ELERTS END USER AGREEMENT FOR THE WEB
Your use of ELERTS products and services provided through the web (“Product”) is subject to this Agreement between ELERTS CORPORATION (“ELERTS”) and you, whether provided to you directly by ELERTS, or made available through other channels. The term “Provider” even though singular includes both ELERTS and each entity through which ELERTS supplied the Product to you. The term “You” or “you” means the person using the Product under this End User License Agreement (this “Agreement”). This Product is not licensed for use in the EU or for use by EU residents.
WAIVER AND INDEMNIFICATION
BY USING THE PRODUCT, YOU AGREE TO INDEMNIFY AND HOLD PROVIDER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND SUPPLIERS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, OR YOUR USE OF THE PRODUCT. THIS MEANS THAT YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM PROVIDER, THEIR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND SUPPLIERS AS A RESULT OF PROVIDER’S DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, OR TO SUSPEND OR TERMINATE YOUR ACCESS TO THE PRODUCT. THIS WAIVER AND INDEMNIFICATION PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.
Limitations on Your Actions
You shall not exploit the Product in any unauthorized way whatsoever, including but not limited to, using the Product to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Product in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Provider is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Product. Any attempt to do so is a violation of the rights of the Provider and its suppliers. If you breach this restriction, you may be subject to prosecution and damages.
Your Consent to Use of Content from You
You agree that Provider may collect and use technical data and related information including but not limited to technical information about your device, system and application software, and peripherals that is gathered periodically to facilitate the provision of Product updates, product support, and other services to you (if any) related to the Product. Provider may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies to you. More generally, although you retain copyright and any other rights you already hold in or to any information (such as photographs, videos or other images, written text, audio files or other sounds) (collectively, “Content”) which you submit, post or display on or through, the Product, by submitting the Content you give Provider a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit through the Product. In addition, when you use the Product to submit reports, and if you have enabled “location services” permission for the Product, the Product may automatically include your location in the Content transmitted to Provider and that location may be used by Provider consistent with the rights granted to Provider to use Content. You agree that this Agreement includes a right for Provider to make such Content available to other companies, organizations or individuals with which Provider has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services. You understand that, in performing the required technical steps to provide the Product to Provider’s users, Provider may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this Agreement shall permit Provider to take these actions. You confirm and warrant to Provider that you have all the rights, power and authority necessary to grant the above license.
Content from Others; Third-Party Materials
You agree that the Product contains proprietary Content, information and material that is owned by Provider and/or its suppliers, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary Content, information or materials in any way whatsoever except for permitted use of the Product or in any manner that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party. In addition, Content that may be accessed from, displayed on or linked to from the Products are not available in all languages or in all countries or regions. Provider makes no representation that the Product or Content are appropriate or available for use in any particular location. To the extent you choose to use or access the Product or Content, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Provider may also impose limits on the use of or access to the Product, in any case and without notice or liability.
You acknowledge that (a) any notifications from the Product may be incomplete or inaccurate; (b) any guidance provided by the Product may not be suitable for your situation; (c) you must use your reasonable personal judgment to determine the appropriate action to take upon receiving a notification from the Product; (d) you are prohibited from using the Product for any illegal purpose; (e) Provider has the right to report all false or inappropriate reports and/or potentially fraudulent, dangerous or illegal use of the Product to law enforcement and Provider will cooperate fully with law enforcement in investigating the use of the Product; and (f) that filing false reports or otherwise misusing the Product may lead to civil and criminal prosecution.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT AND ANY SERVICES PERFORMED OR PROVIDED BY THE PRODUCT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON INFRINGEMENT OF THIRD-PARTY RIGHTS. PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT, THAT THE FUNCTIONS PERFORMED OR PROVIDED BY THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. You acknowledge that Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Product.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Provider’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of one thousand dollars ($1,000.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Your rights under this Agreement will terminate automatically without notice from the Provider if you fail to comply with any term(s) of this Agreement. Upon such termination, you shall cease all use of the Product. Provider reserves the right to modify, suspend, or discontinue the Product (or any part thereof) at any time with or without notice to you, and Provider will not be liable to you or to any third party should Provider exercise such right. Termination of this Agreement does not limit Provider’s rights or the limitation of liability applicable to Provider.