TERMS OF SERVICE FOR ELLIS TECHNOLOGIES, INC.
Last Revised: August 4, 2021
Please read this Ellis Technologies, Inc. Terms of Service (the “Terms” or “Agreement”) carefully. This Agreement sets forth a legal agreement between you (“you” or “your”) and Ellis Technologies, Inc., its subsidiaries and affiliates (collectively, “Ellis”, “we”, “us” and/or “our”) regarding your use of the websites, mobile application (the “Application”) and/or technology platform (collectively, the “Services”) offered, operated or made available by Ellis. This Agreement applies when you access, interact with, sign up for or use any of the Ellis Services and is binding as of the first date you access, use, interact with or sign up for any Services. Other aspects of the Services may be covered by other terms, conditions and agreements with Ellis or third parties such as financial institutions.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION XVII) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
I. Acceptance of Agreement
By accessing and/or using the Services, you acknowledge that you have read, understood, and agree to be bound by the following terms of conditions set forth in this Agreement. If you do not agree with these terms and conditions, you may not access or use the Services.
III. Use of Ellis Services
You may not use the Services in any manner that may impair, overburden, damage, disable or otherwise compromise (i) Ellis’s Services; (ii) any other party’s use and enjoyment of the Services; or (iii) the services and products of any third parties including, without limitation, any device through which you access the Application (the “Authorized Device”). You agree to comply with all applicable laws and regulations governing the downloading, installation and/or use of the Application, including, without limitation, any usage rules set forth in the online application store terms of service.
IV. Updates to Application
From time to time, Ellis may automatically check the version of the Application installed on the Authorized Device and, if applicable, provide updates for the Ellis Application (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of the Ellis Application. By installing the Application, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the Application and Updates will be governed by this Agreement (as amended by any terms and conditions that may be provided with Updates). Ellis reserves the right to temporarily disable or permanently discontinue any and all functionality of the Application at any time without notice and with no liability to you.
You must be at least eighteen (18) years old to use the Services. By agreeing to this Agreement you represent and warrant to us: (i) that you are at least eighteen (18) years old; (ii) that you have not previously been suspended, removed or deactivated from the Services; (iii) that you are a legal resident of the United States; and (iv) that your registration and your use of the Services is in compliance with any and all applicable laws and regulations.
- Account Creation. In order to use the Services, you must create an account (an “Account”) with Ellis. You agree that the information you provide to Ellis on registration and at all other times, will be true, accurate, current, and complete, and that you will keep this information accurate and up-to-date at all times. We also request that you create a password for your Account. You agree not to disclose your password to anyone else, and you also agree you will be solely responsible for any activities or actions taken under your Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or Account. We are not liable for any loss or damage from your failure to comply with these requirements.
- Identity Verification. You hereby authorize Ellis, directly or through third parties, to make any inquiries we consider necessary to validate your identity and/or authenticate your identity and Account information. This may include asking you for further information and/or documentation about your identity, or requiring you to take steps to confirm ownership of your email address, wireless/cellular telephone number or financial instruments, and verifying your information against third party databases or through other sources.
- Limitations on User Accounts. You may not create more than one (1) Ellis Account. Each unique mobile device may not be associated with more than two (2) user Accounts. Users who attempt to associate an excessive number of mobile devices with a single user Account may be deemed to have violated this Agreement to the extent they are deemed by Ellis to have abused the Services, and may be subject to Account suspension or closure.
VII. Text Messages
By providing us with a telephone number for a cellular phone or other wireless device, you agree to receive autodialed and pre-recorded, non-marketing, service-related text messages from or on behalf of Ellis at the phone number provided. You further consent to receiving autodialed and pre-recorded text messages from or on behalf of Ellis at the number provided for marketing or promotional purposes. Ellis will send you news and updates, including recommendations to help make the most of your Ellis account(s) and access select Ellis features.
VIII. Push Notifications
By agreeing to this Agreement, you agree to receive push notifications from us. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of the Services.
IX. Third Party Websites
The Services, including our websites, may contain links to third-party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties’ services or websites.
X. Prohibited Conduct
BY USING THE SERVICES YOU AGREE NOT TO:
- breach this Agreement or any other agreement between you and Ellis or violate any Ellis policy;
- access or use any part of the Services for any non-personal, commercial purpose;
- access or use the Services for any illegal purpose or violate any law, statute, ordinance, or regulation;
- attempt to gain unauthorized access to any other user’s Account;
- modify or attempt to modify or in any way tamper with, circumvent, disable, damage or otherwise interfere with the Services;
- access or use the Services in a way that may infringe upon the intellectual property or other rights of any third party, including, without limitation, trademark, copyright, privacy, or publicity rights;
- provide false, inaccurate or misleading information;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof (including any Application), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law;
- copy, distribute, transfer, sell or license all or part of the Services;
- transfer the Application to, or use the Application on, a device other than the Authorized Device;
- intentionally interfere with or damage operation of the Services or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- take any action to circumvent, compromise or defeat any security measures implemented in the Services;
- use the Services to access, copy, transfer, retransmit or transcode information, Ellis logos, marks, names or designs or any other content in violation of any law or third party rights; or
- remove, obscure, or alter Ellis’s (or any third party’s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through the Services.
XI. Ownership; User Content
Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Application and its content are owned by Ellis. Neither these Terms (nor your access to the Application) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights in accordance with these Terms. Ellis reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.
You hereby grant (and you represent and warrant that you have the right to grant) to Ellis an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Application. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
If you provide Ellis with any feedback or suggestions regarding the Application (“Feedback”), you hereby assign to Ellis all rights in such Feedback and agree that Ellis shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Ellis will treat any Feedback you provide to Ellis as non-confidential and non-proprietary. You agree that you will not submit to Ellis any information or ideas that you consider to be confidential or proprietary.
- Termination by Ellis. Without limiting other remedies, Ellis may immediately terminate or suspend your access to and/or use of the Ellis Services and remove, subject to any regulatory retention requirements, any material from the Services or our servers, in the event that you breach this Agreement. Notwithstanding the foregoing, we also reserve the right to terminate, limit or suspend your access to or use of the Ellis Services at any time and for any reason or no reason, including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Ellis or any third party; or (ii) in connection with any general discontinuation of the Services. We also reserve the right to modify the Services at any time without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or revocation of your access to or use of the Services.
- Termination by You. You may terminate acceptance of this Agreement at any time by permanently deleting the Application in its entirety from the Authorized Device, whereupon (and without notice from Ellis) any rights granted to you herein will automatically terminate. If you fail to comply with any provision of this Agreement, any rights granted to you herein will automatically terminate. In the event of such termination, you must immediately delete the Application from the Authorized Device.
You agree to indemnify and hold Ellis (and its officers, employees, and agents) (collectively, the “Indemnified Parties”) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Application, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Ellis reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Ellis. Ellis will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
XV. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE INDEMNIFIED PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE INDEMNIFIED PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE WHERE SUCH DAMAGES RESULT FROM: (i) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES, OR (ii) ANY PURCHASE OF A THIRD PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE ELLIS SERVICES, INCLUDING THE AVAILABILITY OF A COUPON. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION XV WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
XVI. Disclaimers; No Warranties
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS REQUIRED BY LAW, Ellis DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. SPECIFICALLY, BUT WITHOUT LIMITATION, Ellis DOES NOT WARRANT THAT: (1) THE INFORMATION PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE CORRECT, ACCURATE, UP-TO-DATE, OR RELIABLE; (2) THE SERVICES BE UNINTERRUPTED OR ERROR-FREE; (3) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED BY OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (4) ANY ERRORS IN THE TECHNOLOGY WILL BE CORRECTED. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
XVII. DISPUTE RESOLUTION. Please read this Arbitration Agreement carefully. It is part of your contract with Ellis and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Ellis that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Ellis, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Ellis should be sent to: 264 West 22nd Street, Apt. 7, New York, NY 10011. After the Notice is received, you and the Ellis may attempt to resolve the claim or dispute informally. If you and the Ellis do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Ellis made to you prior to the initiation of arbitration, the Ellis will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or the Ellis pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Ellis, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Ellis.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Ellis in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Ellis.
- Small Claims Court. Notwithstanding the foregoing, either you or the Ellis may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, NY, for such purpose.
XVIII. Electronic Communications
The communications between you and Ellis use electronic means, whether you use the Application or send us emails, or whether Ellis posts notices on the Application or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Ellis in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Ellis provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
XIX. Amendment to These Terms
Subject to applicable law, we reserve the right, in our sole and absolute discretion, to modify all or any portion of these Terms, at any time without incurring any liability or obligation whatsoever to you or any other person or entity. If we do this, we will post the changes to these Terms at least ten (10) days before the amendment comes into effect, and will indicate at the top of this page the date these Terms were last revised. In addition, if you have registered for an Account, where required by law or at our discretion, we will provide you notice using email and/or your mailing address, or any other contact information we have for you in our discretion. As required by law, or at our discretion, the notice will set out the new clause, or the amended clause and how it read formerly, and the date on which the change will come into effect. Before the change comes into effect, you may cancel this agreement rather than accept the change. You may refuse the amendment and rescind, or cancel your participation without cost, penalty or cancellation indemnity, by sending us notice to that effect no later than ten (10) days after the amendment comes into force, using the information in the notice. To the fullest extent permitted by applicable law, your continued access to and/or use of the Application after the date specified in such notice constitutes your full acceptance of, and agreement to be legally bound by, the terms of these Terms, as revised.
You hereby acknowledge and agree that we reserve the right at any time to modify or discontinue the whole, or any part of, the Application or Services, without notice, and that we will not be responsible or liable, directly or indirectly, to you or any other person or entity for any loss or damage of any kind incurred as a result of any such modifications or discontinuance.
XX. Contact Us
If you have any questions about these Terms or our Application or Services in general, please contact us at: email@example.com or call us at +1 (347) 650-3162.