Elotl, Inc.

Terms of Service

PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY ELOTL, INC. (“ELOTL”).  YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS.  BY CLICKING THE “SUBMIT” (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.

  1. Use of Services; Restrictions.  During the Term (as defined below) and subject to compliance with the provisions of this Agreement, Elotl grants to Customer a personal, nonsublicensable, nonexclusive license to access the Elotl services ordered by Customer (the “Services”) solely in accordance with the documentation supplied by Elotl, subject to any applicable seat or other service capacity limitations, and solely for Customer’s internal business purposes.  Any documentation or underlying software obtained by Customer in connection with Services (including, without limitation, the Elotl SDK) is deemed to be a part of Services and is subject to all the disclaimers, limitation and restrictions herein relating to the Services.  Customer shall not: (i) reproduce, modify, translate, or create derivative works of the Services, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Services or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) reverse assemble, reverse compile or reverse engineer any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying Proprietary Information (as defined below), except to the extent that such restriction is prohibited by applicable law; (iv) access (or attempt to access) the Services in any unauthorized manner or attempt to circumvent any access controls on the Service or any component or feature thereof; or (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof.  Customer represents and warrants that its use of the Services will be in compliance with all applicable laws and regulations.

  2. Modifications. Elotl reserves the right, at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Services or by sending you an email.  Elotl may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.  It is your responsibility to check this Agreement periodically for changes.  Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.

  3. Security; Support.  Elotl shall: (i) use reasonable commercial efforts to maintain the security and integrity of the Services; and (ii) subject to Customer’s payment of any applicable fees, provide Customer with support for the Service in accordance with Elotl’s then-current standard support policies set forth here.  Elotl shall have the right (but not the obligation) to modify, update, upgrade or extend the Services (including, without limitation, for the purposes of adding feature and functionality, or enhancing security or usability).

  4. Privacy; Confidentiality; Ownership.  Elotl’s current privacy statement is located here and is incorporated into this Agreement by this reference.  In addition, if you use the Services to access, collect or otherwise use any personally identifiable information from any person, you must ensure that such person has agreed to your then-current privacy policy and that all such access, collection, and use is in accordance with applicable law. Customer acknowledges that, in the course of using the Services and performing its duties under this Agreement, it may obtain, learn or develop information relating to the Services and/or to Elotl or its suppliers or licensors (“Proprietary Information”), including, but not limited to, the existence of the Services, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data.  During and after the term of this Agreement, Customer shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Customer, its officers, directors, employees or agents.  Customer will not remove or export the Services or any Proprietary Information or any direct product thereof from the United States.  Except for the rights expressly granted under this Agreement, as between the parties, Elotl retains all right, title, and interest in and to the Services (and all other products, works, and other intellectual property created, used, or provided by Elotl for the purposes of this Agreement).  Elotl shall be permitted to freely exploit all data generated by or on behalf of it in connection with the Services and to provide such data to third parties, so long as such data is presented in the aggregate and can in no way be linked specifically to Customer.  Customer shall, and hereby does, grant Elotl a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the operation of the Service.  

  5. Embedded Reporting/Compliance Routine; Data Access and Use. Customer acknowledges that Services may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of the Services and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to Elotl; this includes, without limitation, information on usage that Elotl uses for billing purposes.  Provided it does not identify Customer, Elotl will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so.

  6. Fees. Customer shall pay Elotl all fees applicable to the particular Services ordered by Customer (“Fees”).  If not otherwise specified, Fees will be invoiced monthly in advance, and will be due within thirty (30) days of invoice. All Fees paid to Elotl hereunder are nonrefundable.  Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments.  Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Elotl’s net income), unless Customer provides to Elotl a valid tax-exempt certificate. Elotl may change the Fees from time to time hereunder; provided that any change in Fees shall not go into effect until the commencement of the next Renewal Term (as defined below) that follows such notice.

  7. Warranty Disclaimer.  The parties acknowledge that the Services are provided “AS IS”.  EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, ELOTL AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NEITHER ELOTL NOR ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE OR AVAILABLE AT ANY GIVEN TIME.

  8. Limitation of Remedies and Damages.  NEITHER ELOTL NOR ITS SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, (D) FOR AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID TO ELOTL HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR $100, WHICHEVER IS GREATER, OR (E) FOR ANY MATTER BEYOND ELOTL’S OR ITS SUPPLIERS’ OR LICENSORS’ REASONABLE CONTROL, IN EACH CASE EVEN IF ELOTL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  9. Third Party Materials.  Customer acknowledges and agrees that: (i) the Services may incorporate certain information, data and materials received from Elotl’s third party licensors and data vendors (“Third Party Materials”); and (ii) Third Party Materials may only be used in conjunction with the Service.

  10. Term; Termination.  This Agreement shall commence upon Customer’s first use of the Services and shall continue for a period of one (1) year (the “Initial Term”) unless earlier terminated in accordance herewith.  Following the Initial Term, this Agreement shall automatically renew for successive renewal terms of one (1) year each (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term (as applicable).  If Customer is in material breach of this Agreement, Elotl reserves the right to immediately suspend access to the Services until such breach is materially cured.  Without limiting the foregoing, either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not materially cure such breach within thirty (30) days of such notice.  In addition, Elotl may terminate this Agreement or cease providing the Services at any time upon notice to Customer. Upon termination, the rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately return anything Customer has obtained in connection with the Services, together with any and all documents, notes and other materials respecting the Services to Elotl, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.  The Services may incorporate functions that render the Services inoperable after the expiration of the Term.

  11. Miscellaneous.  Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer, and any such attempted assignment or transfer shall be void and without effect.  Elotl may freely assign its rights and obligations under this Agreement and transfer this Agreement without consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.  With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California.  In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.  In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions 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 constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto and related to the subject matter hereof are expressly canceled.  The parties agree that the provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the other party.  Nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof.  Customer acknowledges and agrees that due to the unique nature of Elotl’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with Elotl resulting in irreparable harm to Elotl, and therefore, that upon any such breach or threat thereof, Elotl shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law (without the requirement of posting a bond). The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.

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