Waylon H. Lewis Enterprises, LLC Website Terms of Service
Here we go…
Thanks for choosing Elephant Journal (“elephant journal”, “we”, “us”, “our”, “the Service”). By signing up or otherwise using the Elephant Journal websites, and software applications or apps, or accessing any content or material that is made available by Elephant Journal through the website or apps (the “Content”) you are entering into a binding contract with Elephant Journal.
Please read the Agreements carefully. They cover important information about Elephant Journal provided to you and any charges, taxes, and fees we bill you. The Agreements include information about automatic renewals, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.
In order to use the Elephant Journal and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws. You also promise that any registration information that you submit to Elephant Journal is true, accurate, and complete, and you agree to keep it that way at all times.
2 Changes to the Agreements
Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by emailing us at support [at] elephantjournal [dot] com.
3 Ingesting Elephant Journal
Here’s some information about all the ways you can enjoy and ingest Elephant Journal.
3.1 Our Services & Paid Subscriptions
Elephant Journal provides content about mindful living. Certain Elephant Journal content services are provided to you free-of-charge. Other Elephant Journal services or content requires payment before you can access them. The Elephant Journal content is limited in frequency of usage. Paying members have “Memberships” and may access unlimited amounts of content.
The Membership may not be available to all users. We will explain which services are available to you when you are signing up for the services. If you cancel your subscription to the a Membership other than the Lifetime Membership, or if your subscription to any membership is interrupted (for example, if there is a failed renewal charge due to an invalid payment method), you may not be able to re-subscribe for the the same service. Note that any membership tier may be discontinued in the future, in which case your membership may be cancelled, or you may be transferred to a different membership tier.
3.2 Codes and other pre-paid offers
If you have purchased or received a code, gift card, pre-paid offer or other offer provided or sold by or on behalf of Elephant Journal for access to a Paid Subscription (“Code”), separate terms and conditions presented to you along with the Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.
From time to time, we or others on our behalf may offer trials of Paid Memberships for a specified period without payment or at a reduced rate (a “Trial”). Elephant Journal reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
For some Trials, we’ll require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PAID SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ELEPHANT JOURNAL ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ELEPHANT JOURNAL MEMBERSHIP ACCOUNT BEFORE THE END OF THE TRIAL. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS –MONTHLY OR YEARLY ACCORDING TO THE PLAN YOU SIGNED UP FOR), YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ELEPHANT JOURNAL ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ELEPHANT JOURNAL MEMBERSHIP ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, ELEPHANT JOURNAL WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
4 Rights we grant you
Elephant Journal and the Content are the property of Elephant Journal/Waylon H. Lewis Enterprises LLC. We grant you a limited, non-exclusive, revocable license to make use of the Elephant Journal, and a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Content (the “License”). This License shall remain in effect until and unless terminated by you or Elephant Journal. You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use and that you will not redistribute or transfer the Elephant Journal intellectual property or the Content.
Elephant Journal applications and the Content are licensed, not sold, to you, and Elephant Journal and its licensors retain ownership of all copies of the Elephant Journal software applications and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).
All Elephant Journal trademarks, service marks, trade names, logos, domain names, and any other features of the Elephant Journal brand (“Elephant Journal
Brand Features”) are the sole property of Elephant Journal or its licensors. The Agreements do not grant you any rights to use any Elephant Journal Brand Features whether for commercial or non-commercial use.
You agree not to use Elephant Journal, the Content, or any part thereof in any manner not expressly permitted by this Agreements. Except for the rights expressly granted to you in these Agreements, Elephant Journal grants no right, title, or interest to you in Elephant Journal or Content.
Third party software (for example, open source software libraries) included in Elephant Journal are licensed to you either under the Agreements or under the relevant third party software library’s license terms as published in the help or settings section of our desktop and mobile client and/or on our website.
5 Third Party Applications
Elephant Journal is integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Elephant Journaldoes not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
6 User-Generated Content
Elephant Journal users may post, upload, and/or contribute (“post”) content to the Service (which may include, for example, pictures, text, messages, information, playlist compilations, and/or other types of content) (“User Content”). For the avoidance of doubt, “User Content” includes any such content posted to the Elephant Journal Community, a Post or comment on the website or associated distribution options such as, but not limited to mobile apps, emails or push notifications as well as any other part of Elephant Journal.
You promise that, with respect to any User Content you post on Elephant Journal, (1) you have the right to post such User Content, and (2) such User Content, or its use by Elephant Journal as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Elephant Journal or any artist, activist, writer, personality, band, label, entity or individual without express written consent from such individual or entity.
Elephant Journal may, but has no obligation to, monitor, review, or edit User Content. In all cases, Elephant Journal reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in Elephant Journal’s sole discretion, violates the Agreements. Elephant Journal may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.
You are solely responsible for all User Content that you post. Elephant Journal is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST ELEPHANT JOURNAL RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD ELEPHANT JOURNAL HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.
7 Rights you grant us
In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the Elephant Journal to provide advertising and other information to you, and (2) to allow our business partners to do the same. In any part of Elephant Journal, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties. Some Content licensed, provided to or otherwise made available by Elephant Journal (e.g. podcasts) may contain advertising as part of the Content. In such cases, Elephant Journal will make such Content available to you unmodified.
If you provide feedback, ideas or suggestions to Elephant Journal in connection with Elephant Journal the or Content (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Elephant Journal to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.
You grant Elephant Journal a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.
8 User guidelines
Elephant Journal respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Service, to make sure Elephant Journal stays enjoyable for everyone. Please follow these rules and encourage other users to do the same.
The following is not permitted for any reason whatsoever:
- copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Elephant Journal Service or the Content, or otherwise making any use of the Elephant Journal Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Elephant Journal Service or the Content or any part of it;
- using the Elephant Journal Service to import or copy any local files you do not have the legal right to import or copy in this way;
- transferring copies of cached Content from an authorized Device to any other Device via any means;
- reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Elephant Journal Service, Content or any part thereof unless permitted by applicable law;
- circumventing any technology used by Elephant Journal, its licensors, or any third party to protect the Content or the Service;
- selling, renting, sublicensing or leasing of any part of the Elephant Journal Service or the Content;
- circumventing any territorial restrictions applied by Elephant Journal or it licensors;
- artificially increasing view or play count or otherwise manipulating the Services by using a script or other automated process;
- removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Elephant Journal Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
- providing your password to any other person or using any other person’s username and password;
- “crawling” the Elephant Journal Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from Elephant Journal; or
- selling a user account, user account data, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or playlist or the content included on an account or playlist.
Please respect Elephant Journal, the owners of the Content, and other users of the Elephant Journal Service. Don’t engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:
- is offensive, abusive, defamatory, pornographic, threatening, or obscene;
- is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of Elephant Journal or a third party;
- includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
- includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;
- is intended to or does harass or bully other users;
- impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
- uses automated means to artificially promote content;
- involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the Elephant Journal inbox or any internal messaging channel;
- involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by Elephant Journal;
- links to, references, or otherwise promotes commercial products or services, except as expressly authorized by Elephant Journal;
- interferes with or in any way disrupts the Elephant Journal Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or Elephant Journal computer systems, network, usage rules, or any of Elephant Journal’s security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or
- conflicts with the Agreements, as determined by Elephant Journal.
You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your Elephant Journal account. You also agree that Elephant Journal may also reclaim your username for any reason.
Please be thoughtful about how you use the Elephant Journal Service and what you share. The Elephant Journal Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on Elephant Journal or across the web, so please use Elephant Journal carefully and be mindful of your account settings. Elephant Journal has no responsibility for your choices to post material on the Service.
Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.
9 Infringement and reporting User Content
Elephant Journal respects the rights of intellectual property owners. If Elephant Journal is notified by a copyright holder that any Content infringes a copyright, Elephant Journal may in its absolute discretion take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to Elephant Journal with a request to restore the removed content.
10 Service limitations and modifications
Elephant Journal will make reasonable efforts to keep the Elephant Journal Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, Elephant Journal reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Elephant Journal Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Elephant Journal Service or any function or feature thereof. Notwithstanding the foregoing, if you have prepaid fees for Paid Subscriptions that Elephant Journal permanently discontinues prior to the end of the Pre-Paid Period, Elephant Journal will, upon request, refund you the prepaid fees for the Pre-Paid Period after such discontinuation. You understand, agree, and accept that Elephant Journal has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law. Elephant Journal and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
11 Customer support
For customer support with account-related and payment-related questions (“Customer Support Queries”), please submit an email to our Customer Service department at support [at] elephantjournal [dot] com. We will use reasonable endeavours to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.
12 Export control
Elephant Journal’s products may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (2) are not a denied party as specified in the regulations listed above.
You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Elephant Journal under the Agreements to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of the Agreements.
13 Payments and cancellations
Paid Memberships can be purchased directly from Elephant Journal by (1) paying a monthly or yearly pre-payment Membership fee; or (2) a one-payment Lifetime Membership if available.
Unless your Paid Membership is a Lifetime or Annual Membership, your Membership will automatically renew at the end of the Membership period, unless you cancel your Paid Membership through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current Membership period, and you will be downgraded to the Free Service. However, if you cancel your payment or Paid Membership and/or terminate any of the Agreements before the end of the current Membership period, we will not refund any Membership fees already paid to us, unless you request a refund within 10 days of your initial Paid Membership purchase. Refund requests must be made in writing to support [at] elephantjournal [dot] com. The refund method will depend upon the payment method.
If you believe you are entitled to receive a refund of any monies paid to Elephant Journal, please contact support [at] elephantjournal [dot] com.
Elephant Journal may change the price for the Paid Membership, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Memberships will take effect at the start of the next Membership period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the Elephant Journal Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by cancelling the Elephant Journal Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.
14 Term and termination
The Agreements will continue to apply to you until terminated by either you or Elephant Journal. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. Elephant Journal may terminate the Agreements or suspend your access to the Elephant Journal Service at any time, including in the event of your actual or suspected unauthorised use of the Elephant Journal Service and/or Content, or non-compliance with the Agreements. If you or Elephant Journal terminate the Agreements, or if Elephant Journal suspends your access to the Elephant Journal Service, you agree that Elephant Journal shall have no liability or responsibility to you, and Elephant Journal will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Elephant Journal account, please contact us through the Customer Service contact form which is available on our About Us page. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.
Sections 6, 7, 8, 10, 14, 16, 17, 18, 19, 20, 21, 22, 23, and 24 herein, as well as any other sections of the Agreements that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.
15 Warranty and disclaimer
WE ENDEAVOUR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE ELEPHANT JOURNAL SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE ELEPHANT JOURNAL SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ELEPHANT JOURNAL AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER ELEPHANT JOURNAL NOR ANY OWNER OF CONTENT WARRANTS THAT THE ELEPHANT JOURNAL SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, ELEPHANT JOURNAL MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE ELEPHANT JOURNAL SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT ELEPHANT JOURNAL IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE ELEPHANT JOURNAL SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM ELEPHANT JOURNAL SHALL CREATE ANY WARRANTY ON BEHALF OF ELEPHANT JOURNAL IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
16 Limitation and time for filing
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE ELEPHANT JOURNAL SERVICE IS TO UNINSTALL ANY ELEPHANT JOURNAL SOFTWARE AND TO STOP USING THE ELEPHANT JOURNAL SERVICE. WHILE ELEPHANT JOURNAL ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO ELEPHANT JOURNAL, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ELEPHANT JOURNAL, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE ELEPHANT JOURNAL SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER ELEPHANT JOURNAL HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE ELEPHANT JOURNAL SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO ELEPHANT JOURNAL DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in the Agreements removes or limits Elephant Journal’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST ELEPHANT JOURNAL MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION (24.2.1) OR FILING AN INDIVIDUAL ACTION UNDER SECTION (24.2.2) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
17 Third party rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and Elephant Journal, and in no event shall the Agreements create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.
If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and Elephant Journal only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
18 Entire Agreement
Other than as stated in this section or as explicitly agreed upon in writing between you and Elephant Journal, the Agreements constitute all the terms and conditions agreed upon between you and Elephant Journal and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.
Please note, however, that other aspects of your use of the Elephant Journal Service may be governed by additional agreements. That could include, for example, access to the Elephant Journal Service as a result of a gift card or free or discounted Trials. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.
19 Severability and waiver
Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by Elephant Journal or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive Elephant Journal’s or the applicable third party beneficiary’s right to do so.
Elephant Journal may assign the Agreements or any part of them, and Elephant Journal may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.
To the fullest extent permitted by applicable law, you agree to indemnify and hold Elephant Journal harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the Elephant Journal Service; and (4) your violation of any law or the rights of a third party.
22 Choice of law, mandatory arbitration and venue
22.1 Governing Law / Jurisdiction
The Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of Colorado, United States of America, without regard to choice or conflicts of law principles.
Further, you and Elephant Journal agree to the jurisdiction of the County of Boulder, CO to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreements (and any non-contractual disputes/claims relating to or arising in connection with them) and is not subject to mandatory arbitration under Section 24.2.1.
Elephant Journal does not accept any codes of conduct as mandatory in connection with the services provided under this agreement.
22.2 ARBITRATION AGREEMENT
This Arbitration Agreement applies only to users in the United States.
22.2.1 Dispute resolution and arbitration
You and Elephant Journal agree that any dispute, claim, or controversy between you and Elephant Journal arising in connection with or relating in any way to these Agreements or to your relationship with Elephant Journal as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and Elephant Journal further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
Notwithstanding the clause above (24.2.1), you and Elephant Journal both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
22.2.3 No Class Or Representative Proceedings: Class Action Waiver
YOU AND ELEPHANT JOURNAL 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 ACTION. Unless both you and Elephant Journal agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
22.2.4 Arbitration rules
Either you or we may start arbitration proceedings. Any arbitration between you and Elephant Journal will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and Elephant Journal agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. Elephant Journal can also help put you in touch with the AAA.
Any arbitration hearings will take place in the county (or parish) of your billing address, provided that if the claim is for $25,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.
If you choose to file an arbitration proceeding and you are required to pay a filing fee, Elephant Journal will reimburse you for that filing fee, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee. Elephant Journal will pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order. Regardless of the manner in which the arbitration is conducted, the arbitrator shall 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 proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
22.2.5 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Elephant Journal ‘s address for Notice is: Elephant Journal, 2031 16th Street, Boulder, CO 80302 , USA. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) 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 Elephant Journal may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Elephant Journal shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, and the arbitrator issues you an award that is greater than the value of Elephant Journal’s last written settlement offer, then Elephant Journal will instead pay you either the amount of the award or $1,000, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.
If this Arbitration Agreement is invalidated in whole or in part, the parties agree that the exclusive jurisdiction and venue described in Section 24.1 shall govern any claim in court arising out of or related to the Agreements.
23 Contact us
If you have any questions concerning the Elephant Journal Service or the Agreements, please contact Elephant Journal Customer Service by email us at support [at] elephantjournal [dot] com.
If you are a Colorado resident, you may have the Agreements mailed to you electronically by sending a letter to Waylon H. Lewis Enterprise LLC Attn: General Counsel, 2031 16th Street, Boulder, CO 80302 USA with your email address and a request for the Agreements. In addition, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the State of Colorado via their website- https://coag.gov/about-us/office-sections/consumer-protection-protection in order to resolve a complaint regarding the service or to receive further information regarding use of the service.
Thank you for reading our Terms. We hope you enjoy Elephant Journal and may we be of benefit.
Waylon H. Lewis Enterprises, DBA Elephant Journal, 2031 16th Street, Boulder, CO, 80302 USA