PLEASE READ CAREFULLY. The use of the ELSA software platform, any associated websites or applications, and all products or services identified in Customer’s Service Order(s) provided by ELSA Corp., together with its affiliates (collectively referred as “ELSA”), is expressly conditioned upon Customer’s acceptance of, and continued compliance with, this Master Service Agreement (the “MSA”) and the then-current supporting technical documentation made available by ELSA.
By accepting this MSA, whether by (1) clicking an “I Agree,” “Accept,” or similar assent mechanism; (2) executing a Service Order that expressly references this MSA; or (3) accessing or otherwise using any portion of the Services,
Customer agree to be bound by the terms herein. Each duly executed or electronically accepted Service Order (as defined in Section 3.1 below) ) together with this MSA constitutes a single, integrated contract (the “Agreement”). In the event of any conflict between an Accepted Order and this MSA, the terms of the Accepted Order shall govern solely with respect to the Services specified therein.
If the individual accepting this MSA is acting on behalf of a corporation or other legal entity, that individual represents and warrants that he or she possesses full legal authority to bind such entity, and the term “Customer” shall refer to that entity. If the individual lacks such authority, or if Customer does not agree to every term of this MSA, Customer must not accept this MSA and may not use the Services.
The Services are offered only to persons and entities legally capable of entering into binding contracts under applicable law.
WHO WE ARE “ELSA”, means ELSA Corp., a Delaware corporation, 139 Old Orchard Drive, Los Gatos, CA 95032, USA and its Affiliates. “Customer” means a legal individual that clicks “Accept” or approves the Terms and Conditions of the Services and/or signs a Service Order, or otherwise uses the Services. Each of Customer and ELSA shall be referred to as “Party” and together as “Parties”.
DEFINITIONS Except otherwise defined in this Agreement, the capitalized terms used in this Agreement shall have the following meaning. Capitalized terms not defined below carry the meanings in an Accepted Order or in context.
“Admin” means a designated manager or managers from Customer that will be responsible for managing Customer’s Admin Portal and maintaining contact with the Customer Success Team as needed.
“Admin Platform” means a product exclusively designed for businesses or schools on a SaaS basis Product package, that enables them to create different features for their organization, among other things, such as opening accounts and internal teams, defining team managers, assigning tasks to teams or Learners, and viewing organization performance or insights.
“Affiliate” means, in relation to any fully owned and controlled entity and/or an entity that directly or indirectly holds a controlling interest of more than fifty percent (50%) in ELSA. An entity is deemed included within the meaning of “Affiliate” even if it qualifies as such after the Effective Date of the applicable Agreement and/or Accepted Service Order.
“Customer Success Team” refers to a specialized team from ELSA exclusively for businesses or schools, committed to actively partnering with the Admins of Customer and Customer’s Learners/Users to ensure optimal use of the Service in achieving Customer’s outcomes.
“Intellectual Property Rights” refers to any patents, rights in software, utility models, registered and unregistered designs, copyrights, database rights, trademarks, domain names, rights in confidential information, trade secrets, know-how, and all registrations, applications, renewals, extensions, combinations, divisions, continuations or reissues of any of the foregoing of ELSA and its affiliates in any part of the world.
“Learner” or “User/s” refers to an individual or group registered by Customer with ELSA to access and utilize the Service.
“License” refers to a limited, non-exclusive, non-transferable, non-sublicensable right, during the applicable Service Order and subject to Customer’s timely payment of all Service Fees, for Customer and its User to access and use the Product strictly in accordance with (i) this Agreement, (ii) the applicable Accepted Service Order, and (iii) any published Documentation. The License confers no ownership interest in the Product, no right to receive source code, and no right to exploit the Product beyond the scope expressly granted herein.
“Platform” means the software platform provided by ELSA to Customer as described in the applicable appendices.
“Product” Our proprietary SaaS, API’s, content, documentation, updates and any related deliverables. The scope and nature of each such Product being set forth in a schedule attached to this MSA as an exhibit at the end hereof.
“Services” means collectively, the access to the Software (in accordance with the applicable Program, as defined below), the Support and Maintenance Services, and the implementation services related to the use of the Platform, including but not limited to the provision of content, websites, applications, License, access to the Admin portal, accounts for learning English, and materials for using the Platform and the support from Customer Success Team, all in the scope explicitly agreed and set forth under any applicable Service Order.
For the avoidance of the doubt, the Services provided by ELSA do not include any Third Party Services. any Third Party Services are outside the scope of this Agreement and are provided solely by the applicable third party at its own responsibility.
“Support and Maintenance Services” means the support and maintenance services provided by Party A, as set forth in Appendix 2 hereto.
“Third Party Services” means any services, instruction, content or deliverables that are provided by a third party and not by ELSA, including without limitation any in-person, offline, or instructor-led training components.
Where Customer wishes to receive the Services and deliverables from ELSA, the Parties shall cooperate to agree to a Service Order (hereinafter referred to as “Accepted Service Order“). Customer will submit to ELSA one or more service orders in the form provided to Customer by ELSA (each, a “Service Order“). ELSA reserves the right to review and confirm the details provided in each Service Order before proceeding.
Subject to the terms and conditions of this Agreement, and for the duration of its term, Customer will submit to ELSA one or more Service Orders. Each Service Order submitted to ELSA shall be executed by Customer and shall include, inter alia, the purchase date, quantity, and any other information necessary for ELSA.
Each Accepted Service Order shall be binding and shall form part of this Agreement when it has been signed and executed by both Parties. All Accepted Service Orders are non-refundable and non-cancellable.
If there is any conflict or inconsistency between any of the terms of this Agreement and any Accepted Service Order, the Accepted Service Order shall take precedence.
Within seven (07) Working Days of receipt of the Service Order, ELSA shall notify Customer in writing of their acceptance or rejection (accompanied by a reasonable justification for any such rejections) of the Service Order.
Any delays or other changes by Customer to the Accepted Service Order must be approved in advance and in writing by ELSA, and such approval will not prejudice any rights or remedies that ELSA may have under the Agreement or by law.
In the event of any delays or interruptions in the delivery of the Service due to reasons not directly attributable to ELSA, the timelines for performance by ELSA will be automatically extended as necessary. Furthermore, ELSA will be entitled to receive reasonable compensation from the Customer for any damages, costs, and/or expenses incurred as a direct or indirect result of such delay or interruption. Customer acknowledges that such compensation will be due and payable without offset or deduction.
ELSA will not be held liable for any delays in Service delivery caused by factors beyond its reasonable control, including but not limited to technical issues, network failures, email delivery errors, or any Force Majeure Events. ELSA reserves the right to determine the most appropriate and secure method of Service delivery and will bear no responsibility for any miscommunication or mis-delivery caused by inaccurate contact information provided by Customer. If Customer fails to receive the Service within the stipulated time frame, Customer must notify ELSA in writing within three (03) Working Days of the expected delivery date. Failure to provide such notice will result in Customer waiving any non-delivery or delayed delivery claims, and ELSA will be released from any further obligations or liabilities in this regard.
PAYMENT TERMS
Service Fees. The fees payable under each Service Order (the “Service Fee”) are those shown in the applicable Accepted Service Order, based on (a) ELSA’s then-current written price list and/or (b) any bespoke quotation or Quote issued by ELSA for that Service Order and expressly accepted in writing. Price-list revisions take effect only for Service Orders executed after the revision’s effective date.
Invoice Issuance. Following full execution of an Accepted Service Order, ELSA shall issue the corresponding invoice, unless a different invoice date is expressly specified in the applicable Accepted Service Order or Service Order, in which case such specified invoice date shall apply.Unless otherwise stipulated in the Accepted Service Order, ELSA will issue an invoice to Customer within three (03) Working Days following the receipt of full payment from Customer.
Time for Payment. If the Accepted Service Order itself specifies an “Invoice Due Date,” the Service Fee shall be payable on that stated date. If no invoice due date or payment term is specified, the Service Fee shall be due and payable within five (5) days from the invoice date.Payment shall be made by electronic funds transfer to the bank account designated by ELSA and is deemed received only upon irrevocably credit of immediately-available funds.
Transfer Expenses. All bank charges, wire-transfer fees, currency-conversion costs and similar remittance expenses shall be borne exclusively by Customer.
Any overdue amounts shall bear interest at the rate of 0.05% per day, or the maximum rate permitted by applicable law, whichever is lower. Such interest will accrue from the date the payment becomes overdue and continue to accrue until Party B fully pays the outstanding amount.
RIGHTS AND OBLIGATIONS OF ELSA In addition to the rights and obligations outlined in this Agreement, ELSA will have the following rights and obligations:
ELSA reserves the right, at its sole discretion, to amend, suspend, withdraw, or decline the provision of Services under any Service Order, in whole or in part, at any time without incurring any obligation, liability, or compensation to Customer before Customer fully pays any due Service Fee.
ELSA will make commercially reasonable efforts to address and rectify technical errors in the Services during its usage period. ELSA’s obligation to address technical errors is contingent upon timely notification in writing by Customer and will not extend to errors caused by external factors, including but not limited to incompatible systems, unauthorized modifications, or Force Majeure Events.
ELSA will cooperate with Customer to resolve any issues arising during the execution of this Agreement. However, ELSA reserves the right to determine the appropriate measures to address such issues and will not be obligated to implement solutions that exceed the scope of the agreed Service or require significant alterations to the existing system.
RIGHTS AND OBLIGATIONS OF CUSTOMER In addition to the rights and obligations outlined in this Agreement, Customer will have the following rights and obligations:
Customer must actively cooperate in all other necessary matters to enable ELSA to provide the Services appropriately.
Customer must use its best effort to fulfill its undertakings as outlined in this Agreement.
Customer must make all payments to ELSA promptly and in full, per the terms specified in this Agreement and the applicable Service Order.
Customer acknowledges and agrees that Customer will be solely responsible for the payment of any and all applicable taxes, including but not limited to withholding taxes, arising from or related to the transactions contemplated by this Agreement. The net amounts specified in any applicable Accepted Service Order will be paid to ELSA in their entirety, without any deductions or withholdings for taxes. If Customer is legally obligated to withhold or deduct any taxes, Customer must pay such additional amounts as may be necessary to ensure that ELSA receives the total amount specified in the Service Order(s) without any reduction.
Customer must not, and shall not allow any User or third party to:
Grant or assign any right to use, sell, purchase, license, sub-license or lease any of the Software, the License, the Program or any portion or component of them to any third-party or in breach of the terms of this Agreement;
Copy, change, translate, adapt, analyze, reverse-engineer, disassemble, decompile, or develop the Software or any portion or component thereto, create any derivative works or do any similar acts with respect to the Software, or allow any third party to do so;
Use the Software or any derived information or reports in any manner or for any purpose that violates any rights or interest of ELSA or any other third-party;
Use the Software for purposes other than the Agreement specifically allows;
Use the Software and/or Platform, its content and program, or any related materials in a manner that violates or infringes any rights of any third party, or otherwise harms, damages, or discriminates any third party, including but not limited to privacy rights, publicity rights, or Intellectual Property Rights;
Remove or alter any trademarks or other proprietary notices related to the Software, Platform, their content and program, or any related materials;
Circumvent, disable, or otherwise interfere with security/privacy-related features of the Software and/or Platform, its content and program, or any related materials or features that enforce use limitations;
Make available or use the Software and/or Platform, its content and program, or any related materials in any manner prohibited by applicable laws (including but not limited to export control laws, securities laws, and any financial regulation applicable to Customer); And/or
Transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Platform and/or Software (including any portion or component thereof) or any related materials.
Customer undertakes that the maximum permitted use of the Service, whether by number of Users (for the Saas Service) or by other usage metrics (for the API Service) shall not exceed the usage limitations specified in the applicable Accepted Service Order(s). For the avoidance of doubt, in the case of the Saas Services, the number of Users set forth in the applicable Accepted Service Order(s) corresponds to the number of Learners who may access and utilize the Service. In the case of the API Service, the applicable usage limitation may refer to the number of API calls, integrations or other technical usage metrics.
If Customer wishes to grant Service access beyond the usage limitation specified in the applicable Service Order, then:
The Admin of Customer shall first contact ELSA to discuss any additional service fee with a new Service Order for such additional usage.
Customer shall agree to pay any additional service fee for such additional usage prior to such access. It is hereby agreed that any additional service fee may differ from the Fees, per ELSA’s sole discretion, and per request.
Customer shall only use the Software and/or Platform in accordance with the Documentation, information and materials provided by ELSA, and subject to the use limitations included herein and applicable laws.
Customer shall be responsible that the usage of any and all of the Users accessing or making use of the Platform and/or Software on its behalf shall act and comply in all respects with the terms of the Agreement and the applicable Service Order. Without derogating from the above, Customer shall be liable at all times to any act or omission of any person or entity using the Platform and/or Software on its behalf as if such act or omission were made by Customer.
INTELLECTUAL PROPERTY RIGHTS
The Intellectual Property Rights of ELSA and any of its Affiliates shall be, at all times, fully and exclusively retained by them including, without limitation, full ownership, control, and exclusive rights over all such Intellectual Property Rights. No transfer, assignment, license, or any other form of rights or permissions related to these Intellectual Property Rights is granted to Customer or any other parties under this Agreement, Service Orders, or any other related documents, unless explicitly agreed upon and stipulated in writing by ELSA. For the avoidance of doubt, any use of ELSA’s Intellectual Property Rights by Customer is strictly limited to the specific purposes outlined in this Agreement and does not confer any ownership or lasting rights. Nothing herein constitutes a waiver of ELSA’s Intellectual Property Rights under any law, and ELSA reserves all rights not expressly granted.
Except otherwise agreed by the Parties in writing, ELSA shall retain all rights, title and interest in and to ownership of all Intellectual Property Rights embodied in or related to the specifications, the process technology, and the Products.
If prior or during the term of the Agreement, ELSA receives any feedback (e.g., questions, comments, suggestions, or the like) regarding any of the Service (collectively, “Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to ELSA and that such shall be considered ELSA’s information that Customer must keep confidential in accordance with this Agreement, and Customer hereby irrevocably and unconditionally transfers and assigns to ELSA all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto.
ELSA shall have the right to process data and other information relating to the provision, use and performance of various aspects of the Products and related systems and technologies (including, without limitation, information concerning end users usage data and data derived therefrom) in aggregate, anonymized, non-identifiable, or other de-identified form (including removal of any Customer identifiers) (“Usage Information”) and ELSA will be free (during and after the term hereof) to (i) use such Usage Information to improve and enhance the Products, and for other development, proprietary machine learning capabilities, diagnostic and correcting purposes in connection with the Products and other ELSA developments. Such Usage Information is ELSA’s exclusive property.
Customer agrees not to engage in any acts that are contrary or inconsistent with ELSA’s Intellectual Property Rights. Any such actions will be deemed a material breach of this Agreement, entitling ELSA to have the absolute right to terminate the provision of all Services to Customer. ELSA will also retain the right to pursue all available legal remedies without limitation.
CONFIDENTIALITY & NON-DISCLOSURE
Each receiving Party must keep confidential all information and materials provided by the other Party and will not disclose, in whole or in part, such information or related materials to any third party (that is not a Party or a related party to this Agreement) without the consent of the disclosing Party providing the information and materials. During their cooperation under this Agreement, the Parties will use the information and materials solely for the purposes as agreed upon in the Agreement.
The Parties will make their best efforts to maintain the confidentiality of all information and materials provided by the other Party and must ensure that their employees are similarly obligated to maintain confidentiality.
This confidentiality obligation does not apply to information and/or materials that:
Become public information revealed by or through media other than any breach of this obligation by a Party;
Were already known to a Party prior to disclosure by the other Party;
Have been de-identified and constitute as Usage Information;
Are disclosed by the Party that provided such information and/or materials; or
Are required to be disclosed by competent authorities or judicial bodies.
Any damages arising out of or from any breaches of this confidentiality obligation herein and under any relevant laws and regulations will be subject to compensation for contractual violation under relevant laws currently in force.
DATA PRIVACY AND SECURITY
The processing of Personal Data, as defined in the following referenced addenda, shall be governed exclusively by the provisions of ELSA’s Data Processing Addendum for ELSA Business or Data Processing Addendum for ELSA Schools, as relevant and applicable, (collectively, “the DPAs”); the latter addendum applying only if Customer is an academic institution or if agreed to specifically by the Parties in writing. The DPAs, which are hereby incorporated into this Agreement and form an integral part thereof as applicable, shall apply automatically with Customer entering into this Agreement and the Parties agree to be bound by it, unless agreed to otherwise by the Parties in writing.
In the event Customer fails to comply with any data protection or privacy law or regulation and/or any provisions of the DPA, then (a) to the maximum extent permitted by laws of the state of California, Customer will be fully responsible and liable for any such breach (including but not limited to its employees, officers, directors, subcontractors, and agents), and (b) in the event of any claims of any kind related to any such breach, Customer will defend, hold harmless and compensate ELSA (including but not limited to its employees, officers, directors, subcontractors, and agents) from any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorney’s fees.
MARKETING & PROMOTIONAL UNDERTAKINGS
ELSA may use Customer’s name, logo, and general description as a customer reference in standard marketing and sales materials (including the website, pitch decks, and customer lists), in accordance with Customer’s brand guidelines. No prior written approval is required for such general use.
Any case study, testimonial, quote, or detailed description involving Customer will require Customer’s prior written approval, which shall not be unreasonably withheld or delayed.
Customer may opt out of any specific publication or opportunity by written notice, and ELSA will remove Customer’s identifying information in a timely manner.
TERM AND TERMINATION
Either party may terminate This Agreement if the other party materially breaches its obligations hereunder, which default is incapable of cure of which, being capable of cure, has not been cured within 30 days after receipt of written notice from the non-defaulting party.
Termination for Insolvency. Either Party may terminate this Agreement immediately upon written notice if the other Party (i) is adjudicated bankrupt or insolvent, (ii) has a receiver, trustee, or similar officer appointed for all or a substantial part of its assets, (iii) files or has filed against it any petition under bankruptcy or insolvency laws that is not dismissed within sixty (60) days, or (iv) generally fails to pay its debts as they become due.
Termination for Extended Force Majeure. If a Force Majeure Event (as defined herein) prevents either Party from performing its material obligations under this Agreement for a continuous period exceeding thirty (30) days, the unaffected Party may terminate this Agreement upon ten (10) days’ written notice.
Effect of Termination: Upon termination or expiration of this Agreement:
Customer shall immediately cease all use of the Services and Platform;
Customer shall pay all outstanding fees through the effective date of termination;
Each Party shall return or destroy all Confidential Information of the other Party;
Survival. The following provisions shall survive any termination or expiration of this Agreement: Section [7] (Intellectual Property Rights), Section [8] (Confidentiality), Section [14] (No Representations; Limitation of Liability), Section [13] (Compensation or Breach).
FORCE MAJEURE EVENT Force Majeure Event refers to extraordinary events or circumstances beyond the control of a Party (“Affected Party“) that prevent the Affected Party from fulfilling their obligations under the Accepted Service Order and Agreement. Force Majeure Event, including but not limited to hostilities, war, revolution, civil commotion, strikes, plagues, labor disturbances, acts of God, changes in public policy and/or laws and similar events. The Affected Party must notify the other Party in writing within seven (07) days of the occurrence of a Force Majeure Event. If the Affected Party is unable to resolve the Force Majeure Event within thirty (30) days of its occurrence, the other Party has the right to terminate the Agreement in accordance to article 10 above, and the Affected Party will not be liable to compensate the other Party.
COMPENSATION & INJUNCTIVE RELIEF
The Party that breaches the terms and conditions of this Agreement will compensate and hold the other Party harmless from any losses, damages, or liabilities arising as a consequence of such breach under applicable laws.
Customer acknowledges that using the Services in violation of this Agreement, or permitting any unauthorized transfer, subclassing, reproduction, or disclosure of the Services underlying technology or related materials, would cause ELSA, its Affiliates, suppliers and authorized distributors (“Resellers”) irreparable harm. Accordingly, ELSA, its Affiliates, suppliers and Resellers shall be entitled to obtain preliminary or permanent injunctive relief and any other equitable remedy, without the requirement of posting a bond or other security.
NO REPRESENTATION; LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER ANY APPLICABLE LAW, THE SERVICE, INCLUDING ALL IMAGES, AUDIO FILES AND OTHER CONTENT THEREIN, AND ANY OTHER INFORMATION, PROPERTY AND RIGHTS GRANTED OR PROVIDED TO CUSTOMER BY ELSA ARE PROVIDED ON AN “AS IS” BASIS. ELSA AND ITS AFFILIATES OR SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, EITHER EXPRESS OR IMPLIED, AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELSA DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND RELATING TO ACCURACY, SERVICE AVAILABILITY, COMPLETENESS, INFORMATIONAL CONTENT, ERROR-FREE OPERATION, RESULTS TO BE OBTAINED FROM USE, OR NON-INFRINGEMENT. ACCESS AND USE OF THE SERVICE MAY BE UNAVAILABLE DURING PERIODS OF PEAK DEMAND, SYSTEM UPGRADES, MALFUNCTIONS OR SCHEDULED OR UNSCHEDULED MAINTENANCE OR FOR OTHER REASONS.
Without derogating from the above, to the maximum extent permitted by applicable law: (i) ELSA’s total cumulative liability for all claims arising out of or relating to this agreement, whether in contract, tort or otherwise, shall not exceed the total amount of fees actually paid by Customer to ELSA under this agreement during the twelve (12) months immediately preceding the date of the event giving rise to the claim, and (ii) In no event shall either Customers liable to the other Party for any indirect, incidental, special, punitive, or consequential damages, including but not limited to loss of profits, loss of business opportunity, loss of data, or cost of substitute services, even if such party has been advised of the possibility of such damages.
Without limitation the foregoing, ELSA shall have no liability whatsoever with respect to any Third-Party Services, and such services shall not be taken into account for purposes of determining ELSA’s liability under this Agreement.
The limitations and exclusions in sub-Section above shall not apply to: (i) either Party’s breach of its confidentiality obligations under this Agreement; (ii) Customer’s breach of the license restrictions set forth in this Agreement; (iii) either Party’s intellectual property infringement; (iv) either party’s fraud or willful misconduct; or (v) Customer’s payment obligations under this agreement. The Parties acknowledge that the limitations of liability set forth in this Section are an essential element of this agreement, and that in the absence of such limitations, the economic terms of this agreement would be substantially different.
INDEMNIFICATION Customer agrees to defend, indemnify and hold harmless ELSA and any of its Affiliates, directors, officers, employees, contractors, agents, suppliers, licensors, successors and assigns, from and against any and all losses, claims, causes of action, obligations, liabilities and damages whatsoever, including attorneys’ fees, arising out of or relating to Customer’s access or use of the Service, any false representation made to ELSA (whether or not in connection with the Service), a breach of any of the terms of this Agreement and/or a Service Order, any violation of applicable laws or regulations by Customer, any negligent acts or omissions of Customer, and/or with respect to any claim that any service provided by ELSA is inaccurate, inappropriate or defective in any way whatsoever. This indemnification obligation shall survive the termination or expiration of this Agreement.
MISCELLANEOUS
Amendments. Any changes or amendments to this Agreement must be made in writing and duly signed by the Parties hereto, explicitly stating that they constitute an integral part of this Agreement.
Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of California, USA, without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the competent federal or state courts in Santa Monica California.
Dispute Resolution. All disputes, controversies, or claims arising out of or relating to this Agreement will first be resolved by the Parties through negotiation. In case the Parties are unable to reach a resolution through negotiation within thirty (30) days, the dispute will finally be resolved by the competent federal or state courts in Santa Monica California.
Purchase Orders; Order of Precedence.any purchase order or quote or similar document issued by Customer shall deemed for administrative purposes only and shall not modify or supplement this Agreement unless expressly accepted in writing by ELSA. in any event of any conflict, the terms of this Agreement and any Accepted Service Order shall prevail.
No third-party beneficiaries. There are no third-party beneficiaries to this Agreement.
Entire Agreement. This Agreement and all materials referenced herein, are the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous contracts between the Parties. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
Counterparts. The Parties may enter into this Agreement in counterparts, including facsimile, PDF, or other electronic copies, which, taken together, will constitute one instrument.
Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way.
Languages. In case of use of another language, and in case of a conflict between them, the English version will prevail.
Partnerships or employee relations. Nothing in this Agreement, any Service Order or Quote shall be considered or create any form of partnership, collaboration, or employee-employer relations between the Parties and ELSA and any third-party service provider.
The Appendices to this Agreement are inseparable, including but not limited to information about the Parties in the transaction, service package information, Service Fee, Support and Maintenance Services, and payment terms.
ELSA BUSINESS SCHEDULE
SCOPE AND NATURE OF SERVICES
ELSA will provide to Customer with a business-grade Saas Product Package that includes all Services described below, subject to the following terms:
ELSA hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, subscription-based, and revocable license to: (a) remotely access (i.e. on a SaaS basis) to the ELSA Platform for Business and functions described in the applicable Service Order (the “Program”) for internal use by Customer’s employees and independent contractors (the “License“). Unless otherwise indicated, the term “Program” also includes the documentation provided to Customer in connection with the operation of the Program (the “Documentation“). Customer may only use the Program in accordance with the Documentation, subject to the use limitations included herein and applicable laws. In connection with the License, Customer undertakes to ensure that any users accessing or making use of the Program on its behalf shall comply in all respects with the terms of the Agreement and the applicable Service Order. In addition to the abovementioned licenses, during the term of the License, ELSA may provide Maintenance and Support Services, as detailed in Appendix 2.
Depending on the needs of the customer, ELSA’s Customer Success Team may conduct monthly reviews with the Admin of Customer to monitor and assess the progress of Learners in terms of their English proficiency and their interaction with ELSA’s Platform. These reviews will include detailed analysis and reporting on the Learner’s performance, engagement levels, and areas for improvement. ELSA may provide consultancy to Customer based on the findings of these monthly reviews. This consultancy may enhance the Learner’s progress on the Platform by offering tailored recommendations, action plans, and best practices.
Customer undertakes that the maximum number of Users that are authorized to use the Service shall not exceed the number of Users specified in the Service Plan detailed in Section 3 of this Service Order. For the avoidance of doubt, the number of Users set forth in the Section 3 corresponds to the number of Learners who may access and utilize the Service.
SERVICE PACKAGE – ELSA BUSINESS
Services solution package included:
ELSA Speech Analyzer;
ELSA NOVA Speak App;
ELSA Dashboard;
ELSA Customer Success Service.
Features of the services solution package:
Admin Experience Portal: Sign up and enroll by SSO authentication (Additional fee required);
Managing Admins & Team leads;
Onboarding/ Offboarding flow for Admins;
Creating and managing teams that cater towards the organisation goals and objectives upon learning;
Insights on organization/team/individual Performance;
Assessment test;
Personalized learning path;
Exclusive content from leading publishers;
Unlimited role-play in real-life scenarios;
Prediction score (IELTS, TOEFL);
Personalized feedback;
Analytics and reports;
Access to Deployment and Engagement tools;
Customer Success Services (up to the sales volume): providing adoption and engagement guidance, driving consistent Learner engagement, regularly assessing the Learner’s progress to measure effectiveness, addressing and resolving issues in the Admin Platform, and helping the Admin in managing the renewal process to ensure seamless, uninterrupted Service.
ELSA SCHOOL (WEB APP) SCHEDULE
SCOPE AND NATURE OF SERVICES ELSA will provide to Customer with a Educational school-focused SaaS Product Package, includes all Services described below, subject to the following terms:
ELSA hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, subscription-based, and revocable license to remotely access (i.e. on a SaaS basis) to the ELSA Platform for Schools and functions described in the applicable Service Order (the “Program”) for internal use by Customer’s Learners (the “License”). Unless otherwise indicated, the term “Program” also includes the documentation provided to Customer in connection with the operation of the Program (the “Documentation”). Customer may only use the Program in accordance with the Documentation, subject to the use limitations included herein and applicable laws. In connection with the License, Customer undertakes to ensure that any Users accessing or making use of the Program on its behalf shall comply in all respects with the terms of the Agreement and the applicable Service Order
The Service may include features powered by third-party tools that include the use of artificial intelligence (AI) technologies, for purposes such as content analysis, automated feedback, and personalized learning experiences. Customer acknowledges that these features are optional and used at the discretion of Customer.
In addition to the abovementioned licenses, during the term of the License, ELSA may provide Maintenance and Support Services as detailed in the Service Order and Appendix 2 below.
Depending on the needs of Customer, ELSA’s Customer Success Team may conduct monthly reviews with the Admin of Customer to monitor and assess the progress of Learners in terms of their English proficiency and their interaction with ELSA’s Platform. These reviews will include detailed analysis and reporting on the Learner’s performance, engagement levels, and areas for improvement. ELSA may provide consultancy to Customer based on the findings of these monthly reviews. This consultancy may enhance the Learner’s progress on the Platform by offering tailored recommendations, action plans, and best practices.
Customer undertakes that the maximum number of Users that are authorized to use the Service shall not exceed the number of Users specified in the Service detailed in Section 3 of this Service Order. For the avoidance of doubt, the number of Users set forth in Section 3 corresponds to the number of Learners who may access and utilize the Service.
SERVICE PACKAGE – ELSA SCHOOL PREMIUM
Services solution package included:
ELSA Speech Analyzer (With AI Role Play)
ELSA web-based Student App;
ELSA School NOVA Admin Dashboard;
ELSA Customer Success Service.
Features of the services solution package:
Managing Admins & Team leads;
Onboarding/ Offboarding flow for Admins;
Creating and managing teams that cater towards the school goals and objectives upon learning;
Insights on organization/team/individual Performance;
4-Skill Study Sets;
Read Aloud;
Assessment test;
Personalized learning path;
Exclusive content from leading publishers;
Unlimited AI role-play conversation and feedback details;
Prediction score (IELTS, TOEFL);
Personalized feedback;
Analytics and reports;
Access to Deployment and Engagement tools.
Customer Success Services (up to the sales volume): providing adoption and engagement guidance, driving consistent Learner engagement, regularly assessing the Learner’s progress to measure effectiveness, addressing and resolving issues in the Admin Platform, and helping the Admin in managing the renewal process to ensure seamless, uninterrupted Service.
APPENDIX 2
SUPPORT AND MAINTENANCE SERVICES
Support and Maintenance Services: For the purposes hereof, “Error” – means any reproducible error on the Software that does not result from incorrect functioning and/or use of the Software, which renders the Software inoperable.
An Error shall not include nonconformity resulting from misuse, improper use, alteration, modification, or damage caused thereto, or from combining or merging the Software, or part thereof, with any hardware or software not specifically supplied or approved by ELSA in writing.
Error Reporting. ELSA shall provide telephone and/or email (or such other means to be mutually agreed upon) communication ability during ELSA’s normal working hours (i.e., Monday through Friday 9:00-17:00 local time, excluding weekends and public holidays).
Error Correction. Customer shall notify ELSA’s help desk, as set out in Section 1.1 above, via electronic mail or telephone of any Error detected in the Software, providing ELSA with sufficient details to enable ELSA to accurately diagnose and reproduce the Error, if required.
ELSA shall use necessary and reasonable efforts to confirm the existence of the Error and to correct the Error by providing a fix, patch, workaround, software update, or any other reasonable solution. Whilst ELSA shall endeavor to correct all Errors, Customer acknowledges that not all routine Errors can be corrected or that a fix, patch, workaround, software update, or any other offered solution would invariably be found. ELSA cannot warrant that all Errors can or will be corrected. ELSA will provide a response within 24 hours between Monday and Friday and 48 hours between Saturday and Sunday.
Exclusions. ELSA shall not be responsible or liable to correct any System Error in any one of the following events: (i) Customer fails to follow specific and written recommendations provided by ELSA to Customer regarding the Software; (ii) the Software or any part thereof has been (a) corrupted by incorrect use by Customer and/or a third party acting on Customer’s behalf and/or approval; (b) modified, repaired, or serviced by Customer and/or a third party acting on Customer’s behalf and/or approval, without ELSA’s prior written approval; and/or (c) due to a change, modification and/or update and/or upgrade of Customer’s system, which caused the Error. Notwithstanding the above, ELSA will reasonably help Customer in solving such an error to the extent that ELSA’s help will be needed.
Support Levels:
First Line Support. It shall solely be the obligation of ELSA to provide First Line Support, which, for purposes hereof, with respect to the Software, shall mean: (i) responding to calls from Learner; and (ii) ascertaining the precise nature of operational problems and finding a reasonable workaround; and (iii) taking all reasonable steps, and apply all reasonable effort to independently solve problems and address questions raised by Customer.
Second Line Support. ELSA may provide Customer Second Line Support in the following events: (i) having exhausted all reasonable efforts, Customer cannot solve the errors; (ii) the reported error is reproducible; and (iii) Customer advises ELSA of the exact nature of the problem as soon as possible after its occurrence by telephone contact or email.
ELSA API SCHEDULE
LICENSE AND COLLABORATION SCOPE
License Grant. ELSA grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the API solely to develop and operate Applications that interoperate with ELSA’s hosted Services as listed in this Sales Order.
Use Restrictions. Customer shall not in any time, and shall not permit others to: (i) copy, modify, or create derivative works of the API, in whole or in part; (ii) sell, lease, sublicense, assign, distribute, publish, transfer, or otherwise make the API available to third parties; (iii) reverse-engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the API, in whole or in part; (iv) remove any proprietary notices; (v) use the API to infringe, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) combine or integrate the API with any software, technology, services, or materials not authorized by ELSA; (vii) design or permit the Product to disable, override, or otherwise interfere with any ELSA’s-implemented communications to end users, consent screens, user settings, alerts, warning, or the like; (viii) replicate or attempt to replace the user experience of ELSA; or (ix) attempt to cloak or conceal Customer’s identity or the identity of the Applications when requesting authorization to use the API.
Reservation of Rights. Except for the limited rights and licenses expressly granted under this Service Order, nothing in this Service Order grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the API.
ACCESS AND AUTHENTICATION
ELSA will provide API Keys to Customer upon execution of this ServiceOrder, subject to Customer:
maintain strict confidentiality of API Keys in accordance with the Confidentiality terms in the Agreement.
implement industry-standard security measures to protect API Keys.
immediately notify ELSA of any suspected compromise of API Keys.
be solely responsible for all activities conducted using its API Keys.
ELSA may suspend or revoke credentials upon:
suspected compromise of API Keys.
violation of Usage Quotas.
security threats to the Product and/or API.
Customer breaches the Service Order or related Agreement.
Use tokens only within their designated permission scopes
Not attempt to modify or decode tokens
Not share tokens with third parties without ELSA’s prior written authorization.
Token Limitations. ELSA may:
Revoke tokens immediately upon security concerns
Implement rate limiting per token
Restrict token permissions based on subscription level
Monitor and Audit token usage for security purposes
Customer acknowledges that expired or revoked tokens will immediately cease to function, and ELSA shall not be liable for any resulting service interruption where token expiration or revocation occurs in accordance with this Service Order and related Agreement.
USAGE QUOTAS AND LIMITATIONS
Customer’s API usage shall be subject to the limitations set in the ServiceOrder, and Customer’s API usage shall not exceed the Volume Commitment as stated below.
ELSA may throttle or reject requests exceeding Usage Quotas or ServiceOrder limitations.
Additional Usage Quotas may be purchased pursuant to a Service Order.
ELSA reserves the right to modify Usage Quotas upon 30 days’ notice.
EXCESS USAGE CHARGES
Threshold-Based Invoicing:
If, within any rolling 12-month period, the Customer’s Excess Usage accumulates to an amount equal to or exceedingUSD $1,000, Customer will be invoiced for the additional usage in increments of number of cals and orminute blocks equivalent to at least USD $1,000 (“Excess Usage Blocks”).
No intermediate invoicing will occur for amounts below the USD $1,000 threshold, except as set forth in Section 5.2 below.
Customer shall receive a monthly report specifying the total number of API calls executed by Customer during the prior month. Any conflicts shall be reflected as adjustments in the following invoice(s).
End-of-Term Settlement for Lesser Amounts: Notwithstanding any thresholds, If at the end of the 12-month period subscription period Customer’s cumulative Excess Usage remains below USD $1,000, Customer will be invoiced for the actual Excess Usage amount, which shall be payable in accordance with the standard payment terms. No portion of the Excess Usage shall be waived or deemed immaterial.
Payment Terms: All invoices for Excess Usage shall be invoiced and paid per Payment Terms outlined in Section 9; Failure to pay any Excess Usage charges shall constitute a material breach. Excess charges do not carry over into subsequent terms unless expressly agreed in writing by both Parties.
TERMINATION EFFECTS Upon expiry or termination of this Service Order:
ELSA shall revoke API credentials immediately.
Customer shall immediately cease all API calls.
For ten (10) days, ELSA shall maintain read-only API access for data retrieval, unless prohibited by the Agreement; Customer shall be responsible for extracting any data via the API during the 10-day read-only period. After the ten (10) days period, ELSA may delete all Customer’s data and content.
Sentence, word and phoneme scoresSentence and phoneme mispronunciations and feedback hintsWord stress, reading speed, mispronunciation rate and pausing metrics.Fluency and intonation metricsSpoken TOEIC score estimate Grammar score and feedback Vocabulary score and feedbackSpoken transcript
Audio length
Up to 120s for ScriptedUp to 150s for Unscripted
Call rate limit
650 API calls per minute per token
Price per call (per 15s of audio) – for Excess Usage
