THIS END USER LICENSE AGREEMENT ("EULA") IS MADE BETWEEN YOU ("Licensee") AND GENESIS LABS, INC. D/B/A ELPH ("Elph") AND GOVERNS LICENSEE'S USE OF THE SOFTWARE (DEFINED IN SECTION 1) AS FURTHER DESCRIBED BELOW. THE TERMS THAT GOVERN LICENSEE'S USE OF ANY WEBSITE THAT ELPH OWNS OR CONTROLS (INCLUDING THE ONE LOCATED AT www.elph.com (AND ALL RELATED SUBDOMAINS)) (collectively, the "Service"), ARE LOCATED AT https://elph.com/legal/tos.
BY ACCEPTING THIS EULA THROUGH THE REQUIRED PROCESS, LICENSEE REPRESENTS AND WARRANTS THAT: (1) LICENSEE HAS READ AND UNDERSTANDS THIS EULA, AND AGREES TO BE BOUND LEGALLY BY THIS EULA; (2) LICENSEE IS EITHER AT LEAST 18 YEARS OF AGE OR HAS THE CONSENT OF A PARENT OR LEGAL GUARDIAN WHO IS AT LEAST 18 YEARS OF AGE TO USE THE SOFTWARE; AND (3) IF LICENSEE IS ACCESSING THE SOFTWARE ON BEHALF OF AN ENTITY, THEN LICENSEE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA. IF LICENSEE IS ACCESSING THE SOFTWARE ON BEHALF OF AN ENTITY, THEN ALL REFERENCES TO "LICENSEE" IN THIS EULA WILL REFER TO THAT ENTITY (EXCEPT IN THIS SENTENCE AND THE PRECEDING SENTENCE). IF LICENSEE DOES NOT AGREE WITH THIS EULA, THEN LICENSEE MUST REJECT THIS EULA THROUGH THE REQUIRED PROCESS.
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), Licensee acknowledges the following:
- THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND AND ELPH’S LIABILITY TO LICENSEE IN CONNECTION WITH THE SAME IS LIMITED; and
- all disputes arising under this EULA will be resolved through binding arbitration. BY ACCEPTING THIS EULA, AS PROVIDED IN GREATER DETAIL IN SECTION 9 OF THIS EULA, LICENSEE AND ELPH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
1. General Description.
a. Elph has developed a desktop software application that enables users to discover and engage with third party software applications (“Apps”) and that is available for download from the Service or through authorized third party distributors. As used in this EULA, the term “Software” refers to an object code version the Elph proprietary software described in the prior sentence.
b. The Software includes a cryptocurrency wallet feature (“Wallet”). This feature allows each user to access supported cryptocurrency through an Elph-generated security key that is tied specifically to each user (“Security Key”). Users may use the Wallet to consummate transactions within Apps. WITHOUT LIMITING ANY OTHER TERMS SET FORTH IN THIS EULA, EACH USER OF THE SOFTWARE IS SOLELY RESPONSIBLE FOR KEEPING A RECORD OF SUCH USER’S SECURITY KEY AND FOR ALL ACTIVITY ARISING FROM USE OF SUCH USER’S WALLET.
2. License. Subject to Licensee’s compliance with this EULA, Elph hereby grants to Licensee during the Term (defined in Section 6 below) a non-exclusive, non-transferable, non-sublicensable, worldwide and royalty-free license to download, install and run the Software in the manner permitted by the Software’s functionalities. Notwithstanding the foregoing in this Section 2 and any other terms in this EULA, any third party code that may be incorporated into the Software is covered by the applicable license terms governing such code and nothing in this EULA limits or supersedes those terms. For a list of the open source components included in the Software, please refer to the document located at https://elph.com/legal/oss.
3. Restrictions. Elph reserves all rights that are not expressly granted to Licensee in Section 2. Without limiting the preceding sentence, Licensee will not, and will not assist or authorize any third party to: (a) copy, modify, translate, or create derivative works of the Software; (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software, except to the extent such restriction is impermissible under applicable law; (c) lend, rent, lease, offer for sale, sell or otherwise distribute the Software to any third party; (d) attempt to circumvent any license, timing or use restrictions that are built into the Software; or (e) use the Software in violation of this EULA, any applicable laws, rules or regulations or any third party rights.
4. Ownership. As between the parties: (a) Elph solely owns all right, title and interest (including all intellectual property rights) in and to the Software subject only to the limited license granted in Section 2; and (b) Licensee will retain ownership of all comments, suggestions, ideas or other information or materials regarding Licensee’s use of and/or experience with the Software that Licensee may provide to Elph (collectively, “Feedback”) subject to the following sentence. Licensee hereby grants to Elph a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), worldwide and royalty-free license to reproduce, create derivative works from, distribute, publicly display and perform and otherwise use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution or fees due to Licensee.
5. Consideration. Elph currently provides Licensee with free access to the Software during the Term. In exchange for this free access, Licensee acknowledges and agrees that Elph may generate revenues, increase goodwill or otherwise increase the value of its business in connection with Licensee’s use of the Software. Licensee hereby acknowledges that Licensee will have no rights to share in any such revenues, goodwill or value whatsoever. Elph in its sole discretion may choose to charge fees for certain or all uses of the Software in the future, and Elph will notify Licensee of the same before they go into effect.
6. Term and Termination. This EULA will commence on the date accepted by Licensee as described in the preamble above and continue until terminated by either party (“Term”). Either party may terminate this EULA for any or no reason upon written notice to the other party. Upon termination, the license granted to Licensee in Section 2 will immediately terminate, and Licensee must permanently delete all copies of the Software within Licensee’s possession or control. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11 and all defined terms used in any of those Sections will survive any termination of this EULA.
7. Disclaimers and Limitations on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING ANY OTHER TERMS IN THIS EULA, THE FOLLOWING TERMS APPLY:
a. NEITHER ELPH NOR ANY OF ITS CURRENT OR FUTURE AFFILIATES (collectively, the “Elph Parties”) OR ANY OF ITS LICENSORS WILL HAVE ANY LIABILITY TO LICENSEE IN CONNECTION WITH:
i. ANY OUTAGE, UNAVAILABILITY OR SECURITY BREACH IMPACTING ANY ASPECT OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LICENSEE’S WALLET;
ii. ANY APPS ACCESSIBLE ON OR THROUGH THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE LICENSEE MAY HAVE WITH A THIRD PARTY APPLICATION PROVIDER OR ANY OF ITS USERS, AND ALL TRANSACTIONS CONSUMMATED OR ATTEMPTED WITHIN ANY SUCH APPS);
iii. ANY ISSUE INVOLVING LICENSEE’S WALLET (INCLUDING, WITHOUT LIMITATION, ANY TRANSACTIONS INVOLVING LICENSEE’S WALLET AND/OR ANY LOSS OF LICENSEE’S SECURE KEY); OR
iv. ANY DISPUTE LICENSEE HAS WITH ANY THIRD PARTY, INCLUDING ANY THIRD PARTY APPLICATION DEVELOPER OR ANY OF THEIR USERS, IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE IS DIRECTLY BETWEEN LICENSEE AND SUCH THIRD PARTY ONLY. ACCORDINGLY, LICENSEE HEREBY IRREVOCABLY RELEASES THE ELPH PARTIES AND ALL OF THEIR LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
b. THE ELPH PARTIES AND THEIR LICENSORS HEREBY WAIVE ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING ACCURACY, OPERABILITY, USE, NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
c. NONE OF THE ELPH PARTIES WILL BE LIABLE TO LICENSEE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT THIS EULA OR LICENSEE’S USE OF THE SOFTWARE, AND IN NO EVENT WILL THE ELPH PARTIES’ TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS EULA EXCEED $100, EXCEPT AS OTHERWISE SET FORTH IN SECTIONS 9(d)(B) AND 9(d)(C) BELOW.
8. Indemnification. To the fullest extent permitted by law, Licensee will indemnify, defend and hold the Elph Parties harmless from any claim, action, suit or proceeding arising out of or related to Licensee’s breach of this EULA or Licensee’s use of the Software. Elph will provide notice to Licensee of any such claim, suit or proceeding. Elph reserves the right, in its sole discretion, to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 8 at Licensee’s sole expense if Elph believes that Licensee is unwilling or incapable of defending Elph’s interests. In such case, Licensee agrees to cooperate with any reasonable requests assisting Elph’s defense of such matter at Licensee’s sole expense.
9. Dispute Resolution.
a. General. In the interest of resolving disputes between Licensee and Elph in the most expedient and cost effective manner, Licensee and Elph agree that any dispute arising out of or in any way related to this EULA or Licensee’s use of the Software will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or Licensee’s use of the Software, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. LICENSEE UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS EULA, LICENSEE AND ELPH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS EULA SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 9(a) above, nothing in this EULA will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between Licensee and Elph will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”). Elph’s address for Notice is: 340 S Lemon Ave #2344, Walnut, CA 91789, Attn: Chief Executive Officer and Legal. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Licensee or Elph may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Licensee or Elph must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Licensee’s favor with a monetary award that exceeds the last written settlement amount offered by Elph prior to selection of an arbitrator, Elph will pay Licensee the highest of the following: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Elph in settlement of the dispute prior to the arbitrator’s award; or (C) $15,000.
e. Fees. If Licensee commences arbitration in accordance with this EULA, Elph will reimburse Licensee for Licensee’s payment of the filing fee, unless Licensee’s claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $15,000 or less, Licensee may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Licensee’s billing address. If the arbitrator finds that either the substance of Licensee’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Licensee agrees to reimburse Elph for all monies previously disbursed by it that are otherwise Licensee’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. Notwithstanding anything in this EULA to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration required under these dispute resolution provisions.
f. No Class Actions. LICENSEE AND ELPH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Licensee and Elph agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Elph makes any future change to this arbitration provision, other than a change to Elph’s address for Notice, Licensee may reject the change by sending Elph written notice within 30 days of the change to Elph’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes Licensee rejected, will continue to govern any disputes between Licensee and Elph.
h. Enforceability. If Section 9(f) above is found to be unenforceable or if the entirety of this Section 9 is found to be unenforceable, then the entirety of this Section 9 will be null and void.
10. Changes to this EULA. Licensee understands and agrees that Elph may change this EULA at any time without prior notice. Elph will endeavor to provide Licensee with prior notice of any material changes to this EULA. Licensee may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting on the Service, and Licensee’s use of the Software after such time will constitute Licensee’s acceptance of the revised EULA. If any change to this EULA is not acceptable to Licensee, then Licensee’s sole remedy is to stop using the Software. Notwithstanding the preceding sentences of this Section 10, no revisions to this EULA will apply to any dispute between Licensee and Elph that arose prior to the effective date of those revisions.
11. Miscellaneous. This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. Licensee agrees that no joint venture, partnership, employment or agency relationship exists between Licensee and Elph as a result of this EULA. If any provision of this EULA is found to be invalid by any court or arbitrator having competent jurisdiction, then the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Elph to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Elph unless made in writing, and no such waiver will be construed as a waiver in any other instance. This EULA constitutes the entire agreement between Licensee and Elph with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter hereof. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of the parties’ successors and assigns. Licensee may not assign this EULA or any of the rights or licenses granted hereunder without the prior express written consent of Elph. “Assignment” as used in the prior sentence includes any changes of control or sale of stock or assets of any entity. Elph may assign this EULA, including all its rights hereunder, without restriction. This EULA may only be amended in a writing signed by an authorized representative of each party, except as provided in Section 10. Licensee acknowledges and agrees that Licensee had the opportunity to consult legal counsel in connection with this EULA even if Licensee chose not to do so, and this EULA will not be construed against Licensee or Elph as drafter.