Last revised on January 25, 2016
Welcome to ELLA APP™- Educator’s Lifelong Learning App!
User Agreement(last revised on January 25, 2016)
When you become an ELLA user, you agree to comply with this ELLA User Agreement, which includes our Privacy Policy (we refer to the User Agreement and the Privacy Policy together, as the “Terms of Service” or as this “Agreement”). The Terms of Service is a legally binding contract. Please read it, and follow its requirements.
IMPORTANT NOTE: This Agreement contains an Arbitration Provision that affects your rights under this Agreement and with respect to disputes you may have with ELLA.
1. Introduction | |
ELLA helps you reinvent your teaching practice™. | 1.1 Purpose ELLA helps your reinvent your teaching practice™. Our platform uses machine learning, search, algorithms, and recommendations to develop specific learning paths for each user, making learning a constant discovery. Everyone who uses the ELLA platform or any of our other Services agrees to comply with this Agreement. |
When you use any ELLA Service, you are agreeing to be legally bound by all of the terms of this Agreement. You also agree to our Privacy Policy covering how we collect, use, share, and store your personal information. | 1.2 Scope This Agreement is a legally binding contract between You and ELLA APP PTY LTD (ABN 24609824606), 2/30 Roma Street, North Epping, NSW 2121, Australia (“we,” “us,” “our,” “ELLA” and the “Company”). You must agree to the terms of this Agreement before using, accessing, viewing, downloading, and/or registering to use (any of the foregoing, to “Use”) any of our services, such as our platform (our “Platform”), applications and mobile applications (our “Apps”), website (our “Site”), or any alpha product (an “Alpha”) or beta product (a “Beta”) (Alpha and Beta, collectively with our Platform, Apps, and Site, our “Services”). By Using any of the Services, you become an ELLA user (a “User”). If you do not want to become a User, do not click “I AGREE”, “JOIN”, “SIGN UP”, “GET EARLY ACCESS”, “LOGIN” or any similar button (a “Button”); and do not use, access, view, download, and/or register to use any Service. By doing any of the foregoing, you acknowledge and agree that you (i) have read and understood the terms and conditions of this Agreement, (ii) are bound by all of its provisions, (iii) consent to use electronic signatures and acknowledge your click of any Button or Use of any Service is your electronic signature. This Agreement includes this User Agreement and our Privacy Policy, which is incorporated into this Agreement as if fully set forth herein, as they may be amended from time-to-time by ELLA. Sometimes this Agreement (including our Privacy Policy) is referred to as our “Terms of Service.” If you are using a Service on behalf of a company or other entity that has purchased licenses to use an enterprise version of that Service, you are nevertheless individually bound by this Agreement even if your company or entity has a separate agreement with us. You may also be bound by a separate terms of service or terms of use entered into by ELLA and your company or other entity. These separate agreements have no effect on this Agreement, and do not and shall not be read to modify, amend, or affect the interpretation of this Agreement. |
2. Your Rights and Obligations | |
You may use our Services only if you follow this Agreement. | 2.1 Your License To Use the Services Subject to the terms and conditions of this Agreement, and your compliance with all of its provisions, ELLA hereby grants you a limited, personal, revocable, nonexclusive, non-assignable, non-sublicensable, and non-transferable license to access the Services, through a generally available web browser, mobile device, or other ELLA-authorized application (but not through scraping, spidering, crawling, or other technology or software used to access data without the express written consent of ELLA), to view information, and use the Services in accordance with its applicable documentation. Except for the foregoing license, you have no other rights in any of the Services and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of the Services in any manner. If you breach this Agreement, the above license terminates automatically and you must immediately stop using all of the Services. |
You may access the Services on your mobile device subject to certain conditions. | To access Services via your mobile device, the device must be compatible with the ELLA App(s). ELLA does not warrant that any App or Service will be compatible with your mobile device. The above license to access the Services using a mobile device includes, subject to the terms and conditions of this Agreement, and your compliance therewith, a limited, personal, revocable, nonexclusive, non-assignable, non-sublicensable, and non-transferable license to use an object code copy of the App on a mobile device owned or leased solely by you, for your personal use, provided that you do not: (i) modify, disassemble, decompile, or reverse engineer the App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App. You acknowledge that ELLA may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that this Agreement will apply to all such upgrades. The foregoing license grant is not a sale of the App or any copy thereof, and ELLA and its third-party licensors or suppliers retain all right, title, and interest in and to the App (and any copy of the App). Standard carrier data charges may apply to your use of the App. |
You may use certain Materials owned by ELLA and others only if you follow this Agreement. | 2.2 Your License To Use our Materials ELLA provides content through the Services that is the copyrighted and/or trademarked work of ELLA, ELLA’s third-party licensors and suppliers, or other users of the Services (collectively, the “Materials”). Materials may include data, documents, audio, video, images, graphics, logos, software, applications, and other content. Subject to the terms and conditions of this Agreement, and your compliance with all of its provisions, ELLA hereby grants you a limited, personal, revocable, nonexclusive, non-assignable, non-sublicensable, and non-transferable license to use and to display the Materials on or through any of the Services solely for your personal use. Except for the foregoing license, you have no other rights in any of the Materials or and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance, or in any way exploit any of the Materials in any manner. If you breach this Agreement, the above license terminates automatically and you must immediately destroy any downloaded or printed Materials. |
We reserve all rights. | We reserve all rights not expressly granted in this Agreement, including without limitation, title, ownership, intellectual property rights, and all other rights and interest in ELLA and all related items, including any and all copies made of the ELLA website and other Services. |
Additional terms apply if you access Services with an iOS-powered mobile device | The following additional terms and conditions apply with respect to any App that ELLA provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”).
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Keep your password secret, and don’t let others use your account. | 2.3 Your Account In order to access certain password-restricted areas of our Services, you must register with ELLA for an account and receive a password. Between you and third parties, your account belongs to you. You agree to: (1) keep your login credentials secure and confidential; (2) not permit others to use your account; (3) not use others’ accounts; (4) not sell, trade, or transfer your ELLA account; and (5) not charge anyone for access to any portion of the Services, or any information therein. Further, you are solely responsible for maintaining the confidentiality of your login credentials and for anything that happens through your account whether or not such actions were taken or authorized by you, and acknowledge that ELLA may suspend your access to or terminate your use of the Services if someone else uses your account to engage in any activity that violates this Agreement. To close your account, please visit ELLA’s Help Center. By providing your profile information to us to create your account, you represent and warrant that you are entitled to provide it and that the information is accurate, not confidential, and not in violation of any contractual restrictions or third-party rights. It is your responsibility to keep your ELLA profile information accurate and updated.Any personal information you provide to us, which may include your name, birth date and email address, will be held and used in accordance with ELLA’s Privacy Policy. |
We disclaim damages resulting from use of any Alpha or Beta Release | If you register for an alpha or beta account or other pre-release version of any Services (“Alpha or Beta Release”), you acknowledge and agree that the Alpha or Beta Release may contain, in ELLA’ sole discretion, more or fewer features or different licensing terms than a subsequent release. You acknowledge and agree that any Alpha or Beta Release account will automatically convert to a full account upon the launch date of the Service to the public (“Public Launch Date”). If you do not desire to continue using the Service after the Public Launch Date, you may contact ELLA to delete your account in accordance with ELLA’s Privacy Policy. ELLA reserves the right not to release later commercial release versions of any Alpha or Beta Release. Without limiting any disclaimer of warranty or other limitation stated in this Agreement, you agree that any Alpha or Beta Release is not considered by ELLA to be suitable for commercial or general use, and that it may contain errors affecting its proper operation. YOU ACKNOWLEDGE AND AGREE THAT USE OF AN ALPHA OR BETA RELEASE MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT YOUR USE OF THE SERVICES. ELLA SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM YOUR USE OF ANY ALPHA OR BETA RELEASE. |
You’ll comply with this contract and the law | 2.4 Compliance with this Agreement and all Applicable Laws; Acceptable Conduct You agree that you will comply with this Agreement and with all applicable laws. You undertake that you shall not defraud, or attempt to defraud, ELLA or other users, and that you shall not act in bad faith in your use of the Services. If ELLA determines that you do act in bad faith in violation of this Agreement, or if ELLA determines that your actions fall outside of reasonable community standards, ELLA may, at its sole discretion, terminate your account and/or prohibit you from using the Services. By way of example, you specifically agree that you shall not:
The above list provides examples and is not complete or exclusive. ELLA reserves the right to terminate access to your account or your ability to use the Services, and to refuse, delete, or remove any Submissions, in each case with or without cause and with or without notice, for any reason or no reason, or for any action that ELLA determines is inappropriate or disruptive to any other User and/or Services. ELLA may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at ELLA’s discretion, ELLA will cooperate with law enforcement agencies in any investigation of alleged illegal activity on its Services or on the Internet. |
You are responsible for your own Submissions. It is your responsibility if your Submissions violate anyone’s proprietary rights. | 2.5 Submissions You are responsible for the information, data, opinions, messages, chats, comments, insights, questions, answers, collections, lists, links, photos, images, graphics, logos, video, audio, sounds, software, applications, and other content or material of any kind (collectively, “Content”) that you submit, upload, post share, or otherwise make available on or through any of the Services (each, a “Submission” and to make a Submission, to “Submit”). You have full responsibility for each Submission you make, including without limitation its legality, reliability, and appropriateness. You must not Submit any Content unless you have the legal right to do so (for example, you own the Content, you have permission from the owner of the Content to Submit it, or applicable law allows you to Submit it). Your Submissions may not include any Content in violation of any copyright, trademark, privacy or publicity rights, moral rights, or any other proprietary or contractual right of any person or entity, and it is your responsibility to determine whether any such right protects any Content. You shall be solely liable for any damage resulting from any infringement of and/or breach of any and all copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights, moral rights, or any other harm resulting from any Submission that you make. Each of the Services offers various Privacy Settings through which you can limit the ability of other users to see your Submissions. You agree that you are responsible for adjusting your own Privacy Settings with respect to any Submission that you wish to share with or keep private from other users. Please note that If you are using a Service on behalf of a company or other entity that has purchased licenses to use an enterprise version of that Service (an “Entity”), your Entity’s administrator may have the ability to override or pre-set some or all of your Privacy Settings in order to protect the Entity’s proprietary information; for more information please contact your Entity’s administrator. You agree to pay for all royalties, fees, damages and any other monies, including without limitation any legal fees, owing any person by reason of any Submissions made by you to or through any of the Services, and you agree to pay for all legal, investigative, research, technical, and other reasonable fees of ELLA resulting from or related to any such Submissions. You acknowledge and agree that ELLA is not expected or required to monitor, police, or remove anything that you Submit or that any other user submits. |
You own your information, and are responsible for your profile. You have the right to share the information you provide. You grant us a license to the information you provide us. Information may be lost, and you submit it at your own risk. | 2.6 Ownership of Your Information and Licenses You continue to own your information when you share it using our Services or that you otherwise provide ELLA under this Agreement, including your profile information and Submissions. By providing information to us or making any Submission, you represent and warrant that you are entitled to provide it or Submit it and that the information or Submission is accurate, not confidential, and not in violation of any contractual restrictions or third-party rights. Each of the Services offers various Privacy Settings through which you can limit the ability of other users to see your Submissions (click the link for more information about Privacy Settings). You agree that you are responsible for adjusting your own Privacy Settings with respect to any Submission that you wish to share with or keep private from other users. Please note that If you are using a Service on behalf of a company or other Entity that has purchased licenses to use an enterprise version of that Service, your Entity’s administrator may have the ability to override or pre-set some or all of your Privacy Settings in order to protect the Entity’s proprietary information; for more information please contact your Entity’s administrator. The decisions you make regarding your Privacy Settings allow you to adjust how ELLA and the Services share your Submissions. You are solely responsible for ensuring that you have selected the Privacy Settings you desire. Subject to the limitations you choose in your Privacy Settings, you hereby grant to ELLA a nonexclusive, irrevocable, worldwide, perpetual, irrevocable, unlimited, assignable, transferable, fully paid up and royalty-free right and license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute each of your Submissions, or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to use the Submissions in connection with or related to the Services. We may modify or adapt your Submissions in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the Submissions as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services, or media. Your information may be lost. Any information you Submit to us is at your own risk of loss. ELLA agrees to use any personally identifiable information contained in any of your Submissions in accordance with ELLA’s Privacy Policy. |
You must meet all requirements to be eligible to use the Services. On requirement is that you are at least the “Minimum Age.” | 2.7 Service Eligibility To be eligible to use our Services, you must meet the following criteria, and you represent and warrant that you: (1) are the “Minimum Age” (defined below) or older; (2) are not currently restricted from the Services, or not otherwise prohibited from having a ELLA account, (3) are not a competitor of ELLA or are not using the Services for reasons that are in competition with ELLA; (4) will only maintain one ELLA account at any given time; (5) will use your real name and only provide accurate information to ELLA; (6) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (7) will not violate any rights of ELLA or any third party, including intellectual property rights such as copyright or trademark rights; and (8) agree to provide at your cost all equipment, software, mobile access, and internet access necessary to use the Services. If you do not meet all of the above criteria, do not use any of the Services. “Minimum Age” means (a) 18 years old for the People’s Republic of China, (b) 16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia, and South Korea, and (d) 13 years old for all other countries. However, if applicable law requires that you must be older in order for ELLA to lawfully provide any of the Services to you (including the collection, storage, and use of your information in accordance with our Privacy Policy) then the Minimum Age would be that older age. If you are not yet 18 years old, you must have the permission of an adult to use the Services and agree to this Agreement, and that adult must be a parent or legal guardian who is willing be responsible for your use of the Services. Our Services are not intended for use by children under the age of 13. |
You will pay us for any losses that you cause. | 2.8 Indemnification You agree to indemnify ELLA and each of the entities controlling, controlled by, or under common control with ELLA, and hold each harmless for all damages, losses, and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third-party claims, charges, investigations, etc. caused by (1) your failure to comply with this Agreement, including, without limitation, your Submission of Content that violates third-party rights or applicable laws, (2) any Content you Submit to the Services, and (3) any activity in which you engage on or through any of our Services. |
You will let us know before you act contrary to this Agreement. | 2.9 Notify Us if You Plan to Act Contrary to the Agreement If you think you are entitled or obligated to breach, violate, or otherwise act contrary to this Agreement for any reason (for example, a law or court order), at least thirty (30) days before you do so you agree to provide us with a detailed explanation, in writing (and, if applicable, attaching supporting documentation), to allow us to assess whether we may provide an alternative (although you agree that we are under no obligation to do so). |
You must provide us with accurate contact information or you may not get important notices. ELLA can contact you via email, etc., which satisfies legal requirements. | 2.10 Notifications via Email, Etc. You consent to receiving electronic communications from ELLA and its subsidiaries via any one or more of the following (as selected in our sole discretion), even if we have other contact information for you: email, messaging, phone or cell number, text message, notification via your ELLA account (by messaging within the Service, posting a banner, sending a notification, etc.), postal or courier services; or other means, even if we have other contact information for you. These electronic and non-electronic communications (i) may include notices about this Agreement, the Services, and other information, and (ii) are part of your relationship with ELLA. You agree that any notices, agreements, disclosures, or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications are in writing. You acknowledge and agree that ELLA shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including without limitation your failure to receive critical information about the Services or changes to this Agreement. |
Other Users might see your posts. Don’t share anything in public places that you don’t want others to use. | 2.11 User-to-User Communication and Sharing Each of the Services offers various Privacy Settings through which you can limit the ability of other users to see your Submissions (click the link for more information about Privacy Settings). You agree that you are responsible for adjusting your own Privacy Settings with respect to any Submission that you wish to share with or keep private from other users. ELLA offers various places (such as the Newsfeed, Networks or Communities, Goals, Activities or Courses), where you can publicly or privately post updates, make comments, ask questions, and share information (such as links to interesting reading). Depending on your Privacy Settings, your Submissions may be seen and used by others, and ELLA cannot guarantee that others will not use the ideas, data, and other information that you share. The Services are designed for sharing information. Therefore, if you have an idea, data, or other information that you do not want to share (for example, information that you would like to keep confidential or don’t want others to use), or information that is subject to third-party rights that may be infringed by your sharing it, do not Submit it. ELLA IS NOT RESPONSIBLE FOR ANYONE’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU SUBMIT. |
You read and consent to our Privacy Policy. | 2.12 Privacy You hereby confirm that you have carefully read our full Privacy Policy and that you knowingly consent to its provisions before using any of our Services. The Privacy Policy is hereby incorporated into this Agreement by reference, and governs all information in your Submissions and that you otherwise provide to us, including without limitation any personally identifiable information. |
You agree not to break export laws. | 2.13 Export Control Your use of any of our Services, including our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations maintained by the Australian Department of Commerce and sanctions programs maintained by the Australian Treasury Department's Office of Foreign Assets Control. You shall not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any software or Service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving Australian origin products, including our Services or software. |
You allow us to use your feedback. | 2.14 Contributions to ELLA By Submitting on any of the Services, or sending to ELLA via any suggestion features or otherwise, any ideas, suggestions, innovations, feedback, proposals, and/or contributions of, in each case, any kind ("Contributions") you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) ELLA is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) ELLA shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) ELLA may have something similar to the Contributions already under consideration or in development; (e) you irrevocably non-exclusively license to ELLA rights to exploit your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from ELLA under any circumstances. |
ELLA makes no commitments as to availability of any of the Services. | 2.15 Availability One of our goals is to continually update, improve, and expand our Services, and these changes sometimes require that we suspend access to the Services, which we may do at any time in our sole discretion. We may also change, limit, replace, refuse access to, suspend, or discontinue any of the Services, in whole or in part, for you or for any or all of our Users, at any time in our sole discretion. As a result, the Services to which you have access rights may be different or unavailable on any given day, and we have no obligations except as expressly stated in this Agreement. Further, we do not promise to keep showing or storing your information or materials, and we reserve the right to withhold, remove, or discard any content, with or without notice, if deemed by us in our sole discretion to be contrary to this Agreement. We have no obligation to store, maintain, or provide you a copy of any content or information that you or other Users provide when using any of the Services. |
We aren’t responsible for third-party offerings, products, services, or apps. | 2.16 Third-Party Offerings Our Services may include links to third party websites (“Third-Party Sites”) or applications (“Third-Party Apps” and, together with Third-Party Sites, “Third-Party Offerings”). You are responsible for evaluating whether you want to access or use a Third-Party Offering. You should review any applicable terms or privacy policy of a Third-Party Offering before using it or sharing any information with it, because the third party may seek to use your information in ways we would not. ELLA is not responsible for and does not endorse any features, content, advertising, products, or other materials on or available from any Third-Party Offering, and we do not screen, audit, or endorse any of them. Accordingly, if you decide to use any Third-Party Offering, you do so at your own risk and agree that your use of it is on an “as-is” basis without any warranty, and that this Agreement does not apply to your use of any Third-Party Offering. If you allow a Third-Party Offering to authenticate you or connect with your ELLA account, that Third-Party Offering can access information on ELLA related to you and your connections. For additional information regarding Third-Party Offerings, please see ELLA’s Privacy Policy. |
You agree with our Privacy Policy. You agree we may make certain disclosures as required by law, etc. | 2.17 Disclosure of User Information You agree that we can use, store, and share information about you as permitted in our Privacy Policy. You acknowledge, consent, and agree that we may access, preserve, and disclose your registration and any other information you provide in accordance with the terms of the Privacy Policy if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process including but not limited to civil and criminal subpoenas, court orders, or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency; (4) respond to customer service inquiries; or (5) protect the rights, property, or personal safety of ELLA, any of our Users, or the public. Disclosures of User information to third parties other than those required to provide customer support, administer this agreement, or comply with legal requirements are addressed in the Privacy Policy. |
You are solely responsible for your interactions with others. | 2.18 Connections and Interactions with other Users ELLA may limit your number of followers or interactions you may have with other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Services, or otherwise limit your use of the Services. ELLA reserves the right, but has no obligation, to monitor disputes between you and other Users and to restrict, suspend, or close your account or your use of any or all of the Services if ELLA decides to do so in its sole discretion. You agree to take reasonable precautions in all communications and interactions with other users of the Services and with other persons with whom you communicate or interact as a result of your use of the Services, particularly if you decide to meet offline or in person. |
We have certain intellectual property rights. | 2.19 Intellectual Property Notices The Services and Materials include the copyrights and Intellectual property rights of ELLA and, except for the limited licenses granted to you in Sections 2.1 and 2.2, ELLA reserves all of its intellectual property rights in each of the Services and Materials. ELLA APP™, the ELLA logo, ELLA Impact Cycle™, Reinvent Your Teaching Practice™, and other ELLA trademarks, service marks, graphics, and logos used in connection with our Services are trademarks or registered trademarks of ELLA in Australia and/or other countries. Other trademarks and logos used in connection with our Services may be the trademarks or registered trademarks of their respective owners. This Agreement does not grant you any right or license with respect to any such trademarks. Unless otherwise specified in this Agreement, all information and screens appearing in the Services, including without limitation documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of ELLA, Copyright © 2015, 2016 ELLA APP PTY LTD. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. |
Contact us if you think your intellectual property is being infringed. | 2.20 DMCA Notice If you are a copyright owner or an agent thereof and believe your work is the subject of copyright infringement on the Service, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act ("DMCA”) by providing notice to ELLA's Designated Agent the following information: (a) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (b) 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; (c) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address; (d) 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; (e) 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; and (f) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed. ELLA’s Designated Agent for claims of copyright infringement can be reached as follows: by email at [email protected] or by mail at: ELLA APP PTY LTD. 2/30 Roma Street, North Epping, NSW 2121 Australia Attention: Chief Legal Officer You acknowledge that if you fail to comply with substantially all of the above requirements of this section your DMCA notice may not be valid and we may not be able to remove infringing content. Please also note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. |
3. Disclaimer and Liability Limit | |
We disclaim any legal liability for the quality, safety, or reliability of ELLA. | 3.1 Disclaimer SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND, AS A RESULT, THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. WE PROVIDE THE ELLA PLATFORM AND OTHER SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT CONTROL OR VET USER-GENERATED CONTENT FOR ACCURACY OR OTHERWISE. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY ANY OF THE SERVICES OR ANYTHING RELATED TO THEM, YOU MAY CLOSE YOUR ELLA ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 4 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. WE ARE NOT RESPONSIBLE, AND WE MAKE NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS SUBMISSIONS OR POSTS OF ANY OTHER USER-GENERATED CONTENT) SENT THROUGH ANY ELLA SERVICE TO ANYONE. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF ANY OF THE SERVICES WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTIES. ANY CONTENT, INFORMATION, MATERIAL, ENHANCEMENT, OR TECHNOLOGY DESCRIBED OR USED IN OR WITH THE SERVICES MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH CONTENT, INFORMATION, MATERIAL, ENHANCEMENT, OR TECHNOLOGY TO US. WE DO NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ANY OF THE SERVICES, NOR DO WE HAVE ANY OBLIGATION TO MONITOR THE USE OF ANY OF THE SERVICES BY OTHER USERS; THEREFORE, WE DISCLAIM ALL LIABILITY FOR IDENTITY THEFT OR ANYONE’S MISUSE OF YOUR IDENTITY, USER-GENERATED CONTENT, OR OTHER INFORMATION. WE DO NOT GUARANTEE THAT THE SERVICES WE PROVIDE WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, WE DISCLAIM ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS AND/OR MOBILE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, MOBILE CONNECTIVITY OR CAPACITY, INCOMPATIBILITY WITH YOUR TECHNOLOGY, AND ANY OTHER REASON. |
Our legal liability to you is limited if permitted by law. | 3.2 Limitation of Liability SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONSUMER CONTRACTS AND, AS A RESULT, THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. Neither ELLA nor any related company controlling, controlled by, or under common control with ELLA; nor any of their respective affiliated companies, suppliers, employees, officers, advisors, directors, or shareholders (“ELLA Affiliates”) shall be cumulatively liable for (a) any damages in excess of five times the most recent monthly fee that you paid for a premium feature offered through the relevant Service (a “Premium Feature”), if any, or AUD $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive, or consequential damages or loss of use, profit, revenue, content, information, or data to you or any third person arising from your use of any Services, any Third-Party Services, or any of the Content on, accessed through, or downloaded from any of our Services. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
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4. Termination | |
We can each end this Agreement at anytime. | 4.1 Mutual Rights of Termination You may terminate this Agreement, for any or no reason, at any time, with notice to ELLA pursuant to Section 6.3. This notice will be effective upon ELLA processing your notice. ELLA may terminate this Agreement and your account for any reason or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. For avoidance of doubt, only ELLA or the party paying for the services may terminate your access to any Premium Features. Termination of your ELLA account includes disabling your access to the Services and may also bar you from any future use of the Services. |
4.2 Misuse of the Services ELLA may restrict, suspend, or terminate the account of any User who abuses or misuses any of the Services. Misuse of the Services includes harassing or spamming other Users; abusing the messaging, chat, and other features; inviting people you do not know to join any networks; creating multiple or false profiles; using the Services commercially without ELLA’s authorization; infringing any intellectual property rights; violating any of the Do’s and Don’ts listed in Section 7; or any other behavior that ELLA, in its sole discretion, deems contrary to its purpose. In addition, and without limiting the foregoing, ELLA has adopted a policy of terminating accounts of Users who, in ELLA’s sole discretion, are deemed to be repeat infringers under the Australian Copyright Act. | |
4.3 Effect of Termination Upon termination of your ELLA account, you lose access to the Services. The terms of this Agreement shall survive any termination, except Sections 2.1 and 2.2. | |
5. Dispute Resolution | |
In the unlikely event we end up in a legal dispute, it will be in a court in Sydney, applying New South Wales law. | 5.1 Law and Forum for Legal Disputes This Agreement or any claim, cause of action, or dispute (“claim”) arising out of or related to this Agreement shall be governed by the laws of the state of New South Wales regardless of your country of origin or where you access any of the ELLA Services, and notwithstanding (i) any conflicts of law principles that would apply the laws of any other jurisdiction, and (ii) the United Nations Convention for the International Sale of Goods. You and ELLA agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Sydney, New South Wales, except as otherwise agreed by the parties or as described in the paragraph below titled “Arbitration.” You and ELLA irrevocably agree to submit to the personal jurisdiction of the courts located within Sydney, New South Wales for the purpose of litigating all such claims, and the parties hereby waive the right to challenge the pre-selected jurisdiction for forum non conveniens or otherwise. Notwithstanding the above, you agree that ELLA shall still be allowed to apply for injunctive remedies (or any equivalent type of urgent legal relief) in any jurisdiction. |
Each of us may choose arbitration. | 5.2 Arbitration For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, that party shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. |
6. General Terms | |
Here are some important details about how to read this Agreement. | 6.1 Severability If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way. |
6.2 Language Where ELLA has provided you with the English language version of this Agreement, the Privacy Policy, or any other documentation, you agree that any translation is provided for your convenience only and that the English language versions of this Agreement (including the Privacy Policy) and any other documentation, including additional terms of service for Premium Features, will govern your relationship with ELLA. | |
6.3 Notices and Service of Process You may contact us via mail or courier at: ELLA APP PTY LTD. ATTN: Chief Legal Officer 2/30 Roma Street, North Epping, NSW 2121 Australia provided that legal notices that you send via mail or courier must also be copied via email to [email protected]; that is, notice to ELLA by mail or courier alone, or by email alone, shall not be effective notice and shall be void. Any notices you send without compliance with this Section shall have no legal effect. ELLA accepts service of process at the above address. You agree that we may notify you in any manner set forth in Section 2.10. | |
This is the entire agreement between us on this subject. | 6.4 Entire Agreement You agree that this Agreement constitutes the entire, complete, and exclusive agreement between you and ELLA regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy, or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other ELLA Services, third-party content, or third-party software. |
ELLA may amend this Agreement. | 6.5 Amendments to this Agreement We reserve the right to modify, update, add, or remove provisions of this Agreement by notifying you in any manner set forth in Section 2.10. By using any of the Services after we have changed this Agreement, you are agreeing to all the changes. If you do not agree with all of the changes, you must stop using the Services. |
Waivers by ELLA must be in writing. | 6.6 No informal waivers, agreements, or representations Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by this Agreement, no representations, statements, consents, waivers, or other acts or omissions by any ELLA Affiliate or any ELLA referrer, sales promoter, reseller, distributor, or other representative of any sort, shall be deemed legally binding on ELLA, unless documented in a physical writing signed by a duly appointed and authorized executive officer of ELLA. |
You waive certain rights; we don’t. | 6.7 No Injunctive Relief In no event shall you seek or be entitled to rescission, injunctive, or other equitable relief, or to enjoin or restrain the operation of any of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services. |
You can’t assign this Agreement; we can. | 6.9 Assignment and Delegation You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective and void. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you pursuant to Section 2.10, ELLA for any third party that assumes our rights and obligations under this Agreement. |
You may have other rights. | 6.10 Potential Other Rights and Obligations You may have rights or obligations under local law other than those enumerated here if you are located outside Australia. |