Elasity Subscription Agreement
Last updated: December 19, 2016
These Terms and Conditions are made a part of, and incorporated by reference into, the Elasity (“Elasity”) Subscription Agreement by and between Client and iTMethods Inc. (“iTMethods”) (the “Agreement”). This Agreement consists of any applicable Orders, the applicable Acceptable Use Policy (“AUP”) and any other documents incorporated or referenced in the foregoing.
a) “Affiliate” means a party that partially (at least 50%) or fully controls, is partially or fully controlled by, or is under partial (at least 50%) or full common control with, another party.
b) “Atlassian” means Atlassian Corporation Plc and its subsidiaries.
c) “Authorized User” means any individual to whom Client grants access credentials and is permitted to use the Elasity Services that is an employee, agent, contractor or representative of (a) Client, (b) Client’s Affiliates, and/or (c) Client’s and Client’s Affiliates’ Business Partners.
d) “Business Partner” means a legal entity that requires use of Elasity Services in connection with Client’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Client.
e) “Client Data” means any content, materials, data and information that Authorized Users enter into the system(s) of Elasity Services or that Client derives from its use of, and stores in, the Elasity Services (e.g. Client-specific reports).
f) “Confidential Information” means any non-public information of iTMethods or Client disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or a part of the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
g) “Consulting Services” means professional services, such as Implementation and training, performed by iTMethods’ employees or subcontractors as described in an Order and which are governed by this Agreement.
h) “Implementation” means system implementation, configuration, deployment, and/or data migration relating to the Software and Services.
i) “Intellectual Property Right” means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.
j) “Order” means a Product purchase in a schedule, statement of work, order, addendum, or amendment signed by both parties (or an online purchase authorized by Client).
k) “Service” means any service rendered by iTMethods specifically to Client, including, but not limited to: (i) hosting of the Software; (ii) Implementation; (iii) development of Software functionality specially requested by Client; and/or (iv) any Consulting Services.
l) “Software” means any and all of Atlassian’s proprietary software offerings and any and all of applicable Atlassian or third-party Add-On / extension proprietary software offerings, including, without limitation, all updates, revisions, bug-fixes, upgrades, and enhancements thereto, as well as software that has been modified in any way by iTMethods at the request of a client.
m) “Subscription” means a subscription purchased by Client for an Authorized End User to access the Software and Services.
n) “Term” means the Initial Term plus all Renewal Terms.
2. Service Level Agreement
Please refer to the Elasity Service Level Agreement, which can be found at: http://elasity.io/legal/support-services-sla/
iTMethods does not monitor Client Data or Client use of the Elasity Services. Client will comply with the Elasity Acceptable Use Policy (“AUP”) located at http://elasity.io/legal/acceptable-use-policy/. iTMethods may investigate any complaints and violations or suspected violations of this Agreement regarding violations of the AUP that comes to our attention. If iTMethods reasonably determine there is a breach of this Agreement regarding a violation of the AUP, iTMethods may take action, without liability, to remedy the violation (e.g. restricting, suspending, or terminating Client’s and / or Authorized Users’ access to Elasity Services). iTMethods will make commercially reasonable efforts to notify Client before taking such actions so that Client can remedy the issue. However, iTMethods reserves the right to act immediately if iTMethods reasonably believes that allowing such use of the Elasity Services would expose us to civil, regulatory or criminal liability.
4. Fees and Payment
a) Billing. Client shall pay all fees in accordance with the billing frequency set forth in the applicable Order. iTMethods may increase fees for future Renewal Terms by giving Client at least sixty (60) days’ prior written notice of the increase. Payment of fees will be due at the time of purchase in the case of online orders, otherwise payment will be due within thirty (30) days after the date of the invoice, except where this Agreement expressly prescribes other payment dates. All payments must be made in United States dollars unless another currency is specified, and are exclusive of all applicable taxes and net of applicable withholding taxes. Services are subject to suspension for failure to timely remit payment therefor. If Client fails to satisfy its tax and/or duty obligations herein, Client shall reimburse iTMethods upon demand for any taxes and/or duties paid on behalf of Client and shall indemnify and hold iTMethods harmless against any claim and/or liability (including penalties) resulting from Client’s failure to pay such taxes and/or duties.
5. iTMethods Obligations
In accordance with the terms and conditions of the Agreement, iTMethods will: (i) make the Software and Services available on a non-exclusive basis to Client and Authorized Users via the Internet; (ii) maintain appropriate safeguards for protection of Client Data, including regular back-ups and security controls; (iii) not access, modify, or disclose Client Data (except as compelled by law, to prevent or address service or technical issues, or if otherwise permitted by Client).
6. Client Obligations
Client may only use the Software and Services for its own lawful, internal business purposes. Client shall not: (i) use or deploy the Software or Services in violation of applicable laws or this Agreement; (ii) resell the Services; create any derivative works based upon the Software or Services; (iii) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the Software or any part thereof (except to the extent that such restriction is not permitted under applicable law); (iv) make the Services available to any unauthorized parties, including without limitation, competitors of iTMethods; or (v) perform, or release the results of, benchmark tests or other comparisons of the Services with other software, services, or materials. Client will be responsible for Authorized Users’ compliance with the Agreement and liable for Authorized Users’ breach thereof. Client will ensure that it has obtained all necessary consents and approvals for iTMethods to access and use Client Data for the purposes permitted under this Agreement, and that the provision of Client Data to iTMethods hereunder does not violate or infringe any Intellectual Property Right of any third party. If Client is in breach of this section, iTMethods may suspend Services, in addition to any other rights and remedies iTMethods may have at law or in equity.
7. Intellectual Property
As between the parties, iTMethods will and does retain all right, title and interest (including, without limitation, all Intellectual Property Rights) in and to the Services. Client retains all ownership rights to Client Data.
8. Term and Termination
a) Term. The initial term of this Agreement shall be as set forth in the Order, or one (1) year if no Order is completed, unless earlier terminated pursuant to Section “Termination” below (the “Initial Term”). The Agreement will automatically renew for additional, consecutive one-year periods (each a “Renewal Term”), unless and until Client or iTMethods provides written notice to the other, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term.
b) Termination for Cause. Either party may immediately terminate this Agreement if the other party materially breaches its obligations hereunder, and, where capable of remedy, such breach has not been materially cured within forty-five (45) days of the breaching party’s receipt of written notice describing the breach in reasonable detail.
c) Bankruptcy Events. A party may immediately terminate this Agreement if the other party: (i) has a receiver appointed over it or over any part of its undertakings or assets; (ii) passes a resolution for winding up (other than for a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect and such order is not discharged or stayed within ninety (90) days; or (iii) makes a general assignment for the benefit of its creditors.
d) Effect of Termination. Immediately following termination of the Agreement, Client shall (i) cease using the Services (ii) for your owned system or cloud platform accounts where we provide Services, disable access for all of our user(s)/group(s)/role(s) related to your account(s), disable federated or direct access to your systems and delete such access after five (5) business days. Within ten (10) business days of termination of the Agreement, Client may request that Client Data be returned at no additional charge in a standard format to be determined by iTMethods, or as otherwise agreed by the parties. Following termination of the Agreement, iTMethods will maintain backups of Client Data for no more than thirty days, after which time all remaining Client Data will be destroyed.
Each of the parties agrees: (i) not to disclose any Confidential Information to any third parties except as mandated by law and except to those subcontractors of iTMethods providing Services hereunder who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (ii) not to use any Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (iii) to keep the Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement. If a party breaches any of its obligations with respect to confidentiality or the unauthorized use of Confidential Information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including but not limited to, injunctive relief, as well as money damages.
a) iTMethods’ Indemnification Obligations. iTMethods agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorney’s fees and related court costs and expenses) incurred or suffered by Client which directly relate to or directly arise out of the violation or infringement of any third-party Intellectual Property Rights by Client’s authorized use of the Services. The foregoing provisions of this section shall not be applicable, with respect or related to, or in connection with: (i) Client Data; or (ii) unauthorized or negligent use and/or alteration of the Software.
b) Indemnification by Client. Client agrees to indemnify, defend, and hold harmless iTMethods from and against any and all Damages incurred or suffered by iTMethods which directly relate to or directly arising out of Client Data or the Software. The foregoing provisions of this section shall not be applicable to the extent the Damages relate to or arise from iTMethods’ use of Client Data in violation of this Agreement.
c) Indemnification Procedures. To obtain indemnification, indemnitee shall: (i) give written notice of any claim promptly to indemnitor; (ii) give indemnitor, at indemnitor’s option, sole control of the defense and settlement of such claim, provided that indemnitor may not, without the prior consent of indemnitee (not to be unreasonably withheld), settle any claim unless it unconditionally releases indemnitee of all liability; (iii) provide to indemnitor all available information and assistance; and (iv) not take any action that might compromise or settle such claim.
d) Infringement Cures. Should the Services or any part thereof become, or in iTMethods’ reasonable opinion be likely to become, the subject of a claim for infringement of a third party Intellectual Property Right, then iTMethods shall, at its sole option and expense: (i) procure for Client the right to use and access the infringing or potentially infringing item(s) of the Services free of any liability for infringement; or (ii) replace or modify the infringing or potentially infringing item(s) of the Services with a non-infringing substitute otherwise materially complying with the functionality of the replaced system. If (i) and (ii) are not reasonably available in iTMethods’ reasonable opinion, iTMethods may terminate the Agreement in which case Client shall receive a refund of prepaid, unearned fees.
e) Exclusive Remedies. The remedies set forth in this section shall be exclusive with respect to any infringement claim hereunder.
Each party represents and warrants to the other party that, as of the date hereof: (i) it has full power and authority to execute and deliver the Agreement; (ii) the Agreement has been duly authorized and executed by an appropriate employee of such party; (iii) the Agreement is a legally valid and binding obligation of such party; and (iv) its execution, delivery and/or performance of the Agreement does not conflict with any agreement, understanding or document to which it is a party. ITMETHODS WARRANTS THAT ANY AND ALL SERVICES PROVIDED BY IT HEREUNDER SHALL BE PERFORMED IN A PROFESSIONAL MANNER CONSISTENT WITH PREVAILING INDUSTRY STANDARDS, AND THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN MATERIAL ACCORDANCE WITH THE AGREEMENT AND APPLICABLE DOCUMENTATION PROVIDED BY ITMETHODS AND ATLASSIAN. CLIENT’S EXCLUSIVE REMEDY FOR ANY BREACH OF THESE WARRANTIES SHALL BE TO TERMINATE THE AGREEMENT FOR CAUSE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ITMETHODS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (EXCEPT FOR THE INFRINGEMENT INDEMNIFICATION PROVIDED HEREUNDER) AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT UNDERSTANDS THAT THE SOFTWARE IS SOFTWARE-AS-A-SERVICE. ACCORDINGLY, SOFTWARE ENHANCEMENTS MAY BE MADE BY ATLASSIAN ON A PERIODIC BASIS, AND CLIENT WILL NEED TO PERIODICALLY UPGRADE TO THE MOST RECENT VERSION OF THE SOFTWARE.
ITMETHODS’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO ITMETHODS HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE (WHETHER OR NOT SUCH FEE WAS PAID BY YOU). THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES AGREED UPON BETWEEN CLIENT AND ITMETHODS ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ITMETHODS WILL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, INTERRUPTION OF BUSINESS, PROVIDING REPLACEMENT SOFTWARE (EXCEPT AS SET FORTH IN SECTION “RIGHT TO PROCURE OR SUBSTITUTE”), OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Neither party shall issue any publicly disseminated statement using the name of the other party as a customer or provider without the other party’s consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, iTMethods may mention Client by name during customer-related communications and list Client’s name and logo alongside iTMethods’ other clients on the iTMethods website and in marketing materials, unless and until Client revokes such permission.
14. Miscellaneous Provisions
a) Governing Law; Jurisdiction. If Client is an entity registered in: (i) Canada, the Agreement shall be governed and construed by the laws of the Province of Ontario and the federal laws of Canada, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods; (ii) the United States, the Agreement will be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America, without regard to conflict of law principles, and the state and federal courts of the State of California located in the County of Los Angeles shall have exclusive jurisdiction in any proceedings relating to it; (iii) any jurisdiction other than Canada, or the United States, the Agreement will be governed by and construed in accordance with the laws of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction in any proceedings relating to it.
b) Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation, acts of war, acts of God, earthquake, flood, weather conditions, embargo, riot, epidemic, acts of terrorism, sabotage, labor shortage or dispute, governmental act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
c) Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and in facsimile or electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
d) Entire Agreement. This Agreement contains the entire understanding of the parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the parties with respect to such subject matter. The schedules and exhibits hereto constitute a part hereof as though set forth in full herein. Purchase orders submitted by Client are for Client’s internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force and effect.
e) Modifications. Any modification, amendment, or addendum to this Agreement must be in writing and signed by both parties.
f) Assignment. Client may not assign this Agreement or any of its rights, obligations, or benefits hereunder, by operation or law or otherwise, without iTMethods’ prior written consent; provided, however, Client, without iTMethods’ consent, may assign this Agreement to an Affiliate or to a successor (whether direct or indirect, by operation of law, and/or by way of purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of such party, where the responsibilities or obligations of iTMethods are not increased by such assignment and the rights and remedies available to iTMethods are not adversely affected by such assignment. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and permitted assigns.
g) No Third Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
h) Aggregated Data Use. Without limiting the confidentiality rights and protections set forth in this Agreement, iTMethods owns the aggregated, anonymized, and statistical data (“Aggregated Data”) derived from the operation of the Software, and nothing herein shall be construed as prohibiting iTMethods from utilizing the Aggregated Data for business and/or operating purposes, provided that iTMethods does not share with any third party Aggregated Data which reveals the identity of Client, Client’s users, or Client’s Confidential Information.
i) Integration with Third-Party Offerings. The Software may contain features designed to operate with third-party applications. To use such features, Client may be required to obtain access to such applications from a third-party provider. Client shall not be entitled to a refund, credit, or other compensation if iTMethods ceases to offer certain features because the application provider ceases to make such application available for interoperation with the Software.
j) Minimum Technical Requirements for Software Use. Client understands that, in order to use the Software, an Authorized User must utilize a web browser as per Atlassian’s documented requirements.
k) Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, such provision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement shall remain in full force and effect.
l) Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery; the next business day, if deposited with an overnight courier; upon receipt of confirmation of facsimile delivery (if followed up by such registered or certified mail); and five days after being so mailed. Notices to iTMethods shall be delivered to iTMethods Inc., 36 York Mills Road, Suite 110, Toronto, Ontario M2P 2E9 CANADA
m) Independent Contractors. Client and iTMethods are independent contractors, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Client and iTMethods. Each party understands that they do not have authority to make or accept any offers or make any representations on behalf of the other. Neither party may make any statement that would contradict anything in this section.
n) Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
o) Waiver. No failure or delay on the part of either party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy.
p) Survival. Sections of the Agreement intended by their nature and content to survive termination of the Agreement shall so survive.