GetElements.com Terms of Service
Welcome to Getelements.com (the “Website” or “Site”), a financial management and planning platform provided by Elements Technology, Inc. Your use of Elements’ software and/or Website (the “Service(s)”), is governed by these terms of service (the “Terms”). These Terms apply to all Users, and others who access or purchase the Services. For the purposes of these Terms, “we,” “our,” “us,” and “Elements” refer to Elements Technology, Inc.
“Authorized User” or “User” means: (i) you, in the case of an individual accepting this Agreement, or (ii) an individual whom you allow or invite to use the Service either through an invitation extended through functionality available within the Service (if and when such may be available) or by making a request to Elements to provide credentials to such individual to access the Service.
You must be over 18 years of age to use the Services, and children under the age of 18 cannot use, purchase or register for the Service.
YOU MAY ONLY ACCESS THE SERVICE IF YOU ARE A RESIDENT OF, AND PHYSICALLY LOCATED WITHIN, THE UNITED STATES. IF YOU DO NOT MEET THESE CRITERIA YOU MAY NOT USE THE SERVICE AND MUST DISCONTINUE YOUR ACCESS TO THE SERVICE IMMEDIATELY.
This policy may change from time to time. Your continued use of this Website, web application, and/or mobile application after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
2. SUBSCRIPTIONS TO THE SERVICE
2.1 Right to Access and Use. Subject to and conditioned on you, and your Users’ compliance with the terms and conditions of this Agreement, Elements hereby grants you a non-exclusive, non-transferable right to access and use the Services and Documentation for your personal use during the Term, or any Authorized Users in accordance with the terms and conditions herein.
2.2 Subscriptions. Each Subscription refers to an individual Authorized User. You may not reassign a Subscription to a different User.
2.3 Downloadable Software and Documentation License. Subject to the terms and conditions contained in this Agreement, Elements hereby grants you a non-exclusive, non-sublicensable, non-transferable license during the Term to: (i) use Downloadable Software, in object code format, solely for your person use, in connection with its use of the Services (the “Downloadable Software License Terms”). You’s use of Downloadable Software must be in compliance with Downloadable Software License Terms. In the event of any inconsistency between the Downloadable Software License Terms and this Agreement, the Downloadable Software License Terms shall apply only with respect to the Downloadable Software that the Downloadable Software License Terms reference and not the Services provided under this Agreement.
2.4 Third-Party Products. Elements may from time to time make Third-Party Products available to you. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products. The Downloadable Software also contains certain open-source software. You understand and acknowledges that such open-source software is not licensed to you pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. You shall have only such rights and/or licenses, if any, to use the open-source software as set forth in the applicable open-source licenses referenced in the flow through terms included with Third Party Products.
2.5 Restrictions and Remedies
2.5.1. Restrictions. You will not: (i) resell, sublicense, rent, loan, lease, time share or otherwise make the Services available to any party not authorized to use the Services under the Agreement or an applicable Order; (ii) modify, adapt, alter, translate, copy, or create derivative works based on the Services; (iii) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Services (unless such right is granted by applicable law and then only to the minimum extent required by law); (iv) access the Services in order to: (a) build a competitive product or service; or (b) copy any ideas, features, functions or graphics of the Services; (v) merge or use the Services with any software or hardware for which they were not intended (as described in the Documentation); (vi) allow Users to share access credentials; (vii) use the Services for unlawful purposes or to store unlawful material; (viii) use the Services to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (ix) disrupt the integrity or performance of the Services; (x) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Elements or its suppliers contained on or within any copies of the Services, (xi) bypass any security measure or access control measure of the Services, (k) use the Services other than as described in the Documentation, (xii) use the Services in a way that degrades, interrupts, or impairs the overall performance of the Services, or (xiii) perform or disclose any benchmarking or testing of the Services itself or of the security environment or associated infrastructure without Elements’ prior written consent.
2.5.2. Elements Remedies. Elements may, directly or indirectly, or by any other lawful means, suspend, terminate, or otherwise deny your, any User’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: (i) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires we do so; or (ii) we believe, in our sole discretion, that: (a) you or any User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (b) you or any 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 Services; or (c) this Agreement expires or is terminated. This section 2.3.2 does not limit any of our other rights or remedies, whether at law, in equity, or under this Agreement.
2.6 Control and Changes.
2.6.1. Control. We retain sole control over the operation, provision, maintenance, and management of the Elements Materials. You are responsible for the operation, maintenance, and management of, and all access to and use of, the You Systems, and sole responsibility for all access to and use of the Elements Materials by any Person by or through the You Systems or any other means controlled by you or any User.
2.6.2. Changes. We may change the Services and Elements Materials in our sole discretion if we consider it useful or necessary to do so.
2.8 Mobile Services. The Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Services, (ii) the ability to browse the Services, and (iii) the ability to access certain features of the Services (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your network service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Customer and other entities by SMS, MMS, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number or other mobile identifier, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your old number.
3. YOUR OBLIGATIONS.
3.1 Your Systems and Cooperation. You shall: (i) set up, maintain, and operate in good repair all You Systems on or through which the Services are accessed or used, and (c) provide all cooperation and assistance as Elements may request to enable allow us to exercise our rights and perform our obligations under and in connection with this Agreement.
3.2 Effect of Your Failure or Delay. Elements is not responsible or liable for any delay or failure of performance, caused in whole or in part, by your delay, or failure, in performing any of your obligations under this Agreement (each, a “You Failure”).
3.3 Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by Section 2.3.1, you shall, and shall cause your Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Elements Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) notify Elements of any such actual or threatened activity.
3.4 Your Responsibilities. You will: (i) use commercially reasonable efforts to prevent, and remain responsible for Users’ and Affiliate’s compliance with the Agreement and will promptly notify us of any unauthorized access to the Services arising from a compromise or misuse of your or your User’s access credentials, (ii) use the Services only in accordance with the Documentation, applicable laws, and government regulations, (iii) remain responsible for any action in violation of the Agreement by you, your Affiliates, and/or Users, (iv) remain responsible for determining what inputs, commands, and data you submit to the Service, and (v) keep passwords confidential and will be responsible for all use of User accounts and passwords.
3.5 By executing this agreement (either by checking a checkbox, clicking a button (or similar affirmative action), or continuing to use the Service after receiving these terms) you authorize Elements Technology, Inc., its affiliates, representatives, agents, and marketing partners whom Elements may share or sell your name, email, and phone number, to contact you by phone call, email, and/or sms/text message, including with an automated dialer, with marketing offers Elements considers, in its sole discretion, may be of interest to you. You grant this consent even if your phone number is listed on any state or federal Do Not Call registry. You understand your consent is not a condition of purchase under the Terms.
4. YOUR DATA RESPONSIBILITIES
4.1 Compliance With Applicable Laws. You are exclusively responsible for: a) determining what data you submit to the Service, b) for obtaining all necessary consent and permissions for submission of Your Data and related data processing instructions to Elements, c) for the accuracy, quality and legality of Your Data, and d) that you comply in all respects with applicable data privacy and protection regulations. You shall ensure that you are entitled to transfer the relevant data to Elements so that Elements and its service Elements may lawfully use, process, and transfer Your Data in accordance with this Agreement on Your behalf. No rights to Your Data are granted to Elements hereunder other than as expressly set forth in this Agreement. Elements reserves the right to remove, reclaim, or change a username a User selects if Elements determines, in its sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
5.1 Fees. You will pay the amounts indicated on your Order (the “Fees”).
5.2 Taxes. All Fees are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Elements’ income.
5.3 Late Payment. If you fail to make any payment when due then, in addition to all other remedies that may be available: (i) we may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law, (ii) you will reimburse us for all costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees, and (iii) if such failure continues for 10 days following written notice thereof, we may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to you or any other Person by reason of such suspension.
6. PAYMENT TERMS
6.2 Auto-Renewal for Paid Services. Any Services you have purchased will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or terminate your Services at any time, contact email@example.com (or go to account settings if available). If you terminate the Service, you may use your subscription until the end of your then-current term, and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE SERVICE BY CONTACTING SUPPORT@GETELEMENTS.COM (OR USE ACCOUNT SETTINGS IF AVAILABLE) AT LEAST 14 DAYS BEFORE THE END OF THE RECURRING TERM. SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ELEMENTS WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS.
YOUR NON-TERMINATION OR CONTINUED USE OF THE SERVICES REAFFIRMS THAT WE ARE AUTHORIZED TO CHARGE YOUR PAYMENT METHOD FOR THAT SERVICE. WE MAY SUBMIT THOSE CHARGES FOR PAYMENT AND YOU WILL PAY SUCH CHARGES. THIS DOES NOT WAIVE OUR RIGHT TO SEEK PAYMENT DIRECTLY FROM YOU. YOUR CHARGES MAY BE PAYABLE IN ADVANCE, IN ARREARS, PER USAGE, OR AS OTHERWISE DESCRIBED IN AN ORDER.
7. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
7.1 Reservations of Rights. Access to the Service is sold on a subscription basis. Except for the limited rights expressly granted to you hereunder, Elements reserves all rights, title, and interest in and to the Service, the underlying software, the Elements Materials and any and all improvements (including any arising from your feedback), modifications and updates thereto, including without limitation all related intellectual property rights inherent therein. No rights are granted to you hereunder other than as expressly set forth in this Agreement.
7.2 Ownership and Processing of Your Data. You and/or your licensors retain all right, title and interest in all Your Data stored in the Service, including any revisions, updates or other changes made to that Your Data. You grant Elements a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Your Data: (i) solely for the purpose of providing the Services under this Agreement; (ii) to prevent or address technical or security issues and resolve support requests; and (iii) as otherwise required by applicable law.
7.3 Use of Aggregate Information. Elements may collect, anonymize, and aggregate data derived from the operation of the Services (“Aggregated Data”), and Elements may use such Aggregated Data for purposes of operating Elements’ business, monitoring performance of the Services, and/or improving the Services. Aggregated Data is the property of Elements.
7.4 Ownership of Deliverables. With respect to any deliverables or work product (“Deliverables”) resulting from any of the professional services, Elements owns all right title and interest in and to the intellectual property rights pertaining to such Deliverables and grants you a non-exclusive, worldwide right and license to use such Deliverable in connection with your permitted use of the Services.
7.5 Feedback. You grant Elements a non-exclusive, royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information you (or Users) provide relating to the features, functionality or operation of the Services (“Feedback”).
7.6 Open-Source Software. Your use of any software programs accompanied by a separate license agreement is governed by that separate license agreement. If you do not agree to abide by the applicable license terms for the third party software, you may not install and/or use it.
8. WARRANTIES AND DISCLAIMER
8.1 Your Warranties. You represent and warrant that: (i) you have the right to provide Elements with access to all Your Data, and (ii) you will at all times comply with the restrictions in Section 2.5.1.
8.2 Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES, PROFESSIONAL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT OTHER WARRANTY OF ANY KIND, AND ELEMENTS MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE AND PROFESSIONAL SERVICES. ELEMENTS SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, ELEMENTS DOES NOT WARRANT THE SERVICES WILL BE ERROR-FREE OR THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED. THE SERVICES AND MATERIALS ARE NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.
8.3 NO PROFESSIONAL ADVICE. YOU ACKNOWLEDGE THAT ELEMENTS TECHNOLOGY, INC. IS NOT A LAWYER, ACCOUNTANT, OR OTHER LEGAL OR FINANCIAL PROFESSIONAL SERVICES PROVIDER, AND ACCORDINGLY, DOES NOT PROVIDE LEGAL, FINANCIAL, BENEFITS, TAX, COMPLIANCE, OR OTHER PROFESSIONAL ADVICE. ANY INFORMATION PROVIDED BY THE SERVICES IS INTENDED FOR YOUR GENERAL USE ONLY, INCLUDING WITH RESPECT TO ANY TEMPLATES AVAILABLE WITHIN THE PLATFORM, AND DOES NOT CONSTITUTE LEGAL OR PROFESSIONAL ADVICE. YOU UNDERSTAND THAT YOU ARE RESPONSIBLE FOR ANY ACTIONS TAKEN BASED UPON INFORMATION RECEIVED FROM ELEMENTS TECHNOLOGY, INC., AND WHERE PROFESSIONAL ADVICE IS NEEDED, THAT YOU SHOULD SEEK INDEPENDENT PROFESSIONAL ADVICE FROM A PERSON WHO IS LICENSED OR QUALIFIED IN THE APPLICABLE AREA.
9.1 Indemnity. To the fullest extent allowed by applicable law, you agree to indemnify and hold the Elements harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to: (i) your use of the Services (including any actions taken by a third party using your account), (ii) your violation of the Agreement, (iii) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement, (iv) negligence or more culpable acts or omissions (including recklessness or willful misconduct) by you, any User, or any third party on your behalf or any User, in connection with this Agreement. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
10.1 DISCLAIMER OF INDIRECT DAMAGES. IN NO EVENT WILL ELEMENTS OR ANY OF ITS LICENSORS, SERVICE ELEMENTS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
10.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF ELEMENTS, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.3 NO CLASS ACTIONS. DISPUTES WITH ELEMENTS MAY ONLY BE RESOLVED ON AN INDIVIDUAL BASIS AND NEITHER YOU NOR ANY USER WILL BRING A CLAIM IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. THE PARTIES EXPRESSLY WAIVE ANY CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS.
11. TERM AND TERMINATION
11.1 Initial Term. The initial term of this Agreement begins on the day of your purchase via an Order or use of Services and will continue until terminated as provided hereunder (the “Initial Term”).
11.2 Renewal Term. The Agreement automatically renews unless terminated pursuant to the Agreement.
11.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement Elements may terminate this Agreement, effective on written notice (email being sufficient) to you if: (i) you fail to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after notice; (ii) you breach any of your obligations under the agreement, or (iii) for any reason, or no reason, at Elements’ convenience. In the event Elements terminates your Subscription for convenience it will provide you a prorated refund of any pre-paid but unused Fees as of the date of termination.
11.4 Effect of Termination. Upon any expiration or termination of this Agreement: (i) all Subscriptions, rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate and you will immediately terminate your use of the Services; (ii) we may disable all you and your Users access to the Elements Materials..
11.5 Survival. Any term which by its nature should survive the termination of the agreement shall so survive.
12.1 Assignment. You may not assign, delegate or transfer these this Agreement or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without our prior written consent. We may assign the Agreement, or transfer, or delegate these our rights and obligations without consent.
12.2 Compliance with Applicable Laws. You will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.
12.3 Future Features and Functions. You agree Elements may, from time to time, at its sole discretion, modify and update the Services. You understand and agree that any features or functions related to Elements products referenced on any Elements Website, or in any presentations, verbal or electronic communications, press releases or public statements, which are not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for our products and services remains at Elements’ sole discretion. Accordingly, you agree that you are purchasing products and services based solely upon features and functions that are currently available as of the time of purchase, and not in expectation of any future feature or function.
12.4 Notices. Notices may be sent by first-class, registered mail (return receipt requested) or private courier to Elements at: 879 Baxter Dr. South Jordan, 84095 with a copy to: firstname.lastname@example.org. Notice to you will be given via email to the email provided in association with your purchase of your Subscription or associated with your account. Either party may from time to time change its address for notices under this section upon written notice to the other party.
12.5 Non-waiver. Any failure of either party to enforce performance by the other party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance. Neither party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.
12.6 Jurisdiction and Venue. Subject to the dispute resolution provisions below, all claims and disputes arising from or relating to the Agreement, or the Services may only be brought in the federal or state courts of Salt Lake County, Utah. Both parties to venue and personal jurisdiction there.
12.6.1. Informal Resolution. Before filing a claim, we must first be contacted through the notice procedures below. The parties will try in good faith to settle any dispute. If the dispute is not resolved within thirty days of notice, a formal proceeding may be brought in accordance with this Section 12.6.
12.6.2. Mandatory Arbitration. Any claims or disputes arising from or relating to this Agreement or the Services (including any dispute regarding the interpretation or performance of the agreement) must be resolved through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be in English and held in Salt Lake City, Utah. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. No claim or action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the earlier of the following: a) the expiration or termination of all Subscriptions, b) the termination of this Agreement, or c) the time a party first became aware, or reasonably should have been aware, of the basis for the claim.
12.6.3. Exceptions. A lawsuit may be filed in the federal or state courts of Salt Lake County, Utah solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights without first engaging in the informal dispute resolution process described above.
12.7 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
12.8 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a vendor or supplier, as applicable.
12.9 Force Majeure. Force majeure events shall excuse the affected party (the “Non-Performing Party”) from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include acts which are beyond the reasonable control of a party, including without limitation, Acts of God, natural disasters, pandemic, epidemic, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government (each, a “Force Majeure Event”). As soon as feasible, the Non-Performing Party shall notify the other party of: (a) its best reasonable assessment of the nature and duration of the Force Majeure Event, and (b) the steps it is taking to mitigate its effects. If the Force Majeure Event prevents performance for more than sixty (60) days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice. Elements’ suspension of the Services in order to comply with laws is a Force Majeure Event.
12.10 Entire Agreement; Execution. This Agreement, together with the applicable Order(s) constitute the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. Revisions to this Agreement may be made by Elements by notifying you as described in Section 12.4, no other method of changing this agreement will apply unless it is signed by Elements. However, if you agreed to these terms by reference in another binding instrument (e.g., on an Order which refers to these terms by URL), Elements may change these terms by posting an updated version at the applicable URL and notifying you of the change pursuant to Section 12.4. By continuing to access or use the Services after such notice you agree to be bound by the updated terms. Your click-through terms, preprinted terms in your purchase orders or other of your ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Elements and/or purport to take precedence over this Agreement. The order of precedence among all documents executed among the parties shall be: (1) the applicable Order, (2) this Agreement, (3) the Documentation.
“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party through the possession of more than fifty percent (50%) of the voting stock of the controlled entity.
“Authorized User” or “User” means: (a) you, or (b) any authorized third-party who has been authorized by you to use the Services in accordance with the terms and conditions of this Agreement.
“Your Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from you or a User by or through the Services. For the avoidance of doubt, Your Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on your behalf or any User.
“You Systems” means your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services.
“Documentation” means Elements’ published user manual that describes the functionality of the Services, as updated by Elements from time to time.
“Order” means the purchasing document (however so named), whether on-line, clickthrough, or signed by you, that details the Subscription, pricing, payment terms, and additional information such as, but not limited to: (i) applicable licensing metrics, (ii) other applicable commercial terms and condition, and includes its attachments, schedules, exhibits, addenda, and any terms and conditions and other products and services purchased by you from Elements pursuant to this Agreement.
“Party”means either you or Elements and together the “Parties”.
“Professional Services” means investment advisory services, training services, coaching, or other services you agree to purchase from Elements.
“Elements Materials” means the Services, Documentation, and Elements Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Elements or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Elements Systems. For the avoidance of doubt, Elements Materials include Resultant Data and any information, data, or other content derived from Elements’ monitoring of your access to or use of the Services, but do not include Your Data.
“Elements Systems” means the information technology infrastructure used by or on behalf of Elements in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Elements or through the use of third-party services.
“Resultant Data” means data and information related to your use of the Services that is used by Elements in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Subscription” means access to the Services during the Subscription Term. Each Subscription is specific to you (which will include a User) and under no circumstance may a User Subscription be transferred to, shared among or used by different Users.
“Subscription Term(s)” means the subscription period(s) during which you are authorized to use the Services, as specified in an applicable Order.
“Third-Party Products” means any third-party provided with or incorporated into the Services, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.