This Agreement is entered into between Elastx AB, org.nr. 556906-5617 (“Elastx,” “we” or “us”) and the person or entity purchasing or using our Services (“customer,” “you” or “your”). It is effective in acceptance of these terms of service. Date of version: 2023-10-12
Throughout this Agreement, our products and Services are referred to as “Service” or “Services.”
a. The pricing, features and terms of the Services you purchase from us are set out on the web page (www.elastx.se) on which the particular Services are described (the “Specification Page”). The Services are provided to you based on the Description Page and the Effective Date when the Service is initiated. The Description Page may change during the Term.
b. End of life (EOL) of a Service. We will use commercially reasonable efforts to make the Services available to you. We reserve the right to modify the Services, or the way in which we provide them to you. When we announce that a Service is End of life we guarantee a minimum 3 months for you to migrate to a similar Service.
c. You agree that Elastx may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version at elastx.com. The revised terms shall be effective fifteen days after posting and/or notifying you. By continuing to use or receive the Services after the effective date of any revisions, you agree to be bound by the revised policies or this Agreement. It is your responsibility to check elastx.com regularly for changes to the policies and this Agreement. If you disagree with any modifications to the policies or this Agreement prior to the expiration of the fifteen-day period, your sole and exclusive remedy shall be to stop using the Services.
d. Support Service Level Agreement (Support SLA). We guarantee response times according to our: Support SLA.
e. Availability Service Level Agreement (Availability SLA). We guarantee uptime on our Services according to our: Availability SLA.
f. Data Protection and Disaster Recovery We provide our Services to you according to our Service Description and SLA’s.
Apart from Elastx Service Description of their Services, you as a customer are responsible for:
Below policies are part of the Agreement.
a. Acceptance Use Policy (AUP). You may not use our Services to contravene the laws of Sweden, or any other jurisdiction in which you use or access our Services. See: Acceptance Use Policy
b. This privacy policy is part of your agreement with us, or, if you do not have a contract, it governs information you provide to us. See: Privacy Policy
a. Fees are set out on the Description Page (the “Fees”). We send a monthly invoice for previous month usage with 30 days payment terms or you can pay in advance using credit card.
b. Fees are not refundable for any reason, other than in the case of our breach. You are eligible for compensation if we haven't fulfilled our Availability SLA.
c. If you have not paid the Fees by the Due Date, we may charge you interest in the amount of 2.0% per month (or the highest rate allowed by law) and collection charges (including, but not limited to attorney’s fees). If you still haven’t paid we may terminate this Agreement, or suspend the Services, without notice, at our sole and exclusive discretion.
d. If you dispute a Fee charged by us to you, you must contact us prior to the Due Date with your view of the dispute.
Unless set out on your Order Form the term of this Agreement is month-to-month.
a. Either of us may terminate this Agreement by providing the other with written notice of intent to terminate (a “Termination Notice”). You must register a ticket to our support (support@elastx.se) of your intent to terminate this agreement no less than thirty days prior to the renewal of your Service.
b. Either of us may terminate this Agreement by providing the other with written notice of a material breach. The written notice must contain sufficient facts from which the non-breach party may identify the alleged cause of the breach, and take steps to cure such a breach. Upon delivery of the notice of material breach, the party of alleged breach shall have ten calendar days during which the breach may be cured. If the material breach is incapable of cure, the non-breaching party may terminate this Agreement immediately.
c. We may terminate this Agreement, or a particular Service, immediately upon your violation of any of the policies incorporated into this Agreement; your violation of any licenses with Third Parties; or your bankruptcy.
d. Upon termination of this Agreement, you are responsible for removal of your data from our servers. Any data present on our backup servers will be overwritten. We shall have no obligation whatsoever to provide data to you upon termination of this Agreement.
e. If the Services are terminated based on your failure to pay the Fees when due or a breach of any of our Agreements, we may charge you a reconnection fee.
a. Mutual Warranties: each party has the power, authority, and legal right to enter into this Agreement; each party has the power, authority, and legal right to perform their obligations under this Agreement.
b. We warrant that we will perform in a competent manner.
c. You represent and warrant to us that:
i. you have the experience and knowledge necessary to use the Services;
ii. you will comply with the terms of any licenses required for your use of Third Party Software;
iii. you will draft end user agreements with terms that are no less restrictive than the terms of our Service to your customers
iv. you own the entire right, title and interest to, or have an appropriate license to use all materials provided to us, or which may be accessed or transmitted using the Services;
v. your end users have warranted that they own the entire right, title and interest to, or have an appropriate license to use all materials provided to you, or which may be accessed or transmitted using the Services, and have agreed to indemnify us if they do not.
a. We are not liable to you, or any third parties, for harm caused by or related to the Services, or your, or a third party’s, inability to utilize the Services, unless it is caused by our sole and exclusive gross negligence.
b. We are not liable to you, or any third parties, for lost profits, whether direct or indirect, special or incidental, consequential or punitive, or damages of any kind. This paragraph applies whether or not such potential liability was known to us, or should have been known.
c. Our maximum aggregate liability for any claims made pursuant to, based on the Services, Third Party Vendors, under any theory of law, is the amount paid by you for the Services for the month prior to the occurrence of the event or events giving rise to the claim.
a. You agree to indemnify, defend and hold us harmless, including, but not limited to our parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services (ii) any violation by you of the AUP; (iii) any breach of any of your representations, warranties or covenants contained in this Terms of Service (TOS); or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this TOS. For the purpose of this paragraph only, the terms used to designate you include you, your customers, visitors to your website, and users of your products or Services, the use of which is facilitated by us.
a. Software
i. The Services may come pre-configured with software owned by a Third Party (the “Third Party Software”). If you indicate to us that you already have a license to use the Third Party Software, we may require you to provide us with evidence of this license. You agree to comply with your license agreement while using the Third Party Software.
ii. If you do not have a license to use the Third Party Software, you agree to comply with the terms of any license that is required for you to use the Third Party Software.
b. You may be required to agree to Third Party Vendor licenses in order to use the Services. You agree to preserve and not obscure trademark, copyright and other indications of intellectual property ownership placed on any software, hardware provided to you, or displayed during your use of the Services.
c. You must have a valid license to use the software you place on our equipment. You agree to provide us with evidence of this license upon our request.
d. If we license software to you, that license terminates upon the Termination or expiration of this Agreement.
e. You are responsible to us for any unauthorized installation, use, copying, access or distribution of the Services if you fail to: include in your customer agreements terms and conditions that are similar to but no less restrictive than those set out herein, or incorporated by reference; and, if your customers resell our Services, require your resellers to include in their customer agreements, terms and conditions that are substantially similar to but no less restrictive than those set out herein, or incorporated by reference.
f. Any information provided to us in connection with your use of the Services shall be provided by you on a non-confidential basis. Such information shall be considered non-confidential and our property. By submitting any such information to us you agree to a no-charge assignment to us of all worldwide rights, title, and interest in copyrights and other intellectual property rights to the information. We shall be free to use such information on an unrestricted basis. This paragraph is expressly limited to information you provide to us to troubleshoot and/or enhance the Services provided to you. It excludes any information you place on our equipment using the Services (“Your Information”). We shall have no ownership interest in Your Information, and between Elastx and you, you shall be the exclusive owner of Your Information.
Neither party shall ever disclose to any third party any Confidential Information received from the other party. “Confidential Information” means information disclosed to a party under this Agreement, which the disclosing party has identified as confidential information. Confidential Information does not include any information which (i) at the time of disclosure is in the public domain; (ii) after disclosure has become part of the public domain by publication or otherwise, except by breach of this Agreement by the receiving party; (iii) which the receiving party can establish by competent proof was in its possession at the time of disclosure; (iv) which the receiving party independently develops without the use of the disclosures hereunder or; (v) is required to be disclosed by any party by law or regulation having force of law. Each party shall ensure that all of its advisors and consultants who are given access to Confidential Information are bound by equivalent confidentiality obligations.
a. Notices
All notices, claims, demands, and other communications hereunder must be registered as a ticket to our support (support@elastx.se).
b. Force Majeure
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, interruptions of telecommunications providers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. Notwithstanding the above, in the event Force Majeure has prevented us from performing our obligations under this Agreement for one month, you shall be entitled to terminate this Agreement at no additional cost. The party affected by the Force Majeure shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the Force Majeure event.
c. Choice of Law, Jurisdiction and Venue
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.
The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be Swedish. This Agreement shall be governed by the substantive law of Sweden.
d. Assignment
Neither this Agreement nor any rights under this Agreement, except in the case of Company, other than monies due or to become due, shall be assigned or otherwise transferred by you (by operation of law or otherwise) without our prior written consent. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
e. No Agency
This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
f. Survival
Sections 2(b), 6, 7, 8, 9, 10, 11(a), (c), and (d) shall survive the termination of this Agreement.
Previous version: 2018-05-18