This Agreement applies to all users of the Services (“User”, “you” or “your”), and by using the Services, you understand, acknowledge and agree that you shall comply with this Agreement and any additional terms and conditions that we provide to you in connection with your use of or access to same (“Additional Terms”). The Services may also provide rules of participation for certain activities and services, including, without limitation, contests, sweepstakes, promotions and other initiatives (“Rules”). The Additional Terms and the Rules are hereby incorporated into this Agreement by reference as though fully set forth herein. To the extent that there is a conflict between this Agreement and the Additional Terms, the Additional Terms shall govern. To the extent that there is a conflict between this Agreement and the specific Rules for the activity in which you choose to participate, the Rules shall govern. To the extent that there is a conflict among this Agreement, the Additional Terms and/or the Rules, the following order of precedence shall apply: first, the Rules, second, the Additional Terms, and third, the Agreement.
1. Term. This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services at any time, for any reason, and Elton may terminate your use of the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.
2. Modifications. We may modify this Agreement from time to time, and at any time, without notice to you, for any reason, in our sole discretion. We will post or display notices of material changes on the Services and once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
3. Compliance. By using the Services, you represent and warrant that (a) you are 18 years of age or older and (b) your use of the Services does not violate any applicable law, rule or regulation. If you provide information that is untrue, inaccurate, not current or incomplete, or Elton suspects that such information is untrue, inaccurate, not current or incomplete, Elton has the right to refuse any and all current or future use of the Services (or any portion thereof), in its sole discretion, with or without notice to you, and without liability or obligation to you.
4. Proprietary Rights.
4.1 As between you and Elton, Elton owns, solely and exclusively, all right, title and interest in and to the Services and all content contained and/or made available on, through or in connection therewith (“Content”), and all such Content is protected, without limitation, under both U.S. and foreign laws, rules, regulations and treaties. The term “Content” includes, without limitation, all audio/visual content, artwork, photographs, illustrations, graphics, logos, copy, text, computer code, software, music (including the musical compositions therein), data, user interfaces, visual interfaces, information, materials, and all copyrightable or otherwise legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including with respect to any content contained and/or made available in any advertisements or information presented to you via the Services). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Content” as well.
4.2 The Services are to be used solely for your non-exclusive, non-assignable and non-transferable use and for no other purposes. You must not alter, delete or conceal any copyright, trademark, service mark or other notices contained on the Services, including, without limitation, notices on any Content you transmit, download, display, print, stream or reproduce from the Services. Except as expressly set forth set forth in the Additional Terms (e.g., terms governing use of a promotional app, etc.) or Rules (e.g., terms governing a promotional contest, etc.), you shall not, nor shall you allow any third party (whether or not for your benefit or otherwise) to, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website or platform), or otherwise use, any Content without the express, prior written consent of Elton or its owner if Elton is not the owner. Any unauthorized or prohibited use of any Content may subject you to civil liability, criminal prosecution, or both, under U.S. and/or foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and shall aggressively enforce same to the fullest extent of the law, including, without limitation, seeking criminal prosecution. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, please follow the procedures set forth in Section 12 below.
5. User Conduct. You are solely responsible for your conduct in connection with the Services. We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is not allowed. You represent, warrant and agree that, while using the Services, you shall not:
- intentionally or unintentionally engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or treaty or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene, vulgar or that contains explicit or graphic imagery, descriptions or accounts of excessive violence or sexual acts (including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals), contains a link to an adult website or is patently offensive, promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- intentionally or unintentionally engage in or encourage conduct that affects adversely or reflect negatively on Elton and/or its affiliates, the Services, our goodwill, name or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person or entity from using all or any portion, features or functions of the Services, or from advertising, linking or becoming our a distributor or supplier to us in connection with the Services;
- submit, post, email, display, transmit or otherwise make available on, through or in connection with the Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other User;
- impersonate any person or entity, including, without limitation, a Elton official, or falsely state or otherwise represent your affiliation with a person, entity or User Posting (as defined herein), transmit or otherwise make available on, through, or in connection with the Services false or misleading indications of origin, information or statements of fact;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services, including User Postings (as defined herein);
- engage in spamming, flooding, harvesting of email addresses or other personal information, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of customers, distributors or suppliers, Site information or any other information or data associated with the Services; or
- modify, reverse engineer, decompile or disassemble any part of the Services, whether in whole or in part, or create any derivative works from any part of the Services, or encourage, assist or authorize any other person to do so.
Elton reserves the right to investigate and take appropriate legal action against anyone who, in Elton’s sole discretion, violates, or is suspected of violating, this Section 5, including, without limitation, reporting you to law enforcement authorities. Further, you acknowledge, consent and agree that Elton may access, preserve and disclose your information and any other content or information if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with the legal process; (ii) enforce this Agreement; (iii) respond to claims that any content or information violates the rights of any third party; (iv) respond to your requests for customer, business or technical service; or (v) protect the rights, property or personal safety of Elton, its customers or any third parties.
6. User Postings.
6.1 The Services may provide you and other Users with an opportunity to participate in message, comment and communication features and may provide you with the opportunity to submit, post, email, display, transmit or otherwise make available comments, reviews, photos, materials, ideas, opinions, messages and other information via the Services (each, a “User Posting”, and collectively, “User Postings”). When you submit User Postings you may also be asked to provide information about you and your submission. This may include, without limitation, a descriptive title, information about the User Posting, your location and/or similar information. By submitting User Postings, you acknowledge and agree that the term “User Posting” also includes, without limitation, and refers to all of the information you submit or we may receive that is related to your User Posting. You further acknowledge and agree that all User Postings made by means of or in connection with any portion of the Services are public and that (a) you have no expectation of privacy in any User Posting and (b) no confidential, fiduciary, contractually implied or other relationship is created between you and Elton by reason of your transmitting a User Posting to any area of or in connection with the Services.
6.2 You understand, acknowledge and agree that all User Postings are the sole responsibility of the person from which such User Postings originated. This means that you are solely and entirely responsible for the consequences of all User Postings that you submit, upload, post, email, display, transmit or otherwise make available. User Postings do not reflect the views of Elton or its affiliates, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, Elton does not guarantee the accuracy, integrity, quality or content of any User Postings. Under no circumstances shall Elton be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings submitted, uploaded, posted, emailed, displayed, transmitted or otherwise made available.
6.3 You may not submit, post, email, display, transmit or otherwise make available, in any manner, any User Posting that we deem to be an Unauthorized Posting (as defined herein). We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason whatsoever, any User Postings, including, without limitation, any Unauthorized Postings; provided, however, that Elton shall have no obligation or liability to you or any third party for failure to do so or for doing so in any particular manner. As used herein, the term “Unauthorized Posting” means any User Posting that is or may be construed as violating this Agreement, including, without limitation, Section 5 herein, or is deemed to be unacceptable to Elton, as determined in Elton’s sole discretion.
6.4 In connection with all User Postings you submit, post, email, display, transmit or otherwise make available, you grant to Elton the unqualified, unrestricted, unconditional, unlimited, worldwide, non-exclusive, irrevocable, perpetual and royalty-free right, license, authorization and permission, in any form or format, on or through any media or medium and with any technology or devices now known or hereafter developed or discovered, in whole or in part, to host, cache, store, maintain, use, reproduce, distribute, display, exhibit, perform, publish, broadcast, transmit, modify, prepare derivative works of, adapt, reformat, translate, and otherwise exploit all or any portion of your User Posting on the Services and any other websites, channels, services, and other distribution platforms, whether currently existing or developed in the future, for any purpose whatsoever (including, without limitation, for any promotional purposes) without accounting, notification, credit or other obligation to you, and the right to license and sub-license and authorize others to exercise any of the rights granted hereunder to Elton, in our sole discretion. For the avoidance of doubt, the rights, licenses and privileges described in this Agreement and granted to Elton shall commence immediately upon submission of your User Posting and shall continue thereafter perpetually and indefinitely.
6.5 Elton does not acquire any title or ownership rights in the User Postings that you submit and/or make available. After you submit, post, email, display, transmit or otherwise make available any User Posting, you continue to retain any such rights that you may have in such User Posting, subject to the rights, licenses and privileges granted herein. You also represent, warrant and covenant that (a) you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement and to perform and comply with all of the requirements set forth herein; (b) your submission, uploading, posting, emailing, displaying, transmission and/or making available of User Postings does not violate this Agreement, any rights of any other party or entity, any of your obligations, any law, rule or regulation or infringe upon, misappropriate or violate any intellectual property, proprietary, privacy, moral, publicity or other rights of any party or entity; (c) you have the legal right and capability to enter into this Agreement and perform and comply with all of its terms and conditions; and (d) you hold and shall continue to hold all the ownership, license, proprietary and other rights necessary to enter into, authorize, grant rights and perform your obligations under this Agreement and shall pay for all royalties, fees, and any other monies owing to any person or entity by reason of your User Postings.
7. Advertisements. From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors, or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
8. Promotions, Contests, and Sweepstakes. From time to time, Elton, and/or the Services’ operational service providers, partners, suppliers and Advertisers, including without limitation, co-promotional partners, may conduct promotions and other activities on, through or in connection with the Services, including, without limitation, contests and sweepstakes (collectively, “Promotions”). Each Promotion may have Additional Terms and/or Rules which shall be posted or otherwise made available to you in connection therewith.
9. Customer Support. For assistance with technical issues, business matters or other inquiries, please refer to our online support/information page at http://www.elton.nl/en/contact.
11. Employment Opportunities. Elton may, from time to time, post Elton employment opportunities on the Services and/or invite Users to submit resumes to it. If you choose to submit your name, contact information, resume and/or other personal information to Elton in response to employment listings, you are authorizing Elton to utilize this information for all lawful and legitimate hiring and employment purposes. Elton also reserves the right, at its sole discretion, to forward the information you submit to its affiliates for legitimate business purposes. Nothing in this Agreement or contained in the Services will constitute a promise by Elton to contact, interview, hire or employ any individual who submits information to it, nor will anything in this Agreement or contained in the Services constitute a promise that Elton will review any or all of the information submitted to it by Users of the Services.
12. Digital Millennium Copyright Act.
12.1 If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, your may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
• Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, e-mail address;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
To: central marketing department
c/o General Counsel
2e Energieweg 5
9301 LL Roden, The Netherlands
Email Address of Designated Agent: email@example.com
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to Elton customer service as described in Section 9. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 12, your DMCA notice may not be valid.
12.2 If you believe that your content was removed or disabled and same is not infringing, or that you have the authorization from the applicable copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to Elton for use on the Services, you may send a counter-notice containing the following information to our Copyright Agent:
• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
• Your name, address, telephone number, and, if applicable, e-mail address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Copyright Agent, Elton may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Elton’s sole discretion.
13. Assignment. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by Elton without restriction, notice or other obligation to you.
14. Indemnity. You agree to defend, indemnify and hold Elton, its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, Advertisers, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”), arising in any way out of or in connection with (a) your breach or violation this Agreement and/or (b) your User Postings. Elton reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Elton’s defense and/or settlement of such Claim.
15. DISCLAIMER AND LIMITATIONS OF LIABILITY. THE SERVICES, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND THIS SITE, AND ALL CONTENT, PRODUCTS, SERVICES AND USER POSTINGS ARE HEREBY DISCLAIMED. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors or omissions arising out of your use of the Services. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Services, including, without limitation, User Postings and Content associated with your use of the Services.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ELTON, ITS AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, OPERATORS, SERVICE PROVIDERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES.
You further understand and acknowledge the capacity of the Services, in the aggregate and for each User, is limited. Consequently, some messages and transmissions, including, without limitation, User Postings, may not be processed in a timely fashion or at all, and some features or functions may be restricted or delayed or become completely inoperable. As a result, you acknowledge and agree that Elton assumes no liability, responsibility or obligation to transmit, process, store, receive or deliver transactions or User Postings or for any failure or delay associated with any User Postings and you are hereby expressly advised not to rely upon the timeliness or performance of the Services for any transactions or User Postings. Some jurisdictions do not allow for the exclusion of certain warranties or certain limitations on damages and remedies, accordingly some of the exclusions and limitations described in this Agreement may not apply to you.
16. Governing Law; Miscellaneous.
16.1 This Agreement contains the entire understanding and agreement between you and Elton concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed or terminated orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose). The failure of Elton to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
16.2 This Agreement and your use of the Services is governed by, construed and enforced in accordance with the internal substantive laws of the State of New York (notwithstanding the State’s conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York, and, for the purposes of any and all legal or equitable actions, you specifically agree and submit to the exclusive jurisdiction and venue of the State and Federal Courts situated in the State and County of New York and agree you shall not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT, YOUR USE OF THE SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
16.3 [The Services are controlled and operated by Elton from its offices in the U.S. Elton makes no representation or warranty that the Services or Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.]
Last Updated: Wednesday, November 2nd, 2016