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Elfster Terms of Service

TERMS OF SERVICE

These Terms of Service were last updated on August 3, 2024

These Terms of Service ("Terms") constitute a legally binding agreement ("Agreement" ) between you and Elfster (as defined below) governing your access to and use of www.elfster.com, the Elfster website, including any subdomains thereof, and any other websites through which Elfster makes the Services available (collectively, "Website"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "Services"). The Website, Application and Services together are hereinafter collectively referred to as the "Site".

Please read these Terms of Service carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Site, you agree to comply with and be bound by these Terms of Service and Elfster's Privacy Policy ( https://www.elfster.com/content/privacy/ collectively, the "Terms").

Please note: Section 12 of these Terms of Service contains an arbitration clause and class action waiver that applies to all Users. If you reside in the United States, this provision applies to all disputes with Elfster. If you reside outside of the United States, this provision applies to any action you bring against Elfster in the United States. It affects how disputes with Elfster are resolved. By accepting these Terms of Service, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.

When these Terms mention "Elfster", "we", "us", or "our", it refers to Elfster, Inc., a Delaware corporation, and any affiliates.

  1. Scope of Services
    1. The Site is an online platform that enables users ("Users") to connect with friends and family to simplify gift giving, and to perform related activities and receive related services (the "Purpose").
    2. If you choose to use the Site as a User, your relationship with Elfster is limited to being an independent user, and not an employee, agent, joint venturer or partner of Elfster for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Elfster.
    3. The Site may contain links to third-party websites or resources ("Third-Party Services"). Such Third-Party Services may be subject to different terms and conditions and privacy practices. If you decide to leave the Site and access Third-Party Services, you should review the applicable terms and policies, including privacy and data gathering practices of such sites or resources. Elfster is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Elfster of such Third-Party Services. Third-Party Services are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by Elfster. Third-Party Services are provided "as-is" and are subject to change or removal at any time. Under no circumstances is Elfster responsible or liable for any loss or damage resulting from anyone's reliance upon information or other contract posted to or linked from the Site.
    4. Some links from the Site to third party sites are monetized by third party services. Elfster may get "credit" for its part in helping match the buyer with the right item from the right seller for a gift recipient. This monetization is automatic and transparent and does not affect the item price. This disclosure is provided in accordance with the United States Federal Trade Commission's 16 CFR §255.5. Elfster is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by linking to websites such as amazon.com. As an Amazon Associate, we earn money from qualifying purchases. Amazon Services, LLC is considered a Third-Party Service.
    5. Due to the nature of the Internet, Elfster cannot guarantee the continuous and uninterrupted availability and accessibility of the Site. Elfster may restrict the availability of the Site, or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Site. Elfster may improve, enhance and modify the Site and introduce new Services from time to time.
  2. Registration, Eligibility, Using the Site, User Verification
    1. You may be required to register with Elfster in order to access and use certain features of the Site or the Services. If you choose to register, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Site's registration form. Registration data and certain other information about you are governed by our Privacy Policy
    2. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Elfster of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Site. Elfster will not be liable for any loss or damage arising from your failure to comply with this Section 2.2.
    3. Use of the Site is not available to persons under the age of 13. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
    4. You must be at least 18 years old and able to enter into legally binding contracts to register a Elfster account and use certain Services associated with such registered account. By registering for a Elfster account, you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
    5. Elfster may make access to and use of the Site, or certain areas or features of the Site, subject to certain conditions or requirements, such as completing a verification process or meeting specific quality or eligibility criteria.
  3. Social Networking Services
    You may enable or log in to the Site via various online third-party services, such as social media and social networking services like Facebook or X, formerly known as Twitter ( "Social Networking Services"). By logging in or directly integrating these Social Networking Services into the Site, we are able to potentially make your Site experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for, or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating these Social Networking Services and Elfster's use, storage and disclosure of information related to you and your use of such services within Elfster, please see our Privacy Policy at www.elfster.com/privacy. Please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third-party Social Networking Services, and Elfster shall have no liability or responsibility for the privacy practices or other actions of any third-party site or service that may be enabled within the Site. In addition, Elfster is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. Elfster enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
  4. Modification of These Terms
    Elfster reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Site. Therefore, you should review these Terms regularly to check for changes. If you disagree with the revised Terms, you must stop using the Site. If you do not stop using the Site and terminate the Agreement before the date the revised Terms become effective, your continued access to or use of the Site will constitute acceptance of the revised Terms.
  5. Content
    1. Elfster may, at its sole discretion, enable Users to (i) create, upload, post, send, receive and store content, such as text, photos, audio, sounds, video, audiovisual combinations, interactive features, graphics, data of wish lists, or other materials and information on or through the Site ("User Content" ); and (ii) access and view User Content and any content that Elfster itself makes available on or through the Site, including proprietary Content and any content licensed or authorized for use by or through Elfster from a third party ("Content" and together with User Content, "Collective Content").
    2. The Site, Content, and User Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Site and Content, including all associated intellectual property rights, are the exclusive property of Elfster and/or its licensors or authorizing third parties. You will not remove, alter or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Site, Content or User Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Elfster used on or in connection with the Site and Content are trademarks or registered trademarks of Elfster in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Site, Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
    3. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Site or Collective Content, except to the extent you are the legal owner of certain User Content or as expressly permitted in these Terms or in any other agreement entered into between you and Elfster. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Elfster or its licensors, except for the licenses and rights expressly granted in these Terms.
    4. Subject to your compliance with these Terms, Elfster grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Collective Content made available on or through the Site and accessible to you, solely for your personal and non-commercial use.
    5. By creating, uploading, posting, sending, receiving, storing, or otherwise making available any User Content on or through the Site, you grant to Elfster a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such User Content to access, use, reproduce, store, edit, translate, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, publicly perform, publicly display, and otherwise exploit in any manner such User Content to provide and/or promote the Site, in any media, technology, or platform, whether now known or hereafter developed,. Unless you provide specific consent, Elfster does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your User Content.
    6. You are solely responsible for all User Content that you make available on or through the Site. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available on or through the Site or you have all rights, licenses, consents, and releases that are necessary to grant to Elfster the rights in and to such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission, or transmittal of the User Content or Elfster's use of the User Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights, or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
    7. You will not use the Site in a manner or post, upload, publish, submit or transmit any User Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is abusive, violent, or threatening or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities or substances; or (vi) violates any other Elfster policy. Elfster may, without prior notice, remove, or disable access to, any User Content that Elfster finds to be in violation of these Terms, or otherwise may be harmful or objectionable to Elfster, its Users, third parties, or property.
    8. Elfster respects copyright law and expects its Users to do the same. If you believe that any content on the Site infringes copyrights you own, please notify Elfster at help@elfster.com.

    Elfster will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA" ) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Elfster's Copyright Agent at help@elfster.com (Subject line: "DMCA Takedown Request"). You may also contact the Copyright Agent by mail at 2930 Domingo Ave #531, Berkeley, CA 94705.

    To be effective, the notification must be in writing and contain the following information:

    • a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
    • identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works or other intellectual property are covered by a single notification, a representative list of such works or other intellectual property;
    • identification of the content that is claimed to be infringing or to be the subject of infringing activity, and where the content that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
    • your address, telephone number, and email address;
    • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
    • a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or are authorized to act on the behalf of the owner of the copyright or intellectual property that is allegedly infringed.

    If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

    • your physical or electronic signature;
    • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
    • a statement by you, made under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content to be removed or disabled; and
    • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the [insert federal district] and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

    If a counter-notice is received by the Copyright Agent, Elfster will send a copy of the counter-notice to the original complaining party informing them that Elfster may replace the removed content or cease disabling it within ten (10) business days. Unless the owner of the applicable copyrighted work or other intellectual property files an action seeking a court order against Elfster or the user, the removed content may be replaced, or access to it restored, within ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.

    In accordance with the DMCA and other applicable law, Elfster has adopted a policy of terminating, in appropriate circumstances and at Elfster's sole discretion, the accounts of users who are deemed to be repeat infringers. Elfster may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

  6. Prohibited Activities
    1. You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Site. In connection with your use of the Site, you will not and will not assist, encourage, or enable others to:
      • breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms;
      • use the Site for any purpose other than the Purpose;
      • use the Site or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Elfster endorsement, partnership or otherwise misleads others as to your affiliation with Elfster;
      • copy, store or otherwise access or use any information, including personally identifiable information about any other User, contained on the Site in any way that is inconsistent with these Terms or that otherwise violates the privacy rights of Users or third parties;
      • use the Site in connection with the distribution of unsolicited commercial messages ("spam");
      • discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behavior;
      • use, display, mirror or frame the Site or Collective Content, or any individual element within the Site, Elfster's name, any Elfster trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, without Elfster's express written consent;
      • dilute, tarnish or otherwise harm the Elfster brand in any way, including through unauthorized use of Collective Content, registering and/or using Elfster or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Elfster domains, trademarks, taglines, promotional campaigns or Collective Content;
      • use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Site for any purpose;
      • harvest personal information about other Users;
      • create accounts for the purposes of creating public lists with back links for link farm purposes’
      • avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Elfster or any of Elfster's providers or any other third party to protect the Site;
      • access, tamper with, or us non-public areas of the Site, or attempt to probe, scan or test the vulnerability of any Elfster system or network or breach any security or authentication measures;
      • attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site;
      • take any action that damages or adversely affects, or could damage, adversely affect, or interfere with the performance or proper functioning of the Site;
      • violate or infringe anyone else's rights or otherwise cause harm to anyone; or
      • use the Site to impersonate or misrepresent your affiliation with any person or entity.
    2. Elfster does not pre-screen User Content or accounts. You acknowledge that Elfster has no obligation to monitor the access to or use of the Site by any User or to review, disable access to, or edit any User Content, but has the right to do so to (i) operate, secure and improve the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Users' compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to User Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Users agree to cooperate with and assist Elfster in good faith, and to provide Elfster with such information and take such actions as may be reasonably requested by Elfster with respect to any investigation undertaken by Elfster or a representative of Elfster regarding the use or abuse of the Site.
    3. If you feel that any User you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Elfster by contacting us at help@elfster.com; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
  7. Term and Termination, Suspension and other Measures
    1. This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Elfster terminate the Agreement in accordance with this provision.
    2. You may terminate this Agreement at any time by contacting us at help@elfster.com and providing notice of your intent to terminate. If you terminate this Agreement, any further use of the Site will create a new Agreement under these Terms. You may also contact us at the forgoing address to submit (i) a data access request, pursuant to which we will provide you with confirmation of all personal data currently being stored or otherwise used by us and relating to you, and access to the same; (ii) a data rectification request, pursuant to which we will rectify any incorrect data currently being stored or otherwise used by us and relating to you; and/or (iii) a data deletion request, pursuant to which we will delete all personal data currently being stored or otherwise used by us and relating to you.
    3. Without limiting our rights specified below, Elfster may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
    4. Elfster may immediately, without notice terminate this Agreement if (i) you have breached your obligations under these Terms, (ii) you have violated applicable laws, regulations or third party rights, or (iii) Elfster believes in good faith that such action is reasonably necessary to protect the personal safety or property of Elfster, its Users, or third parties (for example in the case of fraudulent behavior of a User). If Elfster has terminated your account, you will not create another account or otherwise attempt to access your account without first receiving express written permission of Elfster to do so.
    5. In addition, Elfster may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body; (ii) if you have breached these Terms, applicable laws, regulations, or third party rights; (iii) if you have provided inaccurate, fraudulent, outdated or incomplete information during the Elfster Account registration, listing process or thereafter; (iv) if Elfster believes in good faith that such action is reasonably necessary to protect the personal safety or property of Elfster, its Users, or third parties, or to prevent fraud or other illegal activity; (v) for any other bona fide reason determined by Elfster in a good faith exercise of its reasonable business judgment:
      • Limit, restrict or prohibit your access to or use of the Site;
      • temporarily or permanently revoke any special status associated with your Elfster account; or
      • temporarily or, in cases of severe or repeated offenses, permanently suspend your Elfster account.
    6. When this Agreement has been terminated by Elfster, you are not entitled to a restoration of your Elfster account or any of your User Content. If your access to or use of the Site has been limited or your Elfster account has been suspended or this Agreement has been terminated by us, you may not register for a new Elfster account or access and use the Site through a Elfster account of another User.
    7. If you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect.
  8. Distribution Channels
    1. Third-Party Distribution Channels. The Applications may be made available through the Apple App Store, the Google Play Store, or other distribution channels ("Distribution Channels" ). If you obtain the Applications through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third-party products and services.
    2. Apple-Enabled Software. d With respect to Applications hat are made available for your use in connection with an Apple-branded product (the "Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
      • Elfster and you acknowledge that these Terms of Service are concluded between Elfster and you only, and not with Apple Inc. ("Apple" ), and that as between Elfster and Apple, Elfster, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
      • You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
      • Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the "Usage Rules" set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple's Family Sharing or volume purchasing programs.
      • Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
      • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Elfster's sole responsibility, to the extent it cannot be disclaimed under applicable law.
      • Elfster and you acknowledge that Elfster, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
      • In the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party's intellectual property rights, as between Elfster and Apple, Elfster, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
      • You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
      • If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Elfster as follows:
        2930 Domingo Ave #531, Berkeley, CA 94705
      • You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
      • Elfster and you acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
    3. Google-Sourced Software. The following applies to any Application you download from the Google Play Store ("Google-Sourced Software" ): (a) you acknowledge that these Terms of Service are between you and Elfster only, and not with Google, Inc. ("Google" ); (b) your use of Google-Sourced Software must comply with Google's then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Elfster, and not Google, is solely responsible for Elfster's Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to Elfster's Google-Sourced Software.
  9. Disclaimers

    IF YOU CHOOSE TO USE THE SITE OR COLLECTIVE CONTENT, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE SITE AND COLLECTIVE CONTENT IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ELFSTER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ELFSTER MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SITE.

    You agree that you have had whatever opportunity you deem necessary to investigate the Services, laws, rules, or regulations that may be applicable to your use of the Site and that you are not relying upon any statement of law or fact made by Elfster relating to such use.

    The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

  10. Liability

    You acknowledge and agree that, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO, USE, OR INABILITY TO USE THE SITE OR COLLECTIVE CONTENT, YOUR PUBLISHING OR VIEWING OF ANY CONTENT VIA THE SITE OR ANY OTHER INTERACTION YOU HAVE WITH OTHER USERS WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER ELFSTER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION: 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 (I) THESE TERMS, (II) FROM THE USE OF OR INABILITY TO USE THE SITE OR COLLECTIVE CONTENT, OR (III) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE, INTERACT OR MEET WITH AS A RESULT OF YOUR USE OF THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ELFSTER 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 ELFSTER'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, OR FROM THE USE OF OR INABILITY TO USE THE SITE OR COLLECTIVE CONTENT AND IN CONNECTION THEREWITH, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR USE OF THE SITE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY (EXCLUDING PURCHASES MADE FROM THIRD-PARTY SERVICES), OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELFSTER AND YOU.

    SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE.

    IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED "INDEMNIFICATION", "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

  11. Indemnification

    You agree to release, defend (at Elfster's option), indemnify, and hold Elfster and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, demands, damages, losses, and expenses, settlements, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms, (ii) your improper use of the Site or any Services, (iii) your interaction with any User, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction or use, (iv) your breach of any laws, regulations or third party rights; or (v) your use of any Third-party Services.

  12. Dispute Resolution and Arbitration Agreement
    PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
    1. Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Elfster, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Elfster are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
    2. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND ELFSTER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND ELFSTER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
      Pre-Arbitration Dispute Resolution. Elfster is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at help@elfster.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Elfster should be sent to 2930 Domingo Ave #531, Berkeley, CA 94705 ("Notice Address" ). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Elfster and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Elfster may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Elfster or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Elfster is entitled.
    3. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA" ) rules and procedures, including the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
      Unless Elfster and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Elfster agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
    4. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Elfster or you under the AAA Rules, Elfster and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Elfster will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Elfster will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.
    5. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
    6. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Service will continue to apply.
    7. Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms of Service to the contrary, Elfster agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Elfster written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
  13. Feedback
    We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site ("Feedback" ). You may submit Feedback by emailing us at help@elfster.com, or through the "Help" or "Contact Us" sections of the Site, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
  14. Applicable Law and Jurisdiction
    If you reside in the United States, these Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 12 must be brought in state or federal court in San Francisco, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in San Francisco, California.
  15. General Provisions
    1. Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Elfster and you pertaining to the subject matter hereof and supersede any and all prior oral or written understandings or agreements between Elfster and you in relation to the access to and use of the Site.
    2. No joint venture, partnership, employment, or agency relationship exists between you and Elfster as a result of this Agreement or your use of the Site.
    3. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
    4. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
    5. Elfster's failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
    6. You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Elfster's prior written consent. Elfster may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
    7. Unless specified otherwise, any notices or other communications to Users permitted or required under this Agreement, will be in writing and given by Elfster via email, Site notification, or messaging service (including SMS). You consent to receive communications from Elfster in electronic form and those communications will satisfy any legal requirements that such communications be in writing.
    8. If you have any questions about these Terms please email us at help@elfster.com, or at the contact information provided in the "Help" or "Contact Us" section of the Site.
    9. Where notice to Elfster is required by any law or regulation, notice may be addressed to:
      2930 Domingo Ave #531, Berkeley, CA 94705

Communications through any Site email or messaging systems will not constitute legal notice to Elfster or any of its officers, employees, agents, or representatives.