Elistik provides the ability for users to publish content and interact with users in proximity using beacon technology for individuals, businesses, and organizations (the “Services”) through our app. Please read carefully the following terms and conditions (“Terms of Service”) and our Privacy Policy. These Terms of Service govern your access to and use of the App and the Services and, except as otherwise provided in these Terms of Service, all text, graphics, images, music, software, URLs, audio, video, information or other materials available through the App and Services (“Content”), and constitute a binding legal agreement between you and Elistik.
Certain areas of the App (and your access to or use of certain Services or Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the App, Services or Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the App, Services or Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE APP OR THE SERVICES OR BY DOWNLOADING, POSTING, BROADCASTING, OR STREAMING ANY CONTENT FROM OR ON THE APP OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE APP. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APP, SERVICES OR CONTENT. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Elistik reserves the right, at its sole discretion, to modify, discontinue or terminate the App or Services or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the App or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms of Service and/or the home page of the App. By continuing to access or use the App or the Services after we have posted a modification on the App or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the App and the Services.
The App and Services are intended solely for persons who are 18 or older. Any access to or use of the App or Services by anyone under 18 is expressly prohibited. By accessing or using the App or Services you represent and warrant that you are 18 or older.
In order to access certain features of the App and Services, you must register to create an account (“Account”) and become a “Member.” To become a Member you must be at least 18 years old. Any registration by anyone under 18 is void. By completing the registration process to create an Account, you represent and warrant that you are 18 or older. During the registration process, you will be required to provide certain information and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Elistik reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Elistik of any unauthorized use of your Account.
As a Member, you have the option of granting Elistik access to your accounts with certain third-party social media and networking sites (each, an “SNS”) so that Elistik can capture and make available on the App and through the Services content that you have stored in your account(s) with such SNSs (“Member SNS Content”). By granting Elistik access to any such Member SNS Content, you understand that Elistik will access, make available and store (if applicable) such Member SNS Content so that it is available on the App and through the Services. Elistik is not responsible for any Member SNS Content stored on an SNS that you choose to make available on the App and through the Services. Depending on the SNS you choose and subject to the privacy settings you have set in your SNS account(s), personally identifiable information that you post to your SNS account(s) will be available on the App and through the Services. Please note that if an SNS account becomes unavailable or an SNS terminates Elistik’s access to your SNS account(s), any Member SNS Content from that SNS will no longer be available on the App and through the Services. You have the ability to disable the connection between the App and Services and your SNS accounts, at any time, by accessing the “Settings” section of the App. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS, INCLUDING YOUR RIGHTS WITH RESPECT TO ANY CONTENT THAT YOU PROVIDE TO AN SNS AND THE STORAGE OF SUCH CONTENT, IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS.
Elistik reserves the right to charge for your use of the Services at any time. Elistik will provide appropriate notice to you if it elects to charge for use of the Services or parts thereof.
The App, Services, Embed Code and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Service, Elistik and its licensors exclusively own all right, title and interest in and to the App, Services and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the App, Services or Content.
Subject to your compliance with the terms and conditions of these Terms of Service, Elistik grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view Content solely to use the App and Service for your personal and non-commercial purposes. Subject to your compliance with the terms and conditions of these Terms, Elistik grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any User Content solely for your personal and non-commercial purposes. Without limiting your rights to your own User Content (as defined in the following paragraph), you will not use, copy, record, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the App, Services, Content or User Content, except as expressly permitted in these Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Elistik or its licensors, except for the licenses and rights expressly granted in these Terms of Service.
Members may post, upload, publish, broadcast, stream, display, submit or transmit text, words, verbal statements, graphics, images, music, software, audio, video, information or other materials to be made available through the App and Services (“User Content”). By making available any User Content through the App and Services, you hereby grant to Elistik a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content on, through or by means of the App, the Services, and third party websites. Elistik does not claim any ownership rights in any such User Content and nothing in these Terms of Service will be deemed to restrict any rights that you may have to use and exploit any such User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the App or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the App or Services or you have all rights, licenses, consents and releases that are necessary to grant to Elistik the rights in such User Content, as contemplated under these Terms of Service; and (ii) neither the User Content nor your posting, uploading, broadcasting, publication, streaming, submission or transmittal of the User Content or Elistik’s use of the User Content (or any portion thereof) on, through or by means of the App, the Services, or third party websites will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the App and Services (“Feedback”). You may submit Feedback by emailing us at support@elistik.com or through the “Profile” section of the App. You acknowledge and agree that all Feedback will be the sole and exclusive property of Elistik and you hereby irrevocably assign to Elistik and agree to irrevocably assign to Elistik all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Elistik’s request and expense, you will execute documents and take such further acts as Elistik may reasonably request to assist Elistik to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
You agree not to do any of the following:
Elistik has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Elistik may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Elistik has no obligation to monitor your access to or use of the App, Services or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the App and Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Elistik reserves the right, at any time and without prior notice, to remove or disable access to any Content, including any User Content that Elistik, at its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the App or Services.
Elistik respects copyright law and expects its users to do the same. Elistik has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.
The App may contain links to third-party websites or resources. You acknowledge and agree that Elistik is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Elistik of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
If you breach any of these Terms of Service, Elistik will have the right to suspend or disable your Account or terminate these Terms of Service, at its sole discretion and without prior notice to you. Elistik reserves the right to revoke your access to and use of the App, Services and Content at any time, with or without cause. In the event Elistik terminates these Terms of Service for your breach, you will remain liable for all amounts due hereunder, to the extent that there are amounts outstanding and payable to Elistik. You may cancel your Account at any time by deleting the App from your device.
THE APP, SERVICES, CONTENT AND USER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ELISTIK EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Elistik MAKES NO WARRANTY THAT THE APP, SERVICES, CONTENT OR USER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Elistik MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OR USER CONTENT OBTAINED THROUGH THE APP OR SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ELISTIK OR THROUGH THE APP, SERVICES, CONTENT OR USER CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APP OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP OR SERVICES. YOU UNDERSTAND THAT ELISTIK DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE APP OR SERVICES, NOR DOES ELISTIK MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE APP OR SERVICES. ELISTIK RECOMMENDS THAT YOU DO NOT DISCLOSE PERSONAL CONTACT INFORMATION TO OTHER USERS OR MEMBERS. ELISTIK DOES NOT RECOMMEND OR ENCOURAGE MEMBERS TO USE THE APP OR SERVICES TO SOLICIT OTHER MEMBERS TO MEET WITH THEM IN PERSON. ELISTIK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE APP OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE APP OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE APP OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. YOU UNDERSTAND THAT WHEN USING THE APP OR SERVICES, YOU WILL BE EXPOSED TO CONTENT FROM A VARIETY OF SOURCES, AND THAT ELISTIK IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, OR SAFETY OF OR RELATING TO SUCH CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT, WHILE THE SERVICES AND APP ARE NOT PROVIDED FOR PORNOGRAPHIC PURPOSES OR FOR MAKING SEXUALLY EXPLICIT CONTENT AVAILABLE, YOU MAY BE EXPOSED TO CONTENT THAT YOU DEEM TO BE OFFENSIVE, INDECENT, OBJECTIONABLE, OR SEXUALLY EXPLICIT, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST ELISTIK WITH RESPECT THERETO.
You agree to defend, indemnify, and hold Elistik, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your User Content and your access to or use of the App, Services or Content, or your violation of these Terms of Service.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE APP, SERVICES AND CONTENT, INCLUDING USER CONTENT MADE AVAILABLE BY OTHER MEMBERS, REMAINS WITH YOU. NEITHER ELISTIK NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APP, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE APP, SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE APP OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE APP OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ELISTIK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL ELISTIK’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE APP, SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO ELISTIK FOR USE OF THE APP, SERVICES OR CONTENT, IF YOU ARE REGISTERED FOR PAID ACCOUNT, IF YOU ARE REGISTERED FOR A FREE ACCOUNT, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELISTIK AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
All trademarks, service marks, logos, trade names and any other proprietary designations of Elistik used herein are trademarks or registered trademarks of Elistik, Inc. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
These Terms of Service constitute the entire and exclusive understanding and agreement between Elistik and you regarding the App, Services, Content and User Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Elistik and you regarding the App, Services, Content and User Content.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without Elistik’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Elistik may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Service, will be in writing and given: (i) by Elistik via email (in each case to the address that you provide) or (ii) by posting to elistik.com. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Elistik to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Elistik. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
If you have any questions about these Terms of Service, please contact Elistik at support@elistik.com.