The agreement
These terms of service ("Terms") form an agreement between OutheBox, LLC, a Delaware limited liability company doing business as Elastly ("Elastly", "we", "us"), and the business that creates an Elastly account or signs an order form ("Customer", "you").
By creating an account, starting a trial or signing an order form, you accept these Terms on behalf of your business and confirm that you have the authority to do so. Elastly is for business use only. You confirm that you are acting for purposes relating to your trade, business or profession and not as a consumer.
This agreement consists of these Terms, any order form signed by both parties and the data processing agreement. If they conflict, the order form prevails, then the data processing agreement for the processing of personal data, then these Terms. Terms in a purchase order, supplier portal, vendor registration or similar document issued by you do not apply, even if Elastly accepts or acknowledges that document, unless both parties sign a document that expressly amends this agreement.
Accounts and users
You are responsible for the users you invite, the roles and data scopes you give them, and everything done under your account. Keep sign-in credentials confidential, turn on multi-factor sign-in, and tell us at security@elastly.ai if you suspect unauthorised access.
Each user must be an employee or contractor of your business, or someone acting for you under your control.
The service
Elastly connects to your business systems, such as your ERP or online store, to read catalog, cost, customer and sales data, and provides price recommendations, pricing rules, approvals, quotes, reports and an AI assistant.
We may improve and change the service over time. We will not materially reduce the core functionality of a plan you have paid for during its current term.
Trials. A trial lets you evaluate the service before you buy. Trial limits are shown at sign-up. At the end of a trial, the workspace becomes read-only for 30 days so you can export your data, unless you choose a plan.
Beta features. Features marked as beta or preview are offered for evaluation, may change or be withdrawn, and are excluded from any service commitment.
Your data
You own all data you or your users submit to or connect to the service ("Customer Data"). You give Elastly permission to process Customer Data only to provide, secure and support the service for you, as described in the data processing agreement.
You confirm that you have the rights and permissions needed to connect your systems and share Customer Data with us, and that you have given any notices the law requires to the people whose personal data is in it.
Elastly reads your connected systems with the access you grant. Elastly writes prices or quotes back to a system only where you configure and authorise that write target.
Elastly may use aggregated statistics about use of the service, which identify neither you nor any individual and contain none of your prices, costs or other commercial terms, to operate and improve the service. Elastly does not use your Customer Data to make recommendations or set prices for any other customer, and does not disclose it to any other customer.
Prices and decisions
Elastly recommends and governs prices within the rules your team sets. Your business decides which prices, quotes and rules to approve and publish, and is responsible for the prices it charges its own customers, including compliance with competition, pricing and consumer laws that apply to your business.
Any approval rule, schedule or automation you configure to publish prices or quotes without a further manual step is your instruction, and what it publishes is approved by you.
When you authorise a write target, Elastly writes to it the prices and quotes approved under your rules and records each write in your audit log. If Elastly writes a value that differs from the approved value, Elastly will correct it promptly after it becomes aware of it.
You are responsible for the configuration of your connected systems, for holding the licences and permissions they require for Elastly's access, and for keeping your own records and backups of them. Elastly is not responsible for the availability, behaviour or changes of systems you connect, or for errors caused by data in them.
Recommendations, forecasts, simulations and estimates of margin or revenue are based on your data and on models that can be wrong. They are not guarantees of future results.
AI features
The AI assistant generates answers and drafts from your data. Its output can be incomplete or inaccurate, so review it before relying on it. The AI assistant does not approve or publish prices; anything it proposes takes effect only through the approvals and rules your team configures. You own the output generated for you. Elastly does not use your Customer Data or that output to train models for other customers, and our AI provider does not train its models on them.
Acceptable use
You agree not to:
- use the service in breach of any law, or to infringe anyone's rights
- use the service to agree or coordinate prices or other terms of trade with competitors, or to exchange competitively sensitive information with them
- attempt to access another customer's data, or probe, scan or test the service's security without our written permission, except under our responsible disclosure terms on the security page
- interfere with the service, overload it, or bypass its limits or access controls
- reverse engineer the service, except where the law allows it despite this restriction
- resell or provide the service to third parties outside your business
- upload malware, or upload special categories of personal data the service is not designed for
- use the service to build a competing product
We may suspend the affected users, connections or features, to the extent and for as long as needed, where use breaches this section or creates a security or operational risk to the service or other customers. Where the risk allows, we tell you first and give you a chance to fix the problem. We restore access promptly once the problem is resolved. Suspension does not delete Customer Data.
Fees and billing
Fees are set out on the pricing page or in your order form. Plans are billed monthly or yearly in advance in US dollars through our payment processor. Usage above your plan's limits is billed as described on the pricing page or in your order form.
Fees exclude taxes. You pay any sales, use, value added or similar taxes that apply, other than taxes on Elastly's income.
If a payment fails, we will tell you and retry. If an invoice remains unpaid 30 days after its due date, we may suspend the service after giving you notice.
We may change our prices by notice given at least 30 days before the renewal from which the change applies. Fees already paid are not refundable, except where these Terms or the law say otherwise.
Availability and support
We aim for 99.9% monthly availability of the service, excluding scheduled maintenance announced in advance, and publish incidents on our status page. Service credits, if any, are set out in your order form.
Support is provided by email at the times and response targets of your plan.
Confidentiality
Confidential information means non-public information one party discloses to the other under this agreement that is marked confidential or that a reasonable person would understand to be confidential. Customer Data is your confidential information.
Each party keeps the other's confidential information confidential, uses it only for this agreement, and shares it only with people who need it and are bound by similar duties. This does not apply to information that is public through no fault of the receiving party, already known to it, independently developed, or lawfully received from someone else. A party may disclose confidential information when the law requires it, after notifying the other party where allowed.
These duties last during this agreement and for five years after it ends, and for Customer Data and trade secrets for as long as they remain confidential.
Intellectual property
Elastly and its licensors own the service, its software, models and documentation. Subject to these Terms and payment of fees, we give you a non-exclusive, non-transferable right for your users to use the service for your internal business during the subscription term.
If you send us feedback or suggestions, we may use them without obligation to you.
Warranties
Each party confirms that it has the authority to enter into this agreement. Elastly will provide the service with reasonable skill and care and in line with its documentation, and will not materially reduce the security measures described in the data processing agreement.
If the service does not conform to this warranty, tell us within 30 days of the non-conformity. We will use reasonable efforts to correct it. If we cannot correct it within 30 days of your notice, either party may end the affected subscription and we will refund prepaid fees for the remaining term. This is your exclusive remedy for breach of this warranty. Trials and beta features are provided as is, without any warranty.
Except as stated in these Terms, the service is provided "as is", and Elastly disclaims all other warranties, express or implied, including warranties of merchantability, fitness for a particular purpose and non-infringement, to the extent the law allows.
Liability
Neither party is liable to the other for indirect, incidental, special, consequential or punitive damages, or for lost profits, revenue, goodwill or data, even if advised of their possibility. This does not limit Elastly's obligation to restore Customer Data from its backups.
Each party's total liability arising out of or relating to this agreement is limited to the fees paid or payable by Customer to Elastly in the 12 months before the event that gave rise to the claim. During a free trial, Elastly's total liability is limited to USD 100.
For breach of the Confidentiality section or of the data processing agreement, each party's total liability is limited to two times the amount in the previous paragraph, instead of that amount.
The exclusions and limits in this section do not apply to Customer's obligation to pay fees, to a party's obligations under the Indemnity section, to a party's fraud or wilful misconduct, or to liability that cannot be limited by law.
Indemnity
Elastly will defend you against a third-party claim that the service, as provided by us, infringes that party's intellectual property rights, and pay the damages and costs awarded or agreed in settlement. If such a claim arises, we may modify the service, obtain a licence, or end the affected service and refund prepaid fees for the remaining term. This does not cover claims caused by your data, your instructions, your modifications, the combination of the service with products, data or systems not provided by Elastly where the claim would not arise without that combination, or use of the service in breach of these Terms.
You will defend Elastly against a third-party claim arising from Customer Data, from the prices, quotes and terms you offer or charge to your own customers, or from your use of the service in breach of these Terms or the law, and pay the damages and costs awarded or agreed in settlement.
The party seeking defence must notify the other promptly, give it control of the defence and settlement, and cooperate reasonably.
Term and ending the agreement
This agreement starts when you accept these Terms and continues for as long as you have a trial or a subscription. Subscriptions renew automatically for the same period unless cancelled before renewal. For a yearly subscription, we email the account owner a reminder no less than 15 and no more than 30 days before renewal, stating the renewal date, the price and how to cancel.
You can cancel at any time from the billing settings. Cancellation takes effect at the end of the current billing period. Either party may end this agreement if the other materially breaches it and does not fix the breach within 30 days of written notice. If you end this agreement for Elastly's uncured material breach, we refund prepaid fees for the remaining term.
When the agreement ends, your workspace becomes read-only for 30 days so you can export Customer Data in a standard machine-readable format at no extra charge. We then delete Customer Data as described in the data processing agreement.
The following continue after this agreement ends: amounts owed under Fees and billing, the export and deletion terms, Confidentiality, Intellectual property, the disclaimers in Warranties, Liability, Indemnity, this paragraph and General.
Changes to these Terms
We may update these Terms. For a change that materially reduces your rights or increases your obligations, we notify account administrators by email or in the app at least 30 days before it takes effect, and for a prepaid subscription the change applies from your next renewal. A change required by law or needed to address a security risk may take effect sooner; if it materially affects you, you may cancel and receive a refund of prepaid fees for the remaining term. Other changes take effect when published. Changes do not apply to a signed order form during its term unless both parties agree in writing.
General
Governing law. This agreement is governed by the laws of the State of Delaware, without regard to its conflict of law rules. The state and federal courts located in Delaware have exclusive jurisdiction, and each party consents to them.
Assignment. Neither party may assign this agreement without the other's consent, except to a successor in a merger, acquisition or sale of substantially all of its assets, with notice.
Force majeure. Neither party is liable for delays caused by events beyond its reasonable control, other than payment obligations.
Export controls and sanctions. Each party complies with the export control and sanctions laws that apply to it, including those of the United States. You confirm that you are not located in, organised under the laws of, or owned or controlled by persons in a country or region subject to comprehensive United States sanctions, and that neither you nor your users are on a United States government restricted party list. You will not allow anyone to access the service in breach of those laws. Elastly may suspend or end access where needed to comply with them.
Publicity. Elastly may name you as a customer and show your logo on its website and in sales materials. You can withdraw this permission at any time by notice, and we stop new uses within 30 days. A case study, quote or other public statement about you needs your prior written approval.
Notices. Legal notices to Elastly, including notices of breach, termination or a claim, go to privacy@elastly.ai, with a copy to our registered office below. Notices to you go to the email address of your account owner or the notice address in your order form. An email notice is received when sent unless the sender receives a delivery failure.
Entire agreement. These Terms, your order form and the data processing agreement are the entire agreement between the parties about the service and replace earlier agreements on that subject. If a provision is unenforceable, the rest remains in effect. A failure to enforce a provision is not a waiver.
Contact. OutheBox, LLC, doing business as Elastly, 131 Continental Dr, Suite 305, Newark, Delaware 19713, United States.