Terms of Service

Plain English

Last Updated: May 1, 2017

Welcome to the Elthos Web Application. Elthos.Com consists of the online service, which includes the Elthos Mythos Machine Web Application and the Elthos Rules book and the Elthos Marketplace (if available) (“Service”). This agreement describes the terms on which Elthos RPG (“Elthos”, “we” or “us”) offers you access to its Service. This offer is conditioned on your agreement to all of the terms and conditions contained in the Agreement.  All use of the Service is governed by the terms and conditions contained in these Terms of Service, the Privacy Policy, Trademark Policy and the Attribution Policy, (collectively “Agreement”). Any use of the Service not in accordance with the Agreement is expressly prohibited. 

Hi There! Welcome to the Elthos Web Application. This is our agreement with you. If you don't agree with our Terms of Service, please don't use our service.

1. WHO CAN USE THIS SERVICE

You must be at least 18 years of age to use the Service. If you are under 18 years old, you must obtain parental or guardian consent to access and/or use any of the Service. By accessing and/or using the Service, you affirm that you are at least 18 years of age or, if you are not, that you have obtained parental or guardian consent to enter into this Agreement. If you are not of legal age to enter into this Agreement or have not obtained parental or guardian consent to enter into this Agreement, then you may not access and/or use any of the Service. 

You must be at least 18 years old to access our creative tools. You may also get permission from a parent or guardian if you are under 18 years old.

2. ACCESSING THE SERVICE

To use this Service, you must establish an account (“Account”). You may be required to provide certain personal information. It is a condition of your use of Elthos that all the information you provide will be true, correct, current, and complete. If we believe the information you provide is not true, correct, current, or complete, we have the right to refuse you access to the Service or any of its resources, and to terminate or suspend your access at any time.

When you create your account with us, you may be asked to give some information about yourself such as your email address. All of the information that you provide must be accurate.

3. CHANGES TO THE SERVICE

We reserve the right to withdraw or update this Service, and any service or material we provide on the Service, in our sole discretion and without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered users.

Periodically, we may change or take away certain parts of our service based on Customer feedback or other factors, which may cause you not to have access.

4. USER NAMES AND PASSWORDS

During the registration process, you must choose a user name and a password.

When choosing a user name, you must abide by the following guidelines as well as the rules of common decency. If we find such a user name to be offensive or improper, we will be entitled, in our sole and absolute discretion, to change the name and/or terminate your use of the Service.

You may not select the name of another person with the intent to impersonate that person; a name that violates any trademark rights, copyright or other proprietary right; or a name that is vulgar, offensive, defamatory, obscene, hatefully or otherwise objectionable.

Any passwords used for this site are for individual use only. You must treat such information as confidential, and you must not disclose it to any other person or entity. You will be responsible for the security of your password. You will also be responsible for making all arrangements necessary for you to have access to the Service. If you use a password that we consider insecure, Elthos will be entitled to require the password to be changed and/or terminate your account. In the event that you become aware of or reasonably suspect any breach of security, you must immediately notify us.

You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

Elthos reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Elthos to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate theis Agreement.

BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS ELTHOS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ELTHOS DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ELTHOS OR LAW ENFORCEMENT AUTHORITIES.

Please don’t pick any usernames that violate other people’s rights, are defamatory or deragotory. We also don’t allow usernames that impersonate other people. You must keep the password you choose confidential and let us know if you think someone has accessed your account without your permission.

If there is a law enforcement investigation into any activities connected with the services, we will fully cooperate.

5. PRIVACY

You agree that we will use all information you provide to us in accordance with our Privacy Policy. You consent to all actions we take with respect to your information consistent with our Privacy Policy.

Please, carefully review our privacy policy to find out what we do with the information you provide to us when you register or use our service.

6. CHILDREN UNDER THE AGE OF 13

Our Service is a general audience web application and is not directed to children under the age of 13. We do not knowingly collect via the Service personally identifiable information from children under the age of 13.

We don’t provide this Web Application or any of our services to children under 13. If you are under 13, please do not use our service.

7. FEES AND PAYMENT

7.1 Free Open Beta

Subscriptions to the Service may begin with a free Open Beta period during which you can try out the Service (“Free Open Beta”). During the Open Beta you will not be asked to provide any billing information. However, once the Open Beta is completed (date to be determined), then you will have the option to sign up for the “Live” version and subscribe to the Service, or forgo the option, at which time you will lose access to the Web Application portion of the Service. You may, however, keep your downloaded copy of the Elthos RPG Core Rules Book and continue using it as you wish. You may also keep any downloaded Excel or Word files that you generated in the Mythos Machine during the Open Beta and use those as you wish as well. 

You may cancel your Plan at any time during Free Open Beta by following the steps described in section 7 (d) (“Account Cancellation”). Upon cancelling your account, you will immediately lose all access to the Service. Elthos is not responsible for any data or information stored within your account (see Section 7 (d) and section 13 (“Termination”) for additional details).Elthos reserves the right to modify, cancel and/or limit the Free Open Beta without notice at any time.

Right now we are in Open Beta and our Service is free to users.

7.2 Post-Open Beta (“Live”) Fees

After the initial Free Open Beta, Elthos plans to offer a paid membership plan that will provide you with access to the Service (each, a “Plan”). Each Plan will provide varying levels of access to Service Features depending on the Plan selected. Plans may include limitations to various Features (such as Things Creation, Character Generation, World Building, World Printing, etc.), or limitations on the quantities of various forms of User Content (Things: Weapons, Armors, Equipment, Places, Campaigns, etc.) allowed to be added by the User. The terms of the Plans may change over time as we adjust our Subscription and Pricing Model based on our experience and feedback from our Users. When the Plan terms change you will be notified of the change on the Website's Information Page, and / or via the email address you provide when creating your account. Every effort will be made to ensure that changes in the Terms of each Plan are favorable to the User, but if you do not wish to accept the changes you will be able to discontinue your subscription at that time.

You may select a Plan as part of your registration for the Service, if you decide to use it as a Gamemaster.

Each subscription period for a Plan may be based on a Subscription Period (e.g. monthly, annually, lifetime), and/or based on Quantity of Creatable Things, or on some other basis to be determined, but regardless of your billing cycle, you are responsible for subscription fees for the entire subscription period chosen / sold. 

At the end of your current subscription period, your Plan will automatically renew for a subscription period equal to your prior subscription period unless you cancel your subscription, which you may do through the Payment Gateway Service (PayPal or Chargebee). 

To view pricing information for your Plan and the end date of your subscription period, you may need to login to your Payment Gateway account. 

For information regarding the Features included within each Plan, please review your Plan features on the website. 

In the event you cancel your Plan or fail to pay the subscription fee, or provide us with the requested information, no refunds or credits will be provided for partial or unused subscription periods of the Service. Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.

Once Open Beta ends, we plan to charge subscription fees based on Subscription Plans to be announced. Our intention is to charge as little as possible, but enough so we may operate the site and continue improving the quality of our Service. 

You can cancel your subscription at any time, but you will not receive any refunds for the moneys you have already paid. You can cancel your subscription only through The Payment Gateway (such as PayPal).

If you deactivate your account this won’t cancel your subscription. Once you cancel your subscription your account will be deactivated. We are not responsible for your data, please store it on your local device. We can cancel your plan if we don’t receive payment from you.

7.3 Payment of Fees

As an express condition of your use of and access to the Service, you agree to pay all fees applicable to your Plan, any other fees for additional Service you may purchase, and any applicable taxes in connection with your use of the Service.

You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts. 

We reserve the right to deactivate your access to the Service for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.

7.4 Payments

All payments will be collected via a Payment Gateway Service. When you authorize the Payment Gateway Service to process your payment, you also agree to their User Agreement which you can find on the Payment Gateway Service website.

You authorize the Payment Gateway Service to pay any amounts described herein and associated with your Plan and authorize the Payment Gateway Service to continue charging all such amounts via the payment method you selected until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later.

If payment is not received from The Payment Gateway Service, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, The Payment Gateway Service may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please review the Payment Gateway Service User Agreement for more information. 

7.5 Subscription and Account Cancellation

You may cancel your subscription through The Payment Gateway Service. You may also delete your account through the Website. If you delete your account on Elthos.com but do not cancel your subscription on The Payment Gateway Service, you will remain responsible for all subscription fees until you cancel your subscription through The Payment Gateway Service.

The Payment Gateway Service will then notify the Elthos website that the subscription has been deactivated, and the account will automatically be made private, and de-activated. You may also delete your account on Elthos.com, however, as stated above this action will not cancel your subscription, but it will delete all account information on the website, including any data or information stored in your account.

For clarity, if you cancel your Plan prior to the conclusion of your current subscription period, you will remain responsible for payment for all subscription fees through the conclusion of your current subscription period.

If you cancel your Plan, you will lose all access, upon the expiration of your current pre-paid period, to the Service and any data or information stored in your account. It is solely your responsibility to save your data to your local device. The website does provide you with a means to save your data locally in Spreadsheet and or Word documents.

8. RULES OF CONDUCT

You agree to abide by certain rules of conduct Among other actions, you agree that you will not:

• upload, post, send, submit, publish or transmit any User Content (including images and/or text) that is made "Public" on the system that you do not have the right to post, including User Content that infringes or violates any third-party rights, including, infringe any patent, trademark, trade secret, copyright or other intellectual property proprietary rights, rights of publicity or privacy, or other rights of any other person;

• upload, post, send, submit, publish or transmit any User Content (including images and/or text) on the system that you do not have the right to post, including User Content that infringes or violates any third-party rights, including, infringe any patent, trademark, trade secret, copyright or other intellectual property proprietary rights, rights of publicity or privacy, or other rights of any other person, for all such User Content that is intended to be shared as “Public” in the future;

• upload, post, send, submit, publish or transmit material that violates any law or regulation;

• upload, post, send, submit, publish or transmit material that is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or otherwise objectionable

• upload, post, send, submit, publish or transmit material that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

• upload, post, send, submit, publish or transmit any unsolicited or unauthorized advertising or promotional materials that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation of a commercial endeavor;

• impersonate any person or entity without their consent;

• attempt to gain access to another user’s Account or password;

• Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site;

• To access or use for any commercial purposes any part of the Service or any Service or materials available through the Service, unless we have expressly authorized it;

• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Service, or which, as determined by us, may harm Elthos or users of the Service or expose them to liability;

• Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Service, including their ability to engage in real time activities through the Service;

• Use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service;

• Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent;

• Use any device, software or routine that interferes with the proper working of the Service;

• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service

• Attack the Service via a denial-of-service attack or a distributed denial-of-service attack;

• Use meta tags, hidden text or metadata with our trademark, logo, URL or product name without our written consent;

• Use Elthos’s user information to forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use Heyiwonder.com or any other method to send altered source-identifying information.

• Try to reverse engineer any of Elthos software for any purpose;

• Share your password, let anyone access your account or do anything that might put your account at risk;

• Sell your username or otherwise transfer it for compensation;

• Create or show ads that look like or could be confused with Elthos content;

• Encourage or help anyone do any of the things on this list; and

• Otherwise attempt to interfere with the proper working of the Service.

Elthos reserves the right but does not have the obligation, to monitor the Service to determine compliance with these Rules of Conduct. Elthos reserves the right to suspend or cancel your Account for any violation by you of these Rules of Conduct at any time without notice.

Elthos also reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to take whatever steps it deems necessary to abridge or prevent behavior of any sort on the Service in its sole discretion, without notice to you.

We are happy that you chose to use our service to let your imagination free. However, we expect our users to be courteous to one another and to us. So please don’t do anything to that will hurt other users. Also, don’t try to hack us, copy our software, sell your username for compensation or impersonate us, to name a few. If we see violations we may suspend or terminate your account. However, we are not obligated to police the Web Application, the Forum or any other space where users contribute.

9. RELEASE

Elthos will have the right but not the obligation to resolve disputes between users relating to the Service. As a condition of access to the Service, you release Elthos, its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees and distributors from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more users of the Service, including but not limited to Elthos’s resolution of disputes relating to the Service.

We can’t guarantee that we will resolve any disputes between users. This is a release of liability so read it carefully.

10. INTELLECTUAL PROPERTY OWNERSHIP

All rights and title in and to the Service (including without limitation any user accounts, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, any related documentation, transcripts of the chat rooms or forums, recordings of games played on the Service) are owned by Elthos or its licensors. The Service is protected by United States and international laws. The Service may contain certain licensed materials, and Elthos’s licensors may enforce their rights in the event of any violation of this Agreement.

You agree that you have no rights or title in or to any content that appears in the Service or any other attributes associated with the Account or stored on the Service, except as provided in this Agreement.

Elthos does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt shall be null and void.

We aim to foster a creative community. In that spirit, we grant you a license to some of our intellectual property, namely the Proto-Worlds that you start with in the Elthos Mythos Machine Web Application. You can do pretty much anything you want with your World including selling it.

You can use the Elthos Rules Book to create your own Elthos Worlds and do whatever you like with them.  Write a book based on your World?  Sure.  Make a movie?  Yup.  Anything you want.  Just make sure, if you do, to provide us with an attribute, according to our Attribution Policy. Of course if you breach our Rules of Conduct, we can take back our license.

When you post in our forum or when you make something “public”, you grant other users and us a license to use your contributions. Please read the license carefully. Anything you keep private is your property.  You have the right to sell any rights to it you wish through the Elthos Mythos Machine World Marketplace or otherwise.  It's yours.  Totally.

You guarantee that you have permission to post the content you contribute on our service. We are not responsible for user content.

We have the right refuse to post or remove any of your user contributions for any reason. We also have the right to cooperate with law enforcement when removing your contributions. However, we are not obligated to remove user content.

10.1 Elthos License to You

This Agreement permits you to use the Service for your personal, non-commercial use only.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Service, except as follows:

10.1.1 Elthos Mythos Machine

We grant you a perpetual, non-exclusive, non-transferable, worldwide and revocable license, subject to this Agreement, in the Elthos Mythos Machine, except for computer code,, the Elthos Trademark(s) and website-specific text, images and the look and feel of Elthos.Com, to create derivative works, for any purposes, including commercial purposes, in all formats and media, whether now known and existing or hereafter discovered or developed, on the condition that when exercising the licensed rights you will provide credit to Elthos RPG in accordance with our Attribution Policy and will make all reasonable efforts to require authorized third parties to include that same credit. 

10.1.2 Elthos Rules Book

We grant you a perpetual, non-exclusive, non-transferable, worldwide and revocable license, subject to this Agreement, in the Elthos Rules Book to create derivative works, for any purposes, including for commercial purposes, in all formats and media, whether now known and existing or hereafter discovered or developed, on the condition that when exercising the licensed rights you will

a) Not violate the Rules of Conduct, and

b) provide credit to Elthos RPG in accordance with our Attribution Policy and will make all reasonable efforts to require authorized third parties to include that same credit.

10.2 We Have the Right to Revoke Your License

If you violate any of the provisions of this Agreement, we have the right to revoke any and all licenses granted to you under this Agreement. No right, title or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Us. Any use of the Service not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.

10.3 Your licenses to us and other users

The Service may contain discussion boards, forums and the ability to create content for Worlds or games, and may enable the creation of Packaged Worlds, and share their content via the World Things Sharing (“World Things Trading Post”) system (collectively, "Interactive Service") that allow users to post, submit, publish, display or transmit to other users or other persons ("post") content or materials (collectively, "User Content") on or through the Service.

All User Content must comply with this Agreement.

We do our best to make sure all User Content that is marked “Private”, and personal information, remains confidential. As with any technology we cannot guarantee any private information you post to the site will be confidential. A Gamesmaster can grant other users permission to see content that is “Private”, such permission will not convey any ownership or license to that user.

10.3.1 User Content marked “Public” license to US

When you create User Content through the Service you may assign the User Content as either “Public” or “Private”. If you designate the User Content as “Public” you grant Us, our affiliates and service providers, and each of their and our respective licensees, successors and assigns, a non-exclusive, royalty-free, transferable, sub-licensable, perpetual, irrevocable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, and distribute your Public User Content for the purpose of providing the Service to you and for the purposes of promotion and advertisement, and a non-exclusive, royalty-free, transferable, sub-licensable, perpetual, irrevocable, worldwide license to modify, create derivative works, for any purpose including commercial purposes, in all formats and media, whether now known and existing or hereafter discovered or developed. All derivative works and modifications created by us are owned by us.

10.3.2 User Content marked “Public” license to other users

When you create User Content through the Service you make assign them as either “Public” or “Private”. If you assign the setting to “Public” you grant other users, a non-exclusive, royalty-free, transferable, sub-licensable, perpetual, irrevocable, worldwide license to create derivative works your Public User Content for any purpose, including commercial purposes and in all formats and media, whether now known and existing or hereafter discovered or developed. All derivative works and modifications created by other users are owned by the users who created them.

10.3.3 User Content marked “Private”

If your User Content remains Private, and has never been designated “Public”, then you retain all right and title in your User Content.

You may elect to offer your Private "World" as a complete Package for sale through the Mythos Machine through the Worlds Marketplace when available. The sale of such Private User Content will be governed by the Elthos Marketplace Agreement.

Once made Public, in whole or in part, Worlds will no longer be eligible for Packaging for sale through the Worlds Marketplace.

Nothing in these Terms shall restrict other legal rights we may have to User Content, for example under other licenses.

You represent and warrant that you own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns and other users. All of your User Content do and will comply with these Terms.

You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Elthos, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.

We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Service.

10.4 Monitoring and Enforcement

We have the right to:

• Remove or refuse to post any User Content for any or no reason in our sole discretion.

• Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public or could create liability for the Elthos.

• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, such as their intellectual property rights or their right to privacy.

• Take appropriate legal action, such as referral to law enforcement, for any illegal or unauthorized use of the Service.

Additionally, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service.

YOU WAIVE AND HOLD HARMLESS THE ELTHOS AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE ELTHOS/ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE ELTHOS/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we do not undertake to review all material before it is posted on the Service, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

11. SUBMISSIONS

You may submit ideas, suggestions, input, recommendations, information, comments and/or feedback, prompted or unprompted by Us (collectively, “Submissions”) to help improve the Service. By providing Submissions to us, whether solicited by Elthos or not, you grant Us, our affiliates and service providers, and each of their and our respective licensees, successors and assigns and other users, a non-exclusive, royalty-free, transferable, sub-licensable, perpetual, irrevocable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, and distribute your Submissions for any purpose, including commercial purposes and in all formats and media, whether now known and existing or hereafter discovered or developed. All derivative works and modifications created by us are owned by us. To the extent permitted by applicable laws, you also give up any claim that any use by Elthos of the Submissions violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set forth therein.

If you submit to us any comments or suggestions, the intellectual property rights to those belong to us.

12. TRADEMARKS

Please see our Trademark Policy for guidelines on when and how our Trademarks can be used.

Please see our trademark policy.

13. TERMINATION

Elthos reserves the right, in its sole discretion, to suspend, terminate or modify your access to any or all of Elthos’s Service or any portion thereof at any time, in our sole discretion and without notice. We will do our best to provide Notice to you, however, we cannot guarantee that Notice will be provided in all circumstances. In the event that Elthos suspends or terminates your Account or this Agreement, you understand and agree that you shall not be entitled to receive any refund of fees or unused subscription time. This Agreement is effective until terminated. The provisions of Sections 9-12, 15-24, General Terms and This Section (13) shall survive termination. You are solely responsible for transferring your data to your local device.

We have the right to terminate your account for any reason, you will not receive a refund. If your account is terminated, you will have an opportunity to obtain your data. We are not responsible for transferring your data. We do our best to provide Notice of termination, but cannot guarantee it.

14. COPYRIGHT POLICY

14.1 Reporting Claims of Copyright Infringement

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Web Application infringe your copyright, you may request removal of those materials (or access to them) from the Web Application by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:

a) Your physical or electronic signature;

b) Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works;

c) Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material;

d) adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address),

e) a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;

f) a statement that the information in the written notice is accurate; and g) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

You may send DMCA Notices to:

Elthos
333 Mamaroneck Avenue #446
White Plains, NY 10605

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the Service is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

If you feel that any content posted to our service violates your rights, you may take action in accordance with our copyright policy.

14.2 Counter-notice Procedure

If you believe that material you posted on the Service was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified below). Pursuant to the DMCA, the Counter-Notice must include substantially the following:

a) your physical or electronic signature;

b) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled;

c) adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address);

d) statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;

e) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Service may be found); and f) that you will accept service from the person (or an agent of that person) who provided the Service with the complaint at issue.

Completed Counter-Notices should be sent to:

Elthos
333 Mamaroneck Avenue #446
White Plains, NY 10605

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Service was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.]

14.3 Repeat Infringers

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

15. RELIANCE ON INFORMATION POSTED

We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Service, or by anyone who may be informed of any of its contents.

This Service includes content provided by third parties, including materials provided by other users. All statements and/or opinions expressed in these materials are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Elthos. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

We cannot guarantee that information posted on our services is accurate or complete.

16. CHANGES TO THE AGREEMENT

Elthos reserves the right, from time to time, with or without notice to you, to make changes to this Agreement in Elthos sole discretion. Continued use of any part of the Service constitutes your acceptance of such changes. We will inform you of any changes to this Agreement either through email or by notification on the Information Screen of the website.

We may change these terms. We do our best to inform you of the changes either via Email or on our website. If you continue to use our service, you agree to our changes.

17. LINKS FROM THE SERVICE

If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. If you decide to access any of the third party Service linked to this Service, you do so entirely at your own risk and subject to the terms and conditions of use for such Service.

We do not endorse any third party links that we provide for your convenience.

18. GEOGRAPHIC RESTRICTIONS

The owner of the Service is based in the state of New York in the United States. We provide this Service for use only by persons located in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

We are based in New York, United States. If you are outside the United States, it is your responsibility to comply with local laws.

19. DISCLAIMER OF WARRANTIES

While we will do our best to prevent it, within reason, you understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Service will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICE LINKED TO IT.

YOUR USE OF THE SERVICE, ITS CONTENT AND ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE ELTHOS NOR ANY PERSON ASSOCIATED WITH ELTHOS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER ELTHOS NOR ANYONE ASSOCIATED WITH ELTHOS REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT OR ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

The Service provides the ability of the User to download their own Content to their own computer from the site into commonly used formats such as word documents, or spreadsheets. The User will be responsible for whatever software is necessary to read those files, such as Microsoft Word, and/or Excel. Please note, there are freeware versions of these applications that can also be used to open these files, such as OpenOffice.

ELTHOS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

We do our best to provide our service to you. However, if you cannot use the service for any reason we are not responsible. Please read this disclaimer carefully.

20. LIMITATION ON LIABILITY

IN NO EVENT WILL ELTHOS, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES OR ANY SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

ELTHOS IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY, OR ANY INFRINGEMENT BY A THIRD PARTY OF ANOTHER’S INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS.

IN ANY ACTION OR PROCEEDING AGAINST ELTHOS ARISING OUT OF OR RELATING TO THESE AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, THE DAMAGES TO WHICH YOU MAY BE ENTITLED SHALL BE LIMITED TO $100.00. YOU HEREBY WAIVE YOUR RIGHT TO BRING ANY CAUSE OF ACTION YOU MAY HAVE AGAISNT ELTHOS WITH RESPECT TO THE USE OF ANY SERVICE ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

21. INDEMNIFICATION

You agree to defend, indemnify us and hold us harmless, our affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Agreement or your use of the Service, including, but not limited to, your User Content, any use of the Service’s content and products other than as expressly authorized in these Agreement or your use of any information obtained from the Service. We may, at our expense, assume the exclusive defense and control of any matter you indemnify us against, and if so you agree to cooperate with us.

22. NOTICE TO CALIFORNIA RESIDENTS

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

23. JURISDICTION AND DISPUTES

a. This Agreement shall be governed by the laws of New York.

b. All disputes hereunder shall be resolved in the applicable state or federal courts of New York. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.

Since we are in New York, all disputes will be litigated in New York and in accordance with New York laws.

24. ARBITRATION

In the interest of resolving disputes between you and Elthos in the most expedient and cost effective manner, you and Elthos agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement and your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ELTHOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Despite the foregoing, we both agree that nothing in Agreement will be deemed to waive, preclude, or otherwise limit the right of either of us to:

(a) bring an individual action in small claims court;

(b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available;

(c) seek injunctive relief in a court of law; or

(d) to file suit in a court of law to address an intellectual property infringement claim.

Any arbitration between you and Elthos will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.

A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). Elthos’s address for Notice is:

Elthos
333 Mamaroneck Avenue #446
White Plains, NY 10605

The Notice must:

(a) describe the nature and basis of the claim or dispute; and

(b) set forth the specific relief sought ("Demand").

We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Elthos may commence an arbitration proceeding.

24.1 Arbitration Fees

If you commence arbitration in accordance with this Agreement, Elthos will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted:

(a) solely on the basis of documents submitted to the arbitrator; or

(b) through a non-appearance based telephone hearing.

If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Elthos for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the preceding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

YOU AND ELTHOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Further, unless both you and Elthos agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

24.1.1 Changes to Arbitration Provision

If Elthos makes any future change to this arbitration provision (other than a change to Elthos’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Elthos’s address for Notice, in which case your account with Elthos will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.

24.1.2 Unenforceability

If this section is found to be unenforceable, then the dispute will be litigated in accordance with Section 23.

25. GENERAL TERMS

25.1 Notices

All notices to Elthos must be in writing and sent to:

Elthos
333 Mamaroneck Avenue #446
White Plains, NY 10605

Notice will be treated as effective upon receipt as verified by written automated receipt. Elthos may provide you with notices, including those regarding changes to this Agreement, by the email you provide to us, by regular mail at the address you provide to us, or postings on the Elthos Service. By providing Elthos your email address, you consent to our using the email address to send you any notices required by law instead of communication by postal mail.

25.2 Assignment

You may not assign any part of this Agreement without our written consent. Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under this Agreement, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.

25.3 Force Majeure

Elthos shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

25.4 No Agency

This Agreement does not create any agency, partnership or joint venture between the parties.

25.5 No Waiver

Any delay or failure of Elthos to exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), for any reason, does not constitute a formal waiver of our rights and that those rights or remedies will still be available to us.

25.6 Severability

If any provision of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.

25.7 No Third-Party Beneficiaries

This Agreement does not confer any benefits on any third party unless expressly stated.

25.8 Entire Agreement

This Agreement and the Elthos Marketplace Agreement (if applicable) constitute the sole and entire agreement between you and Elthos with respect to the Service and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Service.