ElastiFlow Standard EULA V1.1

Exhibit A


This End-User License Agreement (this “Agreement”) between ElastiFlow Inc., (“ElastiFlow”) and your company (“Customer”) is effective for the entire duration of the subscription software term. This Agreement governs your access to and use of ElastiFlow software. By downloading, installing, configuring, or using ElastiFlow software Customer agrees to be governed by this Agreement unless Customer has executed a separate End-User License Agreement with ElastiFlow.

1. Grant of Rights

1.1 License; Copies.  Subject to the terms and conditions of this Agreement, and in consideration of Customer’s payment of the subscription fees set forth in order submitted by Customer and accepted by ElastiFlow (each, an “Order”), ElastiFlow hereby grants to Customer a non-exclusive, non-transferable, license (without the right to grant sublicenses) to execute and use the object code version of The ElastiFlow… proprietary software products and any third-party software licensed to ElastiFlow and provided to Customer (the “Software,” which includes any updates and upgrades thereof provided as part of The ElastiFlow… support and maintenance services), as specified in an Order, solely for Customer’s own internal business operations, in accordance with the related documentation, and in accordance with the license term, scope and type of use set forth in an Order. Customer will keep documentation with the Software and not allow any unauthorized access to, copying of, or the creation of derivative works from, the documentation.  “Software” shall not mean software subject to open source, GPL or similar licensing terms.  Any use of such third party software shall be governed by such third party’s terms and conditions, as identified in the then-current documentation.  Any such third party terms shall take precedence over the terms of this Agreement, which shall solely govern Customer’s rights and obligations with respect to such third party Software.

Customer may make a reasonable number of back-up or archival copies of the Software, provided that each such copy shall include ElastiFlow’s copyright and any other proprietary notices that appear on the original copies of the Software.

1.2 Restrictions.  Except as otherwise expressly provided in this Agreement (or where such restrictions are prohibited by law), Customer shall have no right, and Customer specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person; (ii) make error corrections or otherwise modify or adapt the Software or create derivative works based upon the Software, or to permit third parties to do so; (iii) rent, lease, loan or use the Software as a service bureau, as an application service provider, to perform consulting or training services for a third party or in any commercial time share arrangement; (iv) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form to gain access to trade secrets or confidential information in the Software; (v) use the Software in contravention to any applicable laws or government regulations; or (vi) remove any product identification, trademark, copyright or other notices contained in or on the Software. 

1.3 Ownership.  ElastiFlow and its suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to Customer hereunder, and retain all rights, title and interest in and to the Software.  Customer acknowledges and agrees that this Agreement in no way shall be construed to provide to Customer, or any third party, any express or implied license to use, copy or otherwise exploit the Software or any portion thereof, (including any intellectual property embodied therein) other than as specifically set forth in this Agreement. Without limiting the foregoing, Customer may not sublicense or otherwise distribute the Software or any portion thereof to any affiliate or any other third party, unless otherwise authorized by ElastiFlow in writing. 

1.4 Audit Rights. In the event the use of the Software exceeds that licensed by Customer, as set forth in the Order, Customer agrees to immediately notify ElastiFlow in writing and pay to ElastiFlow the then-current fee associated with such additional usage. ElastiFlow may, upon thirty (30) days advance notice and at its expense, conduct an annual audit, during Customer’s normal business hours, of Customer’s use of the Software to verify compliance with this Agreement.  If the audit reveals that Customer’s use has exceeded the authorized use of the Software by more than five percent (5%) or more, Customer shall reimburse ElastiFlow for the expense of such audit and shall promptly pay to ElastiFlow any and all fees owing as a result of such discrepancy. 

1.5 Remote Diagnostics. Customer agrees that the Software may transmit to ElastiFlow technical and related information about Customer’s use of the Software which may include, without limitation, system performance, capacity usage, internet protocol address, operating system, application software, peripheral hardware, and other non-personally identifiable Software usage statistics to trouble shoot the Software, facilitate the provisioning of updates, support, invoicing or online services, and to enhance, improve, and develop current and future ElastiFlow products and services.  Such transmission may be on a daily or other periodic basis, or upon a failure or crash of the Software.  

1.6 Data Sharing. Customer understands and acknowledges that the Software allows for sharing of flow data collected through Customer’s use of the Software (the “Flow Data”), and, unless Customer opts out such Flow Data sharing, ElastiFlow may, in its discretion, and otherwise has the right to, provide such Flow Data to partners and service providers of ElastiFlow for such third party’s use as part of its offerings to its own customers. By using the Software, Customer affirmatively acknowledges that (a) unless Customer elects to opt out (through functionality provided by the Software), Customer is allowing such Flow Data to be provided to such third parties, (b) Customer has the right to provide Flow Data as set forth herein, and (c). such use of any Flow Data is perpetual.

2. Fees; Maintenance and Support.  

2.1 Fees. Customer shall pay ElastiFlow the fees in the amount set forth in the applicable Order (“Fees”) in accordance with the terms set forth therein.

2.2  Payment Terms. Except as otherwise set forth in the applicable Order, all amounts payable to ElastiFlow under this Agreement will be due within thirty (30) days from the date of an invoice. In addition, ElastiFlow reserves the right to immediately suspend Customer’s license to the Software or upon notice to Customer for any failure by Customer to pay any amount due and payable hereunder.

2.3 Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on ElastiFlow’s net income. If Customer is compelled to make a deduction or set-off for any such taxes, it will pay to ElastiFlow such additional amounts as are necessary to ensure receipt by ElastiFlow of the full amount ElastiFlow would have received but for the deduction.

2.4 Maintenance and Support. Upon payment of applicable fees, ElastiFlow will provide maintenance and support services to Customer in accordance with ElastiFlow’s maintenance and support policy. 

3.   Infringement Indemnity; Limited Warranty

3.1  Indemnification. Subject to the limitations set forth in this Section 3, ElastiFlow shall defend, or at its option, settle any claim or action against Customer and hold Customer harmless from any and all liabilities, damages, expenses, settlements and costs (including reasonable attorney’s fees) finally awarded against Customer, arising from or occurring as a result of any third party claim or action alleging that the Software infringes any United States patent or copyright. ElastiFlow’s obligation to indemnify Customer under this Section 3 shall be subject to Customer: (i) promptly notifying ElastiFlow in writing promptly upon first learning of the claim or action giving rise to the indemnity; (ii) providing ElastiFlow with sole and exclusive control over the defense and/or settlement of such action or claim; and (iii) providing ElastiFlow with proper and full information and reasonable assistance to defend and/or settle any such claim or action. ElastiFlow shall not be responsible for indemnifying Customer with respect to costs incurred, or amounts paid in any settlement, unless ElastiFlow approved such costs or settlements in advance. 

3.2 Exceptions. ElastiFlow will have no liability under this Section 3 for any claim or action where such claim or action results from (i) combination, operation or use of the Software with hardware or software not provided by ElastiFlow; (ii) modification of the Software unless such modification was made or authorized by ElastiFlow; (iii) compliance with Customer’s designs, specifications or instructions; or (iv) Customer’s use of the Software in any manner inconsistent with the terms of this Agreement or any document provided by ElastiFlow. Notwithstanding anything to the contrary, ElastiFlow shall not be liable for any claim based on Customer’s use of the Software after ElastiFlow has informed Customer of modifications of the Software required to avoid such claims and offered to implement those modifications, if such claim would have been avoided by implementation of such modifications.

3.3  Infringement Remedies. If Customer’s use of the Software becomes enjoined, ElastiFlow may at its sole option: (i) procure, at no cost to Customer, the right to continue using the Software; (ii) replace or modify the Software to render them non-infringing; or (iii) if, in ElastiFlow’s reasonable opinion, neither (i) nor (ii) above are commercially feasible, immediately terminate ElastiFlow’s obligations (and Customer’s rights) under this Agreement with regard to such Software, and, if Customer returns such Software to ElastiFlow, refund to Customer (a) for perpetual licenses, the price originally paid by Customer to ElastiFlow for such Software as depreciated or amortized by an equal annual amount over five (5) years, or (b) for subscription, prepaid fees for the remainder of the subscription term, on a pro rata basis.


3.5 LIMITED WARRANTY; DISCLAIMER.   ElastiFlow warrants that, at the time of initial delivery and for thirty (30) days thereafter (the “Warranty Period”), the Software will operate in substantial conformity with the then current Documentation supplied by ElastiFlow from time to time when used in compliance with such Documentation.  This warranty applies only to the standard version of the Software made generally available by ElastiFlow.  If the Software fails to perform as warranted and ElastiFlow is notified in writing of such failure during the Warranty Period, ElastiFlow shall, as Customer’s sole remedy, provide all reasonable programming services within a reasonable period of time to correct or, at ElastiFlow’s sole option, replace the Software.  EXCEPT AS SPECIFIED IN THIS SECTION 3.5, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES RELATING TO THE SOFTWARE AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY DISCLAIMED TO THE EXTENT ALLOWED BY APPLICABLE LAW.


5.  Termination

5.1 By Either Party.  Either party shall have the right to terminate this Agreement (and any license granted under an Order), without liability, in the event (i) the other party fails to cure a material default under this Agreement within thirty (30) days of sending a default notice, or (ii) the other party becomes insolvent or takes any action to wind-up, liquidate or otherwise cease doing business. 

5.2  Effect of Termination.  Upon any termination of this Agreement or an Order, for any reason, all applicable licenses are also terminated, and Customer shall immediately cease use of the applicable Software and shall return to ElastiFlow such Software and all copies thereof.  However, if this Agreement is terminated, but not outstanding Order, the terms and conditions of this Agreement shall continue to govern such Order.  Termination of the term of this Agreement or an Order shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Customer of its obligation to pay all fees that have accrued, have been paid, or have become payable by Customer hereunder.

5.3  Survival.  The provisions of Sections 1.4, 3.4, 4, 5, and 6 shall survive termination of this Agreement.

6.  Confidentiality. Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, customer information, marketing plans, hardware, software and unannounced product information (collectively, “Confidential Information”).  Such Confidential Information, if in writing, shall be marked prominently with the legend “confidential”, “proprietary”, or with a similar legend, or if disclosed orally shall be described as Confidential Information at the time of oral disclosure.  However, regardless of any marks or subsequent summary, information disclosed shall be considered confidential if a reasonable person under the circumstances would understand such information to be of a confidential nature.  Notwithstanding anything to the contrary herein, the Software, Documentation and non-public Product information shall be deemed Confidential Information.  A party shall not use or disclose Confidential Information of the other, except as expressly authorized by this Agreement or in writing by the disclosing party, using the same degree of care which receiving party uses with respect to its own proprietary information, but in no event with less than with reasonable care.  The foregoing obligations of confidentiality shall not apply to any information that the receiving party can show is or was (i) already known to the receiving party at the time of disclosure without obligation of confidentiality; (ii) independently developed by the receiving party without use of or access to the other party’s Confidential Information; (iii) approved for disclosure by the disclosing party beforehand and in writing; (iv) publicly known without breach of this Agreement; (v) lawfully received by receiving party from a third party without obligation of confidentiality; or (vi) required to be disclosed by applicable law or order of a court, tribunal or other governmental agency; provided, however, that the receiving party shall promptly notify the disclosing party in writing of such requirement, and shall cooperate with the disclosing party to minimize the scope of any such disclosure, and in the obtaining of a confidentiality, protective or similar order.

7. General Provisions. (a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The UN Convention on Contracts for the International Sale of Goods shall not apply. (b) This Agreement and all Orders agreed by the parties are the entire agreement of the parties, and supersedes all prior agreements and communications, written or oral, between the parties with respect to the subject matter of this Agreement. The terms and conditions of any purchase orders or invoices issued by a party shall not be binding even if accepted by the other party. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by authorized officers of each party. No delay or omission to exercise any right or remedy accruing to either party hereunder shall impair that right or remedy, or be construed to be a waiver of any breach or default. (c) This Agreement may be executed in two (2) or more counterparts, each of which shall be considered an original. (d) Customer may not assign this Agreement without the prior written consent of ElastiFlow and any such attempted assignment shall be void. ElastiFlow may assign this Agreement in the event of a merger, acquisition or sale of all or substantially all of ElastiFlow’s assets. Subject to the foregoing, this Agreement shall be binding upon and insure to the benefit of the parties hereto, their successors and permitted assigns. (e) ElastiFlow and Customer agree that nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. (f) Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, labor disputes, shortages of supplies, fire, war, and disruption related to terrorism, epidemics, or delays of common carriers. (g) Customer hereby acknowledges that the Software supplied by ElastiFlow hereunder may be subject to export controls under the laws and regulations of the United States, as well as any applicable laws and regulations of the territories outside of the United States. Customer shall comply with such laws and regulations and agrees not to export, re-export or transfer any Software without first obtaining all required governmental authorizations or licenses. ElastiFlow and Customer each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. (h) Any notice under this Agreement must be in writing and is deemed given and effective 3 business days after mailing first class, postage prepaid, or when delivered by overnight express or other delivery service, to the party at the address listed above.


Maintenance and Support Agreement

1.  Definitions.    In this Exhibit, the following definitions shall apply:

a.  “Authorized Contact(s)” shall mean the two (2) representative(s) of Customer, who will be the exclusive point of contact with Supplier with respect to technical support of the Software. Customer will have the right to change the Authorized Contacts by providing written notice to Supplier.

b.  “Documentation” shall mean the documentation that Supplier provides to its licensees for the Software.  Customer will have the right to make multiple copies of such documentation and training materials onto agreed upon media for internal use, training, and reference purposes.

c.  “Error” shall mean any verifiable and reproducible failure of the Software to substantially conform to the Specifications for such Software.  Notwithstanding the foregoing, “Error” shall not include any such failure that is caused by: (i) the use or operation of the Software with any other software or programming languages, or in an environment other than that intended or recommended by Supplier, (ii) modifications to the Software not made by Supplier, or (iii) any bug, defect or error in other software used with the Software or any other failure of such software to conform to its published specifications.

d.  “Error Correction(s)” shall mean either a modification, addition to, or deletion from the Software that substantially conforms such Software to the Specifications or a procedure or routine that, when observed in the regular operation of the Software, eliminates any material adverse effect on Customer of such Error.

e.  “Specifications” shall mean the published specifications for the Software, as set forth in the Documentation for the Software.

f. “Updates” shall mean interim releases incorporating standard maintenance, improvements, patches, error corrections and enhancements that are provided by Supplier to customers who subscribe to Supplier’s maintenance and support services. Updates are designated by the digit to the right of the decimal point (e.g., 1.x).

g. “Upgrades” shall mean full product releases, marketed, priced separately by Supplier that are also provided by Supplier to customers who subscribe to Supplier’s maintenance and support services.  Upgrades are designated by the digit to the left of the decimal point (e.g., x.1).

h.  “Work Around” shall mean a technically feasible change in the operating procedure of the Software whereby the effects of the Error on the normal operation of the Software are reasonably minimized. 

i. “Level 1 – Critical” shall mean a problem causing the complete failure of the Software.

j. “Level 2 – Moderate” shall mean a problem that causes degradation minimal or otherwise in the operation of the Software.

2.  Maintenance Services.

a.  Customer Responsibilities.  Customer agrees to notify Supplier in writing (including by email), via Supplier’s web-based support portal, or telephone promptly following the discovery of any Error.  Further, upon discovery of such an Error, Customer agrees, if requested by Supplier, to submit to Supplier data that Supplier may reasonably require to reproduce the Error and the operating conditions under which the Error occurred or was discovered.  Such list and data shall be deemed Confidential Information of Customer.

b.  Error Corrections.  During the term of this Agreement, Supplier shall use commercially reasonable efforts to provide Error Corrections for Errors in the Software reported by Customer to Supplier.  

c.  Updates and Upgrades.  During the term of this Agreement, Supplier shall make available to Customer any Updates or Upgrades of the Software or Documentation at no extra charge, subject to limitations explicitly set forth in section 2(d) below. Supplier will make such Updates or Upgrades available to Customer when Supplier makes such Updates or Upgrades generally available to its other licensees then covered by maintenance.

d.  Current Release.  Supplier’s obligations under this Agreement shall apply only to those Updates/Upgrades of the applicable Software that are within one (1) Update/Upgrade of the then-current version, and within a one (1) year time frame of the current Update or Upgrade, whichever is greater, provided Customer is under then-current support.  Supplier shall give Customer not less than ninety (90) days prior notice that support will be terminated for a particular Upgrade.

e.  Limitations. Supplier shall have no obligation under this Agreement to make any modifications to Updates or Upgrades to conform to any previous modifications of the Software or Documentation made by Customer or any third party.  Supplier shall have no obligation under this Agreement to correct Errors which result from the breach by Customer of this Agreement, or which cannot be remedied due to any modifications of the Software made by Customer or any third party.  If Supplier agrees to remedy any errors or problems not covered by the terms of this Agreement, Customer shall pay Supplier for all such work performed at Supplier’s then-current standard professional services rates.  Customer acknowledges that Supplier is under no obligation to perform services with respect to any hardware or any software which is not directly licensed from Supplier.

3.  Basic Support Services.

a.  Telephone/ Email Support.  During the term of this Agreement, Supplier will provide telephone consultation and advice to up to two (2) Authorized Contacts who will be authorized to contact Customer regarding technical support of the Software between the hours of 9:00 a.m. and 6:00 p.m., Eastern Standard Time, Monday through Friday, excluding holidays. Supplier will first attempt to resolve the problem over the phone or via email.  If the problem cannot be simply resolved via phone or email, Supplier will make a determination as to the level of the reported problem then proceed along the following guidelines. 

(i).  For Critical issues, Supplier will engage in a commercially reasonable effort to provide Customer a Work Around as possible from the time that the problem is reported and is reproducible by Supplier.  In the event that the problem or Error is discovered to have been caused as a result of any act or omission by Customer, or configuration, hardware environment, network or software environment that was previously undocumented or specifically not supported per Supplier’s Documentation, then the parties will mutually agree the cost and level of required additional support that is needed by Customer from Supplier.

(ii) For any other issues, Supplier will engage in a commercially reasonable effort to provide Customer a Work Around as soon as possible from the time that the problem and/or Error is reported by Customer.

4.  Proprietary Rights.

Any corrections, additions or modifications to the Software or Documentation effected or delivered under this Agreement and any Updates or Upgrades supplied under this Agreement shall be deemed part of the applicable Software and governed by the terms hereof.

Technical Support SLO

During the term of this Agreement, Supplier will provide telephone consultation and advice to up to two (2) Authorized Contacts who will be authorized to contact Customer regarding technical support of the Software.

Access to Online Support and Knowledge Base systems is available 24x7 at https://support.ElastiFlow.com. In all cases, Supplier operates remote analysis and remedial services via secure web-based meeting solutions such as Zoom or VPN connection. Customer must provide appropriate remote access in order for Supplier to be able to provide support.

  • Severity Level: Priority 1 (P1)

    • Problem: A Priority One Error means (i) the production system is severely impacted or completely shut down, or (ii) the production system operations or mission-critical applications are down.

    • Response Time: 2 hours

    • Target Work Around Time Frame: Within 8 hours from recreating the problem at ElastiFlow or as per acceptable action plan.

    • Target Resolution Time Frame: Within 7 days from recreating the problem at ElastiFlow or as per acceptable action plan.

  • Severity Level: Priority 2 (P2)

    • Problem: A Priority Two Error means (i) the production system is functioning with limited capabilities, (ii) or the production system is unstable with periodic interruptions.

    • Response Time: 8 hours

    • Target Work Around Time Frame: Within 24 hours from recreating the problem at ElastiFlow or as per acceptable action plan.

    • Target Resolution Time Frame: Within 14 days from recreating the problem at ElastiFlow or as per acceptable action plan.

  • Severity Level: Priority 3 (P3)

    • Problem: A Priority Three Error means (i) there are Issues with workaround solutions in fully operational production systems, (ii) there are Issues in non-critical functions, (iii) or there is a time sensitive Issue affecting performance or deliverables.

    • Response Time: 24 hours

    • Target Work Around Time Frame: N/A

    • Target Resolution Time Frame: N/A

  • Severity Level: Priority 4 (P4)

    • Problem: A Priority Four Error means (i) there is a need to clarify procedures or information in documentation, (ii) there is a request for a product enhancement or new feature, (iii) cosmetic or non-functional Issues; or (iv) Issues in the documentation.

    • Response Time: 48 hours

    • Target Work Around Time Frame: N/A

    • Target Resolution Time Frame: N/A

  • Device Support Request

    • Problem: Device support requests relate to any request to add support for information elements not currently supported by the software.

    • Response Time: 48 hours

    • Target Work Around Time Frame: Basic decoding support and transformation of data within 5 business days of receiving all required documentation for the data, and sample data in the for of a packet capture (PCAP).

    • Target Resolution Time Frame: Full normalization, translation and enrichment of the data within 20 business days of receiving all required documentation for the data, and sample data in the for of a packet capture (PCAP).

Supplier reserves the right to reclassify a ticket to its appropriate severity level based on the problem information provided by the Customer.

Additional Supplier Support Offerings

Critical Off Hours Support:

Supplier offers off hours support for severity critical issues. Unless Customer has paid for premium Support and Maintenance Services, initiating a call to Critical Off-Hours Support is billable at a rate of $200 per hour for a 4-hour minimum. 

Scheduled Off Hours Maintenance:

Software Upgrades provided during Business Hours. If Customer desires to have Upgrades delivered off hours, Customer can schedule a mutually agreeable date and time to have Supplier support perform provide the Upgrade during off hours. This time is billable at a rate of $200 per hour, with a 2 hour minimum.