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Master Subscription Agreement

Last updated on Jul 08 2021

This Master Subscription Agreement (“Agreement”) permits Customer to purchase a subscription to products and services from Elementum Ltd. (“Elementum”) described in a schedule and/or order form executed by the parties (collectively, “Order Form(s)”) and sets forth the terms and conditions that govern those products and services. This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer which reference this Agreement.

1. ELEMENTUM PRODUCTS

1.1 Provision of Products

Elementum will provide Customer with the software-as-a-service products set forth on an applicable Order Form (each, an “Elementum Product”). Each Elementum Product is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Customer may access and use Elementum Products solely for its own internal business purposes and only in accordance with the terms and conditions of this Agreement and any end user technical documentation provided with Elementum Products (“Documentation”). No software code will be provided. If Customer is given passwords to access Elementum Products, Customer shall require that all users accessing Elementum Products (“Permitted Users”) keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords, including those of Permitted Users.

1.2 Contractors

Customer may permit its independent contractors and consultants who are not competitors of Elementum (“Contractors”) to serve as Permitted Users (only for Customer’s benefit), provided Customer remains responsible for compliance by each such Contractor with this Agreement.

1.3 General Restrictions

Customer shall not (and shall not allow any Permitted User to): (a) rent, lease, copy, provide access to, or sublicense any Elementum Product to a third party (except as authorized by Section 1.2 above), (b) use any Elementum Product or any Documentation to help develop, or help provide to any third party, any other product or service, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any Elementum Product, except to the extent permitted by applicable law, and then only upon advance notice to Elementum, (d) modify or create derivatives of any Elementum Product or any Documentation, or (e) remove or obscure any proprietary or other notices contained in any Elementum Product (including any reports or data printed from Elementum Products) or Documentation. Customer will not disclose any pricing related information, or information related to performance of Elementum Products, all of which is deemed Elementum Confidential Information, to any third party.

2. CUSTOMER DATA

2.1 Customer Data Generally

“Customer Data” means all (i) data input by Customer in Elementum Products, or provided by Customer to Elementum to input into Elementum Products, and (ii) analytics reports generated by Elementum Products from analysis of the data referenced in (i). As between the parties, Customer shall retain all right, title and interest in the Customer Data. Customer is solely responsible for the accuracy and legality of, and the means by which Customer acquires, Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Elementum a non-exclusive, worldwide, royalty-free right to use, access, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide Elementum Products to Customer.

2.2 Aggregate and Anonymized Data

Customer hereby grants to Elementum a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable license to use, copy, reproduce, distribute, and prepare derivative works of Customer Data in aggregated, anonymized form, provided that such aggregate, anonymized data does not identify Customer or any of its Permitted Users or allow Customer or any of its Permitted Users to be identified.

2.3 Protection and Disclosure of Customer Data

Elementum will (i) maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, and (ii) comply with all laws and regulations relating to privacy and data protection applicable to Customer Data. Customer agrees that Elementum may disclose Customer Data (a) when compelled or required by law, (b) to third party service providers that Elementum retains to provide Elementum Products and services, provided that Elementum will remain responsible for the acts and omissions of such service providers, and (c) as expressly permitted in writing by Customer. If Elementum becomes aware of any unauthorized access, use, disclosure, or loss of Customer Data, Elementum will promptly notify Customer of such event no later than seventy-two (72) hours from becoming aware thereof. In addition, Elementum will promptly investigate and use commercially reasonable efforts to remedy the security event, in cooperation with Elementum’s and Customer’s security personnel.

Without limiting the foregoing, the parties acknowledge and agree that Elementum is a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) (to the extent applicable) and is receiving personal information from Customer in order to provide Elementum Products and services pursuant to this Agreement, which constitutes a business purpose. Elementum shall not (i) sell any such personal information, or (ii) retain, use, or disclose any personal information provided by Customer under this Agreement except as necessary for the specific purpose of providing Elementum Products and services to Customer hereunder, or otherwise as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Elementum certifies that it understands the restrictions of this clause.

3. SUPPORT & SYSTEM AVAILABILITY

Elementum’s support services and system availability are described at https://elementum.ai/customer-support-system-availability

4. OWNERSHIP

4.1 Ownership

Elementum shall retain all right, title and interest in Elementum Products and related services. Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to Elementum Products. All rights not expressly granted herein are reserved.

5. FEES & PAYMENT

5.1 Fees and Payment

All fees are as set forth in the applicable Order Form and, unless an Order Form provides otherwise, are payable in advance of the applicable Subscription Term. Fees shall be paid within thirty (30) days of Customer’s receipt of Elementum’s invoice, unless otherwise specified in the applicable Order Form. Elementum may adjust the fees charged to Customer hereunder on written notice delivered to Customer at least sixty (60) days prior to the end of the then-current Subscription Term (and such fees will take effect beginning on the next term). Except as expressly set forth in Section 6 (Limited Warranty), all fees are non-cancellable (for each Subscription Term) and non-refundable. Elementum’s fees are exclusive of all taxes and other governmental assessments. Customer is responsible for all such taxes and assessments, other than those based on the income of Elementum.

5.2 Suspension

If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Elementum reserves the right to suspend Customer’s access to the applicable Elementum Product (and any related services), without liability to Customer, until such amounts are paid in full.

6. TERM AND TERMINATION

6.1 Term

Unless otherwise terminated as set forth below, each Order Form will begin on the initial Subscription Term set forth thereon. Thereafter, each Order Form will automatically renew for successive renewal terms of equal length to the initial Subscription Term, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.

6.2 Termination

Either party may terminate this Agreement on five (5) days written notice if there are no Order Forms in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement or an Order Form (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate, with email notice being sufficient in the case of non-payment), (b) ceases operation without a successor, or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding.

6.3 Effect of Termination

Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to Elementum Products (including any and all related services), and (ii) each party will return to the other party (or destroy at the discloser’s request) such other party’s Confidential Information. If Customer doesn’t retrieve its Customer Data prior to the expiration or termination of this Agreement, Customer will have thirty (30) days to access its account and download or export its Customer Data. Thereafter, Elementum will have no obligation to maintain or provide any Customer Data and, unless legally prohibited, will delete all Customer Data in Elementum’s systems or otherwise in its possession or control.

6.4 Suspension

In addition to its other rights or remedies in this Agreement, Elementum may, in its reasonable discretion, deactivate Customer’s user name(s) and password(s) and/or suspend provision of Elementum Products and related services, upon prior written notice to Customer, as the circumstances permit, if (i) Elementum deems such suspension necessary as a result of Customer’s breach of Section 1.3, (ii) Elementum reasonably determines suspension is necessary to avoid material harm to Elementum (including the security of the systems used to provide Elementum Products and related services) or its other customers, or (iii) as required by law or at the request of governmental entities.

6.5 Survival

The following Sections shall survive any expiration or termination of this Agreement: 1.3, 2.2, 4, 5, 6, 7.2, 8, 9 and 10.

7. LIMITED WARRANTY

7.1 Limited Warranty

Elementum warrants, for Customer’s benefit only, that Elementum Products will operate in material conformity with their applicable Documentation. Elementum’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Elementum’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Elementum determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive, as its sole remedy, a refund of any fees Customer has pre-paid for use of Elementum Products or related services it has not received as of the date of termination. The limited warranty set forth in this Section 7.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which it first became aware of the non-conformity, or (ii) if the error was caused by misuse or unauthorized modifications of Elementum Products or third-party hardware, software or services, or (iii) to Elementum Products provided on a no-charge or evaluation basis.

7.2 Disclaimer; Limitation

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, ELEMENTUM PRODUCTS AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. ELEMENTUM DOES NOT MAKE ANY OTHER WARRANTIES OF ANY KIND, AND EXPRESSLY DISCLAIMS ALL SUCH OTHER WARRANTIES,WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ELEMENTUM DOES NOT WARRANT THAT CUSTOMER’S USE OF ELEMENTUM PRODUCTS (AND RELATED SERVICES) WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE OR THAT IT WILL MEET CUSTOMER’S REQUIREMENTS.

NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID BY CUSTOMER TO ELEMENTUM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (OR, IF NO AMOUNTS HAVE BEEN PAID, US$5,000.00), OR (III) IN THE CASE OF ELEMENTUM’S LIABILITY, THE COST OR PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. THE LIMITATIONS ABOVE WILL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 9, A PARTY’S INDEMNITY OBLIGATIONS, OR CUSTOMER’S BREACH OF SECTION 1.3.

8. INDEMNIFICATION

Elementum shall (a) defend, at its sole expense, Customer, from and against any claim of infringement of a patent, copyright, or trademark asserted against Customer by a third party based upon Customer’s use of Elementum Products in accordance with the terms of this Agreement, and (b) pay all related damages, fees, and costs that are finally awarded in a judgment or agreed to in a settlement, provided that Elementum shall have received from Customer: (i) prompt written notice of such claim (but, in any event, notice in sufficient time for Elementum to respond without prejudice), (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim, and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any Elementum Product is, or in Elementum’ opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Elementum may, in its sole discretion: (aa) substitute substantially functionally similar products or services for Elementum Product(s) at issue, (bb) procure for Customer the right to continue using Elementum Products, or if (aa) and (bb) are commercially impracticable, (cc) terminate this Agreement and refund to Customer any fees pre-paid by Customer for use of Elementum Products or related services it has not received as of the date of termination. The foregoing indemnification obligation of Elementum shall not apply: (1) if an Elementum Product is modified by any party other than Elementum, but solely to the extent the alleged infringement is caused by such modification, (2) an Elementum Product is combined with other non-Elementum products or processes not authorized by Elementum, but solely to the extent the alleged infringement is caused by such combination, (3) to any unauthorized use of Elementum Products, (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within Elementum Products.

9. CONFIDENTIAL INFORMATION

Each party agrees that all non-public business and technical information that it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information will be Elementum’s Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, access, or disclosure of the Confidential Information. The Receiving Party’s nondisclosure obligations shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it, without confidentiality restrictions, prior to receipt of the Confidential Information, or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will promptly notify the Disclosing Party and use commercially reasonable efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore, upon any breach or potential breach by the Receiving Party of the obligations in this Section 9, the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law or in equity.

10. GENERAL TERMS

10.1 Logo Use

Customer agrees that Elementum may use Customer’s name and logo on Elementum’ web site and in Elementum’s promotional materials as part of a general list of customers. No other use is authorized.

10.2 Assignment

This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except with the prior written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 10.2. will be null and void.

10.3 Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for payment obligations) if the delay or failure is due to events which are beyond the reasonable control of such party, such as, by way of example, a strike, blockade, war, act of terrorism, riot, natural disaster, pandemics, failure or diminishment of telecommunications, or refusal of a license by a government agency.

10.4 Governing Law; Arbitration

This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods, which shall not apply to this Agreement. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any court of competent jurisdiction), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”). To the extent the JAMS streamlined rules are available, they shall apply. The arbitration shall take place in Wilmington, Delaware, in the English language and the arbitral decision may be enforced in any court of competent jurisdiction. Subject to the parties’ agreement to arbitrate above, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Wilmington, Delaware and both parties hereby submit to the personal jurisdiction of such courts.

10.5 Notice

Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt, (ii) if given by overnight courier service, the first business day following dispatch, or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to Elementum must be delivered to the following email address: billing@elementum.com (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).

10.6 Entire Agreement

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications of any kind relating to the subject matter of this Agreement. No terms in a Customer purchase order or other order documentation will be incorporated into this Agreement, and all such terms are null and void. This Agreement may only be amended or waived in a writing executed by both parties. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement can otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign) or as acknowledged through the execution of an Order Form with reference to this Agreement.