Elify Terms of Service
Effective Date: May 25, 2018
The following Terms of Service ("TOS") contain the terms and conditions that govern Elify Members and Elify Member-Affiliates (collectively, “Members”) use of any Elify owned website (collectively, “Websites”) and/or any Elify Services (collectively, “Services”). These TOS set forth the agreement between you the Member and AltTen, Ltd., Dba Elify and elify.com (collectively, “Elify”), a Colorado limited liability company (collectively, the “Parties”), concerning the respective rights and responsibilities of the Parties arising from Member’s use of the Services. You as a Member may not use Services until you review and agree to these TOS. Member's use of the Services constitutes Member’s acceptance of these TOS.
Elify offers various free and paid cloud based software accessible through the Website or Mobile App (the “Services”). Such Services include, but are not limited to, various business solutions and any associated data storage. Elify reserves the right to add to, modify or delete any of its Services at any time. Members who would like to utilize the Services must create an account and set up a user profile. Each Service may be subject to its own End User License Agreement (“EULA”), which must be agreed to by the Member prior to utilizing the Service. Elify may, at its option, offer a number of other additional Services in the future. If additional Services are offered, Elify may in its sole discretion adopt additional rules, regulations, licenses or terms of service concerning the additional Services.
Subscription based Services and Service Fees
In order to utilize some Services, Members may be required to pay a monthly Service Fee(s) (the “Service Fee”). The Service Fee shall be set forth in the Services registration and account creation interface. Members must keep valid payment information on file with Elify’s payment processor(s) and hereby grants Elify authority to automatically bill the Member’s provided payment method to cover the Service Fee.
All Service Fees are non-refundable. The digital nature of the Services and the immediacy of the benefits make any possibility for refund commercially impractical. Failure to pay any associated Service Fee shall immediately terminate the license granted in Paragraph 5 of this TOS along with any Service EULA.
Term and Termination
The Services are licensed on a month to month basis and shall automatically renew unless terminated by Elify or Member in accordance with this Agreement. Elify may immediately terminate this Agreement in the event of: 1) Member’s breach of these TOS; 2) Member’s breach of the Elify Member Supplied Content Policy; 3) Member’s breach of the Elify Member-Affiliate Agreement; or Member’s failure to pay the Service Fee in accordance with this Agreement. Member may terminate this Agreement by providing 30 days’ notice to Elify. In the event this Agreement is terminated, member shall not be entitled to any refund of the Service Fees.
License for Services
So long as Member is in compliance with this TOS as provided for herein and any additional license agreements established, Elify grants Member a personal, non-transferable, limited, revocable license to access and use the Services for their intended purposes only, subject to Member’s compliance with these TOS. Member may not collect or otherwise use information contained within the Service for any purpose which is not directly related to Member's use of the Services, including, but not limited to any Prohibited Purpose, as determined by Elify. Examples of “Prohibited Purposes”, as used in this Section include, but are not limited to, the creation of unauthorized derivative works based on the Service, making copies of Services for purposes other than standard web browser caching, or use of the information for the purpose of competing with Elify. Any use of the Services that violates the TOS or the limited license contained herein, may result in the immediate, without prior notice, termination and revocation of the license granted to the Member.
Rules & Policies
Under the limited license granted in Section 5 above, Member may only use the Services as expressly permitted by Elify. Prohibited uses include, but are not limited to the following:
Any use that interferes with a third party's ability to use or enjoy the Services;
Any use of the Services that threatens, harasses, or intimidates any other Members of the Services or any third party;
Impersonating another individual or entity;
Any use of spiders, robots, or any other device or process to monitor the activity on or copy data from the Services;
Reverse engineering, decompiling, or disassembling any software or other technology used in conjunction with the Services;
Collecting or attempting to collect any electronic information concerning any Member or viewers of the Services, such as email addresses or other Personal Information unless such collection is done in conjunction with the legitimate conduct of business;
Interfering with or disrupting the Services by using viruses, spyware, or any other programs or technology designed to disrupt or damage any software or hardware;
Use of any meta tags, search terms, key terms, or keywords which contain Elify’s names, trademarks, website domains or the unauthorized use of any name or trademarks of any other person or entity;
Any use or action that directly or indirectly assists or encourages any third party to engage in the above mentioned prohibited uses or otherwise violate these TOS;
Any commercial use or rebranding of the Services;
Any attempt to download or otherwise make copies of any material included in the Services;
Any attempt to sublicense the Services;
Any sharing of Member's account information or allowing another individual to utilize the Services through Member's account.
6.3 Receipt of Marketing Materials
You may “opt out” from receiving marketing materials from us at any time. If at any time you wish to discontinue receiving promotional materials from Elify please follow the instructions for removal contained on the most recent communication from Elify, email firstname.lastname@example.org, or write to Elify Customer Service, 9249 S. Broadway #200-250, Highlands Ranch, CO 80129. We also offer you the ability to unsubscribe from certain communications through your Elify account settings control panel.
6.4 Information Concerning Children
Our Services are only for those adults and children over the age of 13. We do not knowingly collect any information from children under the age of 13. We will affirmatively delete any information which we have knowledge came from or pertains to a child under the age of 13. Children between the ages of 13 and 18 may use Elify Services only under the supervision of a parent or legal guardian. If you are a parent or legal guardian of a child between the ages of 13 and 18 and you do not want your child’s Personal Information in our records, or do not wish to receive communications from us, please contact us by emailing email@example.com or write to Elify Customer Service, 9249 S. Broadway #200-250, Highlands Ranch, CO 80129.
6.5 Member Supplied Content Policy
In the course of offering the Services, Elify collects certain data (“Content”) from you. By entering into these TOS, you agree to Elify’s collection, use, and display of Content in accordance with this Member Supplied Content Policy. This policy governs all the Content Members upload to our database for use with the Services provided by Elify. The member Supplied Content Policy is hereby incorporated by reference.
Proprietary & Confidential Information
7.1 Elify Proprietary Information and Trade Secret
Member recognizes and agrees that, as further set forth in this Agreement, all information compiled by or maintained by Elify, including referral network placement information (i.e., information that discloses or relates to all or part of a specific Member referral within Elify including, without limitation, Member’s referral network, referral network tree, and all Elify Member and Member-Affiliate information generated therefrom, in its present or future forms), constitutes a commercially advantageous, unique and proprietary trade secret of Elify (“Trade Secrets”), which it keeps as proprietary and confidential and treats as a trade secret. During the term of Member’s Elify Membership, Elify grants Member a limited, personal, non-exclusive, non-transferable and revocable right to use the Trade Secrets, which includes, without limitation, referral network information, business reports, service developments, and Member and Member-Affiliate referrals, earnings and other financial reports to facilitate your promoting and referring as an Elify Member-Affiliate.
The Parties hereby acknowledge and agree that in the course of providing the Services both Parties will have access to the other Parties confidential and proprietary information. The Parties hereby acknowledge that such information including but not limited to the Services, any included documentation as well as “Member Supplied Content” constitute and contain valuable proprietary products and trade secrets of the respective parties and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions (the “Confidential Information”). Accordingly, the Parties agree to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below.
7.3 Maintenance of Confidential Information
Each party agrees to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not a party to this Agreement of such Confidential Information as can be established to: (1) have been known publicly; (2) have been known generally in the industry before communication by the disclosing party to the recipient; (3) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (4) have been known otherwise by the recipient before communication by the disclosing party; or (5) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
7.4 Injunctive Relief
The Parties acknowledges that the unauthorized use, transfer or disclosure of the Confidential Information will: (1) substantially diminish the value of the trade secrets and other proprietary interests; (2) render the Parties’ remedy at law for such unauthorized use, disclosure or transfer inadequate; and (3) cause irreparable injury in a short period of time. If the receiving party breaches any of its obligations with respect to the use or confidentiality of the Confidential Information, the disclosing party shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
The Parties' obligations under this Section will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
Representations and Warranties
8.1 The Parties represent and warrant to each other that: (i) they have the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of their obligations under these TOS does not constitute a breach of or conflict with any other agreement or arrangement by which either party is bound, and (iii) these TOS are a legal, valid, and binding obligation of the parties entering into these TOS, enforceable in accordance with their terms and conditions.
8.2 Member and Member-Affiliate Representations and Warranties
Member represents and warrants to Elify that Member’s use of the Services will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, or any other legal right of any third party and will comply with all applicable laws, rules, and regulations. Member further represents and warrants to Elify that they are the true owner of the Member Supplied Content and that the Content is free from any and all liens, encumbrances, or any other restrictions on Member's right to display or use the content, and that there are, to the best of Member's knowledge, no pending or threatened claims, demands, or litigation concerning any of the Member Supplied Content. Furthermore, Member represent to Elify that Elify will not be required to make any payments such as licensing fees or royalties to any third party in connection with the Member Supplied Content. Lastly, Member warrants that the Member Supplied Content does not violate Section 6.5 of this TOS.
ELIFY PROVIDES THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. ELIFY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THEIR USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET MEMBER’S REQUIREMENTS. ELIFY MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION: WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. THE PARTIES ACKNOWLEDGE THAT THE SERVICES ARE FOR THE MEMBER'S OWN INTERNAL PERSONAL OR BUSINESS USE. MEMBER HEREBY WAIVES ANY CLAIM AGAINST ELIFY AND HEREBY INDEMNIFIES ELIFY, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, CONTRACTORS, AFFILIATES, DIRECTORS, OFFICERS, MANAGERS AND SHAREHOLDERS HARMLESS FROM ANY DAMAGE, LOSS OR EXPENSE, INCLUDING WITHOUT LIMITATION, ATTORNEY’S FEES AND COSTS INCURRED IN CONNECTION WITH MEMBER'S USE OF THE SERVICES.
10.1 EXCLUSION OF DAMAGES
ELIFY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH MEMBER'S INDEMNITY OBLIGATIONS UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TOS EXCEED THE AMOUNTS PAID, IF ANY, TO THE OTHER DURING THE PREVIOUS SIX MONTHS.
Member will indemnify and hold Elify and its employees, representatives, agents, affiliates, directors, officers, managers, and shareholders (the "Indemnified Parties") harmless from any damage, loss, or expense, including without limitation, attorneys' fees and costs, incurred in connection with any third-party claim, demand, or action (a "Claim") brought against any of the Indemnified Parties alleging that Member has breached any of these TOS through any act or omission. If Member is required to indemnify Elify under this Section, Elify will have the right to control the defense, settlement, and resolution of any Claim at Member's sole expense. Member may not settle or otherwise resolve any Claim without Elify’s prior express written consent.
Elify may suspend or terminate Member's use of the Services if it believes, in its sole and absolute discretion that Member has breached a term of these TOS. Notwithstanding Elify’s termination of Member's permission to use the Services, these TOS will survive indefinitely unless and until Elify discontinues the Services. After the termination of Member's permission to use the Services, Elify may delete any Member Supplied Content or other data relating to Member's use of the Services (“Member Data”) residing on Elify’s servers or in its databases or otherwise in its possession and Elify will have no liability to Member or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, (iii) electronic mail or (iv) by a posting within the Services. If you give notice to Elify, you must use the following address: firstname.lastname@example.org placing Elify TOS in the email subject line. If Elify provides notice to Member, Elify will use the contact information provided by the Member to Elify. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated, or (iv) if by a posting within the Services immediately after the post is made. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement. A digital, faxed or emailed copy of this agreement shall be treated as an original in all respects.
In the event of a dispute between a Member or an Affiliate and Elify arising from or relating to Company, its services, the rights and obligations of its Members, Affiliates, or any other claims or causes of action relating to the performance of either a Member, Affiliate or Company under the Agreement, the parties shall attempt in good faith to resolve the dispute through non-binding mediation. Company shall not be obligated to engage in mediation as a prerequisite to disciplinary action against a Member or an Affiliate. If the parties are unsuccessful in resolving their dispute through mediation, the dispute shall be settled totally and finally by arbitration in Castle Rock, Douglas County, Colorado, or such other location as Company prescribed, in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association, except that all parties shall be entitled to discovery rights allowed under the Federal Rules of Civil Procedure. The parties consent to jurisdiction and venue before any federal or state court in the city of Castle Rock, county of Douglas, state of Colorado, for purposes of enforcing an award by an arbitrator or any other matter not subject to arbitration. Additionally, you agree not to initiate or participate in any class action proceeding against Company, whether in a judicial or mediation or arbitration proceeding, and you waive all rights to become a member of any certified class in any lawsuit or proceeding. This agreement to arbitrate shall survive any termination or expiration of the Agreement. Nothing in the Agreement shall prevent Company from applying to and obtaining from any court having jurisdiction a writ of attachment, garnishment, temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect its interest prior to, during or following the filing of any arbitration or other proceeding or pending the rendition of a decision or award in connection with any arbitration or other proceeding.
If a Member or an Affiliate wishes to bring an arbitration action against Company for any act or omission relating to or arising from the Agreement, such action must be brought within one year from the date of the alleged conduct giving rise to the cause of action. Failure to bring such action within such time shall bar all claims against Elify for such act or omission. Member waives all claims that any other statute of limitations applies.
Choice of Law
These TOS, and any other Agreement incorporated by reference in these TOS shall be governed by laws of the State of Colorado, without regard to its conflicts of laws principles.
The TOS will be binding upon each party hereto and its successors and permitted assigns. These TOS may be assignable by Elify but cannot be assignable or transferable by Member.
These TOS, all licenses, policies and other Agreements mentioned in these TOS, which are each hereby incorporated herein by reference, contain the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter.
No failure or delay by a party in exercising any right, power, or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
No Partnership or Joint Venture
Member and Elify are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS.
The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the balance of the Agreement will remain in full force and effect. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The provisions of this Agreement, including all documents incorporated herein by reference, embody the whole agreement between you and Elify and supersedes any prior agreements, understandings and obligations between you and Elify concerning the subject matter of your contract with Elify.
21.1 Intellectual Property Rights
All intellectual property rights and all other rights, title, and interest in and to the Services, except for the limited license as granted to Member herein are and shall remain the exclusive property of Elify. Such rights include, but are not limited to, any and all trademark rights including rights to the marks: Elify, elify.com, all copyrights in and to the Website, and any other websites owned by Elify, and any proprietary rights used in providing the Services, including, but not limited to computer software and hardware interfaces. Member cannot acquire any right, title, or interest in or to the above mentioned rights through Member's use of the Services under this TOS or otherwise.
21.2 Rights to Submissions and Other Information
By Member’s use of the Services, Member consent and agree that any questions, comments, suggestions, ideas, or any other information whether submitted via email, telephone, US mail, Fax, contest submission, or appearing on any message board or chat group, excluding any Member Data (collectively "Submitted Information"), Member hereby grants Elify permission to use and incorporate such Submitted Information in its business and the Services, for marketing and other promotional purposes without any payment to Member. This grant of rights includes the right to sublicense. Furthermore, Member agrees that Elify will have no obligation to keep any Submitted Information confidential. Member will not bring a claim and hereby forever waives any and all claims against Elify based on “droit moral”, moral rights, or any other legal or equitable theory from Elify’s use of the Submitted Information.
In order to use the Services, Member must be of sufficient age that Member can lawfully enter into and form contracts under applicable law (generally 18 years of age). The Services are not intended for and may not be used by children under the age of 13. Children age 13 and over may use the Services, subject to authorization and supervision of a Member parent or legal guardian.
Elify reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Services. If Elify determines, in its sole and absolute discretion, that you or another Member will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Elify may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
21.5 Modification of the TOS
Elify reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement within the Services without any further notice to you. For certain changes to the TOS, Elify may, at its option, notify you by email at the email address in our then current records. If any modification is unacceptable to you, Member's only recourse is to discontinue the use of our Services. Member's continued use of the Services following the posting of a change notice or new TOS within the Services will constitute affirmative and binding acceptance by you of the changes.
21.6 Third-Party Services
21.7 Compliance with TOS and Applicable Law
You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to above, and all applicable laws, regulations, and rules when you use the Services.