“Acceptable Use Policy” means the terms and conditions for use that are subject to update by Emerald and which are currently available at Emerald Digital Market Acceptable Use Policy
“Account” means an account enabling the Customer and its Authorized Users to access and use Elastic Lite.
“Affiliate” means any company, corporation, partnership or other entity, directly or indirectly, controlling, controlled by, or under common control with Emerald, where “control” is defined as having rights to more than 50% of the equity, ownership or voting rights for such entity.
“Authorized User” means the employees or contractors authorized to have an Account under the terms set forth in Section 2.2.
“Confidential Information” means any information disclosed by either party to the other party either directly or indirectly, in writing, orally, or by inspection of tangible objects (including without limitation documents, analyses, compilations, forecasts, studies, lists or other documents), whether or not designated as “Confidential,” “Proprietary” or some similar designation, including without limitation Elastic Lite, the Services and the Seller Products, and the terms herein. Confidential Information shall also include information known by the parties to be proprietary and which a reasonable party should know is confidential given the nature of the information and the circumstances surrounding its disclosure.
“Customer Content” means any catalogs, content, information, materials and data uploaded by the Customer into Elastic Lite, but excludes Usage Data.
“Documentation” means Emerald’s published user operational instructions, specifications, functionality and feature descriptions and other information provided in the form of user guides, tutorials, instructions or manuals.
“Elastic Lite” means the hosted solution(s) and Services made available to Customer by Emerald under the Subscription Agreement as specified in the Subscription Agreement.
“Fees” means those fees payable to Emerald to access and use Elastic Lite pursuant to Section 6 of these Terms. For clarity, Fees does not include any payment obligations to a third party that a Customer or Authorized User may incur through its use of Elastic Lite.
“Force Majeure” means an event that prevents, delays or hinders Emerald’s performance of any of its obligations under these Terms due to fire, flood, earthquake, elements of nature or acts of God, pandemic or epidemic, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, acts of any governmental authority, strikes, lockouts, labor disputes, communication delays or failures, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, market disruptions, or any other cause beyond the reasonable control of Emerald.
“Intellectual Property Right” means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
“Personal Information” means information about an identified individual, or an individual who is reasonably identifiable and as set forth by applicable law.
“Seller Products” means products offered by third parties unaffiliated with Emerald that are made available in Elastic Lite.
“Services” means services provided by Emerald in Elastic Lite, such as services that enable Customer to place an order for and pay for Seller Products, and implementation services. For clarity, the Services excludes the actual purchase and sale of any Seller Products.
“Support Services” mean technical support provided by Emerald in relation to Customer’s ability to access Elastic Lite.
“Subscription Agreement” means an ordering document or online order specifying Customer’s access to Elastic Lite and the Services, including the Elastic Lite Subscription Agreement.
“Term” has the meaning set forth in Section 10.1.
2. Elastic Lite and Related Services
2.1 Elastic Lite. Subject to compliance with these Terms and the applicable Subscription Agreement, Emerald will make Elastic Lite available to Customer and its Authorized Users during the Term. Emerald grants to Customer and its Authorized Users a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to access and use Elastic Lite in accordance with the Subscription Agreement and the Documentation for Customer’s business purposes. The Subscription Agreement may set forth restrictions on Customer’s permissible number of users and product SKUs. Customer may not exceed any use restrictions set forth in the Subscription Agreement. Emerald will use commercially reasonable efforts to provide Support Services to Customer in accordance with Emerald’s then-current support policy. The current policy is available at: [insert link].
2.2 Authorized Users. Customer may request that Emerald provide an Authorized User with an Account to access Elastic Lite. The creation of an Account and use by an Authorized User is subject to approval by Emerald and the Authorized User’s compliance with these Terms and the Acceptable Use Policy. An Authorized User shall not: (i) transmit or share identification or password codes to persons; (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not the Authorized Users; or (iii) permit access to Elastic Lite through a single identification or password code being made available to multiple users on a network. Customer will be responsible for all acts and omissions of its Authorized Users. Emerald reserves the right to suspend or terminate an Authorized User’s Account due to the Authorized User’s failure to comply with these Terms.
2.3 Seller Products. In Elastic Lite, Customer will have the opportunity to connect with other Elastic Lite users. If Customer is a Seller, Seller may have the option to make its Seller Products available to other Elastic Lite users for purchase. Any acquisition by Customer of Seller Products, and any exchange of data between Customer and any third party in Elastic Lite is solely between Customer and the applicable third party. Customer acknowledges and agrees that Emerald has no obligation to pre-screen or monitor Customer Content, Seller Products or content uploaded by any users of Elastic Lite. Emerald does not endorse nor guarantee the accuracy, completeness, or usefulness of any content uploaded by third parties to Elastic Lite. Emerald cannot guarantee the continued availability of any Seller Products. If Seller Products become unavailable in Elastic Lite, Customer will not be entitled to any refund, credit, or other compensation from Emerald. Customer understands and agrees that Emerald has no liability whatsoever with respect to any Seller Products and any transactions among and between Elastic Lite users with respect to the purchase and sale of Seller products as such transactions are solely between the parties participating in the transaction.
2.4 Customer’s Obligations. Customer is responsible for all Customer Content it uploads into Elastic Lite and all activities conducted by its Authorized Users. Without limiting the foregoing, Customer is solely responsible for: (i) uploading, supporting and making available its Customer Content in Elastic Lite; (ii) ensuring its Customer Content meets its needs; and (iii) ensuring it has all necessary backups of the Customer Content. Customer use of Elastic Lite must be in compliance with applicable law and shall not infringe upon any third-party intellectual property rights.
2.5 Restrictions. Customer will not, and will not allow others, to: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to Elastic Lite or any part thereof, or make them available to anyone other than its Authorized Users; (ii) frame or mirror any part of Elastic Lite, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (iii) send or store infringing or unlawful material in connection with Elastic Lite; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to Elastic Lite; (v) decompile, disassemble, reverse engineer, attempt to gain unauthorized access to, or disrupt the integrity or performance of, Elastic Lite or the data contained therein for any reason; (vi) modify, copy or create derivative works based on Elastic Lite, or any portion thereof, including any customer content made available by third parties; (vii) access Elastic Lite for the purpose of building a similar or competitive product or service or copying its features or user interface; (viii) delete, alter, add to or fail to reproduce in and on Elastic Lite the name of Emerald and any copyright or other notices appearing in or on Elastic Lite or Services or which may be required by Emerald or its licensors at any time; or (ix) interfere with or disrupt the use of Elastic Lite by third parties or the integrity or performance of any third-party content contained in Elastic Lite. If Customer exceeds any use restrictions in the Subscription Agreement, Emerald reserves the right to invoice Customer for such excess use and Customer will promptly pay such invoice under the terms in Section 6.
2.6 Suspension of Services. Any use of Elastic Lite in breach of these Terms, the Acceptable Use Policy or the Documentation, by Customer or Authorized Users that in Emerald’s reasonable judgment violates or threatens the integrity, security or availability of Elastic Lite, Services or Seller Products, or that exceeds the use limitations in the Subscription Agreement, may result in immediate suspension. Prior to such suspension, Emerald will use commercially reasonable efforts to provide Customer with notice and an opportunity to correct such violation or threat.
2.7 Modification. Emerald reserves the right to modify Elastic Lite, Services and Seller Products. Without limiting the foregoing, Emerald may modify Elastic Lite from time to time, but shall use commercially reasonable efforts not to modify Elastic Lite in a way that will result in a material reduction in the quality or functionality thereof, except: (i) where required by applicable law; (ii) where such reduction was reasonably necessary for the integrity or security of Elastic Lite or any data contained therein or processed thereby; or (iii) where such reduction was reasonably necessary to avoid third-party liability.
3.1 Security. Subject to Section 2.7, Emerald will: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of Elastic Lite and Services; (ii) use commercially reasonable efforts to protect the confidentiality of the Customer Content; and (iii) access and use the Customer Content solely to provide Elastic Lite, and as otherwise expressly permitted in these Terms.
3.2 Credit Cards and Other Payment Forms. Elastic Lite is not intended to facilitate third-party payment transactions that may occur as a result of Customer’s use of Elastic Lite. Customer understands and agrees that any payment transactions must occur outside of Elastic Lite and Emerald is not liable for any use or misuse of credit card or other payment information uploaded into Elastic Lite.
4.1 Use. Each party agrees not to use the other party’s Confidential Information for any purpose except as needed to fulfill its obligations under these Terms. Each party will not disclose any Confidential Information of the other party to third parties or to any of the disclosing party’s employees, except as permitted herein. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information.
4. 2 Disclosure Required by Law. If Confidential Information is required to be disclosed by a party under the terms of a valid and effective subpoena or order issued by a court, administrative agency or other governmental authority, the party required to disclose such Confidential Information shall, unless prohibited by applicable law, will promptly notify the other party of the such demand and shall exercise its reasonable best efforts to narrow the scope of disclosure and obtain an order or other reliable assurance that confidential treatment will be accorded to such Confidential Information. If the receiving party is prohibited from notifying the disclosing party of a subpoena, order or demand, by the terms of same, the receiving party shall exercise its reasonable efforts to narrow the scope of disclosure.
4.3 Maintenance of Confidentiality. Each party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information, and shall take at least those measures that it takes to protect its own highly confidential information. Neither party shall copy the Confidential Information of the other party unless approved in writing by the other party.
4.4 Remedies. Each party agrees that any violation or threatened violation of this Section 4 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
5. Ownership, Feedback, and Aggregated Data
5.1 Customer Content. As between Emerald and Customer, Customer owns its Customer Content. Customer grants to Emerald, its Affiliates and applicable contractors and licensors a worldwide, non-exclusive, limited-term license to access, retrieve, host, store, copy, transmit, display and otherwise use Customer Content as reasonably necessary to provide the Services in accordance with these Terms. Subject to the limited licenses granted herein, Emerald acquires no right, title or interest from Customer or Customer’s licensors under these Terms in or to any Customer Content. Customer will be responsible for the accuracy, quality and legality of Customer Content and the means by which Customer acquired Customer Content. Customer is solely responsible for obtaining all rights necessary to provide Customer Content for purposes of these Terms, and to the extent required, notify any individuals who own or have an interest in Customer Content that Customer Content will be provided to Emerald for purposes of these Terms.
5.2 Statistical Usage Data and Aggregate Data. Emerald owns the statistical usage data derived from operation of Elastic Lite, including data regarding web applications used in connection with Elastic Lite, configurations, log data, and the performance results for Elastic Lite (“Usage Data”). In addition, Customer grants Emerald a license to copy and modify the Customer Content to enable Emerald to anonymize and aggregate any Customer Content uploaded into Elastic Lite (“Aggregate Data”). Nothing herein will be construed as prohibiting Emerald from using the Usage Data or Aggregate Data to optimize and improve Elastic Lite or Services or otherwise operate Emerald’s business. Emerald will not provide Usage Data or Aggregate Data to third parties unless such data is de-identified and aggregated.
5.3 Ownership of Elastic Lite and Services. Except for the rights expressly granted under these Terms, Emerald and its licensors retain all right, title, and interest in and to Elastic Lite, including without limitation the Documentation, along with all related Intellectual Property Rights therein. If Customer purchases Services, Customer has the non-exclusive, non-transferable, non-sublicensable right to use the Services solely for Customer’s use with Elastic Lite. No rights are granted to Customer hereunder other than as expressly set forth in these Terms.
5.4 Feedback. Customer grants Emerald and its Affiliates a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into Elastic Lite and Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Authorized Users relating to the features, functionality or operation of Elastic Lite and Services (“Feedback”). Emerald will have no obligation to use Feedback, and Customer will have no obligation to provide Feedback.
6. Fees, Expenses, and Taxes
6.1 Fees. Customer may be required to pay Fees to Emerald in accordance with these Terms and the applicable Subscription Agreement. If not otherwise specified by the parties in writing, such Fees will be due within thirty (30) days of date of invoice. All Fees paid and payable to Emerald hereunder are non-cancelable and non-refundable. If Customer fails to pay any amounts due under these Terms by the due date, then in addition to any other rights or remedies Emerald may have under these Terms or applicable law: (i) Emerald reserves the right to suspend the Services upon fifteen (15) days’ written notice, until such amounts are paid in full; and (ii) Emerald will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due. Emerald will not exercise its right to suspend Elastic Lite and Services or charge interest if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the issue. The limitations set forth in Section 9 shall not apply to Customer’s payment obligations under this Section 6.
6.2 Taxes. Fees do not include any local, state, federal or foreign taxes, duties or similar governmental assessments of any nature, including use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its Fees due to Emerald hereunder (excluding taxes based on Emerald’s net income or property) unless Customer provides Emerald with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the foregoing does not apply to sales taxes or other taxes that may be applicable as a result of a sales transaction in Elastic Lite as such taxes are the responsibility of Buyer and Seller.
7. Warranties and Disclaimer
7.1 Emerald Warranties
7.1.1 Elastic Lite. Emerald warrants that Elastic Lite will perform materially in accordance with the applicable Documentation. As Customer’s exclusive remedy and Emerald’s entire liability for a breach of this warranty, Emerald will use commercially reasonable efforts to correct such non-conforming parts of Elastic Lite. If Emerald fails to correct the non-conforming part to conform to the Documentation within a reasonable period after receiving written notice from Customer detailing the nature of the non-conformity, Customer may terminate the Subscription Agreement and receive a pro-rata refund of any prepaid, unused Fees. If Customer has not paid any Fees, Customer’s sole and exclusive remedy will be to terminate its Subscription Agreement and its Account and discontinue use of Elastic Lite, all in compliance with Section 10.3. The remedies set forth in this subsection will be Customer’s sole and exclusive remedy and Emerald’s sole liability for breach of this warranty.
7.1.2 Services. Emerald warrants that the Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and Emerald’s entire liability for any breach of the foregoing warranty, Emerald will at no additional charge to Customer promptly use commercially reasonable efforts to re-perform any Services that fail to meet this warranty or refund to Customer the fees paid for the portion of the non-conforming Services. If Customer has not paid any Fees, Customer’s sole and exclusive remedy will be to terminate its Subscription Agreement and its Account and discontinue use of Elastic Lite, all in compliance with Section 10.3. The remedies set forth in this subsection will be Customer’s sole and exclusive remedy and Emerald’s sole liability for breach of this warranty.
7.1.3 Exception. The foregoing warranties in 7.1.1 and 7.1.2 apply only if Elastic Lite and Services have been utilized in accordance with the Documentation, these Terms, and applicable law.
7.2 Customer Warranties. Customer warrants to Emerald that: (i) Customer has or will obtain all necessary rights for Emerald to use the Customer Content that it provides to Emerald; and (ii) it will comply with the Acceptable Use Policy.
7.3 Mutual Warranties. Each party warrants to the other that during the Term: (i) it has full rights and authority to enter into, perform under, and grant the rights in these Terms; and (ii) its performance under these Terms will comply with applicable laws.
7.4 Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1, Emerald AND ITS LICENSORS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ELASTIC LITE, ANY SERVICES THEREIN OR THIRD-PARTY PRODUCTS OR OFFERINGS OR OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF ACCURACY, COMPLETENESS, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT. Emerald MAKES NO WARRANTY REGARDING ANY THIRD-PARTY SERVICES WITH WHICH THE SERVICES MAY INTEROPERATE AND PROVIDES THEM “AS IS.”
8.1 Customer Indemnification Obligation. Customer will, at its expense, defend, indemnify and hold harmless Emerald and its Affiliates and their respective officers, directors, employees and agents from and against any and all third party demands, claims, and investigations arising out of or related to: (i) Customer’s breach of these Terms; and (ii) any allegation that the Content (in-whole or in‑part) infringes, violates or misappropriates any third party’s intellectual property or privacy rights (collectively, (i) and (ii) are “Customer Claims”). Customer will have no liability or obligation under this Section 8 with respect to any Customer Claims based on Emerald or its Affiliates’ gross or willful negligence or intentional misconduct.
8.2 Emerald Indemnification Obligations. Emerald will, at its expense, defend, indemnify and hold harmless Emerald and its Affiliates and pay the amount of final judgement (including reasonable attorney’s fees and litigation costs awarded by the court against Emerald or its Affiliates), or settlements to which Emerald consents arising from, relating to or resulting from any unaffiliated third-party claims, demands, suits or proceedings (“IP Claims”) brought against Customer alleging a violation of the third party’s intellectual property rights under United States. (“IP Claims”). Emerald and its Affiliates will have no liability or obligation under this Section 8.2 with respect to any IP Claims related to or arising from Customer’s breach of these Terms or Customer’s negligence, gross negligence or intentional misconduct.
8.3 Indemnity Requirements. Customer Claims and IP Claims are referred to in this Section 8.3 as a “Claim.” As a condition to the obligations set forth in Sections 8.1 and 8.2, the responsible party (“Indemnitor”) must receive timely written notice of the Claim. Indemnitor will have sole control over the defense and settlement of the Claim with counsel of its own choosing, except to the extent that any settlement involves material commitments on the part of the indemnified party (“Indemnitee”), in which case such settlement will require the prior written consent of Indemnitee (which consent will not be unreasonably withheld delayed, conditioned, or delayed). Indemnitee will provide reasonable and non-confidential information and cooperation (at Indemnitor’s reasonable expense) as reasonably required by Indemnitor. Indemnitor will not be responsible for any settlement it does not approve in writing. Indemnitee reserves the right to participate at its own cost in any proceedings with counsel of its own choosing; provided, however, that the defense or settlement of any Claim will at all times be subject to Indemnitor’s sole control.
8.4 Additional Remedies. If Elastic Lite is held to infringe, violate or misappropriate any third party’s intellectual property or becomes, in Emerald’s reasonable opinion, likely to become the subject of an infringement Claim preventing Customer’s further use as set forth in these Terms, if Customer has paid Fees, then Emerald may, at its option: (i) obtain for Customer the right to continue to use that infringing part of Elastic Lite; (ii) replace or modify the infringing part of Elastic Lite so that it becomes non-infringing without material alteration; or (iii) if (i) or (ii) are not commercially reasonable for Emerald to effect, then Emerald may, at Emerald’s option, terminate the Subscription Agreement upon written notice to Customer and refund to Customer any unused pre-paid Fees, pro-rated for the remainder of the pre-paid Term. If Customer has not paid any Fees, Customer’s sole and exclusive remedy will be to terminate its Subscription Agreement and its Account and discontinue use of Elastic Lite, all in compliance with Section 10.3.
8.5 EXCLUSIVE REMEDY. THE IP INDEMNIFICATION IN SECTION 8.2 AND THE REMEDIES IN SECTION 8.3 STATE EMERALD’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY IP CLAIM OR OTHER CLAIM THAT ELASTIC LITE infringeS, violateS or misappropriateS any third party’s intellectual property.
9. Limitation of Liability
9.1 Except for breach of Emerald’s intellectual property rights, TO THE FULLEST EXTENT PERMITTED BY LAW, Neither party will be liable to the other or any other person under or in connection with this agreement, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, indemnity or otherwise for special, indirect, PUNITIVE, INCIDENTAL or consequential damages (INCLUDING LOST PROFITS), even if the other has been advised of the possibility of such loss or damages. Emerald’s total liability UNDER OR IN CONNECTION WITH THIS AGREEMENT TO Customer OR ANY OTHER PERSON will not exceed the lesser of: (i) the total amount of fees (if any) paid by Customer to Emerald during the twelve (12)-month period immediately preceding the occurrence or act or omission giving rise to the claim; or (II) the amount of insurance coverage available to emerald.
10. Term, Termination, and Effect of Termination
10.1. Term. The term of Subscription Agreement begins on the Effective Date and will continue for the subscription period set forth in the Subscription Agreement (the “Term”) unless terminated pursuant to Section 10.2. Notwithstanding the foregoing, these Terms will apply as long as Customer has access to Elastic Lite.
10.2. Termination. Either party may terminate the Subscription Agreement by written notice to the other party in the event that: (i) such other party materially breaches these Terms and does not cure such breach within thirty (30) days of such notice; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Emerald may terminate the Subscription Agreement for convenience upon sixty (60) days’ prior written notice to Customer and Emerald will refund any unused, prepaid fees. The termination or expiration of the Subscription Agreement for cause will not relieve Customer from paying all Fees and expenses accruing prior to or after termination or expiration including any Fees agreed to in the Subscription Agreement.
10.3. Effect of Termination. Upon termination of the Subscription Agreement for any reason, all rights and licenses granted to Customer will immediately terminate and Customer will cease using Elastic Lite and will destroy all copies of Emerald Confidential Information in its possession or control. Emerald has no obligation to store or maintain any Customer Content after these Terms terminate for any reason and Customer. Customer will pay and remain liable for any unpaid Fees.
10.4 Survival. All provisions of these Terms that may reasonably be interpreted or construed as surviving the expiration or termination of the Subscription Agreement shall survive the expiration or termination of the Subscription Agreement.
10.5. Publicity. Neither party shall make any public statement relating to these Terms without the prior written consent of the other party. Customer agrees to allow Emerald to use Customer’s name and logo in Elastic Lite, its marketing materials, including but not limited to, Emerald’s website, press releases, advertisements, etc. Emerald will provide copies of all marketing material to Customer prior to any distribution or publication of materials. Customer shall have the right to modify and approve any such materials prior to their use. Such approval shall not be unreasonably withheld.
11.1. Controlling Law, Venue and Severability. These Terms and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to these Terms, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York City, New York. In the event that any of the provisions of these Terms 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 these Terms shall otherwise remain in full force and effect and enforceable.
11.2. Disputes. Any and all disputes or claims arising out of or relating in any way to these Terms, including Elastic Lite, and/or representations made by Emerald will be resolved in binding arbitration by a single neutral arbitrator, rather than in court. This includes any disputes or claims concerning any prior agreement between the same parties or affiliated parties. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court and must follow and enforce these Terms as a court would. Arbitrations will be conducted by the American Arbitration Association (AAA) pursuant to its Commercial Arbitration Rules, which are available at www.adr.org. If Customer commences an arbitration, Customer will be responsible for filing fees and arbitrators’ fees as set forth in the AAA Rules. To commence an arbitration, Customer must send written notice to Emerald, Attention: Legal Department, 100 Broadway, 14th Floor, New York, NY 10005, and to the AAA, fully describing any and all claims. If Emerald commences arbitration against Customer, Emerald will be responsible for filing fees and may provide written notice to Customer at any physical or email address Customer provided in connection with these Terms. If an in-person hearing is required by the AAA or the arbitrator, the hearing will take place in New York County, NY, except as otherwise agreed by the parties or ordered by the arbitrator. An arbitration award may be enforced by any court with competent jurisdiction. Any and all proceedings to resolve claims or disputes will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration the parties waive any right to a jury trial. This section shall survive any termination of these Terms.
11.3. Force Majeure. If Emerald’s performance of these Terms or any obligation hereunder (other than obligations of payment) is prevented or restricted by a Force Majeure event, Emerald shall be excused from such performance and liability to the extent of such prevention or restriction.
11.4. Independent Contractors. The parties shall be independent contractors under these Terms, 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. There are no third-party beneficiaries under these Terms.
11.5. Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
11.6. Assignment. Emerald may assign, subcontract, or otherwise transfer any of its rights or obligations under these Terms. Customer shall not assign, sublicense or transfer, by operation of law or otherwise, any of its rights or obligations under these Terms (including its license with respect to the Applications) to any third party without Emerald’s prior written consent, which consent will not be unreasonably withheld or delayed; provided, however, that Customer may assign these Terms pursuant to a transfer of all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock or otherwise, provided that such transferee assumes and agrees in writing to be bound to the terms and conditions of these Terms. In the event of such assignment, Customer will provide Emerald with thirty (30) days’ prior written notice thereof. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns.
11.7. Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Services in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
11.8. Notices. All legal notices shall be in writing. Legal notices to Customer shall be sent to the contact listed on the Subscription Agreement. Notices to Emerald shall be sent to:
Emerald Legal Department, 100 Broadway, 14th Floor, New York, NY 10005
Notices shall be deemed delivered: (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery; or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
11.9. Entire Agreement. These Terms together with the Subscription Agreement and the Acceptable Use Policy constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto, including any non-disclosure agreement(s), and related to the subject matter hereof are expressly canceled. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation is void. This Agreement may be executed in counterparts, each of which will be deemed an original and together will constitute one Agreement. The parties agree that these Terms may be signed by means of electronic signature technology pursuant to the U.S. Federal E-SIGN Act and any applicable state laws. Signatures, originally signed by hand, but transmitted via e-mail as PDF files or by fax will also be deemed valid and binding original signatures.
11.10. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the Subscription Agreement; (ii) these Terms; and (iii) the Documentation. No modification, amendment or waiver of any provision of these Terms will be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of these Terms shall not constitute a waiver thereof or of any other provision. Emerald will not be bound by any Customer purchase order terms or other documents.
11.11. Waiver. Any delay or failure of a party to exercise a right or remedy under these Terms or at law will not result in a waiver of that, or any other, right or remedy. No waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
11.12. Interpretation. These Terms will be interpreted according to the plain meaning of their terms without any presumption that it should be construed either in favor of or against either party.