Elto.com (“Elto”, “we” or “us”) User Terms of Service
NOTE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH ELTO. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1. How Our Services Work
Elto offers a Marketplace for customizing websites. We connect website and business owners (“Users”) who need to update their existing websites or other coding services, with web developers (“Developers”) who are able to make these updates for Users. For example, our Site can connect Users with a Developer who can, for example, insert a logo on a website, add social networking plug-ins, or update existing content.
Users can submit a project request for website updates – herein called a “Project” – with us and request a quote for a Project by visiting https://www.elto.com/projects/new and submitting a description of the items they would like to change. We break each Project into a series smaller projects or “Tweaks,” and provide the User a quote for completing the entire Project, based on the individual Tweaks that are needed to complete the Project. Each Tweak is allocated to a Developer for completion.
So that a Developer may Tweak your website as requested, and/or complete your Project, you must supply us with the appropriate login credentials for your website and permit Developers temporary access in order to complete your Project. Developers are not permitted to use your log-in credentials for any purposes other than to complete the Tweaks or Project. You must have the authority to authorize Elto and/or Developers to access your website in order to perform the requested services, or you may not submit a Project request.
Developers are independent contractors of Elto, not employees, and as such are responsible for the services provided to Users.
Elto reserves the right to reject a Project at any time.
2. Website Security
As noted above, Users must supply us with the appropriate login credentials for their website and permit Developers temporary access in order to complete their Project(s). We will store log-in credentials securely, and they are only shared with the Developer(s) to whom your Project is assigned. Developers are prohibited from sharing these log-in credentials and from using your log-in credentials for any purpose other than completing your Project. We will not share your log-in credentials with anyone, after your Project is fully completed. However, you should update your log-in credential after your Project is complete.
At all times, you are responsible for having adequate security in place on your website. You agree to immediately notify Elto of any unauthorized use, or suspected unauthorized use of your Elto account or any other breach of security. We are not be liable to any User for any loss or damage arising from User's failure to comply with the above requirements, including your failure to have in place adequate website security, or for any other User website vulnerabilities.
All Users are required to ensure that a back-up of their websites and all related data is completed, prior to initiating a Project. When submitting a Project, Users must designate their backup method: Managed Backup or Self-managed Backup. If a User chooses Managed Backup, then for a fee Elto will backup their website, prior to engaging a Developer to work on the Project. If you choose Self-managed Backup, you are representing that you have a method for backing up your website and that you have fully backed up your website and all related data prior to submitting your Project.
Elto cannot and will not liable for any loss of data to any User who fails to comply with this provision.
4. Project Completion Times
Elto does not guarantee Project completion time; any estimates provided concerning the completion of a project are provided as a courtesy and are not binding.
Certain Projects may be eligible to be submitted as an "Express" Project. Projects that are submitted as Express Projects will be charged an additional Express fee.
Eligibility for the Elto express service is at the discretion of Elto.com.
Elto will provide a delivery time for all Express Projects, and will do its best to ensure that the delivery time is met. However, Elto cannot guarantee that an Express Project will be completed within the stated delivery time. If an Express Project is not completed within the stated delivery time, Elto will refund to User the amount of the Express fee; however, User will not be entitled to a refund of the remaining Project fee simply because the Project was not completed within the stated delivery time.
By using the Site, you represent, acknowledge and agree that you are at least 18 years of age. Further, you represent, acknowledge and agree that: (a) all registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information and keep such information up-to-date; and (c) your use of the services offered through this Site do not violate any applicable law or regulation.
Elto may terminate these Terms and your use of the Site without notice if Elto, in its sole discretion, believes that you are under the age of 18, have provided inaccurate or incomplete registration information, or are otherwise ineligible to use our Site and services.
Additional eligibility requirement apply to Developers, as stated in the "Additional Developer Terms" section below.
6. General Use Restrictions.
Elto provides content and services through the Site. Certain information, documents, products and services provided on and through this Site, including content, logos, graphics and images (together, the “Site Materials”) that are not Submissions (as defined below) are provided to you by Elto and are the copyrighted and/or trademarked work of Elto or Elto’s contributors.
Elto grants you a limited, personal, non-exclusive, non-transferable, and non-assignable license to use and to display and to make one copy of the Site Materials and to use the services and this Site. Except for the license set forth in the preceding sentence above, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site Materials in any manner.
This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination of these limited licenses, you agree to immediately destroy any downloaded or printed Site Materials. Except as stated herein, you acknowledge that you have no right, title or interest in or to this Site or any Site Materials.
7. Using the Site and the Services on the Site.
You can simply view the Site, and not use any services on the Site or participate in any interactive programs on the Site. You need not register with Elto to simply visit and view the Site. However, in order to access certain password-restricted areas of the Site (such as the Elto Marketplace) and to use certain services (such as to retrieve a Project quote or place an order) and Site Materials, you must register with Elto for an account and receive a password.
8. Password Restricted Areas of this Site.
Users. Users that desire to register for an account with Elto must submit an email address and choose a password. Users may also provide additional optional information, such as a website URL and a brief on what work they want performed on their site; this information is not required to register for an account but may be helpful to Elto in providing you with a more customized experience when using the Site or its services. Once a User has submitted his or her account registration information, a Elto administrator shall have the right to approve or reject the requested registration, in the Elto administrator’s sole discretion.
Developers. Subject to the Additional Developer Terms below, Developers may apply to join the Elto marketplace at https://www.elto.com/apply. Elto will review Developer applications, and may, in its sole discretion, approve or deny any Developer application. Once approved, a Developer will have access to the Elto marketplace, where it may choose the Projects it wishes to work on.
General. You are responsible for maintaining the confidentiality of your Elto Password and you are responsible for all activities that occur using your Password. You agree not to share your Password, let anyone else access your Password or do anything else that might jeopardize the security of your Password. You agree to notify Elto if your Password is lost, stolen or disclosed to an unauthorized third party, if there is any unauthorized use of your Password on this Site or if you know of any other breach of security in relation to this Site. By using this Site, you represent and warrant that all the information that you provide when registering for an account and otherwise through the Site is accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes to your account profile.
Once a User submits a Project, Elto will provide that User with a quote, estimating the cost of completing that Project, based on the number of Tweaks involved; if you accept a Project quote, Elto will charge you for the Project and will assign your Project to one or more Developers for completion. By submitting a Project and accepting an estimate you agree to pay all fees or charges, including any taxes, to your account for that Project, based on Elto’s Project quote. Please note that, while we attempt to provide accurate quotes at the outset of a Project (based on the number of Tweaks a Project involves), additional information or requests regarding the scope of the Project may necessitate adding additional Tweaks to a Project, which may increase the estimated price. Elto will inform Users of any increases to the Project quote; if you decline to pay for the increased cost, Elto, in its discretion, may (i) complete (or instruct the Developer to complete) only the Project and Tweaks from the original quote; (ii) cancel the Project and refund your money, and, in its discretion, rollback (or instruct the Developer to rollback) any work already completed on the Project, restoring your website to its prior state (i.e., the state of the website prior to the initiation of the Project). If you do not pay on time or if Elto cannot charge your credit card, PayPal or other payment method for any reason, Elto reserves the right to either suspend or terminate your access to the Site and account, reject your Project, and terminate these Terms. You are expressly agreeing that Elto is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that Elto may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Elto offers a limited refund policy. Users who are not satisfied with the outcome of a Project (the "Outcome"), must notify Elto at email@example.com, within the timeframe set forth below. If Elto is unable to provide User with a satisfactory Project Outcome, then it will refund User the Project fee in accordance with this provision.
Once a Project has been marked as "Built" by the assigned Developer(s), the User has forty-eight (48) hours to review the Project, and to mark it as "Complete," or to notify Elto that it is not satisfied with the Project Outcome. If a User does not take any action within those forty-eight (48) hours, then the Project will automatically be marked as Complete. A User then has seven (7) days from the date a Project has been marked "Complete" to notify Elto that it is not satisfied with the outcome of the Project. Elto will not provide User any refund of the Project fee, if the User does not notify Elto at firstname.lastname@example.org that it is not satisfied with the Project Outcome.
If a User notifies Elto that it is not satisfied with the Project Outcome, in accordance with the timeframe set forth above, Elto will either reopen the Project and rectify the situation, or will issue the User a refund at the discretion of Elto.com. This refund may be either a partial refund, representative of the work completed, or a full refund where appropriate.
Once you have notified us that you are not satisfied with the Project Outcome, Elto will take steps to address your complaints about the Project Outcome, including by asking the Developer who completed the work, or in our discretion a different Developer, to address your complaints regarding the Project Outcome. However, if after our attempts to address your complaints, you are still not satisfied with the Project Outcome, Elto will issue you a partial or full refund, and may, at its discretion, reverse or rollback, or direct the Developer to reverse or rollback, the work conducted pursuant to the Project and restore your website to its previous condition (before the Project was commenced).
When a developer has not been assigned to a purchased Project with 48 hours, User is entitled to a full refund.
When a developer does not commence work with 24 hours of being assigned to a project, User is entitled to a full refund.
11. Electronic Communications.
By using the Site and/or the services provided on or through the Site, you consent to receiving electronic communications from Elto. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or services provided on or through the Site. These electronic communications are part of your relationship with Elto. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
12. Links to Third Party Sites.
Users. If you are a User, you acknowledge that you are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds, software and other content or material that you, either through yourself or a third party associated with your account, submit, upload, post or otherwise make available on or through your website (each a “Submission”), and that you, and not Elto, have full responsibility for each such Submission, including its legality, reliability, appropriateness, and trademark and copyright ownership (and the burden of determining whether any material is protected by any such right or is otherwise illegal or inappropriate is on you). You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Submission made available on or through your Site. You are expressly acknowledge that you are fully responsible for any Submission that you make or cause to be made available on or through your Site, in connection with any Project.
Developers. You agree that you will not upload, post or otherwise make available through a User's website any material that you know, or that you reasonably should know (i) would violate any third party's copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, or (ii) is otherwise illegal or unlawful.
14. Project Details
Users. Unless otherwise explicitly stated herein, you agree that any Project submitted by you in connection with this Site is provided on a non-proprietary and non-confidential basis. Unless you mark a Project as private, the Project will be treated as public and certain details about that Project, including but not limited to a description of the work, the cost of the work [and the URL for your website and your company name], will be published on the Site, which means that will be viewable by visitors to the Site and searchable in search engines. For an additional fee, a User may designate a Project as private. If you pay an additional fee to submit a private Project, Elto will require that any Developer assigned to that Project treats the non-public information it receives related to the Project as confidential, and does not disclose such information except as required to perform the Project or as required by law.
15. Unauthorized Activities.
When using this Site and/or the services, you agree not to, without limitation:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals.
- Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Take any action that may otherwise harm, disrupt or overburden the Site, or violate these Terms.
This list of prohibitions provides examples and is not complete or exclusive. Elto reserves the right to terminate your access to your account, your ability to post to this Site or use the services), with or without cause and with or without notice, for any reason or no reason, or for any action that Elto determines is inappropriate or disruptive to this Site or services available through the Site, or to any User or Developer. Elto may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Elto’s discretion, Elto will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Submissions and unauthorized use of any Site Materials contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold Elto and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) Elto or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of this Site or the use of this Site and the services available through the Site by any person using your Elto user name and/or password violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party.
16. Proprietary Rights.
Elto is a trademark of Elto in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Elto, ™ Elto. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
17. No Agency Relationship
Nothing in these Terms creates a relationship of agent and principal, partners, joint venturers or employer–employee between the you and Elto, or between any Developer or User, and no act or obligation of either party will in any way bind the other.
18. Additional Developer Terms
The provisions of this section apply to Developers, in addition to the other provisions of these Terms. To the extent any provision in this Section conflicts with any other provision of these Terms, the provisions of this Section will control with respect to Developers. Elto may add to or modify the provisions of this Section at any time.
a) Each Developer is an independent contractor. As an independent contractor, each Developer is solely responsible for the materials, supplies, equipment, taxes, fees and all other costs incurred by Developer in the performance of or as a result of providing the services and completing a Project and there shall be no reimbursement for any materials, supplies, equipment, fees, taxes or operating costs by User or Elto (outside of the Developer's fee for completing a Project or Tweak(s)).
b) Developer must have a valid Paypal account. Developer agrees that Elto shall make any applicable payment(s) to Developer by depositing such payment funds into the Developer's Paypal account.
c) Developers may apply to join the marketplace at https://www.elto.com/apply. To be eligible, a Developer must be approved by Elto as a qualified web developer; eligibility requirements include (but are not limited to) being a web developer with experience building websites, strong communications skills, and evidence of previous, successful and relevant work experience. Elto will review Developer applications, and may, in its sole discretion, approve or deny any Developer application.
d) Once a Developer's account has been approved, a Developer will have access to the Elto Marketplace, where it may choose the Project(s) it wishes to work on. For each Project it chooses, the Developer will receive a Project "Brief" indicating the work to be completed and the amount of the payment the Developer will receive upon successful completion of a Project. If Developer believes that additional work and/or or revisions to the Project Brief are necessary, Developer must notify Elto immediately, and before undertaking any additional work, at email@example.com
e) Each Developer may only have one Elto account. Each Elto Developer account is limited to one (1) individual Developer.
f) A Developer must communicate with a client regularly, and at a minimum: (i) must communicate with a client within one (1) hour of accepting a Project; (ii) must communicate with the client at least one (1) time per twenty-four (24) hours until the Project is marked as Complete, in order to update the client on the status of the Project.
g) Once a Developer has completed a Project, the Developer must change the Project's status on the Site to Built. In accordance with the "Refunds" section, above, the User has seven (7) days from the date the Project is marked as Complete (by the User or by Elto), to notify Elto that it is not satisfied with the Project Outcome. Elto may then, in its sole discretion: (i) permit the Developer to update its work on the Project, (ii) engage someone else to update the Project, or (iii) issue the User a refund for the Project fee; in the event of (ii) or (iii), the Developer shall not be entitled to receive any payment for the work conducted on the Project. If Elto requests that Developer update Developer's work on a Project, Developer shall do so as soon as reasonably practicable and once finished shall change the Project status to "Built." The Refund period shall begin again at this point, and the User shall have the opportunity to tell Elto if it is not satisfied with the Project Outcome, in accordance with the "Refunds" section above. It is in a User's sole discretion to accept or reject a Project Outcome.
h) As stated above, if the Developer is unable to complete a Project successfully and/or the User rejects the Developer's work on the Project, the Developer will not be eligible to receive payment for the Project. If a Project is accepted by the User or marked as Complete, the User has, in accordance with "Refunds" section above, seven (7) days to notify Elto that it is not satisfied with the Project Outcome; if during this seven (7) day period, the User does not notify Elto that it is unsatisfied with the Project Outcome, and if the Project is not otherwise reopened during this time period, then the Developer may log-in to the Developer's Elto account after the seven (7) day period has expired and withdraw the Developer's payment for the Project. Elto shall then deposit the applicable payment funds into Developer's Paypal account.
i) If Elto issues the User a refund of the Project fee, Developer further agrees that, upon Elto's request and at Elto's discretion, Developer shall reverse or rollback any work the Developer completed on the User's website, or shall work with Elto to ensure that Elto is able to reverse or rollback any work the Developer completed on the User's website, in order to restore the User's website to its previous condition (i.e., the condition of the website before the Developer's work on the Project was commenced).
j) Without limiting any other liability limitations herein: (i) Elto is not liable to Developer for any losses suffered by Developer arising out of our relating to a Project, including any losses as a result of a User's rejection of a Project. Developer bears all of the costs and risks of operating their own business, and accepting and completing Projects, including risks of loss, and (ii) Developer shall indemnify, defend and hold harmless Elto, its affiliates and service providers, and their respective officers, directors, employees, agents, licensors, representatives from and against any and all claims or liability, including costs and attorneys’ fees, arising from or in connection with Developer's work on any Project.
k) Each Developer agrees expressly to:
- Complete each Project in accordance with the instructions provided by the User and/or Elto;
- Not to undergo any activities regarding any User's website that have not been expressly requested by the User or included in the Project;
- To protect a User's website log-in credentials and to securely destroy them as soon as the Project is complete;
- Not to engage in any activities that would or reasonably could violate the security of the User's website, not to install or program any software or device on a User's website unless expressly agreed to in writing by the User or specifically included in the Project Brief;
- Not to engage in any activities, in connection with the Site or any Project that would otherwise harm, disrupt or overburden the Site, a User's website, or violate these Terms or applicable laws.
l) Elto may, in its sole discretion, at any time and without prior notice, terminate the account or access of any Developer for (i) failure to comply with this section 16 or any part of these Terms, or (ii) if the Developer's work on any Project(s) is rated unfavorably by the User who submitted the project.
19. Disclaimer of Warranties.
Your use of this Site and/or the services is at your own risk. Neither the Site Materials nor Submissions, nor any Project information, have been verified or authenticated in whole or in part by Elto, and they may include inaccuracies or typographical or other errors. Elto does not warrant the accuracy or timeliness of the Site Materials or Submissions. Elto has no liability for any errors or omissions in the Site Materials and/or Submissions, whether provided by Elto or our licensors.
ELTO, FOR ITSELF AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, AGENTS, REPRESENTATIVES, THIRD-PARTY SERVICES PROVIDERS, AND ANY OF THE FOREGOING ENTITIES' RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS, PARTNERS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (EACH A “ ELTO PARTY” AND COLLECTIVELY, THE “ELTO PARTIES”), MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, ANY SITE MATERIALS OR SUBMISSIONS, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE SITE MATERIALS OR SUBMISSIONS OF OTHER USERS OF THIS SITE. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, SITE MATERIALS SUBMISSIONS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ELTO DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
THE SOLE REMEDY FOR USERS WHO ARE NOT SATISIFED WITH THE OUTCOME OF A PROJECT IS TO OBTAIN A REFUND FOR THAT PROJECT, SUBJECT TO THE CONDITIONS OF THE REFUND SECTION ABOVE.
20. Limitation of Liability.
NO ELTO PARTY SHALL BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY SITE MATERIALS OR SUBMISSIONS TO OR FROM THIS SITE. IN NO EVENT SHALL ELTO BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF ELTO KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
IF, NOTWITHSTANDING THE FOREGOING, A ELTOPARTY IS FOUND TO BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGE OR LOSS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE, OR ANY CONTENT OR SERVICES THEREIN, THE ELTO PARTIES’ TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID ELTO FOR YOUR USE OF THE SITE, SERVICE AND ANY CONTENT THEREIN; OR (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential, or other damages, so the above limitations or exclusions may not apply to you. In such event, Elto’s liability for such damages with respect to the Site and Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.
You agree to indemnify, defend and hold harmless, Elto, its affiliates and service providers, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the Site or Service from and against any and all claims or liability, including costs and attorneys’ fees, arising from or in connection with your violation of these Terms and your use of the Site or services or any Projects. Elto reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Elto in asserting any available defenses.
22. Local Laws; Export Control.
You shall obey all federal, state, and local laws, regulations and rules that apply to your activities when you use the Site or services. Elto reserves the right to terminate your account and to prevent your use of the Site if your account is used to engage in illegal activity or to violate the Terms.
To use our services, you must not be (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes, including without limitation Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
If you send or transmit any communications, comments, questions, suggestions, or related materials to Elto, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any services offered through the Site or Site Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Elto is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Elto is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
If you violate these Terms, Elto may terminate and/or suspend your access to this Site without notice. Elto prefers to advise you of your inappropriate behavior and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Elto, may result in immediate termination of your access to this Site and the services available through the Site.
Elto may also in its sole discretion and at any time discontinue providing the Site, the Site Materials and the services available through the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site, the Site Materials and the services available through the Site, under any provision of the Terms, may be effected without prior notice to you, and acknowledge and agree that Elto may bar any further access to the Site, the Site Materials and the services available through the Site,. Further, you agree that Elto shall not be liable to you or any third-party for any termination of access to the Site, the Site Materials and the services available through the Site,.
25. Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Elto. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and Elto shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “Elto” means Elto and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Elto regarding any aspect of your relationship with Elto, 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 includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Elto’s licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Elto an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Elto Inc, 48 Cambridge Street, Collingwood, Australia 3066. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Elto does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Elto may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Elto Inc, 48 Cambridge Street, Collingwood, Australia 3066. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Elto through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Elto. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration (or small claims court as designated above).
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Elto may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
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. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Elto may initiate arbitration in either San Francisco, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Elto may transfer the arbitration to Wilmington, Delaware in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – Elto will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Elto as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Elto specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site 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.
You understand and agree that by entering into this Agreement you and Elto are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Elto might otherwise have had a right or opportunity to bring Disputes in a 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 below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with Elto or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Elto makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Elto to adhere to the language in this Provision if a dispute between us arises.
26. Limited Time to Bring Claim
Where permitted by law, you and Elto agree that any cause of action arising out of or related to the Site, and the services available through the Site, or any Site Materials must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
California state law, the Federal Arbitration Act, and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for disputes subject to arbitration as described above, you agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in San Francisco, California for resolution of any disputes arising out of or relating to these Terms or your use of the Site, including the services available through the Site. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Elto’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Elto and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Elto about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
28. Contact Us
If you have any questions about these Terms or otherwise need to contact Elto for any reason, you can reach us at email@example.com.