but subject to APU’s prior written consent, not to be unreasonably withheld, a claim brought against APU, its contractors, suppliers, licensors, and or respective directors, officers, employees and agents, arising out of or related to Your use of the Elastic Cloud Service or the applicable Support Services, including, without limitation, Your breach of this Agreement, and indemnify APU against and pay any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim.
Limited Warranty and Disclaimer
APU warrants that during the Term of this Agreement it will perform applicable Support Services in a professional, workmanlike manner, consistent with generally accepted industry practice, and in substantial accordance with the Support Services Policy and the applicable Elastic Cloud Service will perform or in all material respects in accordance with the applicable Documentation. In the event of a breach of the foregoing warranty, Elastic’s sole obligation, and Your exclusive remedy, shall be for APU to re-perform the applicable Support Services or correct any non-conformity in the Elastic Cloud Service, as applicable.
THE SUPPORT SERVICES AND THE APPLICABLE ELASTIC CLOUD SERVICE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND APU MAKES NO ADDITIONAL WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SUPPORT SERVICES, ANY ELASTIC CLOUD SERVICE OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, APU SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SUPPORT SERVICES, THE ELASTIC CLOUD SERVICE(S) AND ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED IN CONNECTION WITH YOUR USE OF THE SUPPORT SERVICES OR APPLICABLE ELASTIC CLOUD SERVICE. YOU UNDERSTAND AND AGREES THAT THE SUPPORT SERVICES OR APPLICABLE ELASTIC CLOUD SERVICE AND ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT ARE NOT DESIGNED OR INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, WEAPONS SYSTEMS, OR LIFE SUPPORT SYSTEMS.
Limitation of Liability
IN NO EVENT SHALL APU BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF APU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO A BREACH OF ITS OBLIGATIONS UNDER SECTION (CONFIDENTIAL INFORMATION) IN NO EVENT SHALL ELASTIC’S TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF THE AMOUNT PAID BY YOU TO APU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY AND 80,000 AED.
THE ALLOCATIONS OF LIABILITY IN THIS SECTION AND THE COMPENSATION OF APU FOR THE SUPPORT SERVICES AND ELASTIC CLOUD SERVICE(S) PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
You may terminate this Agreement at any time by canceling your Account with the Elastic Cloud Service. Termination of this Agreement shall not release you from any obligations undertaken by You under this Agreement, or from any obligations to pay APU for any outstanding fees. You will not receive any refunds by canceling your Account.
APU may terminate your access to all or any part of the Elastic Cloud Service at any time, with or without cause, with or without notice, effective immediately. You agree that APU will not be liable to you or any third party for any such termination.
Upon expiration or termination of this Agreement, any outstanding fees shall become immediately due and payable upon expiration or termination of this Agreement for any reason and will be billed to You.
You may not assign this Agreement, in whole or in part, without the prior written consent of APU. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns. Nothing will restrict APU from subcontracting its obligations under this Agreement to any third parties.
If any action or proceeding, whether regulatory, administrative, at law or in equity is commenced or instituted to enforce or interpret any of the terms or provisions of this Agreement (excluding any mediation required under this Agreement), the prevailing party in any such action or proceeding shall be entitled to recover its reasonable attorneys' fees, expert witness fees, costs of suit and expenses, in addition to any other relief to which such prevailing party may be entitled. As used herein, "prevailing party" includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.
You consent to APU’s identification of You as a user of the Support Services and Elastic Cloud Service, on its website, through a press release issued by APU and in other promotional materials.
You understand and agree that any features or functions of services or products referenced on any APU website, or in any presentations, press releases or public statements, which are not currently available or not currently available as a generally available release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for APU’s products and services remains at APU’s purchasing the Elastic Cloud Services based solely upon features and functions that are currently available as of the time you subscribed the Account or use the Elastic Cloud Services, and not in expectation of any future feature or function.
This Agreement will be governed by the laws of the United Arab Emirates, without regard to its conflict of laws principles, and all suits hereunder will be brought solely in United Arab Emirates Court.
Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
Subject to its obligations stated in this Agreement (Confidential Information), APU will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions, ideas and/or feedback (collectively, "Feedback") provided to APU by You or your affiliates and Your respective employees, contractors or other agents, with respect to the Elastic Cloud Service and/or the Support Services. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.
For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if You issue any purchase orders of the Elastic Cloud Service and/or Support Services, You shall do so only for Your own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into the Agreement, whether prior to or following receipt of Your purchase order, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and APU’s performance of this Agreement shall not amount to an acceptance by conduct of any terms set out or referred to in the purchase order or similar document, an amendment of this Agreement, nor an agreement to amend this Agreement.
This Agreement, together with the Support Services Policy, which is incorporated herein by reference, constitutes the entire agreement between the parties, and it supersedes all prior proposals, agreements, or other communications between the parties, oral or written. In the event of any conflict between the terms and conditions, the conflict shall be resolved based on this Agreement and the Support Services Policy.