Elation Systems
Master Subscription Service Agreement
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING
PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE
"AGREEMENT") GOVERNING YOUR USE OF ELATION SYSTEMS (THE EALTIONSYS) ONLINE
SERVICE (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE
AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE
TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO
NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND
CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE
THE SERVICE.
Welcome
As
part of the Service, Elation Systems will provide you with use of the Service,
including a browser interface and data encryption, transmission, access and
storage. Your registration for, or use of, the Service shall be deemed to be
your agreement to abide by this Agreement including any materials available on
the Elation Systems website incorporated by reference herein, including but not
limited to Elation Systems' privacy and security policies. For reference, a
Definitions section is included at the end of this Agreement.
1. Privacy & Security
Elation
Systems' privacy and security policies may be viewed at http://www.Elationsys.com. Elation
Systems reserves the right to modify its privacy and security policies in its
reasonable discretion from time to time. Individual users, when they initially
log in, will be asked whether or not they wish to receive marketing and other
non-critical Service-related communications from Elation Systems from time to
time. They may opt out of receiving such communications at that time or at any
subsequent time by changing their preference under Personal Setup. Note that
because the Service is a hosted, online application, Elation Systems
occasionally may need to notify all users of the Service (whether or not they
have opted out as described above) of important announcements regarding the
operation of the Service.
2. License Grant & Restrictions
Elation
Systems hereby grants you a non-exclusive, non-transferable, nationwide right
to use the Service, solely for your own internal business purposes, subject to
the terms and conditions of this Agreement. All rights not expressly granted to
you are reserved by Elation Systems and its licensors.
You
shall not (i) license,
sublicense, sell, resell, transfer, assign, distribute or otherwise commercially
exploit or make available to any third party the Service or the Content in any
way; (ii) modify or make derivative works based upon the Service or the
Content; (iii) create Internet "links" to the Service or
"frame" or "mirror" any Content on any other server or
wireless or Internet-based device; or (iv) reverse engineer or access the
Service in order to (a) build a competitive product or service, (b) build a
product using similar ideas, features, functions or graphics of the Service, or
(c) copy any ideas, features, functions or graphics of the Service. User
licenses cannot be shared or used by more than one individual User but may be
reassigned from time to time to new Users who are replacing former Users who
have terminated employment or otherwise changed job status or function and no
longer use the Service.
3. Your Responsibilities
You
are responsible for all activity occurring under your User accounts and shall
abide by all applicable local, state, national laws, treaties and regulations
in connection with your use of the Service, including those related to data
privacy, international communications and the transmission of technical or
personal data. You shall: (i)
notify Elation Systems immediately of any unauthorized use of any password or
account or any other known or suspected breach of security; (ii) report to
Elation Systems immediately and use reasonable efforts to stop immediately any
copying or distribution of Content that is known or suspected by you or your
Users; and (iii) not impersonate another Elation Systems user or provide false
identity information to gain access to or use the Service.
4. Account Information and Data
Elation
Systems does not own any data, information or material that you submit to the
Service in the course of using the Service ("Customer Data"). You,
not Elation Systems, shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness, and intellectual property
ownership or right to use of all reported Data, and Elation Systems shall not
be responsible or liable for the deletion, correction, destruction, damage,
loss or failure to store any reported Data. In the event this Agreement is
terminated (other than by reason of your breach), Elation Systems will make
available to you a file of the Customer Data within 60 days of termination if
you so request at the time of termination. Elation Systems reserves the right
to withhold, remove and/or discard Customer Data without notice for any breach,
including, without limitation, your non-payment. Upon termination for cause,
your right to access or use the reported Data immediately ceases, and Elation
Systems shall have no obligation to maintain or forward any reported Data.
5. Intellectual Property Ownership
Elation
Systems alone (and its licensors, where applicable) shall own all right, title
and interest, including all related Intellectual Property Rights, in and to the
Elation Systems Technology, the Content and the Service and any suggestions,
ideas, enhancement requests, feedback, recommendations or other information
provided by you or any other party relating to the Service. This Agreement is
not a sale and does not convey to you any rights of ownership in or related to
the Service, the Elation Systems Technology or the Intellectual Property Rights
owned by Elation Systems. The Elation Systems name, the Elation Systems logo,
and the product names associated with the Service are trademarks of Elation
Systems or third parties, and no right or license is granted to use them.
6. Third Party Interactions
During
use of the Service, you may enter into correspondence with, purchase goods
and/or services from, or participate in promotions of advertisers or sponsors
showing their goods and/or services through the Service.
Any such activity, and any terms, conditions, warranties or
representations associated with such activity, is
solely between
you and the applicable third-party. Elation Systems and its licensors shall
have no liability, obligation or responsibility for any such correspondence,
purchase or promotion between you and any such third-party. Elation Systems
does not endorse any sites on the Internet that are linked through the Service.
Elation Systems provides these links to you only as a matter of convenience,
and in no event shall Elation Systems or its licensors be responsible for any
content, products, or other materials on or available from such sites. Elation
Systems provides the Service to you pursuant to the terms and conditions of
this Agreement. You recognize, however, that certain third-party providers of
ancillary software, hardware or services may require your agreement to
additional or different license or other terms prior to your use of or access
to such software, hardware or services.
7. Charges and Payment of Fees
You
shall pay all fees or charges to your account in accordance with the fees,
charges, and billing terms in effect at the time a fee or charge is due and
payable. The initial charges will be account setup and activation fees.
Payments may be made annually, monthly, or quarterly, consistent with the
Initial Term, or as otherwise mutually agreed upon. Elation Systems reserves
the right to modify its fees and charges and to introduce new charges at any
time, upon at least 30 days prior notice to you, which notice may be provided
by e-mail. This term does not apply to you if the project you are registering
for has already paid or arranged by the project owner.
8. Billing and Renewal
Elation
Systems charges and collects for use of the Service. Elation Systems will
automatically renew and bill your credit card or issue an invoice to you (a)
every month for monthly licenses, (b) every quarter for quarterly licenses, (c)
each year on the subsequent anniversary for annual licenses, or (d) as
otherwise mutually agreed upon. Fees for other services will be charged on an
as-quoted basis. Elation Systems' fees are exclusive of all taxes, levies, or
duties imposed by taxing authorities, and you shall be responsible for payment
of all such taxes, levies, or duties, excluding only
You
agree to provide Elation Systems with complete and accurate billing and contact
information. This information includes your legal company name, street address,
e-mail address, and name and telephone number of an authorized billing contact
and License Administrator. You agree to update this information within 30 days
of any change to it. If the contact information you have provided is false or
fraudulent, Elation Systems reserves the right to terminate your access to the
Service in addition to any other legal remedies.
Unless
Elation Systems in its discretion determines otherwise: (
i
) entities with headquarters and a majority of
users resident in the United States will be billed in U.S. dollars and subject
to U.S. payment terms and pricing schemes.
If
you believe your bill is incorrect, you must contact us in writing within 15
days of the invoice date of the invoice containing the amount in question to be
eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In
addition to any other rights granted to Elation Systems herein, Elation Systems
reserves the right to suspend or terminate this Agreement and your access to
the Service if your account becomes delinquent (falls into arrears). Delinquent
invoices (accounts in arrears) are subject to interest of 1.5% per month on any
outstanding balance, or the maximum permitted by law, whichever is less, plus
all expenses of collection. You will continue to be charged for User licenses
during any period of suspension. If you or Elation Systems initiates
termination of this Agreement, you will be obligated to pay the balance due on
your account computed in accordance with the Charges and Payment of Fees
schedule issued by Elation Systems. You agree that Elation Systems may charge
such unpaid fees to your credit card or otherwise bill you for such unpaid
fees. This term does not apply to you if the project you are registering for
has already paid or arranged by the project owner.
Elation
Systems reserves the right to impose a reconnection fee in the event you are
suspended and thereafter request access to the Service. You agree and
acknowledge that Elation Systems has no obligation to retain your Data and that
such Customer Data may be irretrievably deleted if your account is 60 days or
more delinquent.
10. Termination upon Expiration/Reduction in Number of Licenses
This
Agreement commences on the Effective Date. Upon the expiration of the Initial
Term, this Agreement will automatically renew for successive renewal terms
equal in duration to the Initial Term (or one year, if the Initial Term is
greater than one year) at Elation Systems' then current fees. Either party may
terminate this Agreement effective only upon the expiration of the then current
License Term, by notifying the other party in writing at least five (5)
business days prior to the date of the invoice for the following term. In the case
of free trials, notifications provided through the Service indicating the
remaining number of days in the free trial shall constitute notice of
termination. In the event this Agreement is terminated (other than by reason of
your breach), Elation Systems will make available to you a file of the Customer
Data within 30 days of termination if you so request at the time of
termination. You agree and acknowledge that Elation Systems has no obligation
to retain the Customer Data, and may delete such Customer Data, more than 30
days after termination.
11. Termination for Cause
Any
breach of your payment obligations or unauthorized use of the Elation Systems
Technology or Service will be deemed a material breach of this Agreement.
Elation Systems, in its sole discretion, may terminate your password, account
or use of the Service if you breach or otherwise fail to comply with this
Agreement. In addition, Elation Systems may terminate a free account at any
time in its sole discretion. You agree and acknowledge that Elation Systems has
no obligation to retain the Customer Data, and may delete such Customer Data,
if you have materially breached this Agreement, including but not limited to
failure to pay outstanding fees, and such breach has not been cured within 30
days of notice of such breach.
12. Representations & Warranties
Each
party represents and warrants that it has the legal power and authority to
enter into this Agreement. Elation Systems represents and warrants that it will
provide the Service in a manner consistent with general industry standards
reasonably applicable to the provision thereof and that the Service will
perform substantially in accordance with the online Elation Systems help
documentation under normal use and circumstances. You represent and warrant
that you have not falsely identified yourself nor provided any false
information to gain access to the Service and that your billing information is
correct.
13. Mutual Indemnification
You
shall indemnify and hold Elation Systems, its licensors and each such party's
parent organizations, subsidiaries, affiliates, officers, directors, employees,
attorneys and agents harmless from and against any and all claims, costs,
damages, losses, liabilities and expenses (including attorneys' fees and costs)
arising out of or in connection with: (i)
a claim alleging that use of the Customer Data infringes the rights of, or has
caused harm to, a third party; (ii) a claim, which if true, would constitute a
violation by you of your representations and warranties; or (iii) a claim
arising from the breach by you or your Users of this Agreement, provided in any
such case that Elation Systems (a) gives written notice of the claim promptly
to you; (b) gives you sole control of the defense and settlement of the claim (provided
that you may not settle or defend any claim unless you unconditionally release
Elation Systems of all liability and such settlement does not affect Elation
Systems' business or Service); (c) provides to you all available information
and assistance; and (d) has not compromised or settled such claim.
Elation
Systems shall indemnify and hold you and your parent organizations,
subsidiaries, affiliates, officers, directors, employees, attorneys and agents
harmless from and against any and all claims, costs, damages, losses,
liabilities and expenses (including attorneys' fees and costs) arising out of
or in connection with: (i)
a claim alleging that the Service directly infringes a copyright, a U.S. patent
issued as of the Effective Date, or a trademark of a third party; (ii) a claim,
which if true, would constitute a violation by Elation Systems of its
representations or warranties; or (iii) a claim arising from breach of this
Agreement by Elation Systems; provided that you (a) promptly give written
notice of the claim to Elation Systems; (b) give Elation Systems sole control
of the defense and settlement of the claim (provided that Elation Systems may
not settle or defend any claim unless it unconditionally releases you of all
liability); (c) provide to Elation Systems all available information and
assistance; and (d) have not compromised or settled such claim. Elation Systems
shall have no indemnification obligation, and you shall indemnify Elation
Systems pursuant to this Agreement, for claims arising from any infringement
arising from the combination of the Service with any of your products, service,
hardware or business process(s).
14. Disclaimer of Warranties
ELATION
SYSTEMS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO
THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY,
ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ELATION SYSTEMS AND ITS
LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE
SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY
OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR
REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE,
(D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR
THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON
AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ELATION SYSTEMS AND ITS LICENSORS.
15. Internet Delays
ELATION
SYSTEMS' SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ELATION
SYSTEMS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE
RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN
NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY
PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY
AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL,
EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND
(INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE)
ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT
LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED
FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION,
REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE
BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
17. Additional Rights
Certain
states and/or jurisdictions do not allow the exclusion of implied warranties or
limitation of liability for incidental, consequential or certain other types of
damages, so the exclusions set forth above may not apply to you.
18. Local Laws and Export Control
This
site provides services and uses software and technology that may be subject to
This
site may use encryption technology that is subject to licensing requirements
under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and
Council Regulation (EC) No. 1334/2000
Elation
Systems and its licensors make no representation that the Service is
appropriate or available for use in other locations. If you use the Service
from outside the
19. Notice
Elation
Systems may give notice by means of a general notice on the Service, electronic
mail to your e-mail address on record in Elation Systems' account information,
or by written communication sent by first class mail or pre-paid post to your
address on record in Elation Systems' account information. Such notice shall be
deemed to have been given upon the expiration of 48 hours after mailing or
posting (if sent by first class mail or pre-paid post) or 12 hours after
sending (if sent by email). You may give notice to Elation Systems (such notice
shall be deemed given when received by Elation Systems) at any time by any of
the following: letter sent by confirmed facsimile to Elation Systems at the
following fax numbers (whichever is appropriate): (925) 924-0340; letter
delivered by nationally recognized overnight delivery service or first class
postage prepaid mail to Elation Systems at the following addresses (whichever
is appropriate): Elation Systems, 5000 Hopyard Road, Suite 405, Pleasanton, CA
94583, addressed to the attention of: Account Management.
20. Modification to Terms
Elation
Systems reserves the right to modify the terms and conditions of this Agreement
or its policies relating to the Service at any time, effective upon posting of
an updated version of this Agreement on the Service. You are responsible for
regularly reviewing this Agreement. Continued use of the Service after any such
changes shall constitute your consent to such changes.
21. Assignment
This
Agreement may not be assigned by you without the prior written approval of
Elation Systems but may be assigned without your consent by Elation Systems to
(i) a parent or subsidiary,
(ii) an acquirer of assets, or (iii) a successor by merger. Any purported
assignment in violation of this section shall be void.
22. General
With
respect to U.S. Customers, this Agreement shall be governed by California law
and controlling United States federal law, without regard to the choice or
conflicts of law provisions of any jurisdiction, and any disputes, actions,
claims or causes of action arising out of or in connection with this Agreement
or the Service shall be subject to the exclusive jurisdiction of the state and
federal courts located in San Francisco, California. No text or information set
forth on any other purchase order, preprinted form or document (other than an
Order Form, if applicable) shall add to or vary the terms and conditions of
this Agreement. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then such provision(s)
shall be construed, as nearly as possible, to reflect the intentions of the
invalid or unenforceable provision(s), with all other provisions remaining in
full force and effect. No joint venture, partnership, employment, or agency relationship
exists between you and Elation Systems as a result of this agreement or use of
the Service. The failure of Elation Systems to enforce any right or provision
in this Agreement shall not constitute a waiver of such right or provision
unless acknowledged and agreed to by Elation Systems in writing. This
Agreement, together with any applicable Order Form, comprises the entire
agreement between you and Elation Systems and supersedes all prior or
contemporaneous negotiations, discussions or agreements, whether written or
oral, between the parties regarding the subject matter contained herein.
23. Definitions
As
used in this Agreement and in any Order Forms now or hereafter associated
herewith: "Agreement" means these online terms of use, any Order Forms,
whether written or submitted online via the Online Order Center, and any
materials available on the Elation Systems website specifically incorporated by
reference herein, as such materials, including the terms of this Agreement, may
be updated by Elation Systems from time to time in its sole discretion;
"Content" means the audio and visual information, documents,
software, products and services contained or made available to you in the
course of using the Service; "Customer Data" means any data, information
or material provided or submitted by you to the Service in the course of using
the Service; "Effective Date" means the earlier of either the date
this Agreement is accepted by selecting the "I Accept" option
presented on the screen after this Agreement is displayed or the date you begin
using the Service; "Initial Term" means the initial period during
which you are obligated to pay for the Service equal to the billing frequency
selected by you during the subscription process (e.g., if the billing frequency
is quarterly, the Initial Term is the first quarter); "Intellectual
Property Rights" means unpatented inventions, patent applications,
patents, design rights, copyrights, trademarks, service marks, trade names,
domain name rights, mask work rights, know-how and other trade secret rights,
and all other intellectual property rights, derivatives thereof, and forms of
protection of a similar nature anywhere in the world; "License
Administrator(s)" means those Users designated by you who are authorized
to purchase licenses online using the Online Order Center or by executing
written Order Forms and to create User accounts and otherwise administer your
use of the Service; "License Term(s)" means the period(s) during
which a specified number of Users are licensed to use the Service pursuant to
the Order Form(s); "Order Form(s)" means the form evidencing the
initial subscription for the Service and any subsequent order forms submitted
online or in written form, specifying, among other things, the number of licenses
and other services contracted for, the applicable fees, the billing period, and
other charges as agreed to between the parties, each such Order Form to be
incorporated into and to become a part of this Agreement (in the event of any
conflict between the terms of this Agreement and the terms of any such Order
Form, the terms of this Agreement shall prevail); "Online Order
Center" means Elation Systems?online application that allows the License
Administrator designated by you to, among other things, add additional Users to
the Service; "Elation Systems" means collectively Elation Systems,
having its principal place of business at 5000 Hopyard Road, Suite 405,
Pleasanton, CA 94583; "Elation Systems Technology" means all of Elation
Systems' proprietary technology (including software, hardware, products,
processes, algorithms, user interfaces, know-how, techniques, designs and other
tangible or intangible technical material or information) made available to you
by Elation Systems in providing the Service; "Service(s)" means the
specific edition of Elation Systems' online customer relationship management,
billing, data analysis, or other corporate services identified during the
ordering process, developed, operated, and maintained by Elation Systems,
accessible via http://www.Elationsys.com or another designated web site or IP
address, or ancillary services rendered to you by Elation Systems, to which you
are being granted access under this Agreement, including the Elation Systems
Technology and the Content; "User(s)" means your employees,
representatives, consultants, contractors or agents who are authorized to use
the Service and have been supplied user identifications and passwords by you
(or by Elation Systems at your request).
Questions or Additional Information:
If
you have questions regarding this Agreement or wish to obtain additional
information, please send an e-mail to support@Elationsystems.com.