334 lines
20 KiB
Plaintext
334 lines
20 KiB
Plaintext
Software License Agreement
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READ THIS AGREEMENT CAREFULLY, WHICH CONSITUTES A LEGALLY BINIDNG AGREEMENT AND
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GOVERNS YOUR USE OF THE ELASTICSEARCH SOFTWARE. BY DOWNLOADING, INSTALLING
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AND/OR USING THE ELASTICSEARCH SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO
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THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH
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SUCH TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE
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ELASTICSEARCH SOFTWARE, AND YOU MAY RETURN THE ELASTICSEARCH SOFTWARE FOR A
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REFUND OF ANY LICENSE FEES YOU HAVE PAID, PROVIDED THAT YOU HAVE NOT INSTALLED
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OR USED SUCH ELASTICSEARCH SOFTWARE.
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This Software License Agreement (this “Agreement") is entered into by and
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between the applicable Elasticsearch entity referred to in Attachment 1 below
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(“Elasticsearch”) and the person or entity (“You”) that has downloaded the
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Elasticsearch software to which this Agreement is attached
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(“Elasticsearch Software”), and is effective as of the date you download the
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Elasticsearch Software (the “Effective Date”).
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1. Software License and Restrictions
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1.1. License Grants. Subject to the terms and conditions of this Agreement and
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complete payment of any and all applicable license fees (provided that no
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license fee shall be required for use of the Elasticsearch Software for purely
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development purposes), Elasticsearch agrees to grant, and does hereby grant to
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You during the term and for the restricted scope of this Agreement, solely for
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Your internal business operations, a limited, non-exclusive, non-transferable
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right and license (without the right to grant or authorize sublicenses) to: (i)
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install and use the object code version of the Elasticsearch Software, subject
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to any applicable quantitative limitations set forth in any order form executed
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by Elasticsearch and You (“Order Form”); (ii) use, and distribute internally a
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reasonable number of copies of the documentation, if any, provided with the
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Elasticsearch Software (“Documentation”), provided that You must include on such
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copies all Elasticsearch trademarks, trade names, logos and notices present on
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the Documentation as originally provided to You by Elasticsearch; (iii) permit
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third party contractors performing services on Your behalf to use the
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Elasticsearch Software and Documentation as set forth in (i) and (ii) above,
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provided that such use must be solely for Your benefit, and You shall be
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responsible for all acts and omissions of such contractors in connection with
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their use of the Elasticsearch Software.
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1.2. Reservation of Rights; Restrictions. As between Elasticsearch and You,
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Elasticsearch owns all right title and interest in and to the Elasticsearch
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Software and any derivative works thereof, and except as expressly set forth in
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Section 1.1 above, no other license to the Elasticsearch Software is granted to
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You by implication, estoppel or otherwise. You agree not to: (i) prepare
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derivative works from, modify, copy or use the Elasticsearch Software in any
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manner except as expressly permitted in this Agreement or applicable law; (ii)
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transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer
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the Elasticsearch Software in whole or in part to any third party; (iii) use the
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Elasticsearch Software for providing time-sharing services, any software-
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as-a-service offering (“SaaS”), service bureau services or as part of an
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application services provider or other service offering; (iv) alter or remove
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any proprietary notices in the Elasticsearch Software; or (v) make available to
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any third party any analysis of the results of operation of the Elasticsearch
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Software, including benchmarking results, without the prior written consent of
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Elasticsearch.
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2. Term and Termination
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2.1 Term. This Agreement shall commence on the Effective Date, and shall
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continue in force for the license term set forth in the applicable Order Form,
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unless earlier terminated under Section 2.2 below.
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2.2 Termination. Either party may, upon written notice to the other party,
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terminate this Agreement for material breach by the other party automatically
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and without any other formality, if such party has failed to cure such material
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breach within thirty (30) days of receiving written notice of such material
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breach from the non-breaching party. Notwithstanding the foregoing, this
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Agreement shall automatically terminate in the event that You intentionally
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breach the scope of the license granted in Section 1.1 of this Agreement.
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2.3 Post Termination or Expiration. Upon termination or expiration of this
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Agreement, for any reason, You shall promptly cease the use of the Elasticsearch
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Software and Documentation and destroy (and certify to Elasticsearch in writing
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the fact of such destruction), or return to Elasticsearch, all copies of the
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Elasticsearch Software and Documentation then in Your possession or under Your
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control.
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2.4 Survival.
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Sections 2.3, 3, 4 and 5, as well as any payment obligations under this
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Agreement and/or the Order Form, shall survive any termination or expiration of
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this Agreement.
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3. Disclaimer of Warranties
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TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ELASTICSEARCH SOFTWARE
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IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ELASTICSEARCH AND ITS
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LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING
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OR RELATING TO THE ELASTICSEARCH SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM
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EXTENT PERMITTED UNDER APPLICABLE LAW, ELASTICSEARCH AND ITS LICENSORS
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SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
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PARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECT TO THE ELASTICSEARCH
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SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE FOREGOING.
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FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT THE ELASTICSEARCH
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SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE ELASTICSEARCH SOFTWARE WILL
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BE UNINTERRUPTED.
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4. Limitation of Liability
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4.1. Disclaimer of Certain Damages. IN NO EVENT SHALL YOU OR ELASTICSEARCH OR
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ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS
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INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
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INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION
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WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE ELASTICSEARCH SOFTWARE,
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OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A
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BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE
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RESPONSIBLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
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LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A
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BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF
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THE LICENSE GRANTED IN SECTION 1.1 OR TO ANY OTHER LIABILITY THAT CANNOT BE
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EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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4.2. Damages Cap. IN NO EVENT SHALL ELASTICSEARCH’S OR ITS LICENSORS’ AGGREGATE,
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CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS YOU WERE REQUIRED
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TO PAY ELASTICSEARCH IN RELATION TO THIS AGREEMENT FOR THE ELASTICSEARCH
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SOFTWARE GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY
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PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
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4.3. YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A
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REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE
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MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS
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ESSENTIAL PURPOSE.
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5. Miscellaneous
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This Agreement, including Attachment 1 hereto, which is hereby incorporated
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herein by this reference, completely and exclusively states the entire agreement
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of the parties regarding the subject matter herein, and it supersedes, and its
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terms govern, all prior proposals, agreements, or other communications between
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the parties, oral or written, regarding such subject matter. For the avoidance
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of doubt, the parties hereby expressly acknowledge and agree that if You issue
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any purchase order or similar document in connection with its purchase of a
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license to the Elasticsearch Software, You will do so only for Your internal,
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administrative purposes and not with the intent to provide any contractual
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terms. This Agreement may not be modified except by a subsequently dated,
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written amendment that expressly amends this Agreement and which is signed on
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behalf of Elasticsearch and You, by duly authorized representatives. If any
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provision(s) hereof is held unenforceable, this Agreement will continue without
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said provision and be interpreted to reflect the original intent of the parties.
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ATTACHMENT 1
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ADDITIONAL TERMS AND CONDITIONS
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A The following additional terms and conditions apply to all Customers with
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principal offices in North America:
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Applicable Elasticsearch Entity. The entity providing the license is
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Elasticsearch, Inc., a Delaware Corporation.
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Government Rights. The Elasticsearch Software product is "Commercial Computer
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Software," as that term is defined in 48 C.F.R. 2.101, and as the term is used
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in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer
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software" and "commercial computer software documentation". If acquired by or
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on behalf of a civilian agency, the U.S. Government acquires this commercial
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computer software and/or commercial computer software documentation subject to
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the terms of this Agreement, as specified in 48 C.F.R. 12.212 (Computer
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Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation
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("FAR") and its successors. If acquired by or on behalf of any agency within
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the Department of Defense ("DOD"), the U.S. Government acquires this commercial
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computer software and/or commercial computer software documentation subject to
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the terms of the Elasticsearch Software License and Services Agreement as
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specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR
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Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202.
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This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48
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C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other
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clause or provision that addresses Government rights in computer software,
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computer software documentation or technical data related to the Elasticsearch
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Software under this Agreement and in any Subcontract under which this commercial
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computer software and commercial computer software documentation is acquired or
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licensed.
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Export Control. You acknowledge that the goods, software and technology acquired
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from Elasticsearch are subject to U.S. export control laws and regulations,
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including but not limited to the International Traffic In Arms Regulations
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(“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations
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("EAR") (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in
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the EAR and U.S. Department of the Treasury regulations; the economic sanctions
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regulations and guidelines of the U.S. Department of the Treasury, Office of
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Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56,
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signed into law October 26, 2001), as amended. You are now and will remain in
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the future compliant with all such export control laws and regulations, and will
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not export, re-export, otherwise transfer any Elasticsearch goods, software or
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technology or disclose any Elasticsearch software or technology to any person
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contrary to such laws or regulations. You acknowledge that remote access to
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Elasticsearch Software may in certain circumstances be considered a re-export of
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Elasticsearch Software, and accordingly, may not be granted in contravention of
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U.S. export control laws and regulations. Governing Law. This Agreement will be
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governed by the laws of the State of California, without regard to its conflict
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of laws principles. This Agreement shall not be governed by the 1980 UN
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Convention on Contracts for the International Sale of Goods. All suits hereunder
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will be brought solely in Federal Court for the Northern District of California,
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or if that court lacks subject matter jurisdiction, in any California State
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Court located in Santa Clara County. The parties hereby irrevocably waive any
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and all claims and defenses either might otherwise have in any such action or
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proceeding in any of such courts based upon any alleged lack of personal
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jurisdiction, improper venue, forum non conveniens or any similar claim or
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defense.
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B The following additional terms and conditions apply to all Customers with
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principal offices outside of North America:
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(1) Applicable Elasticsearch Entity. The entity providing the license in
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(Germany is Elasticsearch Gmbh; in France is Elasticsearch SARL, in the United
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(Kingdom is Elasticsearch Ltd, and in all other countries is Elasticsearch BV.
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(2) Choice of Law. This Agreement shall be governed by and construed in
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(accordance with the laws of the State of New York, without reference to or
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(application of choice of law rules or principles. Notwithstanding any choice of
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(law provision or otherwise, the Uniform Computer Information Transactions Act
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(UCITA) and the United Nations Convention on the International Sale of Goods
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(shall not apply.
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(3) Arbitration. Any dispute, claim or controversy arising out of or relating
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(to this Agreement or the existence, breach, termination, enforcement,
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(interpretation or validity thereof, including the determination of the scope or
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(applicability of this agreement to arbitrate, each, a “Dispute”) shall be
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(referred to and finally resolved by arbitration under the rules and at the
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(location identified below. The arbitral panel shall consist of three 3)
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(arbitrators, selected as follows: each party shall appoint one 1) arbitrator;
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(and those two 2) arbitrators shall discuss and select a chairman. If the two
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(party-appointed arbitrators are unable to agree on the chairman, the chairman
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(shall be selected in accordance with the applicable rules of the arbitration
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(body. Each arbitrator shall be independent of each of the parties. The
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(arbitrators shall have the authority to grant specific performance and to
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(allocate between the parties the costs of arbitration including service fees,
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(arbitrator fees and all other fees related to the arbitration) in such
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(equitable manner as the arbitrators may determine. The prevailing party in any
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(arbitration shall be entitled to receive reimbursement of its reasonable
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(expenses incurred in connection therewith. Judgment upon the award so rendered
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(may be entered in a court having jurisdiction or application may be made to
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(such court for judicial acceptance of any award and an order of enforcement, as
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(the case may be. Notwithstanding the forgoing, Elasticsearch shall have the
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(right to institute an action in a court of proper jurisdiction for preliminary
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(injunctive relief pending a final decision by the arbitrator, provided that a
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(permanent injunction and damages shall only be awarded by the arbitrator. The
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(language to be used in the arbitral proceedings shall be English.
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(3.a) In addition, the following terms only apply to Customers with principal
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(offices within Europe, the Middle East or Africa EMEA):
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Arbitration Rules and Location. Any Dispute shall be referred to and finally
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resolved by arbitration under the London Court of International Arbitration
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(“LCIA”) Rules (which Rules are deemed to be incorporated by reference into this
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clause) on the basis that the governing law is the law of the State of New York,
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USA. The seat, or legal place, of arbitration shall be London, England.
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(3.b) In addition, the following terms only apply to Customers with principal
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(offices within Asia Pacific, Australia & New Zealand:
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Arbitration Rules and Location. Any Dispute shall be referred to and finally
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resolved by arbitration under the Rules of Conciliation and Arbitration of the
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International Chamber of Commerce (“ICC”) in force on the date when the notice
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of arbitration is submitted in accordance with such Rules (which Rules are
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deemed to be incorporated by reference into this clause) on the basis that the
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governing law is the law of the State of New York, USA. The seat, or legal
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place, of arbitration shall be Singapore.
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(3.c) In addition, the following terms only apply to Customers with principal
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(offices within the Americas excluding North America):
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Arbitration Rules and Location. Any Dispute shall be referred to and finally
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resolved by arbitration under International Dispute Resolution Procedures of the
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American Arbitration Association (“AAA”) in force on the date when the notice of
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arbitration is submitted in accordance with such Procedures (which Procedures
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are deemed to be incorporated by reference into this clause) on the basis that
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the governing law is the law of the State of New York, USA. The seat, or legal
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place, of arbitration shall be New York, New York, USA.
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(4) In addition, for Customers with principal offices within the UK, the
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(following new sentence is added to the end of Section 4.1:
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Nothing in this Agreement shall have effect so as to limit or exclude a party’s
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liability for death or personal injury caused by negligence or for fraud
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including fraudulent misrepresentation and this Section 4.1 shall take effect
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subject to this provision.
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(5) In addition, for Customers with principal offices within France, Sections
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1.2, 3 and 4.1 of the Agreement are deleted and replaced with the following new
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Sections 1.2, 3 and 4.1: 1.2 Reservation of Rights; Restrictions. Elasticsearch
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owns all right title and interest in and to the Elasticsearch Software and any
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derivative works thereof, and except as expressly set forth in Section 1.1
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above, no other license to the Elasticsearch Software is granted to You by
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implication, or otherwise. You agree not to prepare derivative works from,
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modify, copy or use the Elasticsearch Software in any manner except as expressly
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permitted in this Agreement; provided that You may copy the Elasticsearch
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Software for archival purposes, only where such software is provided on a non-
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durable medium; and You may decompile the Elasticsearch Software, where
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necessary for interoperability purposes and where necessary for the correction
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of errors making the software unfit for its intended purpose, if such right is
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not reserved by Elasticsearch as editor of the Elasticsearch Software. Pursuant
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to article L122-6-1 of the French intellectual property code, Elasticsearch
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reserves the right to correct any bugs as necessary for the Elasticsearch
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Software to serve its intended purpose. You agree not to: (i) transfer, sell,
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rent, lease, distribute, sublicense, loan or otherwise transfer the
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Elasticsearch Software in whole or in part to any third party; (ii) use the
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Elasticsearch Software for providing time-sharing services, any software-
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as-a-service offering (“SaaS”), service bureau services or as part of an
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application services provider or other service offering; (iii) alter or remove
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any proprietary notices in the Elasticsearch Software; or (iv) make available to
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any third party any analysis of the results of operation of the Elasticsearch
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Software, including benchmarking results, without the prior written consent of
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Elasticsearch.
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3. Disclaimer of Warranties
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||
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE ELASTICSEARCH
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SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY
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KIND, AND ELASTICSEARCH AND ITS LICENSORS MAKE NO WARRANTIES WHETHER
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EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE ELASTICSEARCH
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||
SOFTWARE OR DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
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LAW, ELASTICSEARCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED
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WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
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ELASTICSEARCH SOFTWARE AND DOCUMENTATION, AND WITH RESPECT TO THE USE OF THE
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FOREGOING. FURTHER, ELASTICSEARCH DOES NOT WARRANT RESULTS OF USE OR THAT
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THE ELASTICSEARCH SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE
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ELASTICSEARCH SOFTWARE WILL BE UNINTERRUPTED.
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4.1 Disclaimer of Certain Damages.
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IN NO EVENT SHALL YOU OR ELASTICSEARCH OR ITS LICENSORS BE LIABLE FOR ANY
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LOSS OF PROFITS, LOSS OF USE, BUSINESS
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INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
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INDIRECT OR UNFORESEEABLE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
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OUT OF THE USE OR INABILITY TO USE THE ELASTICSEARCH SOFTWARE, OR THE
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PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A
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||
BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE. THE
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LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 4.1 SHALL NOT APPLY TO A
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||
BREACH, THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU, OF THE
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||
SCOPE OF THE LICENSE GRANTED IN SECTION 1.1, OR IN CASE OF DEATH OR PERSONAL
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INJURY.
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