Terms of Use

                                                                         EFFECTIVE DATE: March 1, 2020

Please read this services agreement (“Agreement”) carefully before using any of the services provided by elphi, Inc. (“elphi,” “we,” “us,” “our”). Please read on to learn the terms, rules, and restrictions ("Terms of Use" or "Terms") that govern your use of elphi’s products, services, and platform (referred to collectively as the "elphi Platform" or "Platform")
 
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "ACCEPT TERMS" BUTTON, REGISTERING FOR AN ELPHI ACCOUNT, USING THE APPLICATION ON YOUR COMPUTER OR MOBILE DEVICE, OR ACCESSING OR USING THE ELPHI SERVICE, OR BY DOWNLOADING, SUBMITTING OR POSTING ANY FILES FROM, OR ON, OR THROUGH THE ELPHI SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE ELPHI SERVICE OR SITE CONTENT.
 
IMPORTANT NOTICE:  DISPUTES ABOUT THESE TERMS AND THE ELPHI PLATFORM ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.

The Platform allows users to provide information that banks, mortgage companies, and other lenders (“Financial Services Providers”) use to process loan applications and offer other financial services to you. elphi is not a lender or loan broker, and does not make lending or credit decisions on behalf of Financial Services Providers. 
 

We may, from time to time, modify these Terms, including the Privacy Policy. If so, we will post the updated Terms on the Platform. The updated Terms will take effect after their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the “Mandatory Arbitration and Class Action Waiver” section of these Terms. Your continued use of the Platform after any such update constitutes your binding acceptance of such changes.


Joint Applicants. If you are using the Platform with another person to apply jointly for a loan or other financial services product, you and your co-applicant may choose to provide information for your application using a single joint account or multiple individual Platform account(s). If joint applicants choose to utilize a single Platform account, they will have access to all information supplied by Platform account users to complete that application. Such joint applicants will have the ability to view, print, transmit, save, and/or edit the information. Access may continue for as long as the joint applicants utilize the single Platform account in connection with the application process.
 

If you have any questions, comments, or concerns regarding these Terms or the Platform, please contact us at privacy@elphi.io.

Eligibility and Scope

Eligibility. To use the Platform you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, 13 years of age) and competent. If you’re agreeing to these Terms on behalf of an organization, entity, or co-applicant, you represent and warrant that you are authorized to agree to these Terms on behalf of that organization, entity, or co-applicant and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization, entity, or you and your co-applicant). If elphi has previously prohibited you from accessing the Platform, you do not have permission to access the Platform.
Restrictions.  You expressly agree that if you are located in any member state that is part of the European Economic Area or any member state that has adopted the General Data Protection Regulation, you are not permitted to use the Platform and you are not permitted to provide any personal data to us.

Account Registration; Account Use

 

Account Registration and Confidentiality. You may be required to sign up for an elphi Platform account and to provide information such as your email address, password, and recovery phone number for creating and authenticating a Platform account (“elphi Account Credentials”). If so, you agree to provide us with elphi Account Credentials that are accurate, complete, and current. You may not use an email address or other identifier that you do not have the right to use, or another person’s email address or other identifier with the intent to impersonate that person. In addition, you agree that you will protect the security of your Platform account and password, and that you will not share your Platform account or password with anyone unless you are using the Platform jointly with co-applicant to apply for a financial services product.


Unauthorized Account Use. You are responsible for any activity associated with your Platform account, and for notifying us at privacy@elphi.io if you become aware of any unauthorized access to your Platform account. You understand and agree that we may require you to provide information to confirm your identity and help ensure the security of your Platform account. elphi will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your elphi password or account, as a result of your use or misuse, with or without your knowledge, and regardless of whether you have or have not advised us of such unauthorized use. In such case, you will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by elphi or a third party due to someone else’s use of your Platform account.

Technical Requirements

 

Use of the Platform may be available through a compatible mobile device with internet access and may require certain software. You agree that you are solely responsible for these requirements, including any applicable changes, updates, and fees associated with them, as well as for complying with the terms of your mobile device and telecommunications provider. elphi MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO (A) THE AVAILABILITY OF A TELECOMMUNICATION PLATFORM FROM YOUR PROVIDER OR ACCESS TO A TELECOMMUNICATION PLATFORM FROM YOUR PROVIDER AT ANY TIME OR FROM ANY LOCATION; (B) ANY LOSS, DAMAGE, OR SECURITY INTRUSION OF THE TELECOMMUNICATION PLATFORM FROM YOUR PROVIDER; AND (C) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS, OR SETTINGS IN CONNECTION WITH A TELECOMMUNICATION PLATFORM FROM YOUR PROVIDER.

Our Proprietary Rights

Intellectual Property Rights. The Platform is owned and operated by elphi and contains material which is derived in whole or in part from material supplied by elphi and our partners, as well as other sources, and is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Platform is also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Platform. You acknowledge that the Platform has been developed, compiled, prepared, revised, selected, and arranged by elphi and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of elphi and such others. You agree to protect the proprietary rights of elphi and all others having rights in the Platform during and after the term of these Terms and to comply with all reasonable written requests made by elphi or our suppliers and licensors of content or otherwise (“Suppliers”) to protect their and others’ contractual, statutory, and common law rights in the Platform. You agree to notify elphi immediately upon becoming aware of any unauthorized access or use of the Platform by any individual or entity or of any claim that the Platform infringes upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including, without limitation rights in and to all applications and registrations relating to the Platform shall, as between you and elphi, at all times be and remain the sole and exclusive property of elphi.


Use of Marks. You may not use any of elphi’s trademarks, trade names, service marks, copyrights, or logos in any manner which creates the impression that such items belong to or are associated with you or, except as otherwise provided herein, are used with elphi’s consent. You acknowledge that you have no ownership rights in or to any such items.

Authorization to Retrieve and Use Information You Provide

Submitted Information. By providing information about yourself, including elphi Account Credentials and third-party account credentials such as usernames, passwords, PINs, and other log-in information (“Submitted Information"), you are licensing such Submitted Information to elphi and our agents for the purpose of providing the Platform. You represent that you are entitled to provide the Submitted Information to elphi to use for the purpose of providing the Platform, without any obligation by elphi to pay any fees or be subject to any restrictions or limitations. You hereby authorize and permit elphi to use and store the Submitted Information for the purpose of providing the Platform, including configuring the Platform to be compatible with third-party websites that enable elphi to provide the Platform. elphi will store the Submitted Information in encrypted form, and will use the Submitted Information in accordance with these Terms and our Privacy Policy.


Account Information. Where available, for the purpose of completing your application, elphi and our agents may access and retrieve, or enable you to initiate access to and retrieval of, account information and other data and documents (“Account Information”) from online accounts at third parties, including financial institutions, investing platforms, payroll providers, and tax preparation platforms, among others, in accordance with our Privacy Policy. This information may also include credit documentation and other information for verifying and/or re-verifying your assets, income, and employment. When available, Account Information may be pre-populated in the Platform. Please note that when displayed through the Services, Account Information does not represent an official record of your account with third parties. Account Information is only as recent as the time shown, and elphi does not have an obligation to keep such data up-to-date at all times. Account Information may be more up-to-date when obtained directly from the relevant third-party sites. elphi may also store Account Information and use the Submitted Information to update and maintain Account Information for future use.


As part of the Platform, we also transmit Submitted Information and Account Information to your Financial Services Provider, relevant parties specifically authorized to receive the information on behalf of the Financial Services Provider, and potentially your Financial Services Providers’ successors-in-interest. By using the Platform, you expressly authorize elphi and our agents to access, retrieve, and transmit Submitted Information and Account Information as part of the Platform, on your behalf, and as your agent.


As part of these Terms and solely for the purpose of providing the Platform, you grant elphi and our agents a limited power of attorney, and appoint elphi and our agents as your attorney-in-fact and agent, to access third-party websites, use Submitted Information you provide, and retrieve Account Information, with the full power and authority to do and perform each task necessary in connection with such activities as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN ELPHI AND OUR AGENTS ARE ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD-PARTY WEBSITES, ELPHI AND OUR AGENTS ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD-PARTY WEBSITE. elphi cannot always foresee or anticipate technical or other difficulties that may result in failure to obtain data or in loss of data. Further, elphi does not assume responsibility for the timeliness, accuracy, deletion, or non-delivery of, or failure to store, any data.


Right to Provide Submitted Information and Account Information. You represent and warrant to us that you have all rights to the Submitted Information and Account Information that you provide to us via the Platform. You are responsible for the accuracy and completeness of the Submitted Information and Account Information you provide. You, and not elphi, are liable in the event that such Submitted Information and/or Account Information is not accurate or complete. You agree that you will indemnify, defend, and hold harmless elphi for all claims resulting from your unauthorized access to Submitted Information and Account Information, or for any inaccurate or incomplete Submitted Information and/or Account Information that you provide us. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.


Feedback. Feedback you provide to us about your user experience with the Platform, by email or through other mediums, excluding personally identifiable consumer information, shall be deemed to be non-confidential, and we assume no obligation to protect such information from disclosure or provide compensation to you. The submission of such information to us shall in no way prevent the purchase, manufacture, or use of similar products, services, plans, and ideas by us for any purpose whatsoever, and we shall be free to reproduce, use, disclose, and distribute the information to others without restriction.

License and Prohibited Conduct

 

Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Platform only for your own internal, personal, or non-commercial use, and only in a manner that complies with all local, state, national, and foreign laws, treaties, regulations, and other legal requirements that apply to you or your use of the Platform, including those relating to data security and data privacy. If your use of the Platform is prohibited by applicable law, then you do not have authorization to use the Platform. elphi is not responsible for unlawful uses of the Platform.


License You Grant elphi. Anything you upload, share, store, or otherwise provide, including Submitted Information and Account Information, is content that you provide. In order to display your content on the Platform, you grant us certain rights in that content. As such, you hereby grant elphi a license to translate, modify (for technical purposes, such as making your content viewable on a mobile device as well as a computer), reproduce, and otherwise act with respect to such content, in each case to enable us to enhance the operation of the Platform, or to provide products or services to you through or in connection with the Platform. You also grant elphi a license to aggregate and/or de-identify the information you provide, which elphi may use for improving the Platform and developing business analytics, as discussed in our Privacy Policy. This is a license only; your ownership in the content you provide is not affected. You agree that the licenses you grant are royalty-free, perpetual, sub-licensable, irrevocable, and worldwide. In addition, please note that the foregoing licenses are subject to our Privacy Policy.


Prohibited Uses. Use of the Platform for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited.  Without limitation, you will not:

  • Use the Platform to harass, abuse, or threaten any other person;

  • Provide information that is unlawful, harmful, tortious, defamatory, libelous, or invasive of another's privacy;

  • Use the Platform commercially, for benchmarking, or to compile information for a product or service;

  • Copy, download (other than for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Platform by any means except as provided for in these Terms or with the prior written consent of elphi;

  • Scrape, access, monitor, index, frame, link, or copy any content or information on the Platform by accessing the Platform in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly available portions of the Platform through a browser or accessing the Platform through any approved API;

  • Violate the restrictions in any robot exclusion headers of the Platform, if any, or bypass or circumvent other measures employed to prevent or limit access to the Platform;

  • Post material that advocates illegal activity or discusses illegal activities with the intent to commit them (in either case as determined by elphi in our sole discretion);

  • Upload or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, "disabling," "lock out," or "metering" device, or any malicious code);

  • Attempt to disable, overburden, or impair the proper working of the Platform;

  • Use the Platform to distribute any other party's intellectual property unless you have the right to do so, or remove or alter any copyright, trademark, or other proprietary notice contained on the Platform;

  • Make available trade secrets or other confidential or proprietary information, or provide any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to insider information, or confidential or proprietary information learned or disclosed as part of employment relationships or under non-disclosure agreements;

  • Falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity;

  • Frame, inline link, or similarly display the Platform or any portion thereof;

  • Violate these Terms or any guidelines or policies posted by elphi;

  • Facilitate violations of these Terms or the Privacy Policy or any guidelines or policies posted by elphi; and/or

  • Interfere with any other party’s use and enjoyment of the Platform.
     

elphi reserves the right, but not the obligation, in our sole and absolute discretion, to remove any information provided by you, block access to the Platform, and/or deactivate your Platform account for violation of these Terms.

Legal Compliance

 

You acknowledge, consent, and agree that elphi may access, preserve, and disclose content you provide us if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by our Privacy Policy or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process (e.g., a subpoena, court order, or warrant); (2) to enforce these Terms; (3) to respond to claims that any content violates the rights of third parties; (4) to protect the rights, property, or personal safety of elphi, our agents and affiliates, our users, and the public; or (5) to address your requests.
In addition, please note that elphi is not in the business of providing professional services or legal, tax, or other advice through or relating to this Platform. Please consult your Financial Services Providers and/or professional advisors with questions relating to your use of the Platform.

 

WARRANTIES AND DISCLAIMERS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK. ELPHI DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE PLATFORM, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE PLATFORM. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF PRODUCTS OR SERVICES OFFERED OR PURCHASED THROUGH THE PLATFORM. PRODUCTS AND SERVICES OFFERED OR PURCHASED (WHETHER OR NOT FOLLOWING SUCH RECOMMENDATIONS AND SUGGESTIONS) THROUGH THE PLATFORM ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTY OF ANY KIND FROM ELPHI OR OTHERS (UNLESS, WITH RESPECT TO SUCH OTHERS ONLY, PROVIDED EXPRESSLY AND UNAMBIGUOUSLY IN WRITING BY A DESIGNATED THIRD PARTY FOR A SPECIFIC PRODUCT OR SERVICE). THE PLATFORM IS PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.


ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, SOFTWARE, TECHNOLOGY, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.


NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ELPHI OR THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY.
ELPHI MAKES NO REPRESENTATION, WARRANTY, GUARANTEE, OR PROMISE THAT THE PRODUCTS, SERVICES, OR PLATFORM WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS. DECISIONS MADE BY FINANCIAL SERVICES PROVIDERS AND OTHERS AS A RESULT OF THE INFORMATION COMPILED FROM AND ABOUT YOU THROUGH THE PLATFORM ARE THE SOLE RESPONSIBILITY OF SUCH FINANCIAL SERVICES PROVIDERS AND OTHERS, AND ARE SUBJECT TO THE TERMS AND CONDITIONS OF SUCH FINANCIAL SERVICES PROVIDERS AND OTHERS.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ELPHI BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION; (B) THE DECISIONS MADE BY FINANCIAL SERVICES PROVIDERS AND OTHERS AS A RESULT OF THE INFORMATION COMPILED FROM AND ABOUT YOU THROUGH THE PLATFORM; OR, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO ELPHI IN CONNECTION WITH THE PLATFORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM.


In the event that you have a dispute with any third party, you agree that elphi is under no obligation to become involved on your behalf. You release elphi, and our officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way relating to such disputes and/or the Platform. If you are a California resident, you hereby waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This release includes the criminal acts of others.


Exclusions and Limitations

  1. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.  If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, the relevant limitations do apply to you.

    Indemnity

     

  2. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD ELPHI AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AND REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, MADE IN CONNECTION WITH OR ARISING OUT OF YOUR VIOLATION OF THESE TERMS OR OUR PRIVACY POLICY, AND/OR YOUR SUBMISSION, POSTING, OR TRANSMISSION OF CONTENT TO THE PLATFORM.  WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT, YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

    Third Party Links and Platform

     

  3. elphi has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of, or opinions expressed in, any third-party websites or by any third party that you interact with through the Platform. In addition,

    elphi will not and cannot monitor, verify, censor, or edit the content of any third-party website or service. By using the Platform, you release and hold us harmless from any and all liability arising from your use of any third-party website or service, and you acknowledge and agree that the terms and privacy policies of such third parties govern your interactions with and use of such websites and services.


Modification and Termination


Modification of Platform. elphi reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform (or any part thereof), with or without notice. You agree that elphi shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Platform

Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Platform at any time for any or no reason at all, with or without notice to you. Grounds for such termination shall include, but not be limited to, (a) breaches or violations of these Terms or other agreements, (b) requests by law enforcement or government agencies, (c) discontinuance or material modification of the Platform (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) activities related to protecting the rights, property, or safety of elphi, our agents and affiliates, or our users and the public, or (g) if you provide any information, including elphi Account Credentials or Submitted Information, that is false, inaccurate, out-of-date, or incomplete. If we terminate your right to access the Platform, these Term will terminate and all rights you have to access the Platform will immediately terminate; however, certain provisions of these Terms will still apply post-termination, including without limitation, the “Mandatory Arbitration and Class Action Waiver” provisions. Termination of your Platform account may also include, at elphi’s sole discretion, the deletion of your Platform account and/or content.

MANDATORY ARBITRATION AND CLASS ACTION WAIVER
 

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Application. You and elphi agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 15 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at privacy@elphi.io, and provide a brief written description of the dispute and your contact information (including your username, if your dispute relates to a Platform account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the “Initial Dispute Resolution” provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 15.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of elphi shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.

Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

Filing a Demand. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) send one copy of the Demand for Arbitration to us at: ATTN: Legal, elphi , Inc., 415 Kearny Street, San Francisco, CA 94108. 

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, elphi will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, elphi will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration.

Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ELPHI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.

30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at privacy@elphi.io with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of Platform account creation. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, elphi also will not be bound by them.

Changes to This Section. elphi will provide thirty (30) days' notice of any changes to this section by posting on the Platform. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled “Mandatory Arbitration and Class Action Waiver”, and the court or arbitrator shall apply the first “Mandatory Arbitration and Class Action Waiver” section in existence after you began using the Platform.
Survival. This “Mandatory Arbitration and Class Action Waiver” section shall survive any termination of your use of the Platform.

Controlling Law and Severability

 

These Terms will be interpreted in accordance with the laws of the State of Massachusetts, without regard to its conflict-of-law provisions. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. If any part of these Terms is considered invalid, it shall be enforced as effectively as possible while all other provisions remain in full effect.
 

General Terms

 

Force Majeure. Under no circumstances shall elphi or our licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond our reasonable control.


No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of elphi to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.


Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.


Statute of Limitations. Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Platform and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and elphi and govern your use of the Platform, products, and services provided by elphi, and supersede any prior agreements between you and elphi on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by elphi without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of elphi. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. The section titles in these Terms are for convenience only and have no legal or contractual effect.


Notices. We may deliver notice to you by email, posting a notice on the Platform, or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email address: privacy@elphi.io.
Questions

If you have any questions about these Terms, please contact us by email at privacy@elphi.io.