418 lines
36 KiB
Plaintext
418 lines
36 KiB
Plaintext
SHIELD SOFTWARE LICENSE AGREEMENT
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READ THIS AGREEMENT CAREFULLY, WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS YOUR USE OF ELASTICSEARCH'S
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SHIELD SOFTWARE. BY INSTALLING AND/OR USING THE SHIELD SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THE TERMS AND
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CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE
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THE SHIELD SOFTWARE.
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This SHIELD SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into by and between the applicable Elasticsearch
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entity referred to in Attachment 1 below ("Elasticsearch") and the person or entity ("You") that has downloaded
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Elasticsearch's Shield software to which this Agreement is attached ("Shield Software"). This Agreement is effective as
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of the date an applicable ordering document ("Order Form") is entered into by Elasticsearch and You (the "Effective
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Date").
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1. SOFTWARE LICENSE AND RESTRICTIONS
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1.1 License Grants.
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(a) 30 Day Free Trial License. Subject to the terms and conditions of this Agreement, Elasticsearch agrees to grant,
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and does hereby grant to You for a period of thirty (30) days from the Effective Date (the "Trial Term"), solely for
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Your internal business operations, a limited, non-exclusive, non-transferable, fully paid up, right and license
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(without the right to grant or authorize sublicenses) to: (i) install and use the object code version of the Shield
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Software; (ii) use, and distribute internally a reasonable number of copies of the documentation, if any, provided with
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the Shield Software ("Documentation"), provided that You must include on such copies all Elasticsearch trademarks, trade
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names, logos and notices present on the Documentation as originally provided to You by Elasticsearch; (iii) permit third
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party contractors performing services on Your behalf to use the Shield Software and Documentation as set forth in (i)
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and (ii) above, provided that such use must be solely for Your benefit, and You shall be responsible for all acts and
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omissions of such contractors in connection with their use of the Shield Software. For the avoidance of doubt, You
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understand and agree that upon the expiration of the Trial Term, Your license to use the Shield Software will terminate,
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unless you purchase a Qualifying Subscription (as defined below) for Elasticsearch support services.
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(b) Fee-Bearing Production License. Subject to the terms and conditions of this Agreement and complete payment of any
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and all applicable fees for a Gold or Platinum production subscription for support services for Elasticsearch open
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source software (in each case, a "Qualifying Subscription"), Elasticsearch agrees to grant, and does hereby grant to You
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during the term of the applicable Qualifying Subscription, and for the restricted scope of this Agreement, solely for
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Your internal business operations, a limited, non-exclusive, non-transferable right and license (without the right to
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grant or authorize sublicenses) to: (i) install and use the object code version of the Shield Software, subject to any
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applicable quantitative limitations set forth in the applicable Order Form; (ii) use, and distribute internally a
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reasonable number of copies of the Documentation, if any, provided with the Shield Software, provided that You must
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include on such copies all Elasticsearch trademarks, trade names, logos and notices present on the Documentation as
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originally provided to You by Elasticsearch; (iii) permit third party contractors performing services on Your behalf to
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use the Shield Software and Documentation as set forth in (i) and (ii) above, provided that such use must be solely for
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Your benefit, and You shall be responsible for all acts and omissions of such contractors in connection with their use
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of the Shield Software.
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1.2 Reservation of Rights; Restrictions. As between Elasticsearch and You, Elasticsearch owns all right title and
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interest in and to the Shield Software and any derivative works thereof, and except as expressly set forth in Section
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1.1 above, no other license to the Shield Software is granted to You by implication, estoppel or otherwise. You agree
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not to: (i) prepare derivative works from, modify, copy or use the Shield Software in any manner except as expressly
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permitted in this Agreement or applicable law; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or
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otherwise transfer the Shield Software in whole or in part to any third party; (iii) use the Shield Software for
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providing time-sharing services, any software-as-a-service offering ("SaaS"), service bureau services or as part of an
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application services provider or other service offering; (iv) alter or remove any proprietary notices in the Shield
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Software; or (v) make available to any third party any analysis of the results of operation of the Shield Software,
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including benchmarking results, without the prior written consent of Elasticsearch. The Shield Software may contain or
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be provided with open source libraries, components, utilities and other open source software (collectively, "Open Source
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Software"), which Open Source Software may have applicable license terms as identified on a website designated by
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Elasticsearch or otherwise provided with the Shield Software or Documentation. Notwithstanding anything to the contrary
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herein, use of the Open Source Software shall be subject to the license terms and conditions applicable to such Open
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Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights
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granted to You hereunder, but may contain additional rights).
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1.3 Open Source. The Shield Software may contain or be provided with open source libraries, components, utilities and
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other open source software (collectively, "Open Source"), which Open Source may have applicable license terms as
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identified on a website designated by Elasticsearch or otherwise provided with the applicable Software or Documentation.
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Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source
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license terms and conditions to the extent required by the applicable licensor (which terms shall not restrict the
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license rights granted to You hereunder but may contain additional rights).
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1.4 Audit Rights. You agree that Elasticsearch shall have the right, upon five (5) business days' notice to You, to
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audit Your use of the Shield Software for compliance with any quantitative limitations on Your use of the Shield
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Software that are set forth in the applicable Order Form. You agree to provide Elasticsearch with the necessary access
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to the Shield Software to conduct such an audit either (i) remotely, or (ii) if remote performance is not possible, at
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Your facilities, during normal business hours and no more than one (1) time in any twelve (12) month period. In the
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event any such audit reveals that You have used the Shield Software in excess of the applicable quantitative
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limitations, You agree to promptly pay to Elasticsearch an amount equal to the difference between the fees actually paid
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and the fees that You should have paid to remain in compliance with such quantitative limitations. This Section 1.3
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shall survive for a period of two (2) years from the termination or expiration of this Agreement.
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2. TERM AND TERMINATION
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2.1 Term. This Agreement shall commence on the Effective Date, and shall continue in force for the license term set
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forth in the applicable Order Form, unless earlier terminated under Section 2.2 below, provided, however, that if You do
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not purchase a Qualifying Subscription prior to the expiration of the Trial Term, this Agreement will expire at the end
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of the Trial Term.
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2.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material
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breach by the other party automatically and without any other formality, if such party has failed to cure such material
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breach within thirty (30) days of receiving written notice of such material breach from the non-breaching party.
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Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that You intentionally breach
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the scope of the license granted in Section 1.1 of this Agreement.
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2.3 Post Termination or Expiration. Upon termination or expiration of this Agreement, for any reason, You shall
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promptly cease the use of the Shield Software and Documentation and destroy (and certify to Elasticsearch in writing the
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fact of such destruction), or return to Elasticsearch, all copies of the Shield Software and Documentation then in Your
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possession or under Your control.
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2.4 Survival. Sections 2.3, 2.4, 3, 4 and 5 shall survive any termination or expiration of this Agreement.
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3. DISCLAIMER OF WARRANTIES
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TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SHIELD SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
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KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR
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RELATING TO THE SHIELD SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTICSEARCH
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AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
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NON-INFRINGEMENT WITH RESPECT TO THE SHIELD SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING.
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FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE SHIELD SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF
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THE SHIELD SOFTWARE WILL BE UNINTERRUPTED.
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4. LIMITATION OF LIABILITY
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4.1 Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF
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PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT,
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SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO
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USE THE SHIELD SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF
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CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
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SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS
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NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY OTHER LIABILITY
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THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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4.2 Damages Cap. IN NO EVENT SHALL ELASTICSEARCH'S OR ITS LICENSORS' AGGREGATE, CUMULATIVE LIABILITY UNDER THIS
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AGREEMENT EXCEED THE AMOUNT YOU PAID, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY,
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UNDER THE ELASTICSEARCH SUPPORT SERVICES AGREEMENT PURSUANT TO WHICH YOU PURCHASED THE QUALIFYING SUBSCRIPTION, PROVIDED
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THAT IF YOU ARE USING THE SHIELD SOFTWARE UNDER A TRIAL LICENSE PURSUANT TO SECTION 1.1(a), IN NO EVENT SHALL
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ELASTICSEARCH'S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1,000).
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4.3 YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK
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BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS
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ESSENTIAL PURPOSE.
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5. MISCELLANEOUS
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This Agreement, including Attachment 1 hereto, which is hereby incorporated herein by this reference, completely and
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exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its
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terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding
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such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if You issue
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any purchase order or similar document in connection with its purchase of a license to the Shield Software, You will do
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so only for Your internal, administrative purposes and not with the intent to provide any contractual terms. This
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Agreement may not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and
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which is signed on behalf of Elasticsearch and You, by duly authorized representatives. If any provision(s) hereof is
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held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original
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intent of the parties.
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ATTACHMENT 1
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ADDITIONAL TERMS AND CONDITIONS
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A. The following additional terms and conditions apply to all Customers with principal offices in the United States of
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America:
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(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch, Inc., a Delaware corporation.
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(2) Government Rights. The Shield Software product is "Commercial Computer Software," as that term is defined in 48
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(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
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(software" and "commercial computer software documentation". If acquired by or on behalf of a civilian agency, the U.S.
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(Government acquires this commercial computer software and/or commercial computer software documentation subject to the
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(terms of this Agreement, as specified in 48 C.F.R. 12.212 Computer Software) and 12.211 Technical Data) of the Federal
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(Acquisition Regulation "FAR") and its successors. If acquired by or on behalf of any agency within the Department of
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(Defense "DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software
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(documentation subject to the terms of the Elasticsearch Software License Agreement as specified in 48 C.F.R. 227.7202-3
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(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.
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(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
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(supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software,
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(computer software documentation or technical data related to the Shield Software under this Agreement and in any
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(Subcontract under which this commercial computer software and commercial computer software documentation is acquired or
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(licensed.
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(3) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject to
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(U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations
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("ITAR") 22 C.F.R. Parts 120-130 2010)); the Export Administration Regulations "EAR") 15 C.F.R. Parts 730-774 2010));
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(the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions
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(regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA
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(Patriot Act Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. You are now and will remain in
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(the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise
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(transfer any Elasticsearch goods, software or technology or disclose any Elasticsearch software or technology to any
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(person contrary to such laws or regulations. You acknowledge that remote access to the Shield Software may in certain
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(circumstances be considered a re-export of Shield Software, and accordingly, may not be granted in contravention of
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(U.S. export control laws and regulations.
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(4) Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its
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(conflict of laws principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the
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(International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Northern District of
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(California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara
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(County. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such
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(action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum
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(non conveniens or any similar claim or defense.
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B. The following additional terms and conditions apply to all Customers with principal offices in Canada:
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(1) Applicable Elasticsearch Entity. The entity providing the license is Elasticsearch B.C. Ltd., a corporation
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(incorporated under laws of the Province of British Columbia.
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(2) Export Control. You acknowledge that the goods, software and technology acquired from Elasticsearch are subject to
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the restrictions and controls set out in Section A(3) above as well as those imposed by the Export and Import Permits
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Act (Canada) and the regulations thereunder and that you will comply with all applicable laws and regulations. Without
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limitation, You acknowledge that the Marvel Software, or any portion thereof, will not be exported: (a) to any country
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on Canada's Area Control List; (b) to any country subject to UN Security Council embargo or action; or (c) contrary to
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Canada's Export Control List Item 5505. You are now and will remain in the future compliant with all such export control
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laws and regulations, and will not export, re-export, otherwise transfer any Elasticsearch goods, software or technology
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or disclose any Elasticsearch software or technology to any person contrary to such laws or regulations. You will not
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export or re-export the Marvel Software, or any portion thereof, directly or indirectly, in violation of the Canadian
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export administration laws and regulations to any country or end user, or to any end user who you know or have reason to
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know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further
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acknowledge that the Marvel Software product may include technical data subject to such Canadian export regulations.
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Elasticsearch does not represent that the Marvel Software is appropriate or available for use in all countries.
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Elasticsearch prohibits accessing materials from countries or states where contents are illegal. You are using the
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Marvel Software on your own initiative and you are responsible for compliance with all applicable laws. You hereby agree
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to indemnify Elasticsearch and its affiliates from any claims, actions, liability or expenses (including reasonable
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lawyers' fees) resulting from Your failure to act in accordance with the acknowledgements, agreements, and
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representations in this Section B(2).
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(3) Governing Law and Dispute Resolution. This Agreement shall be governed by the Province of Ontario and the federal
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laws of Canada applicable therein without regard to conflict of laws provisions. The parties hereby irrevocably waive
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any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based
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upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense.
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Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach, termination,
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enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this
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agreement to arbitrate, (each, a "Dispute"), which the parties are unable to resolve after good faith negotiations,
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shall be submitted first to the upper management level of the parties. The parties, through their upper management level
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representatives shall meet within thirty (30) days of the Dispute being referred to them and if the parties are unable
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to resolve such Dispute within thirty (30) days of meeting, the parties agree to seek to resolve the Dispute through
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mediation with ADR Chambers in the City of Toronto, Ontario, Canada before pursuing any other proceedings. The costs of
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the mediator shall be shared equally by the parties. If the Dispute has not been resolved within thirty (30) days of the
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notice to desire to mediate, any party may terminate the mediation and proceed to arbitration and the matter shall be
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referred to and finally resolved by arbitration at ADR Chambers pursuant to the general ADR Chambers Rules for
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Arbitration in the City of Toronto, Ontario, Canada. The arbitration shall proceed in accordance with the provisions of
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the Arbitration Act (Ontario). The arbitral panel shall consist of three (3) arbitrators, selected as follows: each
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party shall appoint one (1) arbitrator; and those two (2) arbitrators shall discuss and select a chairman. If the two
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(2) party-appointed arbitrators are unable to agree on the chairman, the chairman shall be selected in accordance with
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the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties. The
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arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of
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arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable
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manner as the arbitrators may determine. The prevailing party in any arbitration shall be entitled to receive
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reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the award so rendered may be
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entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and
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an order of enforcement, as the case may be. Notwithstanding the foregoing, Elasticsearch shall have the right to
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institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the
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arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The language to
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be used in the arbitral proceedings shall be English.
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(4) Language. Any translation of this Agreement is done for local requirements and in the event of a dispute between
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(the English and any non-English version, the English version of this Agreement shall govern. At the request of the
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(parties, the official language of this Agreement and all communications and documents relating hereto is the English
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(language, and the English-language version shall govern all interpretation of the Agreement. Ë la demande des parties,
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(la langue officielle de la prŽsente convention ainsi que toutes communications et tous documents s'y rapportant est la
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(langue anglaise, et la version anglaise est celle qui rŽgit toute interprŽtation de la prŽsente convention.
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(5) Disclaimer of Warranties. For Customers with principal offices in the Province of QuŽbec, the following new
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(sentence is to be added to the end of Section 3: "SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF CERTAIN
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(TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS
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(AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE
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(LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS."
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(6) Limitation of Liability. For Customers with principal offices in the Province of QuŽbec, the following new
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(sentence is to be added to the end of Section 4.1: "SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF
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(CERTAIN TYPES OF DAMAGES AND/OR WARRANTIES AND CONDITIONS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN
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(THIS AGREEMENT SHALL NOT APPLY IF AND ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE
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(LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS."
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C. The following additional terms and conditions apply to all Customers with principal offices outside of the United
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States of America and Canada:
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(1) Applicable Elasticsearch Entity. The entity providing the license in Germany is Elasticsearch Gmbh; in France is
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(Elasticsearch SARL, in the United Kingdom is Elasticsearch Ltd, in Australia is Elasticsearch Pty Ltd., in Japan is
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(Elasticsearch KK, and in all other countries is Elasticsearch BV.
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(2) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New
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(York, without reference to or application of choice of law rules or principles. Notwithstanding any choice of law
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(provision or otherwise, the Uniform Computer Information Transactions Act UCITA) and the United Nations Convention on
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(the International Sale of Goods shall not apply.
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(3) Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence,
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(breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or
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(applicability of this agreement to arbitrate, each, a "Dispute") shall be referred to and finally resolved by
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(arbitration under the rules and at the location identified below. The arbitral panel shall consist of three 3)
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(arbitrators, selected as follows: each party shall appoint one 1) arbitrator; and those two 2) arbitrators shall
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(discuss and select a chairman. If the two party-appointed arbitrators are unable to agree on the chairman, the chairman
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(shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent
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(of each of the parties. The arbitrators shall have the authority to grant specific performance and to allocate between
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(the parties the costs of arbitration including service fees, arbitrator fees and all other fees related to the
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(arbitration) in such equitable manner as the arbitrators may determine. The prevailing party in any arbitration shall
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(be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the
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(award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial
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(acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, Elasticsearch
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(shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending
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(a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the
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(arbitrator. The language to be used in the arbitral proceedings shall be English.
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(a) In addition, the following terms only apply to Customers with principal offices within Europe, the Middle East or
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(Africa EMEA):
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Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the London
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Court of International Arbitration ("LCIA") Rules (which Rules are deemed to be incorporated by reference into this
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clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of
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arbitration shall be London, England.
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(b) In addition, the following terms only apply to Customers with principal offices within Asia Pacific, Australia &
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(New Zealand:
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Arbitration Rules and Location. Any Dispute shall be referred to and finally resolved by arbitration under the Rules of
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Conciliation and Arbitration of the International Chamber of Commerce ("ICC") in force on the date when the notice of
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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 Shield Software
|
|
and any derivative works thereof, and except as expressly set forth in Section 1.1 above, no other license to the Shield
|
|
Software is granted to You by implication, or otherwise. You agree not to prepare derivative works from, modify, copy or
|
|
use the Shield Software in any manner except as expressly permitted in this Agreement; provided that You may copy the
|
|
Shield Software for archival purposes, only where such software is provided on a non-durable medium; and You may
|
|
decompile the Shield 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 Shield 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 Shield Software to serve its intended purpose. You agree not to: (i)
|
|
transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Shield Software in whole or in part
|
|
to any third party; (ii) use the Shield 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 Shield Software; or (iv) make available to any third party any
|
|
analysis of the results of operation of the Shield Software, including benchmarking results, without the prior written
|
|
consent of Elasticsearch.
|
|
|
|
3. DISCLAIMER OF WARRANTIES
|
|
|
|
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SHIELD 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 SHIELD 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
|
|
SHIELD SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT
|
|
WARRANT RESULTS OF USE OR THAT THE SHIELD SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE SHIELD 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 SHIELD 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 SHIELD 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 Shield Software and any derivative works thereof, and except as expressly set forth in Section
|
|
1.1 above, no other license to the Shield Software is granted to You by implication or otherwise. You agree not to: (i)
|
|
prepare derivative works from, modify, copy or use the Shield 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 Shield Software in whole or in part to any third party; (iii) use the Shield 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 Shield Software; or (v) make
|
|
available to any third party any analysis of the results of operation of the Shield Software, including benchmarking
|
|
results, without the prior written consent of Elasticsearch.
|
|
|
|
3. DISCLAIMER OF WARRANTIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SHIELD 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 SHIELD 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 SHIELD SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO
|
|
THE USE OF THE FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE SHIELD SOFTWARE WILL BE
|
|
ERROR FREE OR THAT THE USE OF THE SHIELD 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 SHIELD 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.
|
|
|
|
|
|
|
|
|
|
|