413 lines
36 KiB
Plaintext
413 lines
36 KiB
Plaintext
WATCHER SOFTWARE 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.
|
|
|
|
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").
|
|
|
|
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.
|
|
|
|
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.
|
|
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
|
|
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
|
|
|
|
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.
|
|
|
|
|
|
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 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.
|
|
|
|
(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:
|
|
|
|
(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. 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
|
|
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.
|
|
|
|
(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.
|
|
|
|
(a) 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 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
|
|
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 WATCHER 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
|
|
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 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
|
|
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
|
|
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.
|