Terms of Use

 

Effective Date: February 18, 2018. 

Service

These Terms of Use apply to all visitors, users, and others who access the Service ("Users" or “you”).  They affect your legal rights and obligations.

ellie ("ellie," "we," "us" or "our") is a mobile group communication application (“App”) that facilitates connections and communication among members, coordination of events, as well as sharing of related content and information. ellie is also a website, that discusses the App, and provides Users with a place to submit info, or learn more about the App. ellie uses a combination of its website and App to deliver the Service. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE ELLIE WEBSITE, THE ELLIE MOBILE APPLICATION, OR ANY SERVICES MADE AVAILABLE BY ELLIE (COLLECTIVELY, THE “SERVICE”), HOWEVER ACCESSED, YOU AGREE TO BE BOUND BY THESE TERMS OF USE (“TERMS OF USE”). The Service is owned or controlled by H Labs, LLC (d.b.a "ellie"). 


ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND ELLIE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

THESE TERMS OF USE INCLUDES ELLIE’S PRIVACY POLICY WHICH IS INCORPORATED AND MADE A PART OF THESE TERMS OF SERVICE. 

 

Before you can use our Service, you will need to register for an account (“Account”). In order to create an Account you must:

  • register with your email address

  • be permitted to legally use the Service in your country

  • be at least 18 years of age

 

Basic Terms You Need to Agree To

The following restrictions and conditions apply to the use of the Service and creating and maintaining your Account: 

  1. You are solely responsible for your conduct and any data, text, files, information, posts, comments, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, “Content”) that you submit, post or display on or via the Service.  If your Content violates these Terms of Use, you may bear legal responsibility for that Content.

  2. You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the Service.

  3. You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. ellie prohibits the creation of and you agree that you will not create an account for anyone other than yourself.

  4. By using our Service and providing us with your contact information, you agree that we can send you communications about our Service. You will be given the opportunity to opt-out.

  5. You are responsible for keeping your password secret and secure.

  6. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Service, including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.

  7. You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content, including but not limited to, copyright laws.

  8. You must not change, modify, adapt or alter the Service or change, modify or alter another website so as to falsely imply that it is associated with the Service or ellie.

  9. You must not use domain names or web URLs in your username without prior written consent from ellie.

  10. You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any ellie page is rendered or displayed in a user's browser or device.

  11. You must comply with ellie's Community Principles.

  12. You must not attempt to restrict another user from using or enjoying the Service and you must not encourage or facilitate violations of these Terms of Use or any other ellie terms.

  13. Violation of these Terms of Use may, in ellie's sole discretion, result in termination of your ellie account. You understand and agree that ellie cannot and will not be responsible for the Content posted on the Service and you use the Service at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for ellie, we can stop providing all or part of the Service to you.

You Must be Authentic; No Spam

  1. You represent that all information you provide or provided to ellie upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.

  2. You must not create accounts with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.

  3. You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a “spam”) to any ellie users.

  4. You agree that you will not solicit, collect or use the login credentials of other ellie users.

 

Content You Create

  1. ellie does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to ellie a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to ellie’s Privacy Policy.

  2. You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

  3. We may, but have no obligation to, remove, edit, block, and/or monitor Content or accounts containing Content that we determine in our sole discretion violates these Terms of Use.

  4. ellie’s Privacy Policy is a part of these Terms of Use; these Terms of Use do not override any rights you have pursuant to the Privacy Policy. Except as set forth in the Privacy Policy, as between you and ellie, any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with ellie is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place ellie in a position that is any different from the position held by members of the general public, including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of ellie or another User, and ellie will not be liable for any use or disclosure of any Content you provide.

 

Content ellie Creates

  1. The Service contains content owned or licensed by ellie (“ellie Content”). ellie Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and ellie, ellie owns and retains all rights in the ellie Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the ellie Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the ellie Content.

  2. The ellie name and logo are trademarks of ellie, and may not be copied, imitated or used, in whole or in part, without the prior written permission of ellie. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of ellie, and may not be copied, imitated or used, in whole or in part, without prior written permission from ellie.

 

Other Users and Other User’s Content

  1. You are solely responsible for your interaction with other users of the Service, whether online or offline. You agree that ellie is not responsible or liable for the conduct of any user. ellie reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post Content or any personal or other information.

  2. You agree that ellie is not responsible for, and does not endorse, Content posted within the Service. ellie does not have any obligation to prescreen, monitor, edit, or remove any Content.

 

Public Information

Please note that if you choose to share information about yourself in any discussion forum or public areas of our Service (such as within a public group) we consider that information to be public information. Any personal information that you include in any content submitted or posted when using the public areas of our Service can be viewed by the general public, so please consider this before submitting any such information or content. You are solely responsible for any information, including any Personally Identifiable Information, you disclose on the discussion or public areas of our Service, and any use of such information by any third-parties regardless of whether you permitted or did not permit such use. We cannot control how others use the information that you post to public areas of our Service.

 

Advertisements

  1. Some of the Service is may in the future be supported by advertising revenue and may display advertisements and promotions, and you hereby agree that ellie may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.

  2. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.

 

General Conditions

  1. We reserve the right to modify or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you. You can deactivate your ellie account by sending an email to info@myellie.com. If we terminate your access to the Service or you deactivate your account, your photos, comments, likes, friendships, and all other data will no longer be accessible through your account (e.g., users will not be able to navigate to your profile), but those materials and data may persist and appear within the Service (e.g., if your Content has been shared by you with other users (e.g. posts, comments) or appears in search results).

  2. Upon termination, all licenses and other rights granted to you in these Terms of Use will immediately cease.

  3. We reserve the right, in our sole discretion, to change these Terms of Use (“Updated Terms”) from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the Service, and that your use of the Service after the effective date of the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Use and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward. These Terms of Use will govern any disputes arising before the effective date of the Updated Terms.

  4. We reserve the right to refuse access to the Service to anyone for any reason at any time.

  5. We reserve the right to force forfeiture of any username for any reason.

  6. There may be links from the Service, or from communications you receive from the Service, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Service. The Service also includes third-party content that we do not control, maintain or endorse. Functionality on the Service may also permit interactions between the Service and a third-party web site or feature, including applications that connect the Service or your profile on the Service with a third-party web site or feature. For example, the Service may include a feature that enables you to share Content from the Service or your Content with a third party, which may be publicly posted on that third party's service or application. Using this functionality typically requires you to login to your account on the third-party service and you do so at your own risk. ellie does not control any of these third-party web services or any of their content. You expressly acknowledge and agree that ellie is in no way responsible or liable for any such third-party services or features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Service profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information, you are consenting to information about your profile on the Service being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if ellie has not itself provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold the ellie Parties (defined below) harmless for activity related to the Application.

  7. You agree that you are responsible for all data charges you incur through use of the Service.

  8. We prohibit crawling, scraping, caching or otherwise accessing any content on the Service via automated means, including but not limited to, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with ellie's express consent).

 

Service Interruptions

Although it is ellie's intention for the Service to be available as much as possible, there will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Also, ellie reserves the right to remove any Content from the Service for any reason, without prior notice. Content removed from the Service may continue to be stored by ellie, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, ellie encourages you to maintain your own backup of your Content. In other words, ellie is not a backup service and you agree that you will not rely on the Service for the purposes of Content backup or storage. ellie will not be liable to you for any modification, suspension, or discontinuation of the Service, or the loss of any Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Content or other information may not be secure.

 

Feedback

  1. If You provide technical, business or other feedback, suggestions or comments to ellie concerning the Service (collectively, “Feedback”), You assign to ellie all right, title and interest in and to any Feedback and all proprietary rights therein, including, without limitation, intellectual property rights.  You represent and warrant that the Feedback is not subject to any license terms that would purport to require ellie to comply with any additional obligations with respect to any Service or products that incorporate any Feedback.  

  2. To the extent the foregoing present assignment is ineffective for any reason, You hereby grant to ellie, without obligation, compensation, or restriction of any kind or nature, the worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up right:  (i) to copy, reproduce, broadcast, transmit, re-publish, distribute, modify, prepare derivative works of, perform, publicly perform and display the Feedback and any copies thereof, in any format or medium now known or later developed, and including as embodied in any Service or product; (ii) to make, have made, develop, market, use, license, rent, lease, sell, offer for sale and import the Feedback and any copies thereof, including as embodied in any Service or product; and (iii) to sublicense any of the foregoing rights to third parties, including the right to sublicense to further third parties, and including under your copyrights and trade secrets and the claims of any patents owned or licensable by You that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with any Feedback or portion thereof incorporated into a Service or product.  In any case, and for the avoidance of doubt, You agree and acknowledge that the incorporation by ellie of any Feedback into any Service or product does not grant You any proprietary rights in or to any such Service or product.  

 

Reporting Copyright and Other IP Violations; DMCA Policy

  1. We respect other people's rights, and expect you to do the same.

  2. If you suspect copyright infringement of your or another’s intellectual property please contact us at info@myellie.com.

  3. If you infringe other people's intellectual property rights, we will disable your account when appropriate.

  4. The Digital Millennium Copyright Act established a process for addressing claims of copyright infringement that we have implemented for the Service. If you own a copyright or have authority to act on behalf of a copyright owner and want to report a claim that a third party is infringing that material on or through an ellie Service, please send a notice to our legal department at info@myellie.com that includes all of the items below and we will expeditiously take appropriate action:

    1. A description of the copyrighted work that you claim is being infringed;

    2. A description of the material you claim is infringing and that you want removed or access to which you want disabled and the URL or other location of that material;

    3. Your address, telephone number, and email address;

    4. The following statement: “I have a good faith belief that the use of the copyrighted material I am complaining of is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)”;

    5. The following statement: “The information in this notice is accurate and, under penalty of perjury, I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right that is allegedly infringed”; and

    6. An electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.

 

Disclaimer of Warranties

THE SERVICE, INCLUDING, WITHOUT LIMITATION, ELLIE CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER ELLIE NOR ITS AFFILIATES NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE “ELLIE PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE ELLIE CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO ELLIE OR VIA THE SERVICE. IN ADDITION, THE ELLIE PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. 

THE ELLIE PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE ELLIE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE ELLIE PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE ELLIE PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE. 

BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE. 

THE ELLIE PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT. 

 

Limitation of Liability; Waiver

UNDER NO CIRCUMSTANCES WILL THE ELLIE PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE ELLIE CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE ELLIE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE ELLIE PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE ELLIE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE ELLIE PARTIES TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00). 

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ELLIE'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, APPLICATION, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE ELLIE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, APPLICATION, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE ELLIE PARTIES. 

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 

ELLIE IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. 

 

Indemnification

You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at ellie's request), indemnify and hold the ellie Parties harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by ellie in the defense of any claim. ellie reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of ellie. 

 

Dispute Resolution and Mandatory Arbitration.

Arbitration is a form of private dispute resolution in which persons having a dispute agree to waive their right to file a lawsuit to proceed in court and to a jury trial, and instead agree to present their dispute to a neutral third party (arbitrator) for binding decision. You have the right to opt-out of this provision which means that You retain your right to file a lawsuit; to do so, You must read carefully and follow the directions set forth below. Unless You Opt Out of the Mandatory Arbitration, You will be understood to have agreed to the mandatory arbitration and to the provisions provided below.

Please read this carefully.  It affects your rights.  YOU AND ELLIE AND ITS RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING, DOWNLOADING OR USING THE SERVICES AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ANY AND ALL DISPUTES, AS DEFINED BELOW.  THE TERM “DISPUTE” MEANS ANY DISPUTE, CLAIM OR CONTROVERSY NOW OR IN THE FUTURE BETWEEN YOU AND ELLIE WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING, BUT NOT LIMITED TO, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND INCLUDING THE VALIDITY, ENFORCEABILITY OR SCOPE OF THIS PROVISION (WITH THE EXCEPTION OF THE ENFORCEABILITY OF THE CLASS ACTION WAIVER CLAUSE BELOW) ARISING OUT OF OR RELATING TO YOUR PURCHASE, OWNERSHIP AND/OR USE OF THE SERVICE AND/OR THE TERMS  ACCOMPANYING THAT SERVICE. FOR EACH SERVICE USED, ACCESSED OR DOWNLOADED, THIS MANDATORY ARBITRATION PROVISION WOULD APPLY UNLESS YOU CHOOSE TO OPT- OUT AS DISCUSSED ABOVE.  “Dispute” is to be given the broadest possible meaning that will be enforced.  Arbitration is more informal than a lawsuit in court.  Arbitration uses a neutral, third-person arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts.  Arbitrators can award the same damages and relief that a court can award.  Please visit http://www.iccwbo.org for more information.

  1. How to Opt Out of Mandatory Arbitration. Notwithstanding the above, You or ellie may choose to file a lawsuit in court rather than resolving your Dispute by arbitration. You may opt-out of mandatory arbitration if (a) the Dispute qualifies for small claims court (there are monetary limitations for small claims court), or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU ACCEPT THESE TERMS (the “Opt-Out Deadline”).  In order to opt out of mandatory arbitration, You need to email written notification to info@myellie.com. Your written notification must include: (1) your name, (2) your address, (3) a copy of your receipt or other proof of purchase, showing the date of purchase, and (4) a clear statement that You do not wish to resolve disputes with ellie through arbitration.  Your decision to opt-out of this provision will have no adverse effect on your relationship with ellie.  Any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue your Dispute in arbitration or, if the dispute qualifies, in small claims court.

  2. Pre-Arbitration Claim Resolution: For all disputes, whether pursued in court or in mandatory arbitration, You must first give ellie written notification and forty-five (45) days to resolve the Dispute. The written notification shall include the information listed above in the preceding clause (a) items (1) -(3) plus (4) a written description of your Dispute and (5) a written description of the relief You seek (“Demand Information”). It is to be sent to info@myellie.com. If ellie does not resolve the dispute within 45 days, You may pursue your dispute in arbitration. You may pursue your dispute in a court only under the circumstances described above in the Opt Out provision.

  3. Arbitration Process.

    1. Commencing Arbitration.  A party who intends to seek arbitration must first send to the other, by a reputable courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by You to ellie, then ellie can send to You by any other method available to ellie for sending such notice, including via e-mail.  The Notice to ellie should be addressed to ellie, Legal Department, at info@myelle.com (the “Arbitration Notice Address”).  The Notice shall include the Demand Information (the “Demand”).  THE ARBITRATION WILL BE ADMINISTERED BY THE INTERNATIONAL CENTER FOR DISPUTE RESOLUTION (“ICDR”) IN ACCORDANCE WITH THE INTERNATIONAL ARBITRATION RULES (THE “RULES”), AS MODIFIED HEREIN.  The Rules are available at https://www.icdr.org.  Except as otherwise set forth herein, if You are required to pay a filing fee to commence arbitration against ellie, then ellie will, within ten (10) business days of receipt of your confirmed payment of the filing fee, reimburse You for the amount of your confirmed payment of the filing fee that exceeds the amount of any fees You would be required to pay if the Demand were filed in federal court in the Southern District of New York.  

    2. Arbitration Proceeding.  The arbitration will be conducted in English and a translator may be utilized as the expense of the party requiring the translation services.  A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules.  You and ellie agree to the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) subject to the Rules, the arbitration shall be conducted online via videoconference, telephonically and/or be solely based on written submissions-rather than requiring the personal appearance of the parties-with the specific manner to be mutually agreed upon in writing by the parties and (b) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  

    3. No Class Actions.  YOU AND ELLIE AGREE THAT YOU AND ELLIE 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.  IF YOU CHOOSE TO PURSUE YOUR DISPUTE IN COURT BY OPTING OUT OF THIS PROVISION, AS SPECIFIED ABOVE, THIS CLASS ACTION WAIVER WILL NOT APPLY TO YOU.  NEITHER YOU, NOR ANY OTHER USER OF THE PRODUCT OR SERVICES CAN BE A CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING WITHOUT HAVING COMPLIED WITH THE OPT-OUT REQUIREMENTS ABOVE.

    4. Decision of the Arbitrator.  Barring extraordinary circumstances, the arbitrator will issue his or her decision within one-hundred and twenty (120) days from the date the arbitrator is appointed.  The arbitrator may extend this time limit for an additional thirty (30) days in the interests of justice upon written notice by the arbitrator to You and ellie at least twenty-one (21) days prior to the last date to issue his or her decision. Failure to adhere to this time limit shall not constitute a basis for challenging the arbitration award.  All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.  The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim.  The arbitrator will apply the laws of the State of New York in conducting the arbitration.  You acknowledge that these Terms of Use and your use of any Service evidences a transaction involving interstate commerce.  The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms of Use.  

    5. Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding. Such award will be final and binding on the parties, except for any right of appeal provided by the Federal Arbitration Act, and may be entered in any court having competent jurisdiction over the parties for purposes of enforcement.

  4. Equitable Relief; Punitive Damages.  You and ellie agree that the arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, subject to the limitations of liability set forth in these terms.

  5. Jury Waiver.  You understand and agree that by failing to opt out to the Mandatory Arbitration provision, You and ellie are each waiving the right to a jury trial or a trial before a judge in public court.  In the absence of this provision, You and ellie might otherwise have had a right or opportunity to bring Disputes in court, before a judge or jury and/or to participate or be represented in a case filed in court by others (including class actions).  Except as otherwise provided herein, those rights are waived.  

  6. Enforceability.  If only clause (c)(iii) or the entirety of clauses (a)-(f) are found to be unenforceable, then clauses (a)-(f) will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in clauses (g) and (h) will govern any action arising out of or related to these Terms of Use.

  7. Governing Law.  These Terms of Use shall in all respects be governed by and interpreted under the laws of the State of New York (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods).

  8. Jurisdiction. The parties agree that any judicial proceeding to resolve claims relating to these Terms of Use or the Service will be brought in the courts of New York, county and city of Manhattan, or the U.S. District Court for the Southern District of New York, subject to the mandatory arbitration provisions set forth above.  Both You and ellie consent to venue and personal jurisdiction in such courts; provided, however, that ellie reserves the right to institute proceedings against You in the courts having jurisdiction in the places where You reside, do business, have assets, or in any jurisdiction where a harm to ellie is occurring or has occurred.  In any action or proceeding to enforce rights under these Terms of Use, the prevailing party will be entitled to recover costs and attorney’s fees.  Notwithstanding anything herein (including the mandatory arbitration provision above), in the event You infringe or misappropriate any intellectual property rights, ellie is entitled to seek any permanent or temporary remedies (including, without limitation, compensation for damages, ceasing of infringement act, injunctive reliefs) against You in accordance with the applicable laws of your resident country or the jurisdiction where such infringing act has transpired.

 

Territorial Restrictions

The Service is meant for use in the United States. If you are a citizen of an EU member state do not access the Service. The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject ellie to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that ellie provides. 

Software related to or made available by the Service may be subject to United States export controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list. 

 

Entire Agreement

If you are using the Service on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire agreement between you and ellie and governs your use of the Service, superseding any prior agreements between you and ellie. You will not assign the Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of ellie. Any purported assignment or delegation by you without the appropriate prior written consent of ellie will be null and void. ellie may assign these Terms of Use or any rights hereunder without your consent. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion will be deemed severable from these Terms of Use and will not affect the validity and enforceability of the remaining provisions, and the remaining provisions of the Terms of Use remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify the Terms of Use. These Terms of Use do not confer any third-party beneficiary rights. 


The effective date of these Terms of Use is February 18, 2018. These Terms of Use were written in English (US). To the extent any translated version of these Terms of Use conflicts with the English version, the English version controls.