This Terms of Service (“Agreement”) is a binding contract between you, an individual user (“you”), and Genesis Labs, Inc. d/b/a Elph (“Elph”) (“Elph,” “we,” “us” or “our”), and governs your use of any Elph owned or controlled website that links to this Agreement (including the website located at www.elph.com (and all related subdomains)) (collectively, the “Service”). Your access to and use of Elph’s proprietary, downloadable software that enables users to discover and engage with third party software applications (“Elph Software”) is governed by our End User License Agreement.
BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU MUST NOT ACCESS OR USE THE SERVICE.
Material Terms: As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
- THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND AND ELPH’S LIABILITY TO YOU IN CONNECTION WITH THE SERVICE IS LIMITED; and
- we will resolve disputes arising under this Agreement through binding arbitration. BY ACCEPTING THIS AGREEMENT, AS PROVIDED IN GREATER DETAIL IN SECTION 7 OF THIS AGREEMENT, YOU AND ELPH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
1. General Terms and Conditions.
a. Description. The Service provides users with general information about our products and services.
b. Additional Terms. We may require you to agree to additional terms and/or policies from time-to-time in connection with your use of the Service (“Additional Terms”). Except as expressly stated otherwise in Additional Terms, any Additional Terms are hereby incorporated into and subject to this Agreement, and this Agreement will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency. For the avoidance of doubt, this Agreement and any Additional Terms as defined herein does not govern the use of Elph Software.
c. Changes to this Agreement. You understand and agree that Elph may change this Agreement at any time without prior notice. You may read a current, effective copy of this Agreement at any time by selecting the appropriate link on the Service. The revised Agreement will become effective at the time of posting, and your use of the Service after such time will constitute your acceptance of the revised Agreement. If any change to this Agreement is not acceptable to you, then your sole remedy is to stop using the Service. Notwithstanding the preceding sentences of this Section 1.c, no revisions to this Agreement will apply to any dispute between you and Elph that arose prior to the effective date of those revisions.
d. Consideration. Elph currently provides you with access to the Service for free. In return for enjoying this free access, you acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase the value of Elph in connection with your use of the Service, and you will have no right to share in any such revenues, goodwill or value whatsoever. We may in our sole discretion charge you fees for certain or all uses of the Service in the future, and we will notify you of the same before those fees apply.
f. Jurisdictional Issues. Elph makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
g. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY US. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age. Finally, if you are accessing the Service on behalf of a business or corporate entity (“Organization”), then you hereby represent and warrant that you have the authority to bind that Organization and your acceptance of this Agreement will be treated as acceptance by the Organization.
h. Mobile Services. The Service will be accessible via a mobile phone, tablet or other wireless device (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Service and the related Mobile Services must be in accordance with this Agreement.
i. Messages. You may be able to send messages to others through certain functionality available on the Service (“Messages”). You represent and warrant that: (i) you will only send Messages to others who have given you their prior express consent to receive them; (ii) you, and only you, take all actions necessary to initiate and send all Messages, and we are merely a technology provider that plays no active role whatsoever in initiating and/or sending Messages; and (iii) you will indemnify and hold us harmless from any and all claims and losses arising out of your Messages. Without limiting the foregoing, you are solely responsible for all fees and charges associated with your Messages.
2. Intellectual Property Rights.
a. License. Subject to your complete and ongoing compliance with this Agreement, we hereby grant you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely in strict compliance with the provisions of this Agreement.
b. Content. The content that Elph provides to you on the Service, including, without limitation, any text, graphics, software, interactive features, information or other materials, is protected by copyright or other intellectual property rights and owned by Elph or its licensors (collectively, the “Elph Content”). Moreover, Elph or its licensors own all design rights, database and compilation rights and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
c. Marks. The Elph trademarks, service marks and logos (collectively, the “Elph Trademarks”) used and displayed on the Service are Elph’s registered and/or unregistered trademarks or service marks. Any other product and service names located on any part of the Service may be trademarks or service marks owned by third parties (collectively with the Elph Trademarks, the “Trademarks”). Except as permitted by law, you may not use the Trademarks to disparage Elph or the applicable third party, Elph’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without Elph’s prior express written consent. All goodwill generated from the use of any Elph Trademark will inure solely to Elph’s benefit.
d. Restrictions. Elph hereby reserves all rights not expressly granted to you in this Section 2. Accordingly, nothing in this Agreement or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Elph Content or Trademarks located or displayed on or within the Service.
3. Notice and Procedure for Making Claims of Intellectual Property Infringements.
a. Respect of Third Party Rights. We respect the intellectual property of others. If you believe that your work has been used on our Service in a way that violates your intellectual property rights in that work, then please provide our agent designated in Section 3.b below the following notification:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the right being infringed;
ii. a description of the intellectual property that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Service;
iv. your address, telephone number and email address;
v. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the owner, its agent or the law; and
vi. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the intellectual property owner or authorized to act on the intellectual property owner’s behalf.
b. Agent for Notice. The agent to receive the above notice can be reached as follows:
Genesis Labs, Inc. 340 S Lemon Ave #2344 Walnut, CA 91789 United States of America Attn: Copyright Agent and Legal
Telephone Number of Agent: 877-516-3574 Email Address of Agent: email@example.com
We suggest that you consult with your legal counsel and/or 17 U.S.C. 512(c)(3)(A) to determine specific elements of a claim that your intellectual property has been infringed.
4. Restrictions on Use of the Service. Without limiting any other terms of this Agreement, you agree not to (and not to attempt to):
a. decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service, except to the extent any such restrictions are expressly prohibited by applicable law;
b. rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Service or content thereon to any third party or use any part of the Service for the benefit of any third party;
c. use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted thereon;
d. delete, make unauthorized copies of, or alter any material Elph makes available on the Service;
e. frame or link to any of the materials or information available on the Service;
f. use or exploit any Trademarks or Elph Content in any manner that is not expressly authorized by this Agreement;
g. access, tamper with or use non-public areas of the Service, Elph’s (and its hosting company’s) computer systems and infrastructure or the technical delivery systems of Elph’s providers;
h. provide any false information to Elph;
i. create a false identity or impersonate another person or entity in any way;
j. restrict, discourage or inhibit any person from using the Service;
k. use the Service, without Elph’s prior express written consent, for any unauthorized purpose;
l. gain unauthorized access to the Service or to other computers or websites connected or linked to the Service;
m. transmit to the Service any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected thereto;
n. violate any federal, state or local laws or regulations or the terms of this Agreement; or
o. assist or permit any person in engaging in any of the activities described above.
5. External Sites. The Service may contain links to other websites or other online properties that are not owned or controlled by Elph (collectively, “External Sites”). Elph does not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or Webmaster for External Sites if you have any concerns regarding content located on those External Sites. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Service in connection with your use of External Sites.
6. Feedback. If you choose to provide us with comments, suggestions, ideas or other information or materials regarding your use of and/or experience with the Service (“Feedback”), then you hereby grant to us a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), worldwide and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution or fees due to you.
7. Dispute Resolution.
a. General. In the interest of resolving disputes between you and Elph in the most expedient and cost effective manner, you and Elph agree that any dispute arising out of or in any way related to this Agreement or your use of the Service 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 Agreement or your use of the Service, 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 Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ELPH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 7.a above, nothing in this Agreement 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 you 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 Agreement, 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: Genesis Labs, Inc., 340 S Lemon Ave #2344, Walnut, CA 91789, Attn: Chief Executive Officer. 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, then you or Elph may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you 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 your favor with a monetary award that exceeds the last written settlement amount offered by Elph prior to selection of an arbitrator, then Elph will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Elph in settlement of the dispute prior to the arbitrator’s award; or (3) $15,000.
e. Fees. If you commence arbitration in accordance with this Agreement, then Elph will reimburse you for your payment of the filing fee, unless your 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, then you 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 your billing address. If the arbitrator finds that either the substance of your 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, you agree to reimburse Elph for all monies previously disbursed by it that are otherwise your 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 Agreement 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. YOU AND ELPH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you 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 Agreement, if Elph makes any future change to this arbitration provision, other than a change to Elph’s address for Notice, then you may reject the change by sending us 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 you rejected, will continue to govern any disputes between you and Elph.
h. Enforceability. If Section 7.f above is found to be unenforceable or if the entirety of this Section 7 is found to be unenforceable, then the entirety of this Section 7 will be null and void.
8. Limitation of Liability and Disclaimer of Warranties. THE TERMS OF THIS SECTION 8 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. NEITHER ELPH NOR ANY OF ITS CURRENT OR FUTURE AFFILIATES (collectively, the “Elph Parties”) MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE OR ANY CONTENT THEREON. ACCORDINGLY, THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE ELPH PARTIES HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR A PARTICULAR PURPOSE.
b. WITHOUT LIMITING SECTION 8.a, THE ELPH PARTIES DO NOT WARRANT THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF ERRORS, COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO ELPH PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. IN NO EVENT WILL ANY ELPH PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF THE ELPH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELPH’S LIABILITY, AND THE LIABILITY OF ANY OF THE OTHER ELPH PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THIS AGREEMENT IS LIMITED TO U.S. $100, EXCEPT AS OTHERWISE SET FORTH IN SECTIONS 7(d)(2) AND 7(d)(3).
9. Third Party Disputes. ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICE IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY IRREVOCABLY RELEASE THE ELPH PARTIES 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.
10. Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the Elph Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (a) your breach of this Agreement; (b) your access to, use or misuse of the Elph Content, Trademarks or any part of the Service; or (c) any false, inaccurate or misleading information you provide to Elph. Elph will provide notice to you 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 at your sole expense if Elph believes that you are unwilling or incapable of defending Elph’s interests. In such case, you agree to cooperate with any reasonable requests assisting Elph’s defense of such matter at your sole expense.
11. Term and Termination of the Agreement.
a. Term. As between you and Elph, the term of this Agreement commences on your first use of the Service and continues until the termination of this Agreement by either you or Elph.
b. Suspension, Termination and Cancellation. You may terminate this Agreement by sending written notification to us via email at firstname.lastname@example.org and terminating your use of the Service. We reserve the right, in our sole discretion, to restrict, suspend, or terminate your access to all or any part of the Service or to terminate this Agreement at any time without prior notice or liability if you breach any provision of this Agreement or violate the rights of any third party on or through the Service. We reserve the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
c. Survival. Sections 1(b), 1(c), 1(d), 1(f), 1(g), 1(h), 1(i), 2(b), 2(c), 2(d), 4, 5, 6, 7, 8, 9, 10, 11(c), 12, 13 and all defined terms used therein will survive the termination of this Agreement indefinitely.
13. Miscellaneous. This Agreement is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You agree that no joint venture, partnership, employment or agency relationship exists between you and Elph as a result of this Agreement or use of the Service. If any provision of this Agreement 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 Agreement, which will remain in full force and effect. Failure of Elph to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement. No waiver will be effective against Elph unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. This Agreement constitutes the entire agreement between you 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 Agreement will inure to the benefit of our successors and assigns. You may not assign this Agreement 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 Organization. Elph may assign this Agreement, including all its rights hereunder, without restriction. This Agreement may only be amended in a writing signed by you and an authorized representative of Elph, except as provided in Section 1.c. You acknowledge and agree that you have had the opportunity to consult legal counsel in connection with this Agreement even if you chose not to do so, and this Agreement will not be construed against you or Elph as drafter.
14. Contact Us. If you would like to contact us for any reason email us at email@example.com.