Elate Trial Services Agreement

EFFECTIVE: January 1, 2021

 

IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE "SERVICES" OR “ELATE SERVICES”) OF ELATE, INC. ("ELATE" OR “WE”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE ELITE TRIAL SERVICE TERMS (“TRIAL TERMS”), WHICH INCORPORATE THE ELATE TERMS OF SERVICES, AVAILABLE HERE. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING. THESE TRIAL TERMS SUPPLEMENT AND ARE IN ADDITION TO THE ELATE TERMS OF SERVICE. IF THESE TRIAL TERMS CONFLICT WITH TERMS IN THE ELATE TERMS OF SERVICE, THESE TRIAL TERMS CONTROL.

BY SIGNING UP FOR A FREE TRIAL, YOU AGREE TO BE BOUND BY THESE TRIAL TERMS, THE ELATE TERMS OF SERVICE, AND ALL EXHIBITS, ORDERS, AND INCORPORATED POLICIES (THE “TRIAL AGREEMENT”). THE ELATE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TRIAL TERMS.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TRIAL TERMS, IN WHICH CASE THE TERMS “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY. BY CLICKING “I ACCEPT” OR BY USING THE ELATE SERVICES TRIAL, YOU ARE AGREEING TO ALL OF THE TRIAL TERMS STATED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I ACCEPT,” AND DO NOT USE THE ELATE SERVICES.

Elate will provide the Services, and you may access and use the Services, in accordance with this Trial Agreement.

System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, Your ability to access and use the Service may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.

A.   Definitions.

“Affiliate” means, with respect to a Party to this Trial Agreement, any entity that directly or indirectly controls, is controlled by or is under common control with that Party. For purposes of this Agreement, “control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.

 

“User” means You or an individual who is authorized by You to use the Elate Services, for whom You have ordered the Elate Services, and to whom You (or We, at Your request) have provided access. Users may include, for example, Your employees, consultants, contractors and agents, and third-parties with which You transact business.

“You”or “Your” means you as an individual and/or (inclusive) the company or other legal entity for which You are accepting this Trial Agreement. For the sake of clarity, the right to use the Service is specific to such contracting company or other entity and Affiliates of that company or entity require a separate license in order to use the Service.

“Your Data” means electronic data and information submitted by or for You to Elate or collected and processed by or for You using the Elate Service.

 

B.    Trial Period. This Trial Agreement is effective upon your acceptance of this Trial Agreement (the “Effective Date”) and will terminate thirty (30) days from the Effective Date unless ended earlier in accordance with this agreement (the “Trial Period”). If you would like to use the Services after the Trial Period, you must purchase such services from Elate.

C.    Rights Granted. For the duration of the Trial Period, you have the nonexclusive, nontransferable, non-assignable, limited right to use the Services, subject to the terms of this Trial Agreement, and solely for your internal business purposes. You may allow Users to use the services for this purpose and you are responsible for Users’ compliance with this Trial Agreement. Limitations on the number of Users and functionality of the Services are outlined in Your Order.

You do not acquire any license to use the Services, including any other Elate programs or services to which Elate provides You with access aspart of the Services, in excess of the scope and/or duration of the Services defined in this Trial Agreement. Upon the end of this Trial Agreement, Your right to access or use the Services shall terminate.

D.    Disclaimers and Exclusions of Warranties. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED "AS IS" AND ELATE, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ELATE, ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. ELATE DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. ELATE CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. USE IS AT YOUR OWN RISK.

E.    Support Services. The Services offered under this Trial Agreement provide an opportunity for new and potential Elate customers to experience the Elate Services before purchasing a subscription. The Services provided under this Trial Agreement are provided as a convenience and You agree that Elate is not obligated to provide any technical support, phone support, or updates for the Services within the Trial Period. Elate may, however, elect to provide such support at its discretion.

F.    End of Agreement. Services provided under this Trial Agreement shall be provided for the Trial Period defined above unless earlier terminated in accordance with this Trial Agreement. At the end of the Trial Period, all rights to access or use the Services, including any other Elate programs or services, shall end, unless such Services are purchased for use beyond this Trial Period.

You may discontinue your use of the Services at any time. Elate may terminate Your password, account, and access to, or use of the Services at any time for any reason. You acknowledge and agree that Elate has no obligation to retain Your Data, and that Your Data may be irretrievably deleted, following the termination of the Services.

G.    Fees. The services under this agreement are provided to you free of charge during the Trial Period.

H.    Entire Agreement. This Trial Agreement, and by incorporation the Elate Terms of Service, embodies the entire understanding and agreement between the Parties respecting the subject matter of this Trial Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if You or Your company have executed a separate written agreement or you have signed an Order referencing a separate agreement governing Your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. Elate may elect to change or supplement the terms of this Trial Agreement from time to time at its sole discretion. Elate will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Trial Agreement. Within ten (10) business days of posting changes to this Trial Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Trial Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Trial Agreement. This Trial Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.

I.    Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELATE OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ELATE, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

J.    Export Compliance. The Elate Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

K.    Usage Restrictions. You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for Your and Your Users’ use of the Services and shall abide by, and ensure compliance with, all applicable laws in connection with Your and each User’s use of the Services, including but not limited to applicable laws related to intellectual property, privacy and export control. Use of the Services is void where prohibited. You shall not:

    a.  Make the Elate Service available to, or use the Elate Service for the benefit of, anyone other than You or Users;

     b.  Exceed any limitation set forth in any Order, including limitations on the number of Users, or permit, directly or           indirectly, the same;

     c.  Sell, resell, license, sublicense, distribute, rent or lease the Elate Service, or include the Elate Service in a           service bureau or outsourcing offering;

     d.  Use the Elate Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to           store or transmit material in violation of third-party privacy rights;

     e.  Use the Elate Service to store or transmit viruses, worms, time bombs, Trojan horses, and other harmful or           malicious code, files, scripts, agents, or programs;

     f.   Interfere with or disrupt the integrity or performance of the Elate Service or third-party data contained therein;

     g.  Attempt to gain unauthorized access to the Elate Service or its related systems or networks;

     h.  Copy the Elate Service or any part, feature, function or user interface thereof, or create derivative works of the           Elate Service or any part, feature, function or user interface thereof;

     i.   Frame or mirror any part of the Elate Service, other than framing on Your own intranet(s), extranet(s) or otherwise           for Your own internal business purposes or as permitted in this Agreement;

     j.  Modify, translate, decompile, bootleg, disassemble, or extract the inner workings of any software constituting part          of the Elate Service, or otherwise attempt to discover the source code of any such software;

     k.  Copy the look-and-feel or functionality of the Elate Service;

     l.   Access the Elate Service in order to build a competitive product or service, or reverse engineer the Elate Service           (to the extent such restriction is permitted by law) or;

    m.  Use or launch any automated system, including without limitation, “robots,”“spiders,” “offline readers,” etc., that           accesses the Elate Service in a manner that sends more request messages to the Elate Service servers than a           human can reasonably produce in the same period of time by using a conventional web browser.

You agree that We may terminate the Service immediately, if You or any Users are found to be in violation of this Section L.

Elate Terms of Service

EFFECTIVE: January 1, 2021

IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE "SERVICES" OR “ELATE SERVICES”) OF ELATE, INC. ("ELATE," “WE,” OR “OUR”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

BY SIGNING UP FOR A FREE TRIAL, ACCESSING THE ELATE WEBSITE OR BY UTILIZING THE ELATE SERVICE YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDERS, AND INCORPORATED POLICIES OR ADDENDA (THE “AGREEMENT” OR “TOS”). THE ELATE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.

Elate will provide the Services, and You may access and use the Services, in accordance with this Agreement. When You sign up for a trial or order Services through the online registration page (each an"Order"), the Order may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Service.

System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service involves hardware, software, and Internet access, Your ability to access and use the Service may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.

1.    DEFINITIONS. The following definitions will apply in this Agreement, and any reference to the singular includes a reference to the plural and vice versa. Service specific definitions are found in the Services Description located on the Elate Pricing Page.


“Affiliate” means, with respect to a Party to this Agreement, any entity that directly or indirectly controls, is controlled by or is under common control with that Party. For purposes of this Agreement, “control” means an economic or voting interest of at least fifty percent (50%) or, in the absence of such economic or voting interest, the power to direct or cause the direction of the management and set the policies of such entity.

“Documentation”means Our online user guides, documentation, and training materials, as updated from time-to-time.

"Initial Subscription Term" means the initial subscription term for the Services as specified in an Order.

"Renewal Term" means the renewal subscription period for the Services commencing after the Initial Subscription Term or another Renewal Term for a period equal to the then-expiring subscription term or one (1) calendar year (whichever is longer).

“Term” means the Initial Subscription Term together with any Renewal Term.

“Trial Period” has the same meaning as the defined term in the Elate Trial Services Agreement.

“User” means You or an individual who is authorized by You to use the Elate Services, for whom You have ordered the Elate Services, and to whom You (or We, at Your request) have provided access. Users may include, for example, Your employees, consultants, contractors and agents, and third-parties with which You transact business. The number of Users shall be limited to the cumulative number as set forth in an Order(s) and may be increased during the Term by placing an additional Order(s).

“You” or “Your” means you as an individual and/or (inclusive) the company or other legal entity for which You are accepting this Agreement. For the sake of clarity, the right to use the Service is specific to such contracting company or other entity and Affiliates of that company or entity require a separate license in order to use the Service.

“Your Data” means electronic data and information submitted by or for You to Elate or collected and processed by or for You using the Elate Service.

2.    SERVICES. Elate will provide the Services as described in the Order, and standard updates to the Services that are made generally available by Elate during the Term. Elate may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice. In the event the Services are discontinued, You shall receive a refund of all amounts prepaid and relating to the remainder of the then current Term.

     a.    Beta Services. From time to time, Elate may offer a Beta version of the Service. You acknowledge that the Beta             version may be an untested, non-functional, and/or partly functional version of the Service. Access to and use of             Beta versions may be subject to additional agreements. Beta Services may contain bugs, errors or other defects.             If You elect to use the Beta, You do so at Your own risk. We do not warrant that the Beta features will be             provided with due care. You will not rely upon the functionality of the Beta features for any purpose             whatsoever. BETA SERVICES, WHERE OFFERED, ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY             WHATSOEVER.

3.    USE OF SERVICES AND YOUR RESPONSIBILITIES. You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for You and Your Users’ use of the Services and shall abide by, and ensure compliance with, all applicable laws in connection with Your and each User’s use of the Services, including but not limited to laws related to intellectual property, privacy and export control. Use of the Services is void where prohibited.

     a.    Registration Information. You may be required to provide information about Yourself in order to register for             and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to             choose a username and password. You are solely responsible for maintaining the security of Your username and             password and agree not to disclose such to any third party.

     b.     Your Responsibilities. You are responsible for following all applicable laws, state and federal, and You will also:

                    (i)   Be responsible for Users’ compliance with this Agreement;

                    (ii)   Be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired                            Your Data 

                    (iii)   Use commercially reasonable efforts to prevent unauthorized access to or use of Elate Services, and                             notify Elate if you become aware of any such unauthorized access or use; and

                    (iv)   Use Elate Services only in accordance with this Agreement and associated Documentation, applicable                             laws and government regulations; and

                 You are fully responsible for Your Data, including without limitation for complying with all laws applicable to                  Your Data.

                 You shall assume sole responsibility for:

                    (v)  the selection of the Services and the results you intend to achieve;

                    (vi)  the completeness, accuracy, consistency and quality of Your Data and all other information                            which originates from You;

                    (vii)  the compliance with any third-party property rights or copyrights and privacy rights or                             other third-party rights with regard to Your Data and its transfer to Elate, including obtaining                             consent where required by law; and

                   (viii)   the infrastructure, software and capability of the internet access used by You.

     c.    Your Data. You agree that You are solely responsible for Your Data sent, transmitted, or uploaded by You in             using the Services and for compliance with all laws pertaining to the Content, including, but not limited to, Laws             requiring You to obtain the consent of a third party to use Your Data and to provide appropriate notices of third             party rights. You represent and warrant that You have the right to upload Your Data to Elate and that such use             does not violate or infringe on any rights of any third party. Under no circumstances will Elate be liable in any             way for any (a) of Your Data that is transmitted or viewed while using the Services, (b) errors or omissions in Your             Data, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to             Your Data. Although Elate is not responsible for any of Your Data, Elate may delete any of Your Data, at any time             without notice to You, if Elate becomes aware that it violates any provision of this Agreement, or any law. As             between You and Elate, You shall retain full right, title, and interest in and to copyright and any other rights in             Your Data.

     d.    Usage Restrictions. You warrant that You and any Users will not:

                    (i)   Make the Elate Service available to, or use the Elate Service for the benefit of, anyone other than You or                           Users;

                    (ii)   Exceed any limitation set forth in any Order, including limitations on the number of Users, or permit,                            directly or indirectly, the same;

                    (iii)  Sell, resell, license, sublicense, distribute, rent or lease the Elate Service, or include the Elate Service in                            a service bureau or outsourcing offering;

                    (iv)   Use the Elate Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material,                             or to store or transmit material in violation of third-party privacy rights;

                    (v)    Use the Elate Service to store or transmit viruses, worms, time bombs, Trojan horses, and other harmful                             or malicious code, files, scripts, agents, or programs;

                    (vi)   Interfere with or disrupt the integrity or performance of the Elate Service or third-party data contained                             therein;

                    (vii)   Attempt to gain unauthorized access to the Elate Service or its related systems or networks;

                    (viii)   Copy the Elate Service or any part, feature, function or user interface thereof, or create derivative                               works of the Elate Service or any part, feature, function or user interface thereof;

                    (ix)   Frame or mirror any part of the Elate Service, other than framing on Your own intranet(s), extranet(s) or                             otherwise for Your own internal business purposes or as permitted in this Agreement;

                    (x)   Modify, translate, decompile, bootleg, disassemble, or extract the inner workings of any software                            constituting part of the Elate Service, or otherwise attempt to discover the source code of any such                            software;

                    (xi)  Copy the look-and-feel or functionality of the Elate Service;

                    (xii)  Access the Elate Service in order to build a competitive product or service, or reverse engineer the                             Elate Service (to the extent such restriction is permitted by law) or;

                    (xiii)  Use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,”                              etc., that accesses the Elate Service in a manner that sends more request messages to the Elate                              Service servers than a human can reasonably produce in the same period of time by using a                              conventional web browser.

                  You agree that We may terminate the Service immediately, if You or any Users are found to be in violation of                   this Section 3(d).

4.    RESPONSIBILITY FOR USERS. You are responsible for the activities of all Users who access or use the Services through Your account and You agree to ensure that any User will comply with the terms of this Agreement and any Elate policies. Elate assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact Elate at support@goelate.com. Elate may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Elate be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content.

5.    OUR RESPONSIBILITIES

     a.    Provision of the Services. We will make the Services available to You pursuant to this Agreement and the             applicable Orders, provide standard support for the Services to You at no additional charge, or upgraded             support if You pay us an additional fee (in accordance with the different service levels we may provide, subject             to an additional fee), and use commercially reasonable efforts to make Elate available twenty-four (24) hours a             day, seven (7) days a week, except for:

                    (i)   Planned downtime (but we will try to give you at least eight (8) hours electronic notice and to schedule                           this downtime during the weekend hours i.e. 6:00 p.m. Friday to 5:00 a.m. Monday Central Standard                           time); and

                    (ii)   Any unavailability caused by circumstances beyond Our reasonable control, including without limitation                            act of nature, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (excluding                            Our employees), Internet service provider failure or delay, supporting software failures, act of                            government, or denial-of-service attack.

           You acknowledge that We may from time to time in our sole discretion issue updates or upgrades, or other            amendments, to the Services and automatically update or upgrade the version of the Services that You are using.            You consent to such automatic updating or upgrading and agree that this Agreement will apply to all such            updates, upgrades or amendments. Elate reserves the right to charge a license fee for access to new modules,            upgraded features, or Services components and access to the same shall be conditioned upon submission of the            applicable Order.

     b.    Our Policies. We may maintain and publish policies regarding Our Service levels (i.e. up- time), data protection,             and usage and other subject matter. We may occasionally modify and update these policies and, when we do,             we will prominently post the new policies in the Service and/or email You a copy. Once published by Elate, the             updated policy will be effective and become Our policy relative to its subject matter, replacing and superseding             the old policy. These policies, as updated from time-to-time, are hereby incorporated and form part of this             Agreement. It is Your responsibility to stay current and on-side all Our policies.

6.    ELIGIBILITY. You affirm that You are at least 18 years of age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.  Your access may be terminated without warning if we believe that You are under the age of 18 or are otherwise ineligible.

7.    INTENDED USE; RESTRICTION ON USE BY CHILDREN. The Services are intended for business use. You may choose to use the Services for other purposes, subject to the terms and limitations of this Agreement. Elate is not intended for use by individuals under the age of 18.

8.    FEES AND CANCELLATION. If applicable to the Service You specify in an Order, You agree that Elate may charge to Your credit card or other payment mechanism selected by You and approved by Elate ("Your Account") all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. Elate may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Elate will provide you with prior notice and an opportunity to terminate Your Account if Elate changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. You agree that in the event Elate is unable to collect the fees owed to Elate for the Services through Your Account, Elate may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Elate in connection with such collection activity, including collection fees, court costs and attorneys' fees. You further agree that Elate may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. You may cancel your subscription at any time pursuant to Section 9 below. If You so cancel, You will not be billed for any additional Renewal Terms, but Service will continue until the end of the then-current Term. If You so cancel, you will not receive a refund of any amount already paid.

9.    TERMINATION. The Elate website contains information on how to terminate Your Account at Elate Help. If you have purchased a Service for a specific term, such termination will be effective on the last day of the then-current Term. Except for Services provided during a Trial Period or as otherwise specified in an Order, the Term shall automatically renew for additional periods equal to the expiring Term, unless either party gives the other notice of non-renewal at least thirty (30) calendar days before the end of the then current Term.  If You fail to comply with any provision of this Agreement, Elate may terminate this Agreement immediately and retain any fees previously paid by You. Sections 1, 3, 4, and 6 through 18, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services. If at any time You are not happy with the Services, Your sole remedy is to cease using the Services and follow this termination process.  Upon request by You made no later than ninety (90) calendar days after the effective date of termination or expiration of the Term, Elate will make Your Data available to You for Your export or download in a format as described to You in User Documentation. After that 90-day period, Elate will have no obligation to maintain or provide Your Data, and will delete or destroy all copies of Your Data in Elate’s systems or otherwise in Elate’s possession or control as provided in the User Documentation, unless legally prohibited.

10.    PROPRIETARY RIGHTS

     a.    Reservation of Rights. Subject to the limited rights expressly granted hereunder, Elate and Elate’s licensors             reserve all of right, title and interest in and to the Services, including all related intellectual property rights. The             Services are licensed, not sold, and You do not acquire any rights of ownership in the Services. No rights are             granted to You hereunder other than as expressly set forth herein.

     b.    License to Use the Elate Services. Subject to the terms and conditions of this Agreement, Elate hereby grants             to You a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the            Services for Your internal business purposes only, in the manner described in this Agreement and in the            Documentation and for the Term. Upon termination or expiration of this Agreement for any reason, You must            cease all use of the Services.

     c.    License by You to Host Your Data and Applications. You grant Elate a worldwide, limited-term license to host,             copy, transmit and display Your Data, as necessary for Elate to provide the Services in accordance with this             Agreement. Subject to the limited licenses granted herein, Elate acquires no right, title or interest from You or             Your licensors under this Agreement in or to Your Data.

     d.    License by You to Use Your Feedback. You grant to Elate a worldwide, perpetual, irrevocable, royalty-free             license to use and incorporate into the Services any suggestion, enhancement request, recommendation,             correction or other feedback provided by You or Users relating to the operation of the Services.

     e.    Use of Name. You agree that Elate may use Your name and logo in listings of customers, including on the Elate             website. Notwithstanding the foregoing, Elate shall follow any usage guidelines that you provide to Elate from             time to time and shall not issue any press-release or imply that You endorse Elate or its products without your             express written approval.

11.    EXPORT COMPLIANCE. The Elate Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied-party list. You shall not permit Users to access or use any Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.

12.    HIGH-RISK APPLICATION DISCLAIMER. The Services are not designed or intended for use in or for the purposes of hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Services could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities"). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.

13.    INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Elate, its Affiliates, suppliers and any other party authorized by Elate to resell, distribute, or promote the Services ("Resellers"), and under such circumstances Elate, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

14.    NO WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE, OR SUITABILITY; ANY WARRANTY RELATING TO ANY THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING THE SERVICES; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION WE MAY MAKE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES, WHERE OFFERED, ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. WE DO NOT WARRANT THAT THE ELATE SERVICES MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE ELATE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE. YOU AGREE THAT WE WILL HAVE NO RESPONSIBILITY (OR RELATED LIABILITY) FOR BACKING UP YOUR DATA OR ANY INFORMATION THAT YOU PROVIDE TO ELATE.

15.    INDEMNIFICATION. You agree to indemnify, defend and hold harmless Elate, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys' fees) arising from Your use of the Services, Your violation of this Agreement or the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law.

16.    LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELATE OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ELATE, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ELATE’S, ITS AFFILIATES', SUPPLIERS' AND RESELLERS' MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.

17.    PRIVACY AND OTHER POLICIES.

     a.    Use of the Services is also subject to Elate’s Privacy Policy. The Privacy Policy and all other policies applicable to             the Services are available at the following and are incorporated into this Agreement by this reference.             Furthermore, if Your Use of the Services requires Elate to process any personally identifiable information (“PII” or             “Personal Data”) Elate shall do so at all times in compliance with its Privacy Policy.

     b.    To the extent the provision of the Services under these Terms of Service involves the processing of Customer             Personal Data subject to the European Data Protection Laws by Elate on behalf of You (each such non-defined             capitalized term having the meaning given in the EU/GDPR Data Protection Addendum), the terms of the             EU/GDPR Data Protection Addendum shall apply and are incorporated by this reference. Where applicable, in             the event of a conflict between the terms of the EU/GDPR Data Protection Addendum and the terms of this             Section 17, the terms of the EU/GDPR Data Protection Addendum shall prevail to the extent of such conflict.

     c.    Additionally, You understand and agree that Elate may contact You via email or otherwise with information             relevant to Your use of the Services, regardless of whether You have opted out of receiving marketing             communications or notices.

18.    MISCELLANEOUS

     a.    Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of             Indiana, U.S.A. The courts of the state of Indiana in the county of Marion and the United States District Court for             the Southern District of Indiana shall have exclusive jurisdiction over any such lawsuit arising between the             parties.

     b.    Waiver and Severability. Failure by either Party to exercise any of its rights under, or to enforce any provision of,             this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any             provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable,             that provision will be amended to achieve as nearly as possible the same economic effect of the original             provision and the remainder of this Agreement will remain in full force and effect.

     c.    General Provisions. This Agreement embodies the entire understanding and agreement between the Parties             respecting the subject matter of this Agreement and supersedes any and all prior understandings and             agreements between the Parties respecting such subject matter, except that if You or Your company have             executed a separate written agreement or you have signed an Order referencing a separate agreement             governing Your use of the Services, then such agreement shall control to the extent that any provision of this             Agreement conflicts with the terms of such agreement. Elate may elect to change or supplement the terms of             this Agreement from time to time at its sole discretion. Elate will exercise commercially reasonable business             efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of             posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they             will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You             continue using the Services after such ten-business-day period, You will be deemed to have accepted the             changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You             are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in             such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This             Agreement has been prepared in the English Language and such version shall be controlling in all respects and             any non-English version of this Agreement is solely for accommodation purposes.

     d.    Disputes. A dispute is any controversy between You and Elate concerning the Services, any software related to             the Services, the price of the Services, Your account, Elate’s advertising, marketing, or communications, Your             purchase transaction or billing, or any term of this Agreement, under any legal theory including contract,             warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Your or Elate’s             intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating             arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a             description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting             as resolution, to support@goelate.com.  You may initiate an action in your local Small Claims Court if You meet             the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, Elate             reserves the right to require arbitration. Disputes shall be resolved through arbitration. The American Arbitration             Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information,             see www.adr.org. Arbitration hearings will take place in the federal judicial district of Your primary business             location. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive Law; (b)             follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including             the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs             (including reasonable attorneys’ fees), as may be appropriate and permissible by applicable law. Any arbitration             award may be enforced (such as through a judgment) in any court with jurisdiction. Under AAA Rules, the             arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has             exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative             capacity. This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.

     e.    Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under             this Agreement must be filed in Small Claims Court or noticed for arbitration within one year of when it could first             be filed, or such claim will be permanently barred.