This website is operated by Elements Global Inc. Throughout the site, the terms “we”, “us” and “our” refer to Elements Global Inc. Elements Global Inc offers this website, including all information, tools and Services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
SECTION 4 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new Services and/or features through the website (including, the release of new tools and resources). Such new features and/or Services shall also be subject to these Terms of Service.
SECTION 5 - THIRD-PARTY LINKS
Certain content, products and Services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or Services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, Services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 6 - PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy. To view our Privacy Policy, please see the Privacy Policy section below.
SECTION 7 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 8 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content:(a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information;
(g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 9 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and Services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Elements Global Inc, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
SECTION 10 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Elements Global Inc and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 11 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 12 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
SECTION 13 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 14 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of United States.
SECTION 15 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
THESE TERMS & CONDITIONS, INCLUDING ANY DOCUMENTS INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY THE “AGREEMENT”), CONSTITUTE THE BINDING AGREEMENT BY AND BETWEEN ELEMENTS GLOBAL, INC. AND ITS AFFILIATES AND SUBSIDIARIES (“ELEMENTS” OR “COMPANY”) AND THE ENTITY EXECUTING THE CORRESPONDING ORDER FORM (“CUSTOMER”) (EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”). BY CLICKING “I ACCEPT”, SIGNING THE APPLICABLE PURCHASE ORDER OR OTHERWISE USING THE SOLUTION, CUSTOMER ACKNOWLEDGES AND AGREES TO THE TERMS OF THIS AGREEMENT, WHICH ACCEPTANCE DATE SHALL BE DEEMED THE EFFECTIVE DATE OF THIS AGREEMENT.
1. Access to the Solution
1.1. Creating an Account. In order to use the Solution, Customer has to create an account (“Account”). Customer agrees to (i) provide accurate and complete Account and login information; (ii) keep, and ensure that Authorized Users keep, all Account login details and passwords secure at all times; (iii) remain solely responsible for the activity that occurs in Customer’s Account under its credentials including with respect of Customer’s Authorized Users; and (iv) promptly notify Elements of any unauthorized access or use of the Account or the Solution occurring under its credentials. Elements will not be liable for any loss that Customer may incur as a result of unauthorized use of the Account. Customer will not allow the use and access to the Solution by third parties or anyone, other than the Authorized Users.
1.2. Trial Period. Subject to the terms herein, Customer may access and use the Solution, free of charge, under a limited, revocable, personal, non-transferable, non-assignable, non-exclusive, non-sublicensable license solely for the purpose of internally evaluating and testing the Solution in the Environment during the Trial Period as set forth in the Purchase Order. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SUBSCRIPTION DURING THE TRIAL PERIOD IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, ELEMENTS HEREBY EXCLUDES ANY IMPLIED WARRANTIES IN CONNECTION WITH THE SUBSCRIPTION DURING THE TRIAL PERIOD. ELEMENTS' TOTAL AND AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SUBSCRIPTION DURING THE TRIAL PERIOD SHALL NOT EXCEED US$1,000.
1.3. Subscription. Subject to the terms and conditions of this Agreement (including payment in full of applicable fees) and for the Subscription Period specified in the Purchase Order, Elements hereby grants Customer a limited, revocable, personal, non-transferable, non-assignable, non-exclusive, non-sublicensable (except with respect to Authorised Users) license to access and use the Solution in the Environment for the Solution's intended purpose, solely for internal business purposes, all in accordance with the license scope set forth under the Purchase Order. If Customer wish to add Authorized Users or increase the scope of use in Customer’s license metrics, Customer may purchase additional licenses for such additional Authorized Users, which will become applicable for the remainder of Customer’s Subscription Period.
1.4. Restrictions on Use. The Solution shall be accessed and used in accordance with its intended purpose and in accordance with Elements' instructions. Except as expressly permitted by this Agreement, Customer may not, nor permit anyone else to, directly or indirectly: (i) copy, modify, translate, create derivative works of the Solution; (ii) decompile, reverse engineer or disassemble the Solution and/or any components thereof or otherwise attempt to obtain or have access to the source code for the Solution; (iii) give, sell, sublicense, disclose, publish, assign, market, transfer or distribute any portion of the Solution to any third party, including, but not limited to Customer’s affiliates, or use the Solution in any service bureau arrangement; (iv) circumvent, disable or otherwise interfere with security-related features of the Solution or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Solution; (v) use any robot, spider, scraper, or other automated means to access the Solution for any purpose; (vi) transmit or upload any viruses, spyware or other harmful, infringing or illegal content; (vii) use the Solution to develop a competing service or product, and any use by a competitor of Elements shall be prohibited; (viii) export or re-export the Solution or underlying information or technology (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Lebanon, Iran, Syria or any other country to which the U.S. and/or Israel has embargoed goods and services; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders and/or (ix) use the Solution in any unlawful manner or in breach of this Agreement. Any right not explicitly granted to Customer is reserved to Elements or its licensors.
1.5. Third Party Components. The Solution may include third party components that are subject to open source and/or pass-through commercial licenses and/or notices (such third party programs, “Third Party Components” and “Third Party Terms and Notices”, respectively). Some of the Third Party Terms and Notices may be made available to Customer in the Solution or via a supplementary list provided by Elements. Any covenants, representations, warranties, indemnities and other commitments with respect to the Solution in this Agreement are made by Elements and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Components. Any use of Third Party Components is subject solely to the rights and obligations under the applicable Third Party Terms and Notices. Notwithstanding anything in this Agreement to the contrary, Elements does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third Party Components.
2. Changes to the Solution. Elements may add, enhance, upgrade, modify or discontinue any functionality, feature or tool available through the Solution, in its sole discretion, without notice.However, if Elements makes any material adverse change in the core functionality of the Solution, then Elements will notify Customer by posting an announcement on the Elements website, via the dashboard of the Solution or by sending Customer an email in accordance with the contact details provided in Customer’s Account.
3. Support and Maintenance. Elements offers maintenance and support of Customer's access to and/or use of the Solution as part of its services. Subject to Customer's payment of applicable fees, Elements will maintain and support the Solution in accordance with the Services Level Agreement (“SLA”) available at https://www.elementglobal.com/.
4.2. Payment Terms. Unless specified otherwise in the Purchase Order, all amounts invoiced hereunder are due and payable within thirty (30) days following the date of invoice and are non-refundable and non-cancellable. All amounts not paid within fifteen (15) days of the due date shall bear interest at the rate of one and a half percent (1.5%) per month and in any case no more than 10% in the aggregate, or at the highest rate allowed by law, whichever is less.
4.3. Taxes. All amounts are exclusive of all taxes of any nature, including all sales, use, value-added, withholding or other taxes and fees, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, except for taxes based on Elements' net income, all of which shall be borne by Customer. In the event that Customer is required by applicable law to withhold or deduct taxes imposed upon Customer for any payment under this Agreement, then the amounts due to Elements will be increased by the amount necessary so that Elements receives and retains, free from liability for any deduction or withholding, an amount equal to the sum it would have received had Customer not made any such withholding or deduction.
5. Disclaimer.EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOLUTION AND ANY OTHER SERVICES ARE PROVIDED WITHOUT ANY OTHER WARRANTY. ELEMENTS EXPRESSLY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK ARISING OUT OF THE USE OF THE SOLUTION AND ANY OTHER SERVICES REMAINS WITH CUSTOMER. ELEMENTS DOES NOT WARRANT THAT THE ACCESS TO AND USE OF SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE SOLUTION AND ANY OTHER SERVICES RELATED THERETO INCLUDING WITHOUT LIMITATION IN TERMS OF THEIR CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ELEMENTS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, DATA LOSS, DATA CORRUPTION OR PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS, HOSTING PROVIDERS OR OTHER THIRD-PARTY INFRASTRUCTURE PROVIDERS.
6. Intellectual Property Rights
6.1. Elements IPR. All right, title and interest to, evidenced by or embodied in, attached, connected, and/or related to the Solution, including without limitation any updates, upgrades, enhancements, modifications, improvements, derivative works thereof and Feedback, and all Intellectual Property Rights therein and related thereto, are and shall remain solely owned by Elements or its licensors ("Elements IPR"). This Agreement does not convey to Customer any interest in or to Elements IPR, other than a limited right to access and use the Solution in accordance herewith. Nothing herein constitutes a waiver of Elements ’s intellectual property rights under any law, regulation or ordinance.
6.2. Customer Content. As between the Parties, Customer is and shall remain the owner of all data and information transmitted or uploaded to the Solution by or on behalf of Customer or otherwise integrated with the Solution via an API, or data belonging to Customer's applications within the Environment in which the Solution is made available (“Customer Content”). Customer represents and warrants that: (i) Customer owns or has obtained the consents and rights related to the Customer Content, and Customer has the right to provide Company the license granted herein to access and use Customer Content in accordance with this Agreement; and (ii) the Customer Content does not infringe or violate any intellectual property right, proprietary or privacy or publicity rights of any third party. Customer hereby grants Elements and its affiliates a worldwide, non-exclusive, right and license, to access and use the Customer Content, in order to perform Elements' obligations hereunder, including without limitation for the provision of access to and use of the Solution by Customer and Authorized Users.
6.3. Feedback. Customer may provide Elements with feedback regarding the Solution, including without limitation suggestions, ideas, bug notes and user experience testimonies (collectively, “Feedback”). Elements may, in connection with any of its services or the Solution, freely use the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise and Customer hereby assigns all right, title and interest in and to all Feedback to Elements upon creation thereof.
6.4. Usage Data. Usage Data includes aggregate, analytical or statistical data which is derived, created or learned from Customer’s use of the Solution which is not personally identifiable information (“Usage Data”). Elements may collect and use Usage Data to develop, improve, support, and operate its products and services, and Elements may use such Usage Data for providing the Solution and its related services, for development, improving the Solution and its service offerings and/or for statistical purposes, all to the extent such Usage Data has been aggregated and anonymized such that Customer, Customer’s Authorized Users or Customer’s end users cannot be identified. Such Usage Data is Elements ’s sole property.
6.5. Privacy. Customer shall ensure to establish the legal basis of processing of the personal information relating to its access and/or use of the Solution and provision of Customer Content and, if required by law, obtain all proper consents, permissions and approvals of its users and any data subjects. Customer shall defend, indemnify and hold harmless Elements from and against any and all damages, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from third party claims resulting from Customer’s breach of its obligations under this Section.
7.1. Each party (the "Recipient") may have access to certain non-public and/or proprietary information of the other party (the "Discloser"), in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and to any other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (''Confidential Information''). Notwithstanding anything to the contrary, Elements IPR and any Usage Data shall be deemed as Elements Confidential Information. Notwithstanding the foregoing, Recipient shall not have an obligation under this Agreement to maintain in confidence any information that it can demonstrate in dated records that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of Recipient; (ii) the Recipient had rightfully in its possession prior to disclosure of the Confidential Information by the Discloser; (iii) Recipient rightfully obtained from a third party who has the right to transfer or disclose such information, without default or breach of this Agreement; (iv) the Recipient independently developed, without breach of this Agreement and/or any use of the Discloser’s Confidential Information; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body of competent jurisdiction; provided, however, that the Recipient provides prompt notice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such disclosure. Recipient shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the Discloser's Confidential Information from disclosure to a third party. Recipient shall not use or disclose the Confidential Information of the Discloser except as expressly permitted under this Agreement. All right, title and interest in and to Discloser's Confidential Information are and shall remain the sole and exclusive property of the Discloser.
8.1. Term. The term of this Agreement shall commence on the Effective Date and will continue for the duration of the Trial Period and the Initial Subscription Period, as forth in the Purchase Order, and shall thereafter automatically renew for additional and successive twelve (12) month periods (each, a “Renewal Term”), unless either party provides the other party with a written non-renewal notice at least sixty (60) days prior to the expiration of the Initial Subscription Term or the Renewal Term then in effect (the Trial Period, Initial Subscription Period and Renewal Term collectively, the "Subscription Period").
8.2. Suspension. Elements may temporarily suspend Customer’s use of the Solution without prior notice if Customer’s acts or omissions (or those of its Authorized Users) threaten the integrity or security of the Solution. In the event of any suspension under this Section, Elements shall use reasonable effort to provide Customer with (i) notice of any suspension; (ii) an explanation of the threat posed by Customer’s acts or omissions to the integrity or security of the Solution and (iii) the corrective action to be taken by Customer before access to the Solution is restored.
8.3. Termination. A party may terminate this Agreement: (i) upon the other party's material breach that is not cured within thirty (30) days after receiving written notice of such breach, except for breach of Sections 1.4, 6 and 7 which shall be deemed incurable; or (ii) upon providing written notice in the event that one or more of the following events occur(s): (a) appointment of a trustee or receiver for all or any part of the assets of the other party; (b) insolvency or bankruptcy of the other party; (c) a general assignment by the other party for the benefit of creditor(s); or (d) dissolution or liquidation of the other party.
8.4. Effect of Termination. Upon termination of this Agreement, (i) all licenses granted under this Agreement shall expire, and Elements will cease providing the Solution; (ii) each party shall return any copies of Confidential Information to the Discloser, provided however, that any of Customer’s Content (other than Usage Data) shall be immediately deleted by Elements upon termination of this Agreement; and (iii) any outstanding Fees shall become immediately due and payable on the date of termination of the Agreement. Those provisions of this Agreement which by their nature should survive the expiration or termination of this Agreement shall so survive its expiration or termination, including without limitation, Sections 4.2, 4.3, 5, 6, 7, 8.4 and 9-11.
9.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ELEMENTS OR ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE, MALFUNCTION, FIRE, ELECTRICAL FAILURE OR SHORT CIRCUIT), OR LOSS OF PROFITS OR DATA OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF THIS AGREEMENT, EVEN IF ELEMENTS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR BREACH OF INTELLECTUAL PROPERTY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ELEMENTS AND/OR ITS LICENSORS, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID TO ELEMENTS HEREUNDER DURING THE 12 MONTHS PRECEDING THE CLAIM THAT GAVE RISE TO DAMAGES.
10.Indemnification
10.1. Elements will defend, indemnify and hold harmless Customer against any third party demand, claim, suit, or action alleging that Customer’s use of the Solution in accordance with this Agreement infringes such third party’s intellectual property rights (an "Infringement Claim"), and Elements will pay any amounts finally awarded by a court against Customer (or otherwise agreed in settlement) under such Infringement Claim. Elements will have no obligation or liability under this Section to the extent that the Infringement Claim is based upon or results from: (a) the combination or use of the Solution with any third party products or services if the claim would not have occurred if not for such combination or use; (b) any modification to the Solution not made by Elements ; (c) Customer’s failure to comply with the written instructions of Elements and/or with the terms of this Agreement or the documentation provided to Customer in connection with the Solution; (d) where Customer continues the alleged infringing activity after being notified thereof; (e) use or retention of a copy of the Solution not in its most current version provided by Elements ; and/or (f) Elements ’s compliance with any Customer instructions or requirements.
10.2. Remediation. Should the Solution (in whole or in part) become, or in Elements' opinion be likely to become, the subject of any Infringement Claim, then Customer permits Elements , at Elements ’s option, either to: (a) obtain for Customer the right to continue using the Solution (or part thereof); or (b) replace or modify the Solution (or part thereof) so that it becomes non-infringing; provided, however, that if, in Elements ’s opinion, the remedies in sub-sections (a) and (b) above are not commercially feasible, Elements may terminate this Agreement immediately upon written notice to Customer and provide Customer with a pro-rata refund of any prepaid (but unutilized) license Fees based on the remaining subscription term.
10.3. Procedure. Elements ’s obligation and liability under this Section is subject to the conditions that: (a) Customer has promptly notified Elements in writing of the Infringement Claim; (b) Customer reasonably cooperates with Elements and permits Elements to assume sole control of the defense of the Infringement Claim and all negotiations for any settlement thereof; and (c) Customer refrains from admitting any liability or otherwise compromising the defense of the Infringement Claim (in whole or in part), without the prior express written consent of Elements .
10.4. Entire Liability. This Section 10 (Indemnification) states Elements ’s sole and exclusive obligation and liability, and Customer's sole remedy, with respect to any Infringement Claim.
11.1. Modifications. Elements reserves the right, at its discretion, to change this Agreement at any time. Such change will be effective ten (10) days following sending a notice thereof to Customer or posting the revised Agreement on the Elements website, and Customer’s continued use of the Solution thereafter means that Customer accept those changes.
11.2. Publicity. Elements may use Customer’s name and logo as a user of the Solution on its website, press releases, and other marketing materials and presentations.
11.3. Governing Law/Venue. This Agreement shall be governed by the laws of the State of Israel. Without regard to that state’s conflicts of laws rules. All disputes arising under or relating to this Agreement shall be resolved exclusively in the appropriate court sitting in Tel Aviv-Yaffo, Israel.
11.4. Assignment. Neither party may assign or otherwise transfer its rights or obligations under this Agreement without the prior consent of the other party, provided that either party may assign or otherwise transfer its rights or obligations herein in the event of transfer to a person or entity who directly or indirectly acquires all or substantially all of the assets or business of such party, whether by change of control, sale, merger or otherwise, pursuant to notice after the fact. Any prohibited assignment, transfer or sublicense shall be null and void.
11.5. Entire Agreement. This Agreement and any documents incorporated herein by reference set forth the entire agreement and understanding between the parties with respect to the subject matter herein and therein, respectively, and supersede any prior or contemporaneous agreements between the parties hereto.
11.6. No Waiver. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect the right of such party at a later time to enforce the same. No waiver by any party of any condition or of any breach of any term contained in this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or of any breach of any such term or any other term set forth in this Agreement.
11.7. Severability. If any provision of this Agreement is unenforceable for any reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions contained in this Agreement invalid, inoperative, or unenforceable to any extent whatsoever. The invalidity of any portion of this Agreement shall not affect the remaining portions of this Agreement.
11.8. Force Majeure. Elements will not be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including without limitation, natural disasters, acts of civil or military authority, fire, flood, war, labor shortage or dispute, public health emergencies, pandemic or governmental authority.
12.Definitions. All capitalized terms used herein shall have the meanings set forth below:
12.1. “Authorized Users” means Customer’s employees who are expressly permitted by Customer to access and use the Solution.
12.2. “Environment” means either Customer’s or Elements ’s private cloud environment, as agreed by the Parties.
12.3. “Intellectual Property Rights” shall mean any (i) patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and/or (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
12.4. “Solution” means the Elements proprietary platform which is offered on a SaaS basis through the Elements API for purpose of [measuring and reducing scope 3 employee emissions in the categories of business travel, commuting, and work from home energy usage] known as "[Elements Platform]" all in accordance with the SaaS Scope of Use set forth in the Purchase Order. The Solution includes any updates, upgrades, enhancements, improvements and modifications thereto, to which Customer has purchased a license under the Agreement.
12.5. “Purchase Order” means the written or electronic ordering document the parties have signed and entered into in respect of the Solution, into which this Agreement is incorporated by reference.
SECTION 16 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@elementsworld.io
Our contact information is posted below: Elements Global Inc info@elementsworld.io
108 W. 13th Street, Suite 100 Wilmington, DE 19801Co. #6446929
