User Access Terms and Conditions
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS BELOW (“AGREEMENT”) BEFORE ACCESSING OR OTHERWISE USING THE ELEMENTUM SERVICE (“SERVICE”). BY ACCESSING OR OTHERWISE USING THE SERVICE, THE ENTITY OR COMPANY THAT YOU REPRESENT (“USER”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND IS BECOMING A PARTY TO, THIS AGREEMENT WITH ELEMENTUM LTD. (“ELEMENTUM”).
Subject to User’s full compliance with all the terms and conditions of this Agreement, Elementum grants User a non-transferable, non-sublicensable, nonexclusive license to use the Service solely for User’s own internal business purposes (as allowed by the functionality of the Service). To the extent the Service functionality allows the loading of User’s supply chain related data (“Data”), User grants Elementum a perpetual, irrevocable, non-transferrable (except with an assignment of this Agreement), sublicensable right and license to reproduce, transmit, display and use the Data for purposes of facilitating the provision of Elementum’s services to its end customer(s) that are User’s supply chain partners (“Customer”). User represents and warrants that (i) it has all rights, licenses and consents necessary to provide the Data for such uses and (ii) the Data, and its provision by User, will not violate any laws, regulations or third party rights.
User shall not, nor permit anyone else to, directly or indirectly: (i) modify or create derivatives of the Service; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Service (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable local law); or (iii) use the service on behalf of any third party (or otherwise for the benefit of any third party other than the Customer(s). User shall maintain and not remove or obscure any proprietary notices on the Service. As between the parties, Elementum shall own all title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof. All of the foregoing restrictions will apply to all Elementum Confidential Information (and any other information, documents and other materials provided to User by Elementum, or otherwise obtained by User via the Service).
Each party acknowledges that, in the course of this Agreement, each party (as “Recipient”) may access or otherwise obtain information from the other party (as “Discloser”) relating to the Disclosers products, services and/or business (“Confidential Information”). Subject to Elementum’s disclosure rights below, Recipient shall hold in confidence and protect the Discloser’s Confidential Information, unless such Confidential Information becomes generally available to the public without breach of this Agreement by Recipient. User shall not, without the prior written consent of Elementum, disclose or otherwise make available the Service, documentation or other supporting materials, including any information relating to the performance or operation of the Service, or copies thereof, to any third party. This paragraph will not apply with respect to any information that (i) is or becomes freely available to the public other than through breach of this Agreement, (ii) is disclosed to the Recipient by a third party that is not, to the Recipient’s knowledge, subject to applicable obligations of confidentiality to the Discloser, or (iii) is developed by the Recipient independently. In addition, Recipient may disclose the Discloser’s Confidential Information to the extent required by an law, regulation, court, or other governmental body (but the receiving party will promptly notify the disclosing party of such requirement and cooperate with Discloser in good faith to seek a protective order).
The Service may allow User to share information with other members of its distribution channel (e.g. incident reports, product stock levels, commentary, etc.). If User shares information with third parties via the Service, User grants Elementum a license to reproduce, transmit, format, modify, display, perform, and distribute such information for the purpose of making accessible to such other users. Any information exchange will only be used for the purposes for which it is disclosed. It will not be used by the recipient for any other purposes. The purpose of disclosure may, for example, be as dictated or allowed by the features or function of the Service as implemented by Elementum. Users that share information are each third party beneficiaries to this Agreement as necessary to enforce it against recipient users. A recipient user waives any claims against Elementum in connection with the data or any other user. A sharing user waives any claims against Elementum with respect to misuse of data by any recipient users. User represents and warrants that all information it loads into, or transmits via, the Service will (i) comply with all laws, regulations and third party rights and (ii) not contain any virus, trojan horse, or malware, or otherwise possibly damage any systems, networks, or other information. User will fully indemnify and hold Elementum and its providers, vendors, and other users, harmless from and against all claims, actions, demands, losses, damages, liabilities, settlements, penalties, costs and expenses (including attorneys’ fees) arising from any breach of the preceding sentence, or otherwise arising from the User’s information or any third party’s use or reliance thereon.
Nothing in this Section 3 will limit the license granted in Section 1.
- Warranty Disclaimer.
THE SERVICE IS PROVIDED “AS IS” AND ELEMENTUM MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED BY LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT. FURTHER, ELEMENTUM DOES NOT WARRANT RESULTS OF USE, OR THAT THE SERVICE IS BUG FREE OR ERROR FREE, OR THAT ITS USE WILL BE UNINTERRUPTED.
- Limitation of Liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL ELEMENTUM BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER), EVEN IF FORESEEABLE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF US$500.00 OR (II) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
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 User’s access to the Service. Upon termination, User shall no longer have any right to use the Service and each party shall immediately delete any and all of the other party’s Confidential Information (and, in the case of Elementum as Discloser, any other information, documents and other materials provided to User by Elementum, or otherwise obtained by User via the Service). Notwithstanding the foregoing, Elementum may retain the information licensed pursuant to Section 1. Sections 2, 3, 4, 5, 6 and 7, as well as the license granted to Elementum in Section 1, and any remedies for breach, shall survive any expiration or termination of this Agreement
No agency, partnership, joint venture, or employment is created as a result of this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Elementum’s prior written consent. Elementum may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in Sam Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated, the jurisdiction and venue for such actions 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. 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, communications and other understandings relating to the subject matter of this Agreement and, except as otherwise provided herein, that all modifications must be in writing.
(Reviewed September 2021)