Effective Date: June 18th, 2014
Last Updated Date: June 18th, 2014
I.Introduction and Eligibility
This agreement is a legally binding contract. It may change as our business changes, and you agree you will review it and any updates regularly. Your continued use of the Service means you accept any changes.
Binding Agreement. These Terms constitute a binding agreement between you and Element, Inc. and its affiliates and subsidiaries ("Element," "we," "us"). "You" and "users" shall mean all visitors to the Service. You accept these Terms each time you access the Service. If you do not accept these Terms, you must not use the Service. If you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the Service.
Revisions to Terms. We may revise these Terms at any time by posting an updated version. You should visit this page periodically to review the most current Terms, because you are bound by them. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms.
Other Terms. Customers may also agree to a Master Services Agreement. Such agreement will supersede these Terms in the event of a conflict.
The terms "post" and "posting" as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the Service.
II. The Service
The "Service" means any website, mobile application, or Internet service under the control of Element, Inc., whether partial or otherwise, in connection with providing Element's authentication services. Element provides its customers with services and tools to help them monitor and authenticate the time, location and personal identity of workforce activity, such as clocking in and out for time and attendance purposes.
Service Changes and Improvements. The Service may continue to change over time as we refine and add more features. We may change the form and nature of the Service at any time without prior notice to you. We may also discontinue providing the Services or specific features included within the Services, in whole or in part, temporarily or permanently, in our sole discretion and without prior notice to you.
Accuracy and Up-Time. We strive to ensure the Service accurately collects and reports information. However, there may be instances where data is not accurately collected or reported or other problems occur that prevent the Service from working as intended, such as unplanned outages. You are solely responsible for notifying your employer of any inaccuracies or problems with the Service. You may also notify us at email@example.com. We will attempt to fix any inaccuracies and technical problems, but we will have no obligation to notify your employer. We are not responsible, legally or otherwise, for the collection or reporting of inaccurate information, any Service outages, or any other problems with the Service, or the consequences therefrom.
III. Eligibility to Use the Service
Children. No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The SERVICE AT ANY TIME OR IN ANY MANNER.
Agent of a Company, Entity, or Organization. If you are using the Service on behalf of a company, entity, or organization (collectively "Organization"), then you represent and warrant that you:
IV. Your Account
You are responsible for your log-in credentials and for keeping your information accurate.
You are responsible for any activity resulting from the use of your log-in credentials on the Service.
You represent and warrant that the information you provide to Element upon the licensing of the Service and at all other times will be true, accurate, current, and complete.
Your Log-In Credentials. To use the Service, you will have log-in information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service.
You agree to notify us immediately of any breach in secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Element by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by Element and others due to any unauthorized use of your account.
The Service may allow your employer to contact you. You agree to receive such messages.
Element may communicate with you by email or posting notice on the Service. You may request that we provide notice of security breaches in writing.
You agree to receive email from us at the email address associated with your account for customer service-related purposes, such as to notify you of Service changes and planned outages. You also agree to receive calls, text messages, push notifications, emails, and other communications from your employer that may have originated from the Service. If you believe spam originated from the Service, please email us at email@example.com.
Communicate with Others. You may be able to use the Service to call, text message, send a push notification, or send email or other messages to users of the Service. You acknowledge and agree that you will send communications only to individuals who have given you their express permission to be contacted in that way. You agree that you will not send unsolicited marketing messages or broadcasts (i.e., spam) using the Service.
Electronic Notices. By using the Service or providing Personal Information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system's breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at firstname.lastname@example.org.
VI. Element's Content Ownership and Use
Element owns or has rights to all of the content we make available through the Service, but you may use it as you use the Service. You may not use our logo without our written permission.
The contents of the Service include: designs, text, graphics, images, video, information, data, logos, button icons, software, audio files, computer code, and other content (collectively, "Element Content"). All Element Content and the compilation (meaning the collection, arrangement, and assembly) of all Element Content are the property of Element or its licensors and are protected under copyright, trademark, and other laws.
License to You. We authorize you, subject to these Terms, to access and use the Service and the Element Content solely for your personal use of the Service, at our discretion. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Element Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Element Content on any copy you make of the Element Content.
Element Marks. "Element," the Element logo, and other Element logos and product and service names are or may be trademarks of Element (the "Element Marks"). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use the Element Marks in any manner.
VII. User Content and Our License to Use It
You own all of the content you post using the Service. However, we may use it for any business purpose related to the Service. We may also modify your content to make it work better.
Company Claims No Ownership. The Service may provide you with the ability to create, post, or otherwise transmit content, such as your palm scans ("Your User Content"). You retain any and all intellectual property rights you may have to any of the content you post or otherwise transmit on or through the Service. You are responsible for protecting those rights
The Service contains content from users and other Element licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Service.
VIII Suggestions and Submissions
We appreciate your comments, but if you send us creative ideas, we can use them without compensating you.
We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials ("creative ideas"), we shall:
IX. User Content Disclaimers, Limitations, and Prohibitions
You are responsible for your actions when using and relying on the Service or content available on the Service.
We do not represent or guarantee the truthfulness, accuracy, or reliability of data or content posted or transmitted by users ("User Content"). You accept that any reliance on material posted or transmitted by other users or third-party service providers will be at your own risk. By using the Service you accept the risk that you might be exposed to data or content that is objectionable or otherwise inappropriate.
Do not do bad things with the Service, try to break it, or steal our hard work.
You agree to use the Service only for its intended purpose and in an authorized manner. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You may not:
X. Consequences of Violating These Terms
If you do not act acceptably, we may prohibit your use of the Service.
We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.
Element may review and remove any User Content at any time for any reason, including for activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Service.
You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Service.
XI. Element's Liability
We are not liable for the actions of users when they use the Service. We may also change the Service at any time and are not liable for how this may affect you. We do not guarantee the quality or accuracy of any content you view using the Service.
Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.
User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including your employer. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party. You release Element of all claims, demands, and damages in disputes among users of the Service. You also agree not to involve us in such disputes. Use caution and common sense when using the Service.
Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
Third-Party Websites and Applications. The Service may include links to third party websites and applications. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
Third-Party Functionality. The Service may allow you to use third-party content and functionality. You use such content or functionality subject to such third parties' terms and conditions.
We make no promises and disclaim all liability of specific results from the use of the Service.
Released Parties Defined. "Released Parties" include Element and its affiliates, officers, employees, agents, partners, suppliers, and licensors.
A. DISCLAIMER OF WARRANTIES
You use the Service at your own risk. We make no warranties or guarantees.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED OR DISPLAYED ON, OR ADVERTISING ON, THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
B. LIMITATION OF LIABILITY AND INDEMNIFICATION
We are not liable for anything that happens to you involving the Service. If you use the Service in a way that causes us to be included in litigation, you agree to pay all legal fees and costs for Released Parties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ELEMENT OR ANY OTHER RELASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR IN CONNECTION WITH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES' COLLECTIVE MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF ELEMENT CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content, (ii) your use of or reliance on any Element Content, or (iii) your breach of these Terms. We shall provide notice to you promptly of any such claim, suit, or proceeding.
XII. Export Regulations.
You understand that Element is subject to regulation by agencies of the U.S. government, including, but not limited to, the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. You warrant that you will comply in all respects with the Export Administration Regulations and all other export and re-export restrictions applicable to the technology and documentation licensed hereunder.
XIII. General Terms
XIV. Arbitration, Class Waiver, and Waiver of Jury Trial
We are located in New York, so all disputes must be resolved there. We will use arbitration to resolve any problems, and you cannot join a class action lawsuit or obtain a jury trial for any disputes you have with us related to your use of the Service.
These Terms and the relationship between you and Element shall be governed by the laws of the state of New York without regard to its conflict of law provisions. You and Element agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the Service under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted in New York County in the state of New York. You covenant not to sue Element in any other forum.
You also acknowledge and understand that, with respect to any dispute with the Released Parties arising out of or relating to your use of the Service or these Terms:
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