1. ELEMENTUM PRODUCT
1.1 Provision of Products
Elementum will provide Customer with the Elementum Product. Customer may access and use the Elementum Product solely for its own internal business purposes and only in accordance with the terms and conditions of this Agreement and any end user technical documentation provided with the Elementum Product (“Documentation”). No software code will be provided. Use of and access to the Elementum Product is permitted only by employees or representatives of Customer who are invited to use the Elementum Product by Customer (“Permitted Users”). Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, including those of Permitted Users.
1.2 General Restrictions
Customer shall not (and shall not allow any Permitted User to): (a) rent, lease, copy, provide access to, or sublicense the Elementum Product to a third party (except as authorized by Section 1.1 above), (b) use the Elementum Product or any Documentation to help develop, or help provide to any third party, any other product or service, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to the Elementum Product, except to the extent permitted by applicable law, and then only upon advance notice to Elementum, (d) modify or create derivatives of the Elementum Product or any Documentation, or (e) remove or obscure any proprietary or other notices contained in the Elementum Product (including any reports or data printed from the Elementum Product) or Documentation. Customer will not disclose any pricing related information, or information related to performance of the Elementum Product, all of which is deemed Elementum Confidential Information, to any third party.
2. CUSTOMER DATA
2.1 Customer Data Generally
“Customer Data” means all (i) data input by Customer in the Elementum Product, and (ii) analytics reports generated by the Elementum Product from analysis of the data referenced in (i). As between the parties, Customer shall retain all right, title and interest in the Customer Data. Customer is solely responsible for the accuracy and legality of, and the means by which Customer acquires, Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Elementum a non-exclusive, worldwide, royalty-free right to use, access, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Elementum Product to Customer.
2.2. Aggregate and Anonymized Data
Customer hereby grants to Elementum a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable license to use, copy, reproduce, distribute, and prepare derivative works of Customer Data in aggregated, anonymized form, provided that such aggregate, anonymized data does not identify Customer or any of its Permitted Users or allow Customer or any of its Permitted Users to be identified.
Elementum shall retain all right, title and interest in the Elementum Product and related services. Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to the Elementum Product. All rights not expressly granted herein are reserved.
This Agreement may be terminated by either party at any time, for any or no reason, on email notice to the other party. In addition, Elementum may terminate this Agreement at any time, for any or no reason, by disabling Customer’s access to the Elementum Product. Upon termination, Customer shall no longer have any right to use the Elementum Product and each party shall immediately delete any and all of the other party’s Confidential Information (and, in the case of Elementum as Disclosing Party, any other information, Documentation, and other materials provided to Customer by Elementum, or otherwise obtained by Customer via the Elementum Product).
The following Sections shall survive any expiration or termination of this Agreement: 1.2, 2.2, 3, 4, 5, 6, and 7.
5. DISCLAIMER; LIMITATION
THE ELEMENTUM PRODUCT AND RELATED SERVICES ARE PROVIDED “AS IS”. ELEMENTUM DOES NOT MAKE ANY WARRANTIES OF ANY KIND UNDER THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ELEMENTUM DOES NOT WARRANT THAT CUSTOMER’S USE OF THE ELEMENTUM PRODUCT (AND RELATED SERVICES) WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE OR THAT IT WILL MEET CUSTOMER’S REQUIREMENTS.
NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS, IN THE AGGREGATE, IN EXCESS OF US$500.00, OR (III) IN THE CASE OF ELEMENTUM’S LIABILITY, TRANSITION SUPPORT TO A SUBSTITUTE TECHNOLOGY OR SERVICE.
6. CONFIDENTIAL INFORMATION
Each party agrees that all non-public business and technical information that it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information will be Elementum’s Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, access, or disclosure of the Confidential Information. The Receiving Party’s nondisclosure obligations shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it, without confidentiality restrictions, prior to receipt of the Confidential Information, or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will promptly notify the Disclosing Party and use commercially reasonable efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, upon any breach or potential breach by the Receiving Party of the obligations in this Section 6, the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law or in equity.
7. GENERAL TERMS
This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except with the prior written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 7.1. will be null and void.
7.2 Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of such party, such as, by way of example, a strike, blockade, war, act of terrorism, riot, natural disaster, pandemics, failure or diminishment of telecommunications, or refusal of a license by a government agency.
7.3 Governing Law; Arbitration
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods, which shall not apply to this Agreement. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any court of competent jurisdiction), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent the JAMS streamlined rules are available, they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court of competent jurisdiction. Subject to the parties’ agreement to arbitrate above, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
Elementum may modify or update this Agreement from time to time. Elementum will post the modified or updated Agreement to this website and update the Last Revised date above. Modifications and updates will become effective upon posting. It is Customer’s responsibility to periodically review this Agreement for any changes. Customer’s continued use of the Elementum Product after any modifications or updates constitutes Customer’s acceptance of this Agreement, as updated. If Customer does not agree to this Agreement or any updated Agreement, Customer may not use or access (and/or shall immediately discontinue further use of and/or access to) the Elementum Product.
7.5 Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications of any kind relating to the subject matter of this Agreement. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement can otherwise remain in effect.
(Reviewed October 2022)