Last updated: December 15, 2017
These Subscription Terms (“Terms”) create a legal agreement between Elegant Labs, Inc. (“Elegant,” “us,” or “we”) and the entity or person placing an Order or accessing the Service (as defined below) ("Customer," or “you”). By accepting the Terms and using the Services, you represent that you are of legal age and have the authority to bind the Customer to these Terms, applicable Service Descriptions, and the Privacy Policy located at https://elegantcms.net/privacy-policy/ (collectively the “Agreement”).
l. ACCESS AND USE OF THE SERVICES.
Elegant provides a SaaS based content management solution. Including APIs, Documentation and Technical Support (“Service”). Additional “Service Descriptions” included on our website are incorporated into these Terms.
A. Right to Use Service. You agree to use the Service in accordance with the use levels by which we measure, price and offer the Service, as posted on our website or your Order (“Use Levels”).
B. Changes to Service; Additional Services. We reserve the right to enhance or modify features of the Service but will not materially reduce the core functionality or discontinue any Service unless we provide you with prior written notice. We may offer additional functionality to our standard Service or release improvements for an additional cost. Any additional Service you order will be subject to these Terms.
C. Proprietary Rights and Elegant Marks. You acknowledge that we or our licensors retain all right, title and interest in the Service, and our name, logo or other trademarks marks (together, the “Elegant Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part the Elegant Marks or is similar to any of them.
ll. YOUR CONTENT AND ACCOUNTS.
A. Your Content. (“Content”) means files, documents, text, photographs, videos, hyperlinks, trademarks, and other information or works of authorship that you upload to the Service through your Account. You retain all rights to your Content. You warrant represent and warrant that (i) you have the right to upload the Content onto the Service and use the Content as contemplated by the Service, (ii) none of the Content infringes on the rights of any third party, including any intellectual property right, or right of privacy or publicity. You agree to comply with all legal duties applicable to you as a data controller by virtue of the submission of your Content within the Service, and we will have no liability in connection therewith.
B. Your Accounts. In order to access the Service, you will be required to create an account (“Account”). You are solely responsible for (i) all use of the Service by you and your Users, (ii) obtaining consent from your Users to the collection, use, processing and transfer of Content, and (iii) providing notices or obtaining consent as legally required in connection with the Service. We do not send emails asking for your usernames or passwords, and to keep your accounts secure, you should keep all usernames and passwords confidential. We are not liable for any loss that you may incur if a third party uses your password or account. You agree to notify us immediately in the event that any unauthorized access to the Service, or other security breach, occurs through your Account.
lll. ORDERS, FEES AND PAYMENT.
A. Orders. You may order the Service using our then-current ordering processes set forth on our website (“Order”). All Orders are effective on the date you submit your first Order (“Effective Date”). Acceptance of your Order may be subject to a credit approval process.
B. Fees and Payment. You agree to pay all fees for the Service as set forth in the Order. Any and all payments you make to us for access to the Service are final and not pro-rate-able. You agree that we, or our payment processor, will charge your payment card or bill you for amounts due for use of the Service Fees and overdraft charges that we may incur when we charge your card for payment. If you exceed the thresholds of your then-current plan, your subscription fee may be adjusted at the beginning of the next Renewal Term.
C. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 10 days of the Renewal Term, and once resolved, you agree to pay agreed upon fees within 10 days. In the event of non-payment, we will notify you of such and reserve the right to suspend the Service after 10 days of non-payment. We will not suspend the Service while you are disputing applicable charges reasonably and in good faith.
D. Data Transmission Providers. You are responsible for all fees and charges imposed by your data transmission providers related to your access and use of the Service.
E. Taxes and Withholding. You are responsible for all applicable sales, value-added, goods and service, withholding, tariffs, and similar taxes (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Service, except those Taxes based on our net income, or Taxes for which you have provided an exemption certificate. Amounts due to us under this Agreement are due in full without any right of set-off or deduction.
lV. TERM AND TERMINATION.
A. Term. Your initial subscription commitment is one month from the Effective Date (“Initial Term”) and will automatically renew for additional one month periods (“Renewal Term”) unless you cancel the Service no later than 5 days prior to start of the next renewal term.
B. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 5 days of receipt of written notice, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business; provided, however, that we may suspend or terminate your Account immediately in the event of your breach of Sections I.C, IV or V.
C. Survival. The provisions of Sections VII (Disclaimers; Limitation of Liability), VIII (Indemnification), and IX (Additional Terms) will survive any termination of the Agreement.
V. LIMITATIONS OF USE, COPYRIGHT POLICY
A. Limitations on Use. You agree on behalf of yourself and your Users not to (i) modify, prepare derivative works of, or reverse engineer, the Service; (ii) knowingly or negligently use the Service in a way that abuses or disrupts our networks, user accounts, or the Service; (iii) transmit through the Service unlawful material; (iv) use the Service in violation of our policies, applicable laws or regulations; (v) harvest, collect, or gather user data.
B. Copyright Policy. It is Elegant’s policy to respond promptly to claims of copyright infringement, and to remove, or disable access to, infringing material. If you believe that any of the Content or materials appearing on this Service contain infringements, please send a notice to our designated agent at the address stated below. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Our designated agent, to whom you should direct your infringement claim (or other complaints), is:
DMCA Agent
Elegant Labs, Inc.
82 G Street, Suite 3
Boston, MA 02127
DMCA@elegantcms.net
Vl. EXPORT LAWS. The Service may be subject to export laws and regulations of the United States and other jurisdictions. You represent and warrant that you are not named on any U.S. government denied-party list. You further agree that you will not permit any User to access or use the Service in or by a national of a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Vll. DISCLAIMERS; LIMITATION OF LIABILITY.
A. Disclaimers. ELEGANT PROVIDES THE SERVICE “AS-IS,” AND DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, ELEGANT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
B. Limitation of Liability. ELEGANT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE.
C. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR LOST REVENUES OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSIONG WILL NOT APPLY WITH RESPECT TO A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENTA PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, OR TO THE EXTENT PROHIBITED BY LAW.
Vlll. INDEMNIFICATION. You agree to indemnify, defend and hold Elegant harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of any third party claim in connection with your use of the Service, your breach or alleged breach of any term, condition, obligation, representation or warranty in this Agreement and in defense, settlement or connection with Content you upload through the Service.
Elegant agrees to indemnify, defend and hold you harmless from and aginst any claims, costs, damages, liabilities, and expenses (including attorneys' fees and costs) arising out of any third party claim that the Services infringes a valid patent or copyright or involves the misappropriation of a trade secret.
lX. ADDITIONAL TERMS
A. General Terms. If any term of this Agreement is deemed unenforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary, or employment relationship between the parties. No person or entity not a party to the Agreement will be a third party beneficiary. Failure to enforce any right under the Agreement will not waive that right. Unless otherwise specified, remedies are cumulative. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
B. Security Emergencies. If we reasonably determine that the security of the Service or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Service and we will take action to promptly resolve any security issues. We will notify you of any suspension or other action taken for security reasons.
C. Assignment. You may not assign your rights or delegate your duties under the Agreement either in whole or in part without our prior written consent.
D. Notices. Notices must be sent by overnight courier, registered mail, or email. Notices to Elegant should be sent to us at Elegant Labs, Inc., 82 G Street, Suite 3, Boston, MA 02127 or legal@elegantcms.net,and we will send notices to you at the email address last designated on your account. Notice is given (a) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, or (d) for email, when the email is sent.
E. Entire Agreement; Order of Precedence. The Agreement, including your Orders, these Terms, Service Descriptions, and Privacy Policy sets forth the entire agreement between us relating to the Service and supersedes all prior and oral and written agreements. If there is a conflict between an executed Order, these Terms, and the Service Descriptions, the conflict will be resolved in that order of precedence. Nothing contained in any document submitted by you will add to or otherwise modify the Agreement. We may update the Terms from time to time, which will be identified by the last updated date above. Your continued access to and use of the Service constitutes your acceptance of the then-current Terms.
F. Governing Law. The Agreement will be governed accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of laws rules.
G. Availability. We try to make the Service available 24 hours a day 7 days a week, except for planned maintenance down-time, which we will notify you about in advance. However, you acknowledge the Service may be unavailable in all or in part due to equipment, software or service malfunctions, or causes beyond the control of Elegant Labs. Without limitation, Elegant Labs shall not be liable for any unavailability.
H. Mandatory Arbitration.
i. If you and Elegant are unable to resolve a dispute, controversy or claim related to this Agreement (“Dispute”) through informal negotiations within 30 days, either you or Elegant may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
ii. Notwithstanding the above, you and Elegant agree that arbitration will be limited to the Dispute between Elegant and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
iii. You and Elegant agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Elegant’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.