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:

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.

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.

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

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

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.

18.    MISCELLANEOUS