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updated LICENSE.txt and NOTES.txt 

Closes elastic/elasticsearch#837
Closes elastic/elasticsearch#310

Original commit: elastic/x-pack-elasticsearch@164817c0c8
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uboness 2015-10-20 03:50:12 +02:00
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SOFTWARE END USER LICENSE AGREEMENT
READ THIS AGREEMENT CAREFULLY, WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF
ELASTICSEARCH’S PROPRIETARY SOFTWARE. BY INSTALLING AND/OR USING SUCH SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE
TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT
INSTALL OR USE ANY OF THE SOFTWARE.
This END USER LICENSE AGREEMENT (this “Agreement") is entered into by and between the applicable Elasticsearch
entity referenced in Attachment 1 hereto (“Elasticsearch”) and the person or entity (“You”) that has downloaded any of
Elasticsearch’s proprietary software to which this Agreement is attached or in connection with which this Agreement is
presented to You (collectively, the “Software”). This Agreement is effective upon the earlier of the date on the
commencement of any License granted pursuant to Section 1.1. below (as applicable, the “Effective Date”).
1. SOFTWARE LICENSE AND RESTRICTIONS
1.1 License Grants.
(a) Trial Version License. Subject to the terms and conditions of this Agreement, Elasticsearch agrees to
grant, and does hereby grant to You, for a period of thirty (30) days from the date on which You first install the
Software (the “Trial Term”), a License to the to use the Eligible Features and Functions of the Software that are
applicable to the Trial Version of the Software. You understand and agree that upon the expiration of a Trial Term,
You will no longer be able to use the Software, unless you either (i) purchase a Subscription, in which case You will
receive a License under Section 1.1(b) below to use the Eligible Features and Functions of the Software that are
applicable to the Subscription that You purchase, (ii) undertake the Registration of Your use of the Software with
Elasticsearch, in which case You will receive a License under Section 1.1(c) below to the Basic Version of the Software
or (iii) obtain from Elasticsearch written consent (e-mail sufficient) to extend the Trial Term, which may be granted by
Elasticsearch in its sole and absolute discretion.
(b) Subscription License. Subject to the terms and conditions of this Agreement and complete payment of any and
all applicable Subscription fees, Elasticsearch agrees to grant, and does hereby grant to You during the Subscription
Term, and for the restricted scope of this Agreement, a License (i) to use the Eligible Features and Functions of the
Software that are applicable to the Subscription level that You have purchased, (ii) for the number of Nodes (as defined
in the Elasticsearch Support Services Policy) and (iii) for the specific project for which you have purchased a
Subscription. The level of Subscription, the number of Nodes and specific project for which you have purchased such
Subscription, are set forth on the applicable ordering document entered into by Elasticsearch and You for the purchase
of the applicable Subscription (“Order Form”).
(c) Basic Version License. Subject to the terms and conditions of this Agreement, and in consideration of the
Registration of Your use the Software, Elasticsearch agrees to grant, and does hereby grant to You, for a period of one
(1) year from the date of Registration (“Basic Term”), a License to use the Eligible Features and Functions of the
Software that are applicable to the Basic Version of the Software.
1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
interest in and to the Software and any derivative works thereof, and except as expressly set forth in Section 1.1
above, no other license to the Software is granted to You by implication, estoppel or otherwise. You agree not to: (i)
reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to
human-readable form, except and only to the extent any such restriction is prohibited by applicable law, (ii) deploy the
Software on more Nodes (as defined in Elasticsearch’s Support Services Policy) than are permitted under the applicable
License grant in Section 1.1 above (iii) where You have purchased a Subscription, use the Software in connection with
any project other than the project for which you have purchased such Subscription, as identified on the applicable Order
Form, (iv) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted
in this Agreement; (v) except as expressly permitted in Section 1.1 above, transfer, sell, rent, lease, distribute,
sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (vi) except as may be
expressly permitted on an applicable Order Form, use the Software for providing time-sharing services, any
software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or other
service offering; (vii) circumvent the limitations on use of the Software that are imposed or preserved by any License
Key, (viii) alter or remove any proprietary notices in the Software; or (ix) make available to any third party any
analysis of the results of operation of the Software, including benchmarking results, without the prior written consent
of Elasticsearch. The Software may contain or be provided with open source libraries, components, utilities and other
open source software (collectively, “Open Source Software”), which Open Source Software may have applicable license
terms as identified on a website designated by Elasticsearch or otherwise provided with the Software or Documentation.
Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the license terms
and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms
shall not restrict the license rights granted to You hereunder, but may contain additional rights).
1.3 Audit Rights. You agree that, unless such right is waived in writing by Elasticsearch, Elasticsearch shall have the
right, upon fifteen (15) days’ notice to You, to audit Your use of the Software for compliance with any quantitative
limitations on Your use of the Software that are set forth in the applicable Order Form. You agree to provide
Elasticsearch with the necessary access to the Software to conduct such an audit either (i) remotely, or (ii) if remote
performance is not possible, at Your facilities, during normal business hours and no more than one (1) time in any
twelve (12) month period. In the event any such audit reveals that You have used the Software in excess of the
applicable quantitative limitations, You agree to solely for Your internal business operations, a limited,
non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses)
promptly pay to Elasticsearch an amount equal to the difference between the fees actually paid and the fees that You
should have paid to remain in compliance with such quantitative limitations. This Section 1.3 shall survive for a
period of two (2) years from the termination or expiration of this Agreement.
1.4 Cluster Metadata. You understand and agree that once deployed, and on a daily basis, the Software may provide
metadata to Elasticsearch about Your cluster statistics and associates that metadata with Your IP address. However, no
other information is provided to Elasticsearch by the Software, including any information about the data You process or
store in connection with your use of the Software. Instructions for disabling this feature are contained in the
Software, however leaving this feature active enables Elasticsearch to gather cluster statistics and provide an improved
level of support to You.
2. TERM AND TERMINATION
2.1 Term. Unless earlier terminated under Section 2.2 below, this Agreement shall commence on the Effective Date, and
shall continue in force for the term of the last to expire applicable license set forth in Section 1.1 above.
2.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material breach
by the other party automatically and without any other formality, if such party has failed to cure such material breach
within thirty (30) days of receiving written notice of such material breach from the non-breaching party.
Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that You intentionally breach
the scope of the license granted in Section 1.1 of this Agreement, provided that Elasticsearch reserves the right to
retroactively waive such automatic termination upon written notice to You.
2.3 Post Termination or Expiration. Upon termination or expiration of this Agreement, for any reason, You shall
promptly cease the use of the Software and Documentation and destroy (and certify to Elasticsearch in writing the fact
of such destruction), or return to Elasticsearch, all copies of the Software and Documentation then in Your possession
or under Your control.
2.4 Survival. Sections 2.3, 2.4, 3, 4 and 5 (as any such Sections may be modified by Attachment 1, if applicable) shall
survive any termination or expiration of this Agreement.
3. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES
3.1 Limited Performance Warranty. Subject to You purchasing a Subscription, Elasticsearch warrants that during the
applicable Subscription Term, the Software will perform in all material respects in accordance with the Documentation.
In the event of a breach of the foregoing warranty, Elasticsearch’s sole obligation, and Your exclusive remedy shall be
for Elasticsearch to (i) correct any failure(s) of the Software to perform in all material respects in accordance with
the Documentation or (ii) if Elasticsearch is unable to provide such a correction within thirty (30) days of receipt of
notice of the applicable non-conformity, promptly refund to Customer any pre-paid, unused fees paid by You to
Elasticsearch for the applicable Subscription. The warranty set forth in this Section 3.1 does not apply if the
applicable Software or any portion thereof: (a) has been altered, except by or on behalf Elasticsearch; (b) has not been
used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) has
been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is used on equipment,
products, or systems not meeting specifications identified by Elasticsearch in the Documentation. Additionally, the
warranties set forth herein only apply when notice of a warranty claim is provided to Elasticsearch within the
applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to
software or hardware not supplied by Elasticsearch.
3.2 Malicious Code. Elasticsearch represents and warrants that prior to making it available for delivery to You,
Elasticsearch will use standard industry practices including, without limitation, the use of an updated commercial
anti-virus program, to test the Software for Malicious Code and remove any Malicious Code it discovers. In the event of
a breach of the foregoing warranty, Elasticsearch’s sole obligation, and Your exclusive remedy shall be for
Elasticsearch to replace the Software with Software that does not contain any Malicious Code.
3.3 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT
WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY
REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF
THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT
THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED.
4. LIMITATION OF LIABILITY
The provisions of this Section 4 apply if You have not purchased a Subscription. If you have purchased a Subscription,
then the limitations of liability set forth in the applicable Subscription Agreement will apply in lieu of those set
forth in this Section 4.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS 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 USE OR INABILITY TO
USE THE SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR
TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE
OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY OTHER LIABILITY THAT
CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.2 Damages Cap. IN NO EVENT SHALL ELASTICSEARCH’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS
AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000).
4.3 YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN
THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL
PURPOSE.
5. DEFINITIONS
The following terms have the meanings ascribed:
5.1 “License” means a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to
grant or authorize sublicenses) solely for Your internal business operations to (i) install and use, in object code
format, the applicable Eligible Features and Functions of the Software, (ii) use, and distribute internally a reasonable
number of copies of the Documentation, provided that You must include on such copies all Marks and Notices; (iii) permit
Contractors to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use must be
solely for Your benefit, and You shall be responsible for all acts and omissions of such Contractors in connection with
their use of the Software that are contrary to the terms and conditions of this Agreement..
5.2 “License Key” means an alphanumeric code that enables the Eligible Features and Functions of the Software.
5.3 “Basic Version” means that version of the Software available for use without the purchase of a Qualifying
Subscription, but which does require Registration.
5.4 “Contractor” means third party contractors performing services on Your behalf.
5.5 “Documentation” means the published end user documentation provided by Elasticsearch with the Software.
5.6 “Eligible Features and Functions” means those features and functions of the Software that are eligible for use with
respect to a particular version of the Software or level of the Subscription. A list of the Eligible Features and
Functions that correspond to each version of the Software and Subscription levels may be found at
https://www.elastic.co/subscriptions.
5.7 “Malicious Code” means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the
operation of a recipient’s computer programs or computer systems or destroy or damage recipient’s data. For clarity,
Malicious Code shall not include any software bugs or errors handled through Support Services, or any standard features
of functions of the Software and/or any License Key that are intended to enforce the temporal and other limitations on
the scope of the use of the Software to the scope of the license purchased by You.
5.8 “Marks and Notices” means all Elasticsearch trademarks, trade names, logos and notices present on the Documentation
as originally provided by Elasticsearch.
5.9 “Registration” means Elasticsearch’s then-current process under which You may register Your use of the Software with
Elasticsearch by providing certain information to Elasticsearch regarding your use of the Software.
5.10 “Subscription” means the right to receive Support Services and a License to the Software.
5.11 “Subscription Term” means the period of time for which You have purchased a Subscription.
5.12 “Trial Version” means that version of the Software available for use without the purchase of a Qualifying
Subscription and without Registration.
6. MISCELLANEOUS
This Agreement, including Attachment 1 hereto, which is hereby incorporated herein by this reference, completely and
exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its
terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding
such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if You issue
any purchase order or similar document in connection with its purchase of a license to the Software, You will do so only
for Your internal, administrative purposes and not with the intent to provide any contractual terms. This Agreement may
not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is
signed on behalf of Elasticsearch and You, by duly authorized representatives. If any provision hereof is held
unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of
the parties.
ATTACHMENT 1
ADDITIONAL TERMS AND CONDITIONS
A. The following additional terms and conditions apply to all Customers with principal offices in the United States
of America:
(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch, Inc., a Delaware corporation.
(2) Government Rights. The Software product is "Commercial Computer Software," as that term is defined in 48 C.F.R.
2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer
software" and "commercial computer software documentation". If acquired by or on behalf of a civilian agency, the U.S.
Government acquires this commercial computer software and/or commercial computer software documentation subject to the
terms of this Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal
Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of
Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software
documentation subject to the terms of the Elasticsearch Software License Agreement as specified in 48 C.F.R. 227.7202-3
and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202.
This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and
supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software,
computer software documentation or technical data related to the Software under this Agreement and in any Subcontract
under which this commercial computer software and commercial computer software documentation is acquired or licensed.
(3) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject
to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations
(“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774
(2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic
sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the
USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. You are now and will
remain in the future compliant with all such export control laws and regulations, and will not export, re-export,
otherwise transfer any Elasticsearch goods, software or technology or disclose any Elasticsearch software or technology
to any person contrary to such laws or regulations. You acknowledge that remote access to the Software may in certain
circumstances be considered a re-export of Software, and accordingly, may not be granted in contravention of U.S. export
control laws and regulations.
(4) Governing Law, Jurisdiction and Venue.
(a) Customers in California. If Customer is located in California (as determined by the Customer address on the
applicable Order Form, or for a trial license under 1.1(a), the location of person who installed the Software), this
Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles,
and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that
court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.
(b) Customers Outside of California. If Customer is located anywhere other than California (as determined by the
Customer address on the applicable Order Form, or for a trial license under 1.1(a), the location of person who installed
the Software), this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of
laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if
that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.
(c) All Customers. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International
Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any
action or proceeding in any of the applicable courts set forth in (a) or (b) above, based upon any alleged lack of
personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
(d) Equitable Relief. A breach or threatened breach, by either party of Section 4 may cause irreparable harm for
which the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.
B. The following additional terms and conditions apply to all Customers with principal offices in Canada:
(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch B.C. Ltd., a corporation
incorporated under laws of the Province of British Columbia.
(2) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject
to the restrictions and controls set out in Section A(3) above as well as those imposed by the Export and Import Permits
Act (Canada) and the regulations thereunder and that you will comply with all applicable laws and regulations. Without
limitation, You acknowledge that the Marvel Software, or any portion thereof, will not be exported: (a) to any country
on Canada's Area Control List; (b) to any country subject to UN Security Council embargo or action; or (c) contrary to
Canada's Export Control List Item 5505. You are now and will remain in the future compliant with all such export control
laws and regulations, and will not export, re-export, otherwise transfer any Elasticsearch goods, software or technology
or disclose any Elasticsearch software or technology to any person contrary to such laws or regulations. You will not
export or re-export the Marvel Software, or any portion thereof, directly or indirectly, in violation of the Canadian
export administration laws and regulations to any country or end user, or to any end user who you know or have reason to
know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further
acknowledge that the Marvel Software product may include technical data subject to such Canadian export regulations.
Elasticsearch does not represent that the Marvel Software is appropriate or available for use in all countries.
Elasticsearch prohibits accessing materials from countries or states where contents are illegal. You are using the
Marvel Software on your own initiative and you are responsible for compliance with all applicable laws. You hereby agree
to indemnify Elasticsearch and its affiliates from any claims, actions, liability or expenses (including reasonable
lawyers' fees) resulting from Your failure to act in accordance with the acknowledgements, agreements, and
representations in this Section B(2).
(3) Governing Law and Dispute Resolution. This Agreement shall be governed by the Province of Ontario and the
federal laws of Canada applicable therein without regard to conflict of laws provisions. The parties hereby irrevocably
waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts
based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or
defense. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach,
termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability
of this agreement to arbitrate, (each, a “Dispute”), which the parties are unable to resolve after good faith
negotiations, shall be submitted first to the upper management level of the parties. The parties, through their upper
management level representatives shall meet within thirty (30) days of the Dispute being referred to them and if the
parties are unable to resolve such Dispute within thirty (30) days of meeting, the parties agree to seek to resolve the
Dispute through mediation with ADR Chambers in the City of Toronto, Ontario, Canada before pursuing any other
proceedings. The costs of the mediator shall be shared equally by the parties. If the Dispute has not been resolved
within thirty (30) days of the notice to desire to mediate, any party may terminate the mediation and proceed to
arbitration and the matter shall be referred to and finally resolved by arbitration at ADR Chambers pursuant to the
general ADR Chambers Rules for Arbitration in the City of Toronto, Ontario, Canada. The arbitration shall proceed in
accordance with the provisions of the Arbitration Act (Ontario). The arbitral panel shall consist of three (3)
arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall
discuss and select a chairman. If the two (2) party-appointed arbitrators are unable to agree on the chairman, the
chairman shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be
independent of each of the parties. The arbitrators shall have the authority to grant specific performance and to
allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees
related to the arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any
arbitration shall be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith.
Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such
court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the
foregoing, Elasticsearch shall have the right to institute an action in a court of proper jurisdiction for preliminary
injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall
only be awarded by the arbitrator. The language to be used in the arbitral proceedings shall be English.
(4) Language. Any translation of this Agreement is done for local requirements and in the event of a dispute
between the English and any non-English version, the English version of this Agreement shall govern. At the request of
the parties, the official language of this Agreement and all communications and documents relating hereto is the English
language, and the English-language version shall govern all interpretation of the Agreement. À la demande des parties,
la langue officielle de la présente convention ainsi que toutes communications et tous documents s'y rapportant est la
langue anglaise, et la version anglaise est celle qui régit toute interprétation de la présente convention.
(5) Warranty Disclaimer. For Customers with principal offices in the Province of Québec, the following new sentence
is to be added to the end of Section 3.3: “SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN TYPES OF
DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL
NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND
DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.”
(6) Limitation of Liability. For Customers with principal offices in the Province of Québec, the following new
sentence is to be added to the end of Section 4.1: “SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN
TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS
AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES
BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.”
C. The following additional terms and conditions apply to all Customers with principal offices outside of the United
States of America and Canada:
(1) Applicable Elasticsearch Entity. The entity providing the license in Germany is Elasticsearch Gmbh; in France is
Elasticsearch SARL, in the United Kingdom is Elasticsearch Ltd, in Australia is Elasticsearch Pty Ltd., in Japan is
Elasticsearch KK, in Sweden is Elasticsearch AB, in Norway is Elasticsearch AS and in all other countries is
Elasticsearch BV.
(2) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without reference to or application of choice of law rules or principles. Notwithstanding any choice of law
provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on
the International Sale of Goods shall not apply.
(3) Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence,
breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or
applicability of this agreement to arbitrate, (each, a “Dispute”) shall be referred to and finally resolved by
arbitration under the rules and at the location identified below. The arbitral panel shall consist of three (3)
arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall
discuss and select a chairman. If the two party-appointed arbitrators are unable to agree on the chairman, the chairman
shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent
of each of the parties. The arbitrators shall have the authority to grant specific performance and to allocate between
the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the
arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any arbitration shall
be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the
award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial
acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, Elasticsearch
shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending
a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the
arbitrator. The language to be used in the arbitral proceedings shall be English.
In addition, the following terms only apply to Customers with principal offices within Europe, the Middle East or Africa
(EMEA):
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the London
Court of International Arbitration (“LCIA”) Rules (which Rules are deemed to be incorporated by reference into this
clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of
arbitration shall be London, England.
(b) In addition, the following terms only apply to Customers with principal offices within Asia Pacific, Australia &
New Zealand:
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce (“ICC”) in force on the date when the notice of
arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this
clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of
arbitration shall be Singapore.
(c) In addition, the following terms only apply to Customers with principal offices within the Americas (excluding
North America):
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under
International Dispute Resolution Procedures of the American Arbitration Association (“AAA”) in force on the date when
the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be
incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York,
USA. The seat, or legal place, of arbitration shall be New York, New York, USA.
(4) In addition, for Customers with principal offices within the UK, the following new sentence is added to the end
of Section 4.1:
Nothing in this Agreement shall have effect so as to limit or exclude a party’s liability for death or personal injury
caused by negligence or for fraud including fraudulent misrepresentation and this Section 4.1 shall take effect subject
to this provision.
(5) In addition, for Customers with principal offices within France, Sections 1.2, 3 and 4.1 of the Agreement are
deleted and replaced with the following new Sections 1.2, 3.3 and 4.1:
1.2 Reservation of Rights; Restrictions. Elasticsearch owns all right title and interest in and to the Software and
any derivative works thereof, and except as expressly set forth in Section 1.1 above, no other license to the Software
is granted to You by implication, or otherwise. You agree not to prepare derivative works from, modify, copy or use the
Software in any manner except as expressly permitted in this Agreement; provided that You may copy the Software for
archival purposes, only where such software is provided on a non-durable medium; and You may decompile the Software,
where necessary for interoperability purposes and where necessary for the correction of errors making the software unfit
for its intended purpose, if such right is not reserved by Elasticsearch as editor of the Software. Pursuant to article
L122-6-1 of the French intellectual property code, Elasticsearch reserves the right to correct any bugs as necessary for
the Software to serve its intended purpose. You agree not to: (i) transfer, sell, rent, lease, distribute, sublicense,
loan or otherwise transfer the Software in whole or in part to any third party; (ii) use the Software for providing
time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application
services provider or other service offering; (iii) alter or remove any proprietary notices in the Software; or (iv) make
available to any third party any analysis of the results of operation of the Software, including benchmarking results,
without the prior written consent of Elasticsearch.
3.3 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR
STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, ELASTICSEARCH DOES
NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE SOFTWARE WILL BE
UNINTERRUPTED.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS 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 OR
UNFORESEEABLE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE
PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT,
INCLUDING NEGLIGENCE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH, THROUGH
GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU, OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1, OR IN CASE OF
DEATH OR PERSONAL INJURY.
(6) In addition, for Customers with principal offices within Australia, Sections 4.1, 4.2 and 4.3 of the Agreement
are deleted and replaced with the following new Sections 4.1, 4.2 and 4.3:
4.1 Disclaimer of Certain Damages. Subject to clause 4.3, a party is not liable for Consequential Loss however
caused (including by the negligence of that party) suffered or incurred by the other party in connection with this
agreement. “Consequential Loss” means loss of revenues, loss of reputation, indirect loss, loss of profits,
consequential loss, loss of actual or anticipated savings, indirect loss, lost opportunities, including opportunities to
enter into arrangements with third parties, loss or damage in connection with claims against by third parties, or loss
or corruption or data.
4.2 Damages Cap. SUBJECT TO CLAUSES 4.1 AND 4.3, ANY LIABILITY OF ELASTICSEARCH FOR ANY LOSS OR DAMAGE, HOWEVER
CAUSED (INCLUDING BY THE NEGLIGENCE OF ELASTICSEARCH), SUFFERED BY YOU IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO
THE AMOUNT YOU PAID, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY, UNDER THE
ELASTICSEARCH SUPPORT SERVICES AGREEMENT IN CONNECTION WITH WHICH YOU OBTAINED THE LICENSE TO USE THE SOFTWARE. THE
LIMITATION SET OUT IN THIS SECTION 4.2 IS AN AGGREGATE LIMIT FOR ALL CLAIMS, WHENEVER MADE.
4.3 Limitation and Disclaimer Exceptions. If the Competition and Consumer Act 2010 (Cth) or any other legislation or
any other legislation states that there is a guarantee in relation to any good or service supplied by Elasticsearch in
connection with this agreement, and Elasticsearch’s liability for failing to comply with that guarantee cannot be
excluded but may be limited, Sections 4.1 and 4.2 do not apply to that liability and instead Elasticsearch’s liability
for such failure is limited (at Elasticsearch’s election) to, in the case of a supply of goods, the Elasticsearch
replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services,
Elasticsearch supplying the services again or paying the cost of having the services supplied again.
(7) In addition, for Customers with principal offices within Japan, Sections 1.2, 3 and 4.1 of the Agreement are
deleted and replaced with the following new Sections 1.2, 3.3 and 4.1:
1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
interest in and to the Software and any derivative works thereof, and except as expressly set forth in Section 1.1
above, no other license to the Software is granted to You by implication or otherwise. You agree not to: (i) prepare
derivative works from, modify, copy or use the Software in any manner except as expressly permitted in this Agreement or
applicable law; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in
whole or in part to any third party; (iii) use the Software for providing time-sharing services, any
software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or other
service offering; (iv) alter or remove any proprietary notices in the Software; or (v) make available to any third party
any analysis of the results of operation of the Software, including benchmarking results, without the prior written
consent of Elasticsearch.
3.3 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR
STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF
THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT
THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF
PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
SPECIALINDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE
OR INABILITY TO USE THE SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A
BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH
THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY
OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

6
marvel/NOTICE.txt Normal file
View File

@ -0,0 +1,6 @@
Elasticsearch License
Copyright 2009-2015 Elastic
---
This product includes software developed by The Apache Software
Foundation (http://www.apache.org/).

1
marvel/pom.xml
View File

@ -16,6 +16,7 @@
</parent>
<properties>
<elasticsearch.assembly.descriptor>${basedir}/src/main/assemblies/plugin.xml</elasticsearch.assembly.descriptor>
<elasticsearch.plugin.classname>org.elasticsearch.marvel.MarvelPlugin</elasticsearch.plugin.classname>
<!-- TODO: fix plugin dependencies for full isolation -->
<elasticsearch.plugin.isolated>false</elasticsearch.plugin.isolated>

50
marvel/src/main/assemblies/plugin.xml Normal file
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@ -0,0 +1,50 @@
<?xml version="1.0"?>
<!--
~ ELASTICSEARCH CONFIDENTIAL
~ __________________
~
~ [2014] Elasticsearch Incorporated. All Rights Reserved.
~
~ NOTICE: All information contained herein is, and remains
~ the property of Elasticsearch Incorporated and its suppliers,
~ if any. The intellectual and technical concepts contained
~ herein are proprietary to Elasticsearch Incorporated
~ and its suppliers and may be covered by U.S. and Foreign Patents,
~ patents in process, and are protected by trade secret or copyright law.
~ Dissemination of this information or reproduction of this material
~ is strictly forbidden unless prior written permission is obtained
~ from Elasticsearch Incorporated.
-->
<assembly>
<id>plugin</id>
<formats>
<format>zip</format>
</formats>
<includeBaseDirectory>false</includeBaseDirectory>
<dependencySets>
<dependencySet>
<outputDirectory>/</outputDirectory>
<useProjectArtifact>true</useProjectArtifact>
<useTransitiveDependencies>false</useTransitiveDependencies>
<includes>
<include>org.elasticsearch.plugin:marvel</include>
</includes>
</dependencySet>
</dependencySets>
<files>
<file>
<source>LICENSE.txt</source>
<outputDirectory>/</outputDirectory>
</file>
<file>
<source>NOTICE.txt</source>
<outputDirectory>/</outputDirectory>
</file>
<file>
<source>${elasticsearch.tools.directory}/plugin-metadata/plugin-descriptor.properties</source>
<outputDirectory></outputDirectory>
<filtered>true</filtered>
</file>
</files>
</assembly>

705
watcher/LICENSE.txt
View File

@ -1,204 +1,248 @@
WATCHER SOFTWARE LICENSE AGREEMENT
SOFTWARE END USER LICENSE AGREEMENT
READ THIS AGREEMENT CAREFULLY, WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF ELASTICSEARCH'S
WATCHER SOFTWARE. BY INSTALLING AND/OR USING THE WATCHER SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE
THE WATCHER SOFTWARE.
READ THIS AGREEMENT CAREFULLY, WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF
ELASTICSEARCH’S PROPRIETARY SOFTWARE. BY INSTALLING AND/OR USING SUCH SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE
TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT
INSTALL OR USE ANY OF THE SOFTWARE.
This WATCHER SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into by and between the applicable Elasticsearch
entity referred to in Attachment 1 below ("Elasticsearch") and the person or entity ("You") that has downloaded
Elasticsearch's Watcher software to which this Agreement is attached ("Watcher Software"). This Agreement is effective as
of the date an applicable ordering document ("Order Form") is entered into by Elasticsearch and You (the "Effective
Date").
This END USER LICENSE AGREEMENT (this “Agreement") is entered into by and between the applicable Elasticsearch
entity referenced in Attachment 1 hereto (“Elasticsearch”) and the person or entity (“You”) that has downloaded any of
Elasticsearch’s proprietary software to which this Agreement is attached or in connection with which this Agreement is
presented to You (collectively, the “Software”). This Agreement is effective upon the earlier of the date on the
commencement of any License granted pursuant to Section 1.1. below (as applicable, the “Effective Date”).
1. SOFTWARE LICENSE AND RESTRICTIONS
1.1 License Grants.
(a) 30 Day Free Trial License. Subject to the terms and conditions of this Agreement, Elasticsearch agrees to grant,
and does hereby grant to You for a period of thirty (30) days from the Effective Date (the "Trial Term"), solely for
Your internal business operations, a limited, non-exclusive, non-transferable, fully paid up, right and license
(without the right to grant or authorize sublicenses) to: (i) install and use the object code version of the Watcher
Software; (ii) use, and distribute internally a reasonable number of copies of the documentation, if any, provided with
the Watcher Software ("Documentation"), provided that You must include on such copies all Elasticsearch trademarks, trade
names, logos and notices present on the Documentation as originally provided to You by Elasticsearch; (iii) permit third
party contractors performing services on Your behalf to use the Watcher Software and Documentation as set forth in (i)
and (ii) above, provided that such use must be solely for Your benefit, and You shall be responsible for all acts and
omissions of such contractors in connection with their use of the Watcher Software. For the avoidance of doubt, You
understand and agree that upon the expiration of the Trial Term, Your license to use the Watcher Software will terminate,
unless you purchase a Qualifying Subscription (as defined below) for Elasticsearch support services.
(b) Fee-Bearing Production License. Subject to the terms and conditions of this Agreement and complete payment of any
and all applicable fees for a Gold or Platinum production subscription for support services for Elasticsearch open
source software (in each case, a "Qualifying Subscription"), Elasticsearch agrees to grant, and does hereby grant to You
during the term of the applicable Qualifying Subscription, and for the restricted scope of this Agreement, solely for
Your internal business operations, a limited, non-exclusive, non-transferable right and license (without the right to
grant or authorize sublicenses) to: (i) install and use the object code version of the Watcher Software, subject to any
applicable quantitative limitations set forth in the applicable Order Form; (ii) use, and distribute internally a
reasonable number of copies of the Documentation, if any, provided with the Watcher Software, provided that You must
include on such copies all Elasticsearch trademarks, trade names, logos and notices present on the Documentation as
originally provided to You by Elasticsearch; (iii) permit third party contractors performing services on Your behalf to
use the Watcher Software and Documentation as set forth in (i) and (ii) above, provided that such use must be solely for
Your benefit, and You shall be responsible for all acts and omissions of such contractors in connection with their use
of the Watcher Software.
1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
interest in and to the Watcher Software and any derivative works thereof, and except as expressly set forth in Section
1.1 above, no other license to the Watcher Software is granted to You by implication, estoppel or otherwise. You agree
not to: (i) prepare derivative works from, modify, copy or use the Watcher Software in any manner except as expressly
permitted in this Agreement or applicable law; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or
otherwise transfer the Watcher Software in whole or in part to any third party; (iii) use the Watcher Software for
providing time-sharing services, any software-as-a-service offering ("SaaS"), service bureau services or as part of an
application services provider or other service offering; (iv) alter or remove any proprietary notices in the Watcher
Software; or (v) make available to any third party any analysis of the results of operation of the Watcher Software,
including benchmarking results, without the prior written consent of Elasticsearch. The Watcher Software may contain or
be provided with open source libraries, components, utilities and other open source software (collectively, "Open Source
Software"), which Open Source Software may have applicable license terms as identified on a website designated by
Elasticsearch or otherwise provided with the Watcher Software or Documentation. Notwithstanding anything to the contrary
herein, use of the Open Source Software shall be subject to the license terms and conditions applicable to such Open
Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights
granted to You hereunder, but may contain additional rights).
1.3 Open Source. The Watcher Software may contain or be provided with open source libraries, components, utilities and
other open source software (collectively, "Open Source"), which Open Source may have applicable license terms as
identified on a website designated by Elasticsearch or otherwise provided with the applicable Software or Documentation.
Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source
license terms and conditions to the extent required by the applicable licensor (which terms shall not restrict the
license rights granted to You hereunder but may contain additional rights).
1.4 Audit Rights. You agree that Elasticsearch shall have the right, upon five (5) business days' notice to You, to
audit Your use of the Watcher Software for compliance with any quantitative limitations on Your use of the Watcher
Software that are set forth in the applicable Order Form. You agree to provide Elasticsearch with the necessary access
to the Watcher Software to conduct such an audit either (i) remotely, or (ii) if remote performance is not possible, at
Your facilities, during normal business hours and no more than one (1) time in any twelve (12) month period. In the
event any such audit reveals that You have used the Watcher Software in excess of the applicable quantitative
limitations, You agree to promptly pay to Elasticsearch an amount equal to the difference between the fees actually paid
and the fees that You should have paid to remain in compliance with such quantitative limitations. This Section 1.3
shall survive for a period of two (2) years from the termination or expiration of this Agreement.
1. SOFTWARE LICENSE AND RESTRICTIONS
1.1 License Grants.
(a) Trial Version License. Subject to the terms and conditions of this Agreement, Elasticsearch agrees to
grant, and does hereby grant to You, for a period of thirty (30) days from the date on which You first install the
Software (the “Trial Term”), a License to the to use the Eligible Features and Functions of the Software that are
applicable to the Trial Version of the Software. You understand and agree that upon the expiration of a Trial Term,
You will no longer be able to use the Software, unless you either (i) purchase a Subscription, in which case You will
receive a License under Section 1.1(b) below to use the Eligible Features and Functions of the Software that are
applicable to the Subscription that You purchase, (ii) undertake the Registration of Your use of the Software with
Elasticsearch, in which case You will receive a License under Section 1.1(c) below to the Basic Version of the Software
or (iii) obtain from Elasticsearch written consent (e-mail sufficient) to extend the Trial Term, which may be granted by
Elasticsearch in its sole and absolute discretion.
(b) Subscription License. Subject to the terms and conditions of this Agreement and complete payment of any and
all applicable Subscription fees, Elasticsearch agrees to grant, and does hereby grant to You during the Subscription
Term, and for the restricted scope of this Agreement, a License (i) to use the Eligible Features and Functions of the
Software that are applicable to the Subscription level that You have purchased, (ii) for the number of Nodes (as defined
in the Elasticsearch Support Services Policy) and (iii) for the specific project for which you have purchased a
Subscription. The level of Subscription, the number of Nodes and specific project for which you have purchased such
Subscription, are set forth on the applicable ordering document entered into by Elasticsearch and You for the purchase
of the applicable Subscription (“Order Form”).
(c) Basic Version License. Subject to the terms and conditions of this Agreement, and in consideration of the
Registration of Your use the Software, Elasticsearch agrees to grant, and does hereby grant to You, for a period of one
(1) year from the date of Registration (“Basic Term”), a License to use the Eligible Features and Functions of the
Software that are applicable to the Basic Version of the Software.
1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
interest in and to the Software and any derivative works thereof, and except as expressly set forth in Section 1.1
above, no other license to the Software is granted to You by implication, estoppel or otherwise. You agree not to: (i)
reverse engineer or decompile, decrypt, disassemble or otherwise reduce any Software or any portion thereof to
human-readable form, except and only to the extent any such restriction is prohibited by applicable law, (ii) deploy the
Software on more Nodes (as defined in Elasticsearch’s Support Services Policy) than are permitted under the applicable
License grant in Section 1.1 above (iii) where You have purchased a Subscription, use the Software in connection with
any project other than the project for which you have purchased such Subscription, as identified on the applicable Order
Form, (iv) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted
in this Agreement; (v) except as expressly permitted in Section 1.1 above, transfer, sell, rent, lease, distribute,
sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (vi) except as may be
expressly permitted on an applicable Order Form, use the Software for providing time-sharing services, any
software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or other
service offering; (vii) circumvent the limitations on use of the Software that are imposed or preserved by any License
Key, (viii) alter or remove any proprietary notices in the Software; or (ix) make available to any third party any
analysis of the results of operation of the Software, including benchmarking results, without the prior written consent
of Elasticsearch. The Software may contain or be provided with open source libraries, components, utilities and other
open source software (collectively, “Open Source Software”), which Open Source Software may have applicable license
terms as identified on a website designated by Elasticsearch or otherwise provided with the Software or Documentation.
Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the license terms
and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms
shall not restrict the license rights granted to You hereunder, but may contain additional rights).
1.3 Audit Rights. You agree that, unless such right is waived in writing by Elasticsearch, Elasticsearch shall have the
right, upon fifteen (15) days’ notice to You, to audit Your use of the Software for compliance with any quantitative
limitations on Your use of the Software that are set forth in the applicable Order Form. You agree to provide
Elasticsearch with the necessary access to the Software to conduct such an audit either (i) remotely, or (ii) if remote
performance is not possible, at Your facilities, during normal business hours and no more than one (1) time in any
twelve (12) month period. In the event any such audit reveals that You have used the Software in excess of the
applicable quantitative limitations, You agree to solely for Your internal business operations, a limited,
non-exclusive, non-transferable, fully paid up, right and license (without the right to grant or authorize sublicenses)
promptly pay to Elasticsearch an amount equal to the difference between the fees actually paid and the fees that You
should have paid to remain in compliance with such quantitative limitations. This Section 1.3 shall survive for a
period of two (2) years from the termination or expiration of this Agreement.
1.4 Cluster Metadata. You understand and agree that once deployed, and on a daily basis, the Software may provide
metadata to Elasticsearch about Your cluster statistics and associates that metadata with Your IP address. However, no
other information is provided to Elasticsearch by the Software, including any information about the data You process or
store in connection with your use of the Software. Instructions for disabling this feature are contained in the
Software, however leaving this feature active enables Elasticsearch to gather cluster statistics and provide an improved
level of support to You.
2. TERM AND TERMINATION
2.1 Term. This Agreement shall commence on the Effective Date, and shall continue in force for the license term set
forth in the applicable Order Form, unless earlier terminated under Section 2.2 below, provided, however, that if You do
not purchase a Qualifying Subscription prior to the expiration of the Trial Term, this Agreement will expire at the end
of the Trial Term.
2.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material
breach by the other party automatically and without any other formality, if such party has failed to cure such material
breach within thirty (30) days of receiving written notice of such material breach from the non-breaching party.
2. TERM AND TERMINATION
2.1 Term. Unless earlier terminated under Section 2.2 below, this Agreement shall commence on the Effective Date, and
shall continue in force for the term of the last to expire applicable license set forth in Section 1.1 above.
2.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material breach
by the other party automatically and without any other formality, if such party has failed to cure such material breach
within thirty (30) days of receiving written notice of such material breach from the non-breaching party.
Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that You intentionally breach
the scope of the license granted in Section 1.1 of this Agreement.
2.3 Post Termination or Expiration. Upon termination or expiration of this Agreement, for any reason, You shall
promptly cease the use of the Watcher Software and Documentation and destroy (and certify to Elasticsearch in writing the
fact of such destruction), or return to Elasticsearch, all copies of the Watcher Software and Documentation then in Your
possession or under Your control.
2.4 Survival. Sections 2.3, 2.4, 3, 4 and 5 shall survive any termination or expiration of this Agreement.
3. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE WATCHER SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR
RELATING TO THE WATCHER SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTICSEARCH
AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT WITH RESPECT TO THE WATCHER SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING.
FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE WATCHER SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF
THE WATCHER SOFTWARE WILL BE UNINTERRUPTED.
4. LIMITATION OF LIABILITY
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF
the scope of the license granted in Section 1.1 of this Agreement, provided that Elasticsearch reserves the right to
retroactively waive such automatic termination upon written notice to You.
2.3 Post Termination or Expiration. Upon termination or expiration of this Agreement, for any reason, You shall
promptly cease the use of the Software and Documentation and destroy (and certify to Elasticsearch in writing the fact
of such destruction), or return to Elasticsearch, all copies of the Software and Documentation then in Your possession
or under Your control.
2.4 Survival. Sections 2.3, 2.4, 3, 4 and 5 (as any such Sections may be modified by Attachment 1, if applicable) shall
survive any termination or expiration of this Agreement.
3. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES
3.1 Limited Performance Warranty. Subject to You purchasing a Subscription, Elasticsearch warrants that during the
applicable Subscription Term, the Software will perform in all material respects in accordance with the Documentation.
In the event of a breach of the foregoing warranty, Elasticsearch’s sole obligation, and Your exclusive remedy shall be
for Elasticsearch to (i) correct any failure(s) of the Software to perform in all material respects in accordance with
the Documentation or (ii) if Elasticsearch is unable to provide such a correction within thirty (30) days of receipt of
notice of the applicable non-conformity, promptly refund to Customer any pre-paid, unused fees paid by You to
Elasticsearch for the applicable Subscription. The warranty set forth in this Section 3.1 does not apply if the
applicable Software or any portion thereof: (a) has been altered, except by or on behalf Elasticsearch; (b) has not been
used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) has
been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is used on equipment,
products, or systems not meeting specifications identified by Elasticsearch in the Documentation. Additionally, the
warranties set forth herein only apply when notice of a warranty claim is provided to Elasticsearch within the
applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to
software or hardware not supplied by Elasticsearch.
3.2 Malicious Code. Elasticsearch represents and warrants that prior to making it available for delivery to You,
Elasticsearch will use standard industry practices including, without limitation, the use of an updated commercial
anti-virus program, to test the Software for Malicious Code and remove any Malicious Code it discovers. In the event of
a breach of the foregoing warranty, Elasticsearch’s sole obligation, and Your exclusive remedy shall be for
Elasticsearch to replace the Software with Software that does not contain any Malicious Code.
3.3 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT
WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY
REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF
THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT
THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED.
4. LIMITATION OF LIABILITY
The provisions of this Section 4 apply if You have not purchased a Subscription. If you have purchased a Subscription,
then the limitations of liability set forth in the applicable Subscription Agreement will apply in lieu of those set
forth in this Section 4.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS 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 USE OR INABILITY TO
USE THE WATCHER SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY OTHER LIABILITY
THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.2 Damages Cap. IN NO EVENT SHALL ELASTICSEARCH'S OR ITS LICENSORS' AGGREGATE, CUMULATIVE LIABILITY UNDER THIS
AGREEMENT EXCEED THE AMOUNT YOU PAID, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY,
UNDER THE ELASTICSEARCH SUPPORT SERVICES AGREEMENT PURSUANT TO WHICH YOU PURCHASED THE QUALIFYING SUBSCRIPTION, PROVIDED
THAT IF YOU ARE USING THE WATCHER SOFTWARE UNDER A TRIAL LICENSE PURSUANT TO SECTION 1.1(a), IN NO EVENT SHALL
ELASTICSEARCH'S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000).
4.3 YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK
BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS
ESSENTIAL PURPOSE.
5. MISCELLANEOUS
USE THE SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR
TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE
OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY OTHER LIABILITY THAT
CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.2 Damages Cap. IN NO EVENT SHALL ELASTICSEARCH’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS
AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000).
4.3 YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN
THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL
PURPOSE.
5. DEFINITIONS
The following terms have the meanings ascribed:
5.1 “License” means a limited, non-exclusive, non-transferable, fully paid up, right and license (without the right to
grant or authorize sublicenses) solely for Your internal business operations to (i) install and use, in object code
format, the applicable Eligible Features and Functions of the Software, (ii) use, and distribute internally a reasonable
number of copies of the Documentation, provided that You must include on such copies all Marks and Notices; (iii) permit
Contractors to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use must be
solely for Your benefit, and You shall be responsible for all acts and omissions of such Contractors in connection with
their use of the Software that are contrary to the terms and conditions of this Agreement..
5.2 “License Key” means an alphanumeric code that enables the Eligible Features and Functions of the Software.
5.3 “Basic Version” means that version of the Software available for use without the purchase of a Qualifying
Subscription, but which does require Registration.
5.4 “Contractor” means third party contractors performing services on Your behalf.
5.5 “Documentation” means the published end user documentation provided by Elasticsearch with the Software.
5.6 “Eligible Features and Functions” means those features and functions of the Software that are eligible for use with
respect to a particular version of the Software or level of the Subscription. A list of the Eligible Features and
Functions that correspond to each version of the Software and Subscription levels may be found at
https://www.elastic.co/subscriptions.
5.7 “Malicious Code” means any code that is designed to harm, or otherwise disrupt in any unauthorized manner, the
operation of a recipient’s computer programs or computer systems or destroy or damage recipient’s data. For clarity,
Malicious Code shall not include any software bugs or errors handled through Support Services, or any standard features
of functions of the Software and/or any License Key that are intended to enforce the temporal and other limitations on
the scope of the use of the Software to the scope of the license purchased by You.
5.8 “Marks and Notices” means all Elasticsearch trademarks, trade names, logos and notices present on the Documentation
as originally provided by Elasticsearch.
5.9 “Registration” means Elasticsearch’s then-current process under which You may register Your use of the Software with
Elasticsearch by providing certain information to Elasticsearch regarding your use of the Software.
5.10 “Subscription” means the right to receive Support Services and a License to the Software.
5.11 “Subscription Term” means the period of time for which You have purchased a Subscription.
5.12 “Trial Version” means that version of the Software available for use without the purchase of a Qualifying
Subscription and without Registration.
6. MISCELLANEOUS
This Agreement, including Attachment 1 hereto, which is hereby incorporated herein by this reference, completely and
exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its
terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding
such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if You issue
any purchase order or similar document in connection with its purchase of a license to the Watcher Software, You will do
so only for Your internal, administrative purposes and not with the intent to provide any contractual terms. This
Agreement may not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and
which is signed on behalf of Elasticsearch and You, by duly authorized representatives. If any provision(s) hereof is
held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original
intent of the parties.
any purchase order or similar document in connection with its purchase of a license to the Software, You will do so only
for Your internal, administrative purposes and not with the intent to provide any contractual terms. This Agreement may
not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is
signed on behalf of Elasticsearch and You, by duly authorized representatives. If any provision hereof is held
unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of
the parties.
ATTACHMENT 1
ADDITIONAL TERMS AND CONDITIONS
A. The following additional terms and conditions apply to all Customers with principal offices in the United States of
America:
A. The following additional terms and conditions apply to all Customers with principal offices in the United States
of America:
(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch, Inc., a Delaware corporation.
(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch, Inc., a Delaware corporation.
(2) Government Rights. The Watcher Software product is "Commercial Computer Software," as that term is defined in 48
(C.F.R. 2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer
(software" and "commercial computer software documentation". If acquired by or on behalf of a civilian agency, the U.S.
(Government acquires this commercial computer software and/or commercial computer software documentation subject to the
(terms of this Agreement, as specified in 48 C.F.R. 12.212 Computer Software) and 12.211 Technical Data) of the Federal
(Acquisition Regulation "FAR") and its successors. If acquired by or on behalf of any agency within the Department of
(Defense "DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software
(documentation subject to the terms of the Elasticsearch Software License Agreement as specified in 48 C.F.R. 227.7202-3
(and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement "DFARS") and its successors, and consistent with 48 C.F.R. 227.7202.
(This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and
(supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software,
(computer software documentation or technical data related to the Watcher Software under this Agreement and in any
(Subcontract under which this commercial computer software and commercial computer software documentation is acquired or
(licensed.
(3) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject to
(U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations
("ITAR") 22 C.F.R. Parts 120-130 2010)); the Export Administration Regulations "EAR") 15 C.F.R. Parts 730-774 2010));
(the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions
(regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA
(Patriot Act Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. You are now and will remain in
(the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise
(transfer any Elasticsearch goods, software or technology or disclose any Elasticsearch software or technology to any
(person contrary to such laws or regulations. You acknowledge that remote access to the Watcher Software may in certain
(circumstances be considered a re-export of Watcher Software, and accordingly, may not be granted in contravention of
(U.S. export control laws and regulations.
(2) Government Rights. The Software product is "Commercial Computer Software," as that term is defined in 48 C.F.R.
2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer
software" and "commercial computer software documentation". If acquired by or on behalf of a civilian agency, the U.S.
Government acquires this commercial computer software and/or commercial computer software documentation subject to the
terms of this Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal
Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of
Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software
documentation subject to the terms of the Elasticsearch Software License Agreement as specified in 48 C.F.R. 227.7202-3
and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202.
This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and
supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software,
computer software documentation or technical data related to the Software under this Agreement and in any Subcontract
under which this commercial computer software and commercial computer software documentation is acquired or licensed.
(3) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject
to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations
(“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774
(2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic
sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the
USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. You are now and will
remain in the future compliant with all such export control laws and regulations, and will not export, re-export,
otherwise transfer any Elasticsearch goods, software or technology or disclose any Elasticsearch software or technology
to any person contrary to such laws or regulations. You acknowledge that remote access to the Software may in certain
circumstances be considered a re-export of Software, and accordingly, may not be granted in contravention of U.S. export
control laws and regulations.
(4) Governing Law, Jurisdiction and Venue.
(a) Customers in California. If Customer is located in California (as determined by the Customer address on the
applicable Order Form, or for a trial license under 1.1(a), the location of person who installed the Software), this
Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles,
and all suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that
court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County.
(b) Customers Outside of California. If Customer is located anywhere other than California (as determined by the
Customer address on the applicable Order Form, or for a trial license under 1.1(a), the location of person who installed
the Software), this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of
laws principles, and all suits hereunder will be brought solely in Federal Court for the District of Delaware, or if
that court lacks subject matter jurisdiction, in any Delaware State Court located in Wilmington, Delaware.
(c) All Customers. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International
Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any
action or proceeding in any of the applicable courts set forth in (a) or (b) above, based upon any alleged lack of
personal jurisdiction, improper venue, forum non conveniens, or any similar claim or defense.
(d) Equitable Relief. A breach or threatened breach, by either party of Section 4 may cause irreparable harm for
which the non-breaching party shall be entitled to seek injunctive relief without being required to post a bond.
(4) Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its
(conflict of laws principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the
(International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Northern District of
(California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara
(County. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such
(action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum
(non conveniens or any similar claim or defense.
B. The following additional terms and conditions apply to all Customers with principal offices in Canada:
B. The following additional terms and conditions apply to all Customers with principal offices in Canada:
(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch B.C. Ltd., a corporation
incorporated under laws of the Province of British Columbia.
(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch B.C. Ltd., a corporation
(incorporated under laws of the Province of British Columbia.
(2) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject to
the restrictions and controls set out in Section A(3) above as well as those imposed by the Export and Import Permits
(2) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject
to the restrictions and controls set out in Section A(3) above as well as those imposed by the Export and Import Permits
Act (Canada) and the regulations thereunder and that you will comply with all applicable laws and regulations. Without
limitation, You acknowledge that the Marvel Software, or any portion thereof, will not be exported: (a) to any country
on Canada's Area Control List; (b) to any country subject to UN Security Council embargo or action; or (c) contrary to
Canada's Export Control List Item 5505. You are now and will remain in the future compliant with all such export control
laws and regulations, and will not export, re-export, otherwise transfer any Elasticsearch goods, software or technology
or disclose any Elasticsearch software or technology to any person contrary to such laws or regulations. You will not
export or re-export the Marvel Software, or any portion thereof, directly or indirectly, in violation of the Canadian
export or re-export the Marvel Software, or any portion thereof, directly or indirectly, in violation of the Canadian
export administration laws and regulations to any country or end user, or to any end user who you know or have reason to
know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further
acknowledge that the Marvel Software product may include technical data subject to such Canadian export regulations.
@ -208,205 +252,188 @@ Marvel Software on your own initiative and you are responsible for compliance wi
to indemnify Elasticsearch and its affiliates from any claims, actions, liability or expenses (including reasonable
lawyers' fees) resulting from Your failure to act in accordance with the acknowledgements, agreements, and
representations in this Section B(2).
(3) Governing Law and Dispute Resolution. This Agreement shall be governed by the Province of Ontario and the
federal laws of Canada applicable therein without regard to conflict of laws provisions. The parties hereby irrevocably
waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts
based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or
defense. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach,
termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability
of this agreement to arbitrate, (each, a “Dispute”), which the parties are unable to resolve after good faith
negotiations, shall be submitted first to the upper management level of the parties. The parties, through their upper
management level representatives shall meet within thirty (30) days of the Dispute being referred to them and if the
parties are unable to resolve such Dispute within thirty (30) days of meeting, the parties agree to seek to resolve the
Dispute through mediation with ADR Chambers in the City of Toronto, Ontario, Canada before pursuing any other
proceedings. The costs of the mediator shall be shared equally by the parties. If the Dispute has not been resolved
within thirty (30) days of the notice to desire to mediate, any party may terminate the mediation and proceed to
arbitration and the matter shall be referred to and finally resolved by arbitration at ADR Chambers pursuant to the
general ADR Chambers Rules for Arbitration in the City of Toronto, Ontario, Canada. The arbitration shall proceed in
accordance with the provisions of the Arbitration Act (Ontario). The arbitral panel shall consist of three (3)
arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall
discuss and select a chairman. If the two (2) party-appointed arbitrators are unable to agree on the chairman, the
chairman shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be
independent of each of the parties. The arbitrators shall have the authority to grant specific performance and to
allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees
related to the arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any
arbitration shall be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith.
Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such
court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the
foregoing, Elasticsearch shall have the right to institute an action in a court of proper jurisdiction for preliminary
injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall
only be awarded by the arbitrator. The language to be used in the arbitral proceedings shall be English.
(4) Language. Any translation of this Agreement is done for local requirements and in the event of a dispute
between the English and any non-English version, the English version of this Agreement shall govern. At the request of
the parties, the official language of this Agreement and all communications and documents relating hereto is the English
language, and the English-language version shall govern all interpretation of the Agreement. À la demande des parties,
la langue officielle de la présente convention ainsi que toutes communications et tous documents s'y rapportant est la
langue anglaise, et la version anglaise est celle qui régit toute interprétation de la présente convention.
(5) Warranty Disclaimer. For Customers with principal offices in the Province of Québec, the following new sentence
is to be added to the end of Section 3.3: “SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN TYPES OF
DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL
NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND
DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.”
(6) Limitation of Liability. For Customers with principal offices in the Province of Québec, the following new
sentence is to be added to the end of Section 4.1: “SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN
TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS
AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES
BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.”
(3) Governing Law and Dispute Resolution. This Agreement shall be governed by the Province of Ontario and the federal
laws of Canada applicable therein without regard to conflict of laws provisions. The parties hereby irrevocably waive
any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based
upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense.
Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach, termination,
enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this
agreement to arbitrate, (each, a "Dispute"), which the parties are unable to resolve after good faith negotiations,
shall be submitted first to the upper management level of the parties. The parties, through their upper management level
representatives shall meet within thirty (30) days of the Dispute being referred to them and if the parties are unable
to resolve such Dispute within thirty (30) days of meeting, the parties agree to seek to resolve the Dispute through
mediation with ADR Chambers in the City of Toronto, Ontario, Canada before pursuing any other proceedings. The costs of
the mediator shall be shared equally by the parties. If the Dispute has not been resolved within thirty (30) days of the
notice to desire to mediate, any party may terminate the mediation and proceed to arbitration and the matter shall be
referred to and finally resolved by arbitration at ADR Chambers pursuant to the general ADR Chambers Rules for
Arbitration in the City of Toronto, Ontario, Canada. The arbitration shall proceed in accordance with the provisions of
the Arbitration Act (Ontario). The arbitral panel shall consist of three (3) arbitrators, selected as follows: each
party shall appoint one (1) arbitrator; and those two (2) arbitrators shall discuss and select a chairman. If the two
(2) party-appointed arbitrators are unable to agree on the chairman, the chairman shall be selected in accordance with
the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties. The
arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of
arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable
manner as the arbitrators may determine. The prevailing party in any arbitration shall be entitled to receive
reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the award so rendered may be
entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and
an order of enforcement, as the case may be. Notwithstanding the foregoing, Elasticsearch shall have the right to
institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the
arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The language to
be used in the arbitral proceedings shall be English.
(4) Language. Any translation of this Agreement is done for local requirements and in the event of a dispute between
(the English and any non-English version, the English version of this Agreement shall govern. At the request of the
(parties, the official language of this Agreement and all communications and documents relating hereto is the English
(language, and the English-language version shall govern all interpretation of the Agreement. Ë la demande des parties,
(la langue officielle de la prŽsente convention ainsi que toutes communications et tous documents s'y rapportant est la
(langue anglaise, et la version anglaise est celle qui rŽgit toute interprŽtation de la prŽsente convention.
(5) Disclaimer of Warranties. For Customers with principal offices in the Province of QuŽbec, the following new
(sentence is to be added to the end of Section 3: "SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN
(TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS
(AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE
(LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS."
(6) Limitation of Liability. For Customers with principal offices in the Province of QuŽbec, the following new
(sentence is to be added to the end of Section 4.1: "SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF
(CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN
(THIS AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE
(LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS."
C. The following additional terms and conditions apply to all Customers with principal offices outside of the United
C. The following additional terms and conditions apply to all Customers with principal offices outside of the United
States of America and Canada:
(1) Applicable Elasticsearch Entity. The entity providing the license in Germany is Elasticsearch Gmbh; in France is
(Elasticsearch SARL, in the United Kingdom is Elasticsearch Ltd, in Australia is Elasticsearch Pty Ltd., in Japan is
(Elasticsearch KK, and in all other countries is Elasticsearch BV.
(1) Applicable Elasticsearch Entity. The entity providing the license in Germany is Elasticsearch Gmbh; in France is
Elasticsearch SARL, in the United Kingdom is Elasticsearch Ltd, in Australia is Elasticsearch Pty Ltd., in Japan is
Elasticsearch KK, in Sweden is Elasticsearch AB, in Norway is Elasticsearch AS and in all other countries is
Elasticsearch BV.
(2) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New
(York, without reference to or application of choice of law rules or principles. Notwithstanding any choice of law
(provision or otherwise, the Uniform Computer Information Transactions Act UCITA) and the United Nations Convention on
(the International Sale of Goods shall not apply.
(2) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without reference to or application of choice of law rules or principles. Notwithstanding any choice of law
provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on
the International Sale of Goods shall not apply.
(3) Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence,
(breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or
(applicability of this agreement to arbitrate, each, a "Dispute") shall be referred to and finally resolved by
(arbitration under the rules and at the location identified below. The arbitral panel shall consist of three 3)
(arbitrators, selected as follows: each party shall appoint one 1) arbitrator; and those two 2) arbitrators shall
(discuss and select a chairman. If the two party-appointed arbitrators are unable to agree on the chairman, the chairman
(shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent
(of each of the parties. The arbitrators shall have the authority to grant specific performance and to allocate between
(the parties the costs of arbitration including service fees, arbitrator fees and all other fees related to the
(arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any arbitration shall
(be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the
(award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial
(acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, Elasticsearch
(shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending
(a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the
(arbitrator. The language to be used in the arbitral proceedings shall be English.
(3) Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence,
breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or
applicability of this agreement to arbitrate, (each, a “Dispute”) shall be referred to and finally resolved by
arbitration under the rules and at the location identified below. The arbitral panel shall consist of three (3)
arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall
discuss and select a chairman. If the two party-appointed arbitrators are unable to agree on the chairman, the chairman
shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent
of each of the parties. The arbitrators shall have the authority to grant specific performance and to allocate between
the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the
arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any arbitration shall
be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the
award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial
acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, Elasticsearch
shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending
a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the
arbitrator. The language to be used in the arbitral proceedings shall be English.
(a) In addition, the following terms only apply to Customers with principal offices within Europe, the Middle East or
(Africa EMEA):
In addition, the following terms only apply to Customers with principal offices within Europe, the Middle East or Africa
(EMEA):
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the London
Court of International Arbitration ("LCIA") Rules (which Rules are deemed to be incorporated by reference into this
Court of International Arbitration (“LCIA”) Rules (which Rules are deemed to be incorporated by reference into this
clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of
arbitration shall be London, England.
arbitration shall be London, England.
(b) In addition, the following terms only apply to Customers with principal offices within Asia Pacific, Australia &
(New Zealand:
(b) In addition, the following terms only apply to Customers with principal offices within Asia Pacific, Australia &
New Zealand:
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce ("ICC") in force on the date when the notice of
Conciliation and Arbitration of the International Chamber of Commerce (“ICC”) in force on the date when the notice of
arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this
clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of
arbitration shall be Singapore.
arbitration shall be Singapore.
(c) In addition, the following terms only apply to Customers with principal offices within the Americas excluding North
(America):
(c) In addition, the following terms only apply to Customers with principal offices within the Americas (excluding
North America):
Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under
International Dispute Resolution Procedures of the American Arbitration Association ("AAA") in force on the date when
International Dispute Resolution Procedures of the American Arbitration Association (“AAA”) in force on the date when
the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be
incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York,
USA. The seat, or legal place, of arbitration shall be New York, New York, USA.
(4) In addition, for Customers with principal offices within the UK, the following new sentence is added to the end of
(Section 4.1:
(4) In addition, for Customers with principal offices within the UK, the following new sentence is added to the end
of Section 4.1:
Nothing in this Agreement shall have effect so as to limit or exclude a party's liability for death or personal injury
Nothing in this Agreement shall have effect so as to limit or exclude a party’s liability for death or personal injury
caused by negligence or for fraud including fraudulent misrepresentation and this Section 4.1 shall take effect subject
to this provision.
(5) In addition, for Customers with principal offices within France, Sections 1.2, 3 and 4.1 of the Agreement are
(deleted and replaced with the following new Sections 1.2, 3 and 4.1:
1.2 Reservation of Rights; Restrictions. Elasticsearch owns all right title and interest in and to the Watcher Software
and any derivative works thereof, and except as expressly set forth in Section 1.1 above, no other license to the Watcher
Software is granted to You by implication, or otherwise. You agree not to prepare derivative works from, modify, copy or
use the Watcher Software in any manner except as expressly permitted in this Agreement; provided that You may copy the
Watcher Software for archival purposes, only where such software is provided on a non-durable medium; and You may
decompile the Watcher Software, where necessary for interoperability purposes and where necessary for the correction of
errors making the software unfit for its intended purpose, if such right is not reserved by Elasticsearch as editor of
the Watcher Software. Pursuant to article L122-6-1 of the French intellectual property code, Elasticsearch reserves the
right to correct any bugs as necessary for the Watcher Software to serve its intended purpose. You agree not to: (i)
transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Watcher Software in whole or in part
to any third party; (ii) use the Watcher Software for providing time-sharing services, any software-as-a-service
offering ("SaaS"), service bureau services or as part of an application services provider or other service offering;
(iii) alter or remove any proprietary notices in the Watcher Software; or (iv) make available to any third party any
analysis of the results of operation of the Watcher Software, including benchmarking results, without the prior written
consent of Elasticsearch.
3. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE WATCHER SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR
RELATING TO THE WATCHER SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTICSEARCH
AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
WATCHER SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT
WARRANT RESULTS OF USE OR THAT THE WATCHER SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE WATCHER SOFTWARE WILL BE
(5) In addition, for Customers with principal offices within France, Sections 1.2, 3 and 4.1 of the Agreement are
deleted and replaced with the following new Sections 1.2, 3.3 and 4.1:
1.2 Reservation of Rights; Restrictions. Elasticsearch owns all right title and interest in and to the Software and
any derivative works thereof, and except as expressly set forth in Section 1.1 above, no other license to the Software
is granted to You by implication, or otherwise. You agree not to prepare derivative works from, modify, copy or use the
Software in any manner except as expressly permitted in this Agreement; provided that You may copy the Software for
archival purposes, only where such software is provided on a non-durable medium; and You may decompile the Software,
where necessary for interoperability purposes and where necessary for the correction of errors making the software unfit
for its intended purpose, if such right is not reserved by Elasticsearch as editor of the Software. Pursuant to article
L122-6-1 of the French intellectual property code, Elasticsearch reserves the right to correct any bugs as necessary for
the Software to serve its intended purpose. You agree not to: (i) transfer, sell, rent, lease, distribute, sublicense,
loan or otherwise transfer the Software in whole or in part to any third party; (ii) use the Software for providing
time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application
services provider or other service offering; (iii) alter or remove any proprietary notices in the Software; or (iv) make
available to any third party any analysis of the results of operation of the Software, including benchmarking results,
without the prior written consent of Elasticsearch.
3.3 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR
STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, ELASTICSEARCH DOES
NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE SOFTWARE WILL BE
UNINTERRUPTED.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS 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 OR
UNFORESEEABLE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE WATCHER SOFTWARE,
OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT,
UNFORESEEABLE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE
PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT,
INCLUDING NEGLIGENCE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH, THROUGH
GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU, OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1, OR IN CASE OF
DEATH OR PERSONAL INJURY.
(6) In addition, for Customers with principal offices within Australia, Sections 4.1, 4.2 and 4.3 of the Agreement are
(deleted and replaced with the following new Sections 4.1, 4.2 and 4.3:
4.1 Disclaimer of Certain Damages. Subject to clause 4.3, a party is not liable for Consequential Loss however caused
(including by the negligence of that party) suffered or incurred by the other party in connection with this agreement.
"Consequential Loss" means loss of revenues, loss of reputation, indirect loss, loss of profits, consequential loss,
loss of actual or anticipated savings, indirect loss, lost opportunities, including opportunities to enter into
arrangements with third parties, loss or damage in connection with claims against by third parties, or loss or
corruption or data.
4.2 Damages Cap. SUBJECT TO CLAUSES 4.1 AND 4.3, ANY LIABILITY OF ELASTICSEARCH FOR ANY LOSS OR DAMAGE, HOWEVER CAUSED
(INCLUDING BY THE NEGLIGENCE OF ELASTICSEARCH), SUFFERED BY YOU IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE
AMOUNT YOU PAID, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY, UNDER THE
ELASTICSEARCH SUPPORT SERVICES AGREEMENT IN CONNECTION WITH WHICH YOU OBTAINED THE LICENSE TO USE THE WATCHER SOFTWARE.
THE LIMITATION SET OUT IN THIS SECTION 4.2 IS AN AGGREGATE LIMIT FOR ALL CLAIMS, WHENEVER MADE.
4.3 Limitation and Disclaimer Exceptions. If the Competition and Consumer Act 2010 (Cth) or any other legislation or
(6) In addition, for Customers with principal offices within Australia, Sections 4.1, 4.2 and 4.3 of the Agreement
are deleted and replaced with the following new Sections 4.1, 4.2 and 4.3:
4.1 Disclaimer of Certain Damages. Subject to clause 4.3, a party is not liable for Consequential Loss however
caused (including by the negligence of that party) suffered or incurred by the other party in connection with this
agreement. “Consequential Loss” means loss of revenues, loss of reputation, indirect loss, loss of profits,
consequential loss, loss of actual or anticipated savings, indirect loss, lost opportunities, including opportunities to
enter into arrangements with third parties, loss or damage in connection with claims against by third parties, or loss
or corruption or data.
4.2 Damages Cap. SUBJECT TO CLAUSES 4.1 AND 4.3, ANY LIABILITY OF ELASTICSEARCH FOR ANY LOSS OR DAMAGE, HOWEVER
CAUSED (INCLUDING BY THE NEGLIGENCE OF ELASTICSEARCH), SUFFERED BY YOU IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO
THE AMOUNT YOU PAID, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY, UNDER THE
ELASTICSEARCH SUPPORT SERVICES AGREEMENT IN CONNECTION WITH WHICH YOU OBTAINED THE LICENSE TO USE THE SOFTWARE. THE
LIMITATION SET OUT IN THIS SECTION 4.2 IS AN AGGREGATE LIMIT FOR ALL CLAIMS, WHENEVER MADE.
4.3 Limitation and Disclaimer Exceptions. If the Competition and Consumer Act 2010 (Cth) or any other legislation or
any other legislation states that there is a guarantee in relation to any good or service supplied by Elasticsearch in
connection with this agreement, and Elasticsearch's liability for failing to comply with that guarantee cannot be
excluded but may be limited, Sections 4.1 and 4.2 do not apply to that liability and instead Elasticsearch's liability
for such failure is limited (at Elasticsearch's election) to, in the case of a supply of goods, the Elasticsearch
connection with this agreement, and Elasticsearch’s liability for failing to comply with that guarantee cannot be
excluded but may be limited, Sections 4.1 and 4.2 do not apply to that liability and instead Elasticsearch’s liability
for such failure is limited (at Elasticsearch’s election) to, in the case of a supply of goods, the Elasticsearch
replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services,
Elasticsearch supplying the services again or paying the cost of having the services supplied again.
(7) In addition, for Customers with principal offices within Japan, Sections 1.2, 3 and 4.1 of the Agreement are
(deleted and replaced with the following new Sections 1.2, 3 and 4.1:
1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
interest in and to the Watcher Software and any derivative works thereof, and except as expressly set forth in Section
1.1 above, no other license to the Watcher Software is granted to You by implication or otherwise. You agree not to: (i)
prepare derivative works from, modify, copy or use the Watcher Software in any manner except as expressly permitted in
this Agreement or applicable law; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer
the Watcher Software in whole or in part to any third party; (iii) use the Watcher Software for providing time-sharing
services, any software-as-a-service offering ("SaaS"), service bureau services or as part of an application services
provider or other service offering; (iv) alter or remove any proprietary notices in the Watcher Software; or (v) make
available to any third party any analysis of the results of operation of the Watcher Software, including benchmarking
results, without the prior written consent of Elasticsearch.
3. DISCLAIMER OF WARRANTIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE WATCHER SOFTWARE IS PROVIDED "AS
IS" WITHOUT WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR
STATUTORY REGARDING OR RELATING TO THE WATCHER SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE WATCHER SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO
THE USE OF THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE WATCHER SOFTWARE WILL BE
ERROR FREE OR THAT THE USE OF THE WATCHER SOFTWARE WILL BE UNINTERRUPTED.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF
(7) In addition, for Customers with principal offices within Japan, Sections 1.2, 3 and 4.1 of the Agreement are
deleted and replaced with the following new Sections 1.2, 3.3 and 4.1:
1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
interest in and to the Software and any derivative works thereof, and except as expressly set forth in Section 1.1
above, no other license to the Software is granted to You by implication or otherwise. You agree not to: (i) prepare
derivative works from, modify, copy or use the Software in any manner except as expressly permitted in this Agreement or
applicable law; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in
whole or in part to any third party; (iii) use the Software for providing time-sharing services, any
software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or other
service offering; (iv) alter or remove any proprietary notices in the Software; or (v) make available to any third party
any analysis of the results of operation of the Software, including benchmarking results, without the prior written
consent of Elasticsearch.
3.3 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS”
WITHOUT WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR
STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF
THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT
THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED.
4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF
PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
SPECIALINDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE
OR INABILITY TO USE THE WATCHER SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS
A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE
OR INABILITY TO USE THE SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A
BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH
THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY
OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.