Legal

Terms of Service

Last Updated: May 15, 2024

This Elodin Terms of Service Agreement (this “Agreement”) governs the access and use of the Elodin Services (as defined in Section 1 below), and is a legally binding contract entered into between Elodin Systems, Inc., a Delaware corporation (“Elodin”) and the person or entity on whose behalf access to the Elodin Services, whether that is you or your employer or another person or entity (”you” or the “Customer”).  Please note that Elodin may modify the terms of this Agreement in accordance with Section 13.  Please feel free to contact Elodin at info@elodin.systems if you have any questions about this Agreement.

ACCEPTANCE OF THIS AGREEMENT:  BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, ENTERING INTO OR ACCEPTING ANY ELODIN WRITTEN OR ELECTRONIC ORDER FORMS OR ONLINE SIGN-UP, REGISTRATION OR ODER FLOW THAT REFERENCES THIS AGREEMENT (EACH, AN “ORDER FORM”), DEPLOYING THE ELODIN SERVICES, OR OTHERWISE USING OR ACCESSING THE ELODIN SERVICES IN ANY MANNER: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); AND (2) YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT (WHICH MEANS THAT YOU ARE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE ELODIN SERVICES ON BEHALF OF ANOTHER PERSON OR ENTITY (E.G.) YOUR COMPANY OR EMPLOYER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT, AND USE THE ELODIN SERVICES, ON BEHALF OF SUCH OTHER PERSON OR ENTITY).

IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER AS SET FORTH ABOVE, DO NOT ACCEPT THIS AGREEMENT OR OTHERWISE ACCESS OR USE THE ELODIN SERVICES (OR ANY PART THEREOF).

  1. DEFINITIONS

“Authorized Users” means employees and/or contractors of Customer, including, Administrators (as defined in Section 2.3 below, who are authorized to use the Elodin Services as authorized in this Agreement and subject to any applicable Usage Parameters.

“Client Software” means Elodin’s proprietary downloadable client application software utilizing the Engine Toolkit that is made available to Customer hereunder to inspect, analyze and share Simulations. 

“Cloud Platform” means Elodin’s proprietary online hosted cloud platform which enables Customer to run Simulations, and made available by Elodin through the Client Software and through Elodin’s web application via the Elodin website located at https://www.elodin.systems/, or such other website specified by Elodin.

“Customer Data” means the information and data, including, Simulations, transmitted, processed, and/or otherwise provided by or on behalf of Customer and/or any Authorized User through, or in connection with the use of, the Elodin Services.  Customer Data does not include Usage Data.

“Documentation” means Elodin’s then-current technical and user documentation for the applicable Elodin Services available at https://docs.elodin.systems/quickstart.

“Elodin Services” means the Client Software, Cloud Platform, and any Support (as defined in Section 3.4) including in Customer’s Subscription and made available by Elodin to Customer on a subscription basis and pursuant to this Agreement.

“Engine Toolkit” means Elodin’s proprietary entity component system (ECS) physics toolkit comprised of the Elodin Python SDK, APIs, and libraries available at https://github.com/elodin-sys/elodin.

“Simulations” means the simulations designed by Customer using the Engine Toolkit.

“Subscription” means the subscription plan purchased by Customer to access and use the Elodin Services.

“Usage Data” means Elodin’s technical logs, data, and learnings about Customer’s and its Authorized Users’ use of the Elodin Services, but excluding Customer Data.

“Usage Parameters” means the maximum number of permitted users and/or seats, simulation run-time minutes or data transmission limits, or any other usage parameters regarding the scope of use of the Elodin Services by Customer and/or its Authorized Users, including in the Subscription, or otherwise specified in the Documentation, applicable Order Form(s), or in writing by Elodin.

  1. ELIGIBILITY; ACCOUNTS; COMMUNICATIONS
    1. Eligibility.  Customer represents and warrants to Elodin that: (a) Customer, if an individual, is at least 18 years of age or the applicable age of majority in your jurisdiction; (b) Customer has not previously been suspended or removed from using any portion of the Elodin Services; and (c) neither Customer nor any of its Authorized Users are prohibited from using the Elodin Services pursuant to Section 11 (Trade Controls).
    2. Accounts.  Customer and its Authorized Users may be required to register an account (“Account”) in order to use some or all of the Elodin Services.  In registering an Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date account registration information, which may include, name, location, e-mail address or other contact information, and billing information, relating to Customer and any Authorized Users (“Account Data”), that is true, accurate, current, up to date, and complete.  Customer agrees that it will not, and will not permit any Authorized User or other third party to create an Account or sign up to access the Elodin Services using a false identity or fictitious name or information.  Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting the passwords, license keys and/or other access credentials for the Account.  Customer is solely responsible for any activity originating from Customer’s and its Authorized Users’ Accounts, including, without limitation, regardless of whether such activity is authorized by Customer.  Customer agrees to notify Elodin immediately of any unauthorized use of or access to Customer’s or any Authorized User’s Account.
    3. Administrators; Permissions.  Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to invite Authorized Users to access and use the Elodin Services on behalf of Customer and to assign certain permissions and access rights to each Authorized User (“Permissions”).  Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the Elodin Services.  Customer acknowledges and agrees that Customer is solely responsible and liable for its Administrator(s) administration and management of the Account, including, but not limited to, the inviting and granting of access to the Account and Elodin Services to Authorized Users and the assignment of Permissions to Authorized Users.  For the avoidance of doubt, the term “Authorized Users” as used in this Agreement, includes Administrators.  Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Customer.  
    4. Consent to Electronic Notices.  Customer consents to receiving electronic communications from Elodin via email, through the user-interface of the Elodin Services or through Elodin’s authorized support communication channels, which may include notices about applicable fees and charges, transactional information and other information concerning or related to Customer’s use of the Elodin Services.  These electronic communications are part of Customer’s relationship with Elodin and Customer receives them as part of Customer’s access and use of the Elodin Services. Customer agrees that any notices, agreements, disclosures or other communications that Elodin sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.
  2. ACCESS AND USE OF THE ELODIN SERVICES
    1. Subscriptions.  Subject to the terms and conditions of this Agreement, the Elodin Services are provided on a subscription basis for the subscription term specified in the Order Form (“Subscription Term”), in accordance with the respective Subscription purchased under such Order Form.
    2. Beta Features.  Elodin may from time-to-time, in its sole discretion, make certain beta versions, features and/or functionality of the Elodin Services (collectively, “Beta Versions”) available to Customer to evaluate and try (at Customer’s option) at no additional cost.  In addition to the restrictions set forth in Section 6.2 below, Customer shall not access and/or use the Beta Version without the express prior written approval of Elodin if Customer is a direct competitor of Elodin.  For the avoidance of doubt, any Beta Versions are included in the defined term "Elodin Services" as used throughout this Agreement, unless otherwise stated. BETA VERSION AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY ELODIN IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSION. Elodin reserves the right to terminate Customer's access to any Beta Versions at any time, for any reason.
    3. High-Risk Activities.  Customer acknowledges and agrees that the Elodin Services are not designed or manufactured, and Customer shall not use the Elodin Service in any manner, for: (a) high risk activities such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Elodin Services could lead to death, personal injury, or environmental damage; or (b) processing Prohibited Data.
    4. Support.  Elodin will use commercially reasonable efforts to provide Customer remote technical support by email and/or phone for Customer’s use of the Elodin Services during Elodin’s normal business hours (“Support”).  To submit a request for Support please contact Elodin here:  info@elodin.systems.  Customer may also join Elodin’s Discord channel to receive Support here: https://discord.com/invite/agvGJaZXy5.
    5. Security.  Elodin shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of unencrypted Customer Data.  Without prejudice to Elodin’s foregoing obligations, Customer is responsible for its secure use of the Elodin Services, including, without limitation: (a) protecting account authentication credentials; (b) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (c) taking any appropriate steps to securely encrypt or pseudonymize any Customer Data.
    6. Suspension or Termination. Elodin may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the Elodin Services, without incurring any resulting obligation or liability, if: (a) Elodin receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Elodin to do so; or (b) Elodin believes, in its good faith and reasonable discretion, that (i) Customer or any Authorized User has accessed or used the Elodin Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement, or that such use ; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Elodin Services; (iii) that such access and use poses an imminent security risk or an imminent risk to the Elodin Services and/or Elodin’s systems, servers, infrastructure and/or networks, or will interfere materially with the proper continued operation of the Elodin Services; or (iv) this Agreement, or any applicable Subscription Term, expires or is terminated. This Section 3.6 does not limit any of Elodin’s other rights or remedies, whether at law, in equity, or under this Agreement.
    7. Changes and Modifications.  From time to time, Elodin reserves the right to release updates to or upgrades of the Elodin Services, including new versions of the Elodin Services, and to otherwise change or discontinue any aspect or feature of the Elodin Services. Changes may not be consistent across all platforms and devices. Elodin will use commercially reasonable efforts to notify Customer (including posting through the Elodin Services) of changes to the Elodin Services that Elodin believes will materially affect Customer’s use of the Elodin Services.
    8. Additional Terms.  When using particular services, features, and/or materials through or in connection with the Elodin Services, additional terms and conditions or other operating rules, policies and procedures may be applicable to, and govern, the use of such services, features, and/or materials, in addition to those in this Agreement (collectively, the “Additional Terms”).  Customer agrees to comply with all such Additional Terms applicable to its use of the Elodin Services.  All such Additional Terms are hereby incorporated into and made a part of this Agreement by reference.  In the event the provisions of any Additional Terms conflict with this Agreement, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
    9. Third Party Integrations. The Elodin Services may contain links to, or otherwise allow Customer to connect to and/or use certain third party products, data, services, websites, applications, software, scripts and/or APIs (all of the foregoing, collectively "Third Party Integrations"). Third Party Integrations are not owned, controlled, or operated by Elodin and are subject to separate terms and conditions of the applicable third party provider. If Customer decides to access and use any Third Party Product and Services, such use is and shall be governed solely by the terms and conditions for such Third Party Integrations.  Elodin does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle, secure, protect or use Customer's data. Elodin is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer's access or use of any such Third Party Integrations, or Customer's reliance on the privacy practices or other policies of such Third Party Integrations.  ELODIN DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS AND SERVICES, AND ELODIN WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY INTEGRATIONS.
  3. FEES & PAYMENT TERMS
    1. Fees.  Customer shall pay the applicable fees for the Subscription purchased by Customer as set forth in the applicable Order Form (the “Fees”).  The Fees paid by Customer are paid for the Subscription Term, and not for any renewal period.  If Customer does not utilize the permitted usage limits under the Subscription, such usage limits are non-refundable and shall not be credited to Customer, nor rollover to any subsequent renewal Subscription Term.  If Customer exceeds the permitted usage limits under Customer’s current Subscription, Customer may purchase additional usage limits or upgrade to a higher subscription plan.  If Customer does not purchase additional usage limits or upgrade its plan, Customer’s access to the Elodin Services may be limited or restricted until the start of the next Subscription Term.  For current pricing and additional fee terms, please see Elodin’s pricing page available at:  https://www.elodin.systems/pricing.  All fees are listed and payable in United States Dollars (USD).  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL FEES ARE NON-REFUNDABLE, NON-RETURNABLE AND NON-CANCELLABLE.
    2. Payment Terms.  Unless otherwise expressly agreed in writing by Elodin all Fees are due and payable in advance, and will be billed to the credit card, or other payment method designated by Customer in the Order Form or otherwise specified in Customer’s Account (the “Payment Method”).  Our third-party payment services providers may charge additional fees for the use of their services to make payments hereunder, including fees in connection with cross-border monetary transactions.  Such additional fees will be subject to Customer’s review, including the time-period in which those fees will be charged, prior to order acceptance and submission.  Customer represents and warrants that it has the legal right and authority to use the Payment Method provided by Customer hereunder.  Customer hereby authorizes Elodin and its third party payment processors to bill and charge the Payment Method for the applicable fees due and payable by Customer hereunder and any applicable taxes and any other charges that Customer may incur in connection with the use of the Elodin Services, in accordance with the billing terms in effect at the time a fee or charge is due and payable.  If Customer provides a credit card as its Payment Method, Elodin may seek pre-authorization of the credit card account prior to the purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.  To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means.  If payment is not received or cannot be charged to Customer for any reason in advance, Elodin reserves the right to suspend or terminate Customer’s and its Authorized User’s access to the Elodin Services and/or terminate this Agreement.
    3. Taxes.  The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such Taxes (other than taxes based on Elodin’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Elodin Services (or any part thereof), or performance of any services by Elodin hereunder.  If Elodin is legally obligated or required to pay or collect Taxes for which Customer is responsible under this Section, Elodin will invoice Customer for, and Customer will pay, the amount of such Taxes, unless Customer provides Elodin with a valid tax exemption certificate authorized by the appropriate taxing authority.  Customer will also pay any additional Taxes as are necessary to ensure that the net amounts received by Elodin after all such Taxes are paid are equal to the amounts that Elodin would have been entitled to in accordance with this Agreement as if the Taxes did not exist.  Customer will provide, at Elodin’s request, proof of withholding tax remittance to the respective tax authority.
    4. Chargebacks. If, at any time, Elodin records a decline, chargeback or other rejection of a charge of any due and payable Fees (“Chargeback”), this will be considered as a breach of Customer’s payment obligations hereunder, and Customer’s use of the Elodin Services may be suspended, disabled or terminated at Elodin’s discretion, subject to any notice and cure periods expressly required under this Agreement. Customer may not have any further access to the Elodin Services in the event of such suspension, disablement or termination, unless Elodin otherwise enables Customer to resume its access to the Elodin Services, which shall be at Elodin’s sole discretion, and subject to Customer’s payment of any applicable Fees in full, including any fees and expenses incurred by us for each Chargeback received (including handling and processing charges and fees incurred by the payment processor), without derogating from any other remedy that may be applicable to Elodin under this Agreement or applicable law.
    5. Trial and Promotional Offers.  Elodin may make the Elodin Services available on a free trial basis or offer promotions (e.g., discounts, fee credits, etc.) for the Elodin Services.  If Customer obtains trial access or accepts any promotion offers for the Elodin Services, Customer acknowledges and agree that upon expiration of the trial and/or Customer’s use of the promotion, continued use of the Elodin Services shall be subject to Customer’s payment of the then-current fees for the applicable Elodin Services.  For the avoidance of doubt, and unless otherwise expressly authorized by Elodin in writing, if Customer terminates its Account prior to the end of a promotion period, or before using the entirety of the promotion, any unused promotions shall expire upon termination.
    6. Changes to Fees.  Elodin may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for Customer until the start of the next Subscription Term.  Elodin will provide written notice to Customer of any changes to the fees that affect the Subscription purchased by Customer hereunder.
  4. CUSTOMER DATA
    1. Customer Data.  As between the parties, excluding Account Data and Usage Data, Customer shall retain all right, title and interest in and to the information and data (including, Personal Data) transmitted, processed, and/or otherwise provided by or on behalf of Customer and/or any Authorized User through, or in connection with the use of, the Elodin Services (“Customer Data”).  Customer hereby grants to Elodin a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Customer Data solely to the extent necessary to provide Customer the Elodin Services and other services provided by Elodin to Customer hereunder.  Customer acknowledges and agrees that Customer, not Elodin, is solely responsible for any and all Customer Data submitted, transmitted, contributed, provided, generated, and/or created by Customer and/or its Authorized Users in connection with the use of the Elodin Services, including its legality, reliability, accuracy, and appropriateness.  Customer represents and warrants that Customer has all necessary ownership, rights and/or authorizations to grant the licenses hereunder in and to the Customer Data.
    2. Personal Data.  To the extent any Customer Data includes, or Customer or any Authorized Users otherwise transmits, processes, and/or provides, any personally identifiable information through or in connection with the use of the Elodin Services (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), Customer represents and warrants that: (a) Customer is in compliance with all Applicable Data Laws, and (b) Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the Elodin Services and/or provide or make available such data to Elodin hereunder.  Personal Data shall only be used in accordance with this Agreement and Elodin’s Privacy Policy available at https://www.elodin.systems/privacy-policy.
    3. Prohibited Data.  Customer represents and warrants that Customer will not, and will not permit any third party (including, without limitation, any Authorized User) to transmit through the Elodin Services, or otherwise use the Elodin Services to store or process any data or information that is (a) controlled under the U.S. International Traffic in Arms Regulations or similar laws, rules or regulations in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export or re-export hereunder, (b) that is considered “sensitive” or falls under any “special categories of data" under Applicable Data Laws, or (c) that Customer does not have the legal right to process or store (all of the foregoing, collectively, “Prohibited Data”).
    4. Publicity. Elodin may use Customer’s name and logo (“Customer Marks”) in its customer lists (including on Elodin’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. Elodin shall use Customer Marks in accordance with Customer’s applicable branding guidelines and Elodin may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).
  5. RIGHTS AND LICENSES TO THE ELODIN SERVICES
    1. Rights and Licenses.  Subject to the terms and conditions of this Agreement (including payment of applicable fees), Elodin grants to Customer the following rights and licenses:some text
      1. License to Client Software.  Elodin grants to Customer a non-exclusive, non-sublicensable, non-transferable limited license, during the Subscription Term, to, and permit Authorized Users to, install, execute, and use the Client Software on computers owned or controlled by Customer, to inspect, analyze, and share Simulations, solely for Customer’s own non-commercial purposes, in accordance with this Agreement and the applicable Documentation, and subject to any applicable Usage Parameters.
      2. Access to Cloud Platform.  Elodin grants to Customer a non-exclusive, non-sublicensable, non-transferable limited right, during the Subscription Term, to access and use, and permit its Authorized Users to access and use, the Could Platform, over the internet, to run Simulations, solely for Customer’s own non-commercial purposes, in accordance with this Agreement and the applicable Documentation, and subject to any applicable Usage Parameters.
      3. License to Beta Versions.  If Customer elects to access Beta Versions, Elodin grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version solely for Customer's internal evaluation and subject to any and all technical limitations implemented in the Beta Version and/or other Usage Parameters.
    2. Prohibited Uses.  Customer acknowledges that the Elodin Services embodies, contains, and constitutes valuable trade secrets of Elodin and its licensors and suppliers.  Accordingly, Customer agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to:some text
      1. use or allow access to the Elodin Services (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters;
      2. license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Elodin Services (or any part or component thereof) available for access by third parties;
      3. access or use the Elodin Services (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;
      4. reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Elodin Services;
      5. use the Elodin Services (or any part thereof) for High-Risk Activities or to process any Prohibited Data;
      6. use the Elodin Services (or any part thereof) or in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
      7. upload, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the use of the Elodin Services (or any part thereof);
      8. remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Elodin or its licensors and/or suppliers on or within any part of the Elodin Services;
      9. interfere with or disrupt the integrity or performance of the Elodin Services, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Elodin Services;
      10. take any action that imposes an unreasonable or disproportionately large load on the Elodin Services (or any part or component thereof), or its underlying infrastructure and systems;
      11. attempt to gain unauthorized access to the Elodin Services, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by Elodin, in the Elodin Services;
      12. frame or utilize framing techniques to enclose the Elodin Services or any portion thereof;
      13. use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Elodin Services (or any part thereof), and/or the personal information of others without Elodin’s prior written permission or authorization;
      14. use the Elodin Services to store or transmit any malicious, harmful, or unsolicited code or software;
      15. impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements; or
      16. use the Elodin Services (or any part thereof), or transmit Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.
    3. Open Source Components.  Certain items of software that may be provided to Customer as part of the Elodin Services are subject to “open source” or “free software” licenses (“Open Source Software”).  Open Source Software may be owned by Elodin or by third parties.  The Open Source Software is not subject to the terms and conditions of Sections 6.1 or 8.  Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.  Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.  If required by any license for particular Open Source Software, Elodin makes such Open Source Software, and Elodin’s modifications to that Open Source Software, available by written request at the notice address specified herein.
    4. Usage Data.  Customer acknowledges and agree that Elodin has the right to (a) aggregate, collect, and analyze information, metrics, analytics, and data relating to the use of the Elodin Services (collectively, “Usage Data”), (b) use such Usage Data for its internal business purposes, including, but not limited to, improve, test, and maintain the Elodin Services and to develop additional products and services, and (c) disclose or publish Usage Data solely in an aggregated and de-identified format that does not identify Customer or any individual.  Subject to Customer’s rights in and to Customer Data, Elodin shall retain all right, title, and interest in and to Usage Data.
    5. Feedback.  To the extent Customer and/or any Authorized User provides any suggestions and feedback to Elodin regarding the functioning, features, and other characteristics of any Elodin Services (or any part or component thereof) or other materials or services provided or made available by Elodin hereunder (“Feedback”), such Feedback is deemed an integral part of Elodin Property, and as such, it is the sole property of Elodin without restrictions or limitations on use of any kind.  Elodin may, in its sole discretion, either implement or reject such Feedback, without any restriction or obligation of any kind (including, but not limited to, the payment of any fees to Customer, or any Authorized User or third party). Customer hereby (a) irrevocably assigns to Elodin any right, title and interest Customer or its Authorized Users may have in such Feedback; and (b) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists’ rights, or any other similar rights, worldwide, in or to such Feedback.
    6. Elodin Proprietary Rights.  Elodin or its licensors retain all right, title and interest in and to the Elodin Services, including, all materials, graphics, user and visual interfaces, images, code (including source code or object code), products, applications, and text, embodied in, or comprising the Elodin Services, as well as the design, structure, selection, coordination, expression, "look and feel” and arrangement of the Elodin Services, Feedback, Usage Data, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Elodin Services, and any and all modifications, updates, enhancements and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing (collectively, “Elodin Property”).  There are no implied rights or licenses in this Agreement and all rights and licenses not expressly granted in this Agreement are expressly reserved by Elodin.  Customer acknowledges and agrees that the Client Software, Beta Versions, Feedback, and any other information, data, or materials that Elodin discloses to Customer in connection with the Elodin Services that are identified as “confidential” or with similar designation, or that Customer know or reasonably knows to be the confidential information of Elodin, shall be deemed the confidential information of Elodin and Customer shall not disclose any such confidential information to any third party.
  6. TERMINATION
    1. Termination
      1. Either party may terminate this Agreement immediately upon written notice to the other party if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
      2. Notwithstanding the foregoing, if Elodin, in good faith, believes that Customer and/or any Authorized User has used the Elodin Services (or any part thereof) in violation of Section 6.2 of this Agreement, Elodin may, in its discretion, (a) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the Elodin Services (or any part thereof), with or without notice, and/or (b) terminate this Agreement with respect to Customer immediately upon written notice.
      3. In addition, Customer may terminate this Agreement and its Account, at any time, by submitting its request to Elodin by contacting us at: info@elodin.systems; provided, however, any prepaid fees for the Elodin Services will not be refunded and any unpaid fees for the remainder of the Subscription Term shall become immediately due and payable.
    2. Effect of Termination.  Upon termination of this Agreement for any reason: (a) all rights and licenses granted to Customer shall immediately terminate, and (b) Customer will cease and ensure all Authorized Users cease all access and use of the Elodin Services and delete or destroy all copies of the Client Software in the possession or control of Customer or any Authorized User.  Sections 1, 2.4, 4, 5, 6.2, 6.3, 6.4, 6.5, 6.6, 7.2, 8, 9, 11, 12, 14, and 15, shall survive termination or expiration of this Agreement.
  7. INDEMNIFICATION
    1. Indemnification by Elodin.  Elodin will: (a) defend and/or settle, at its own cost, any third party claim, action or suit brought against Customer alleging that Customer’s use of the Client Software or Cloud Platform as authorized herein infringes or misappropriates the intellectual property rights of any third party, and (b) hold Customer harmless from any amounts finally awarded by or agreed to (and reasonably approved by Elodin) in settlement of such claim.  If Customer’s use of any portion of the Client Software or Cloud Platform becomes, or in Elodin’s opinion is likely to become, the subject of a claim of infringement (“Infringing Technology”), Elodin may elect at its option to: (i) obtain a license for the Infringing Technology; (ii) modify or replace the affected portion of the Infringing Technology, so as to avoid infringement, without materially degrading the functionality of the Elodin Services; or (iii) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Elodin Services.  Notwithstanding the foregoing, Elodin will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based upon: (A) any use of the Elodin Services not in accordance with this Agreement or as specified in the Documentation, (B) any modification of the Elodin Services (or any part thereof) by any person other than Elodin or its authorized representatives, (C) based upon the use, operation, or combination of the Elodin Services (or any part thereof) with software programs, data, equipment, materials or business processes not provided by Elodin (including, but not limited to, Third Party Integrations), if claim would not have arisen but for such use, operation or combination, or (D) any Open Source Software, Beta Version, or any free, trial or promotional use of the Elodin Services (including, any free Subscriptions).  THIS SECTION 8.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ELODIN’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.
    2. Indemnification by Customer.  Customer shall indemnify, defend, and hold Elodin and its parent, affiliates, and subsidiaries, and its and their respective, officers, directors, employees, contractors, representatives, licensors, and agents harmless from and against any and all liability, losses, claims, actions, suits, damages, demands, and expenses (including reasonable attorneys’ fees) of any kind, arising out of or related to Customer Data or Customer’s or its Authorized Users’ (a) breach of this Agreement, or any representation, warranty, or agreements referenced herein, (b) violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (c) breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any Third Party Integrations; or (d) violation of any applicable law, rule or regulation (including, any Trade Control Laws or Applicable Data Laws).
    3. Procedure.  The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party, (b) give the indemnifying party sole control of the defense thereof, and (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense.  Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent.  The indemnified party may participate and retain its own counsel at its own expense.
  8. DISCLAIMERS & LIMITATION OF LIABILITY
    1. No Warranties.  THE ELODIN SERVICES, ENGINE TOOLKIT, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY ELODIN HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND.  ELODIN EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.

ELODIN DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE ELODIN SERVICES (OR ANY PART THEREOF), ENGINE TOOLKIT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY ELODIN: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY INTEGRATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.

ELODIN DOES NOT WARRANT THAT THE PERFORMANCE OR USE OF THE ELODIN SERVICES OR ENGINE TOOLKIT COMPLIES WITH ANY LOCAL OR STATE REQUIREMENTS APPLICABLE TO CUSTOMER OR THE CUSTOMER’S SPECIFIC USE CASE FOR THE ELODIN SERVICES OR ENGINE TOOLKIT, INCLUDING, WITHOUT LIMITATION, ANY LAWS OR REGULATIONS APPLICABLE TO HIGH-RISK ACTIVITIES OR THE TRANSMISSION, PROTECTION OR PROCESSING OF SENSITIVE OR PROTECTED INFORMATION.  CUSTOMER MAY ELECT TO USE THE ELODIN SERVICES AND ENGINE TOOLKIT FOR SUCH PURPOSES; HOWEVER, IT IS CUSTOMER’S SOLE RESPONSIBILITY AND OBLIGATION TO DETERMINE WHETHER THE ELODIN SERVICES AND ENGINE TOOLKIT, AND CUSTOMER’S USE THEREOF, COMPLIES WITH APPLICABLE LAWS, RULES AND REGULATIONS, INCLUDING, BUT NOT LIMITED TO, ANY SPECIFIC LAWS, RULES OR REGULATIONS APPLICABLE TO APPLICABLE TO CUSTOMER OR THE CUSTOMER’S SPECIFIC USE CASE FOR THE ELODIN SERVICES OR ENGINE TOOLKIT.

  1. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ELODIN BE LIABLE OR OBLIGATED, WITH RESPECT TO THIS AGREEMENT, THE ELODIN SERVICES (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS AND/OR SERVICES PROVIDED MADE AVAILABLE BY ELODIN, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF ELODIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF $100 USD, OR IF GREATER, THE FEES PAID OR PAYABLE BY CUSTOMER TO ELODIN UNDER THE APPLICABLE ORDER FORM FOR THE ELODIN SERVICES GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION; (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (C) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
  2. Basis of the Bargain.  THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT ELODIN WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.  THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  ELODIN DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO ELODIN’S LICENSORS AND SUPPLIERS.  THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF ELODIN’S SUPPLIERS.
  3. Jurisdictional Issues.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES WITH RESPECT TO CONSUMERS (I.E., A PERSON ACQUIRING GOODS OTHER THAN IN THE COURSE OF A BUSINESS, IN SUCH STATES OR JURISDICTIONS, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY TO A CONSUMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE SUCH CONSUMER IS LOCATED. 
  1. AVAILABILITY OF THE SERVICE.  Information describing the Elodin Services is accessible worldwide but this does not mean is, or certain portions thereof, and/or any Elodin Property, are or will be available in Customer’s country. Elodin may restrict access to the Elodin Services, or portions thereof, and/or any Elodin Property, in certain countries in its sole discretion. It is Customer’s responsibility to make sure the use of the Elodin Services is legal in Customer’s country of residence.
  2. TRADE CONTROLS.  The Elodin Services may be subject to U.S. or foreign export controls, laws and regulations, and Customer shall comply with all such export control and economic sanctions laws and regulations (collectively, “Trade Control Laws”) applicable to Customer in the performance of this Agreement.  Elodin shall not be required under this Agreement to be directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable Trade Control Laws.  Customer acknowledges and confirms that: (a) neither Customer nor any Authorized User is located, or uses, exports, re-exports or imports the Elodin Services (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Trade Control Laws; (b) neither Customer nor any Authorized User is: (i) organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. or Israeli economic or trade sanctions (currently, Cuba, Lebanon, Iran, Syria, North Korea, or the Crimea region of Ukraine) (“Restricted Countries”), (b) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons (“Restricted Persons”), or (iii) otherwise the target of U.S. sanctions; (c) Customer is solely responsible for complying with applicable Trade Control Laws and sanctions which may impose additional restrictions, prohibitions or requirements on the use, export, re-export or import of the Elodin Services and/or the Customer Data; and (d) Customer Data is not controlled under the U.S. International Traffic in Arms Regulations or similar laws, rules or regulations in other jurisdictions, or otherwise requires any special permission or license, in respect of its use, import, export or re-export hereunder.
  3. GOVERNMENT RIGHTS.  If Customer is part of a U.S. Government agency, department or otherwise, either federal, state or local (“Government Customer”), then Government Customer hereby agrees that the Elodin Services under this Agreement qualify as “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, FAR 12.212, Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7201, and DFARS 252.227-7014. Government Customer further agrees that the terms of this Section ‎12 shall apply to Customer. Government Customer’s technical data and software rights related to the Elodin Services include only those rights customarily provided to the public as specified in this Agreement in accordance with FAR 12.212, FAR 27.405-3, FAR 52.227-19, DFARS 227.7202-1 and General Services Acquisition Regulation (“GSAR”) 552.212-4(w) (as applicable). In no event shall source code be provided or considered to be a deliverable or a software deliverable under this Agreement. Elodin grants no license whatsoever to any Government Customer to any source code contained in any deliverable or a software deliverable. If a Government Customer has a need for rights not granted under this Agreement, it must negotiate with Elodin to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. Any unpublished-rights are reserved under applicable copyright laws. Any provisions contained in this Agreement that contradict any law applicable to a Government Customer, shall be limited solely to the extent permitted under such applicable law.
  4. MODIFICATIONS TO THIS AGREEMENT.  Elodin reserves the right to update or modify this Agreement at any time.  The revised Agreement will be posted at https://www.elodin.systems/terms-of-service.  Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above.  If Elodin makes any material changes to this Agreement, Elodin will provide reasonable prior notice to Customer of these changes by sending a notification to the email address Elodin has on file for Customer, or, if Elodin does not have an email address on file, by posting a prominent notice on Elodin’s website and/or through the user interface of the Elodin Services.  Material changes to this Agreement will become effective on the date set forth in the notice.  It is Customer’s responsibility to regularly visit and review this Agreement for updates, changes and modification.  If Customer does not agree to any updates or modifications to this Agreement, Customer must terminate its Account as set forth in Section 7.1(c) above and cease all use and access of the Elodin Services.  Customer’s and/or any of its Authorized Users’ continued access or use of the Elodin Services (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer’s acceptance of the revised Agreement.
  5. GOVERNING LAW & DISPUTE RESOLUTION
    1. Governing Law.  This Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of California, without reference to its choice of law rules to the contrary; provided that, the Agreement to Arbitrate and related arbitration provisions set forth in this Section 14, shall be governed by the Federal Arbitration Act.  This Agreement (including without limitation, the Elodin Services and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
    2. Disputes.  Any dispute, controversy, or claim between the parties arising out of or relating to this Agreement, the Elodin Services (or any part thereof) or the breach, termination, or invalidity of this Agreement (a “Dispute”) shall be resolved by the parties in accordance with this Section 14.  A party who intends to seek arbitration or bring other action permitted under this Section 14 with respect to any Dispute, must first send a written notice of the Dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Dispute Notice”). Dispute Notices shall be sent to each party as set forth in Section 15.2.  The Dispute Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought.
    3. Agreement to Arbitrate.  Except as described in Section 14.5, the parties agree that any and all Disputes shall be resolved by final, binding and confidential arbitration, settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its applicable Commercial Arbitration Rules in effect at time the claim is submitted (the “Rules”) as modified by this Section 14.  The arbitration will be heard and determined by a single, neutral arbitrator mutually agreed upon by the parties.  If the parties cannot agree on an arbitrator, the arbitrator shall be selected in accordance with the Rules.  The location of arbitration shall be San Francisco, California, unless otherwise mutually agreed upon by the parties in writing.  Notwithstanding the foregoing, to the extent feasible, the parties agree the arbitration may be conducted by video conference, telephone, or other telecommunication means.  To the extent there is any conflict between the provisions set forth in this Section 14 and the Rules or any procedural or other rules issued by the arbitrator, this Section 14 will control.  The arbitral proceedings, and all pleadings and written evidence will be in the English language.  Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof.  The English language version will control. The arbitrator shall apply the laws of the State of California, without reference to its choice of law rules to the contrary.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based.  The arbitration award shall be final and binding upon the parties without appeal or review, and the award may be entered by any court of competent jurisdiction, and each of the parties irrevocably submits to the jurisdiction of such court for confirmation or recognition or enforcement of any award rendered by the arbitral tribunal in accordance with, inter alia, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  The parties agree that, except as otherwise stated in this Agreement, neither party shall have any right to commence or maintain any suit or legal proceedings (other than for interim or conservatory measures, or as otherwise stated herein) until the dispute has been determined in accordance with the arbitration procedure provided in this Section and then only for enforcement of the award rendered in the arbitration.
    4. Enforceability; Venue.  If the Agreement to Arbitrate is found not to apply to any claim brought by Customer and/or Elodin, Customer and Elodin agree that any judicial proceeding will be brought in the federal or state courts located in San Francisco County, California, United States of America, and the parties hereby consent to the personal jurisdiction and exclusive venue in such courts.
    5. Exceptions.  Notwithstanding anything in this Agreement to the contrary, in the event of any actual or alleged violation of Elodin’s intellectual property or confidentiality rights, Elodin may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Customer hereby consents to the personal jurisdiction and exclusive venue in such courts.  In addition, despite the Agreement to Arbitrate, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.
    6. Prevailing Party. Subject to Section 9, in the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to this Agreement and/or the Elodin Services (or any part thereof), the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
    7. No Class Actions.  CUSTOMER MAY ONLY RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THIS AGREEMENT.
  6. GENERAL
    1. Severability; Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.  
    2. Notices.  All notices permitted or required to be sent to Elodin under this Agreement shall be in writing and sent by personal delivery, email (where permitted), or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email.  Notices shall be sent to Elodin in writing to: Elodin Systems, Inc., 2711 Dana Street, Berkeley Street, Berkeley, California 94705.  Except as otherwise set forth herein, all notices to Customer hereunder shall be sent via email to Customer’s email address specified in the Account.
    3. Assignment.  Customer may not assign its rights or obligations under this Agreement without Elodin’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void.  Elodin may freely assign or transfer this Agreement (including, but any of its rights or obligations under this Agreement) and may delegate the performance of any services hereunder to its affiliates, employees, contractors, and subcontractors, without Customer’s consent.  This Agreement shall be binding on the parties and their respective successors and permitted assigns.
    4. Third Party Rights.  This Agreement is not intended to grant rights to anyone except Customer and Elodin, and in no event shall this Agreement create any third party beneficiary rights, nor be interpreted or construed to confer any rights or remedies on or to any third parties.
    5. Entire Agreement; Construction.  This Agreement, together with any and all Order Forms entered into hereunder, Additional Terms, and any other policies or terms and condition referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof.  Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement.  When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.

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