Last Updated: July 20, 2012
ATTENTION: PLEASE READ THIS MERCHANTS AGREEMENT CAREFULLY AS IT SETS OUT THE LEGAL RELATIONSHIP BETWEEN YOU AND ELEPHANTI.
The Elephanti.com website (the "Elephanti Site") and the Elephanti
mobile application (the "Elephanti App") are provided by Elephanti Pte.
Ltd. (together with its successors and assigns, the "Company" or "we").
The Elephanti Site and the Elephanti App, together with all their current
and future editions, versions and releases, as well as all their current
and future extensions and derivatives (including, without limitation,
Elephanti WAP and mobiles sites and Elephanti official pages and channels
on third-party social media sites), are referred to hereinafter
collectively as the "Elephanti Platform." This Agreement constitutes a legally binding agreement between the Company
and each merchant that uses the Elephanti Platform to advertise,
promote and offer its goods or services ("you" or "Merchant"). Fees
and related charges can be applicable in connection with certain
uses of the Elephanti Platform by you ("Fees"). By registering
with us and providing your credit card information, you agree to
be responsible for the payment of such Fees.
and Copyright Policy, each of which constitutes an integral part of this Agreement
and is incorporated herein by this reference. By using the Elephanti Platform or any
From time to time, we may modify this Agreement in our sole discretion. If we make material
changes to the terms of this Agreement, we will inform you by posting a notice on the
Elephanti Platform. If you are a registered user of the Elephanti Platform, we may also
notify you of the changes via email and/or may ask you to affirmatively accept the changes
at the time of your next account login on the Elephanti Platform. By continuing to use the
Elephanti Platform after such notice and/or acceptance, you agree to be bound by this Agreement
2. Available Services
2.1 Basic Services. The following services are available to each participating Merchant, free of charge by the Company:
(i) Merchant Home & Profile Pages. When you register as a Merchant on the Elephanti Platform, we require you to establish a home page as well as one or more profile pages about your business (collectively "Merchant Home & Profile Pages"). If you have more than one Store, you may create separate Merchant Home & Profile Pages for each of your Stores. Your Merchant Home & Profile Pages (including for each of your Stores) must provide the following information at a minimum: (1) a street address with nearest cross street (and street location of entrance, if different from the street address), (2) a telephone number, (3) hours of operation, (4) an image of the storefront, (5) at least one category of the goods and services provided by the Store for the Merchant profile, and, if applicable, (6) an internal map of the Store indicating the location of products and services in the Store (collectively the "Required Information"). Your Merchant Home & Profile Pages may be updated by you on a real time basis with respect to the availability of inventory, special deals, special offers, clearances, discounts, and current retail service offerings.
(ii) Catalog. Each Merchant is provided the option of populating an on-line catalog listing its products and services and, where applicable, a menu (a "Catalog"). The Catalog is entirely at the Merchant's discretion to create, edit, and keep up to date. The Merchant is able to indicate prices, quantities and descriptions of the products and services offered and has sole responsibility for the content of the Catalog.
(iii) Check-In & Customer Alerts. If a Consumer User has location-based services activated on his or her mobile device and "checks in" via his/her Elephanti App upon entering a Merchant's Store (a "Check-In"), the Merchant receives an electronic notification that the Consumer User has entered the Store (a "Customer Alert"). Once the link is established by the Check-In, the Elephanti Platform transmits relevant information independently to (1) the Consumer User's account, as well as the Consumer User's mobile device and (2) the Merchant/Store. The Consumer User can view, via their mobile device, relevant information transmitted by the Merchant to the Elephanti Platform, including any Check-In Discount (see Section 6(b)) and other concessions being offered on items for sale. The Merchant is able to view the Consumer User's preferences and other pertinent information about the Consumer User in relation to the Merchant's products and services, potentially including information regarding reservations, orders from a menu, requests for service or assistance, reviews and ratings from users, and other alerts. The Merchant also may see reviews and ratings submitted by that Consumer User in the past and at any time while in the Store. The Merchant may see photos in which the Merchant has been tagged. These photos would appear on the Merchant′s home page or profile page under a photo album called "Fan Photos." This is only shown if the Merchant enables Fan Photos to be displayed.
(iv) Loyalty Programs. A Merchant that has established a loyalty program or other promotion scheme may administer it via the Elephanti Platform.
2.2 Paid Services. The following services are available to participating Merchants, subject to payment of required Fees as set forth in Section 4:
(i) Push Advertising. A Merchant can have its Store(s), product(s) and service(s), menus, special deals/offers, special sales events, promotions, etc. advertised directly to a Consumer User's account home page or to his/her mobile device via the Elephanti App (a "Push Ad"). If there are special prices, discounts or other offers from the Merchant, a Consumer User must Check-in via the Elephanti App to be able to take advantage of them. Advertising to a Consumer User will be based on that Consumer User's Preferences. The Company will display Merchant ads to a selection of Consumer Users in the vicinity of the Store(s) and based on Consumer Users' interests in the product or service being advertised.
When a Merchant chooses to advertise on the Elephanti Platform via Push Ad, it can select an ad layout from a selection of templates pre-designed by Elephanti based on information and pictures gathered from the Merchant Home & Profile pages, or create its own ad layout based on a selection of options, sizes, and configurations. For each ad campaign, a Merchant must specify the desired number of Check-Ins (i.e., how many Consumer Users (not to exceed 999) it wishes to have physically visit its Store and Check-in via the Elephanti App on their mobile devices) ("Requested Traffic"). The Company's system will calculate and show the estimated duration of the Merchant ad campaign based on the available recipient pool and the requested number of Check-ins, as well as the amount of applicable Fees payable by the Merchant for the ad campaign. If the Merchant changes its selection and requested number of Check-Ins, the Company's system will recalculate the estimated duration and the amount of applicable Fees and will show the new figures. Once the Merchant finalizes its selection and requested number of Check-Ins for an ad campaign, the Company's system will check the proposed ad against the Company's editorial guidelines for Merchant advertising. If the proposed ad meets such guidelines, the ad will be approved and will go into the Company's ad pool. If the proposed ad is disapproved, the Merchant will be notified and will be given opportunity to make changes to its proposed ad.
For an approved Merchant ad campaign, the Company will use its proprietary algorithms designed to show the Merchant ad to the requested number of Consumer Users during the estimated duration in order to generate the Requested Traffic. In its sole discretion, the Company may extend the estimated time period of a Merchant ad campaign until the desired number of Check-Ins is achieved. Similarly, the Company may stop a Merchant ad campaign prior to the end of the estimated time period if, in its judgment, the Requested Traffic has been met.
(ii) Calendared Sales Events. If and when activated by Elephanti, a Merchant can arrange for its Store sales events to appear on a Consumer User's account calendar on the Elephanti Platform (a "Calendar Notice," and each such sales event, a "Calendared Sales Event"). Transmittal of Calendared Sales Events to a Consumer User will be based on that Consumer User's Preferences and will require that the Consumer User agree to receive Calendar Notices.
(iii) Site Advertising. If and when introduced by the Company, a Merchant may contract for general banner advertising on the Elephanti Platform, which advertising may be viewable by the general public.
(iv) Analytics. A Merchant may request the compilation of statistical information (in aggregate and anonymous form only) such as the Merchant's customer demographics, competition ranking, sales and product analysis (collectively "Analytics").
3. Selection of Services
3.1 Merchant Home & Profile Pages. This is part of the Basic Services provided by the Elephanti Platform, and is provided to any Merchant that successfully registers on the Elephanti Platform. If you register on behalf of a Registered Affiliate, you will act as agent and administrator for that affiliate ("Administrator"). In that event, as the context requires, references in this Agreement to you will be interpreted to include you in your capacity as Administrator. The Merchant Home & Profile Pages are viewable by the general public.
3.2 Catalog. The Catalog feature must be activated by you via the Elephanti Platform.
3.3 Customer Alerts. The Customer Alerts feature must be activated by you via the Elephanti Platform by checking the box marked "Customer Alerts." Subject to Section 4, Customer Alerts may be activated or deactivated at any time.
3.4 Push Advertising. The Push Ad feature must be selected by you and is subject to the payment of required Fees pursuant to Section 4 (which Fees shall be non-refundable). You acknowledge and agree that the institution of a Push Ad under the agreed terms does not assure that the Requested Traffic will be achieved or that any Consumer Users who checks in via the Elephanti App will make any purchases at your Store. Further, the Company cannot guarantee the manner in which the Requested Traffic is distributed over the selected time period. The Company makes no representations or warranties, express or implied, as to the effectiveness of any Push Ad to generate sales.
3.5 Calendared Sales Events. The Calendared Sales Events feature must be selected by you, and is subject to the payment of required Fees pursuant to Section 4.
3.6 Site Advertising. The Site Advertising feature, once operative, must be selected by you and is subject to the payment of required Fees pursuant to Section 4.
3.7 Analytics. The Analytics feature must be selected by you and is subject to the payment of required Fees pursuant to Section 4.
4. Applicable Fees for Paid Services
4.1 Applicable Fees. You will be apprised of the applicable Fees for Paid Services at point of purchase. Fees payable for the respective Paid Services may vary and are subject to change. The Company may increase or add new fees and charges for any existing Services by giving you at least 30 days' advance notice. Fees and charges for any new Service or new feature of a Service will be effective when the Company posts them on the Elephanti Platform or at point of purchase, as applicable, unless the Company expressly states otherwise in a notice.
4.2 Method of Payment, etc.
(i) In accordance with Section 6(a), by checking "'Agreed" you authorize the Company to charge your credit card for the amount of any fees and other charges payable by you pursuant to this Section 4. The Company may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. All amounts payable under this Agreement are required to be made without set off or counterclaim, and without any deduction or withholding.
(ii) All fees and charges payable by you are subject to the imposition, and collection by us, of applicable taxes and duties, including value-added, sales, use and other applicable transaction taxes. You will provide the Company any information we reasonably request to determine whether we are obligated to collect value-added, sales, use and/or other transaction taxes from you, including any applicable tax identification numbers. If you are legally entitled to an exemption from any of such taxes, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. The Company will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates.
(iii) We may institute promotional campaigns from time to time. If you enter a valid promotional code (for example, providing for a free Push Ad for a specified period of time or until a specified number of Check-Ins occur), the Fees payable by you automatically will reflect a credit for the value of the promotion.
5. Certain Conditions & Terms of Service
5.1 Credit Card Authorization. You shall have provided the Company with a credit card authorization allowing us to charge your credit card for the amount of any fees and other charges payable pursuant to Section 4. You hereby covenant and agree to maintain a valid credit card authorization on file with the Company at all times.
5.2 Elephanti Discount. You may provide each Consumer User that checks in to your Store via his/her Elephanti App a discount on the price of goods or services for sale in the Store (a "Check-In Discount"). You acknowledge and agree for yourself and on behalf of your Registered Affiliates that any complaint registered with the Company by a Consumer User in regard to a failure to receive an advertised Check-In Discount may be published on the Elephanti Platform.
5.3 Required Information. You hereby covenant and agree to post truthfully and accurately all Required Information on your Merchant Home & Profile Pages. The Company reserves the right to delay posting your Merchant Home & Profile Pages on the Elephanti Platform until all of the Required Information is provided. The Company reserves the right to take down your Merchant Home & Profile Pages if any of the Required Information is missing or incorrect.
5.4 Optional Information. In addition to the Required Information, you may provide latitude and longitude coordinates to be used to locate each Store, the names of manager(s) at the Store, a number for a facsimile machine located in the Store and a contact e-mail address.
5.5 Hardware and Software Requirements. You hereby covenant and agree to comply, and to cause each Registered Affiliate to comply, with all hardware and software requirements as may be specified by the Company from time to time.
5.6 Push Advertising Protocols. You acknowledge and agree that you or Registered Affiliate may only request Push Ad for products or services identified in your Merchant profile and the Merchant profile may only identify goods or services actively being sold by you in the Store.
5.7 Calendared Sales Event Protocol. You will supply a start and end date for each Calendared Sales Event at a Store, which dates may be no more than thirty-one (31) days apart.
5.8 Site Advertising. All your advertisements must comply with the Company's editorial guidelines for Merchant advertising in order for them to be approved for display and delivery via the Elephanti Platform.
5.9 Consumer User Reviews and Ratings. Reviews and ratings about Merchants are controlled by Consumer Users who post them, and do not represent the opinions or views of the Company. You understand and acknowledge that the Company's posting of reviews and ratings submitted by Consumer Users does not constitute the Company's approval or endorsement thereof. Merchants may view reviews and ratings from Consumer Users, but only Consumer Users can modify and delete their reviews and ratings (unless deleted by the Company due to violation of the Consumer End User Agreement or applicable law).
6. Additional Conditions and Terms of Service
6.1 Age; Registration/Profile Information. As a condition of your use of the Elephanti Platform or any portion thereof, you represent and warrant that: (1) you are at least 18 years of age; (2) all registration and profile information you submit to us is your own business information and is truthful and accurate; and (3) your use of the Elephanti Platform does not violate any applicable law. We reserve the right to verify your age before any registration by you is allowed on the Elephanti Platform. Your registration may be cancelled or terminated without warning if we have any reason to believe that you may have misrepresented your age or have otherwise provided false information.
6.2 Reservation of Certain Rights. Use of the Elephanti Platform or any portion thereof is a PRIVILEGE, not a right. Such privilege is personal to you and is not transferable to any other person or entity. We reserve the right (but assume no obligation) at any time, in our sole discretion, with or without notice, and without liability to you or other Merchants, to: (1) modify, suspend, remove or terminate the Elephanti Platform, in whole or in part; (2) suspend, remove or terminate any Platform Content; (3) restrict, limit, suspend or terminate any Merchant's access to the Elephanti Platform or any Platform Content, in whole or in part; (4) monitor the Elephanti Platform, including Merchant activities on the Elephanti Platform, to determine compliance with this Agreement and any operating rules established by us, as well as to satisfy any applicable law, regulation or authorized government request; and (5) investigate any suspected or alleged violation of this Agreement and cooperate with law enforcement and/or third-parties in such investigation.
Violation. Any violation of this Agreement by a Merchant may result in civil or criminal liability, and we may, in addition to any remedy that we may have at law or in equity, immediately terminate permission for any Merchant (or, if necessary, for all Merchants) to use the Elephanti Platform. Please note that a violation of this Agreement by someone accessing the Elephanti Platform through your account on the Elephanti Platform will be deemed a violation by you, whether or not such violation is with your knowledge or consent.
6.3 Right to Disclose. You understand and agree that we have the right at all times to disclose the identity of any Merchant or the source of any Merchant Content in connection with internal investigation of any abuse of the Elephanti Platform or any Platform Content, law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.
6.4 Compliance with Law, Etc. You represent, warrant and covenant that: (1) all pictures, descriptions, profile information, content, advertisements, listed products and services, Catalogs, offers, and other contents, materials and information posted or originated by you, whether on your Merchant Home & Profile Pages or otherwise on or through the Elephanti Platform or any portion thereof (collectively "Merchant Content") will comply with all applicable laws, rules and regulations in all jurisdictions served by the Elephanti Platform; (2) all Merchant Content is owned and controlled by you and/or your Registered Affiliates; and (3) no Merchant Content will violate, infringe upon, or misappropriate any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or any other right of any person or entity, or will be unlawful, threatening, abusive, defamatory, invasive, vulgar, obscene, profane or otherwise objectionable.
6.5 Registered Affiliates. You further represent, warrant and covenant that you will abide, and will cause your Registered Affiliates, and your and their agents, employees and representatives to abide, by the terms of this Agreement; and will cause each of your Registered Affiliates to indicate its affiliation with you on its Merchant Home & Profile Pages (for example: "A member of the XYZ Group of Companies"); and will conduct all your activities, and will cause your Registered Affiliates to conduct all their activities, in accordance with all applicable laws, rules and regulations.
6.6 Consumer User Content. You acknowledge and agree that the Company is not responsible for any content or material posted or originated by Consumer Users, including, without limitation, Consumer User profiles and information and material included therein, and reviews, comments and statements made by Consumer Users about Merchants, Stores, businesses, celebrities, or other persons (collectively "Consumer User Content").
6.7 Merchant Information. You covenant and agree to supply us, and keep up to date, the address of your principal place of business and your billing address.
6.8 Rankings. You covenant and agree that, if initiated, (i) the Company's "Top Ranking" of businesses and places in a geographic market are based on an algorithm calculated by ratings factors given by Consumer Users, and is not influenced by the Company, and (ii) we cannot be held accountable for your or any Registered Affiliates' failure to achieve a Top Ranking.
6.9 Indemnification. You acknowledge and agree that the Company shall not be responsible in any manner whatsoever for, and you hereby covenant and agree to indemnify and hold the Company and its affiliates, successors, assigns, agents, officers, directors and employees (collectively "Company Related Parties") harmless from and against, any and all damage, loss, liability, claim, judgment cost or expense (a "Loss") arising, directly or indirectly, from use of the Elephanti Platform by you or any Registered Affiliate, including (i) any Loss attributable to any dealings between you or any Registered Affiliate and any Consumer User, (ii) any Loss attributable to any death or personal injury claims arising from the use of your or your Registered Affiliates' products or services, (iii) any Loss attributable to your or your Registered Affiliates' Merchant Content, and (iv) any Loss attributable to your or your Registered Affiliates' use or misuse of any Consumer User Content. You further hereby covenant and agree to indemnify and hold harmless the Company and Company Related Parties from and against any Loss incurred due to a breach of any representation, warranty or covenant made by you (whether for yourself or on behalf of your Registered Affiliates) in this Agreement.
6.10 Available Services. You acknowledge and agree that the description of Services in Section 2 is indicative only and that the actual scope and extent of the Services available at any time may vary from those described and shall be those in fact accessible via the Elephanti Platform at any time.
6.11 Prohibited Uses. We do not permit or tolerate any illegal, abusive, harmful or improper use of the Elephanti Platform or any Platform Content, or any use that interferes with others' enjoyment of the Elephanti Platform or any Platform Content. If you believe that you have been a victim of any conduct described below, please report to us at support@Elephanti.com.
Without limiting the generality of the foregoing, we specifically prohibit the following:
7. Intellectual Property Rights
7.1 Ownership. All rights, title and interest, including all IP Rights, in and to all Elephanti Properties belong solely and exclusively to the Company and its successors and assigns. All Merchant Content originated by a Merchant belongs to that Merchant, and all Consumer User Content originated by a Consumer User belongs to that Consumer User.
7.2 Our Limited License to You. Subject to all other terms and conditions set forth in this Agreement, the Company hereby grants you a limited, conditional, revocable, non-exclusive, non-transferable, non-sub licensable license to access and use the Elephanti Platform and Elephanti Content for your and your Registered Affiliates' own lawful business uses and only during the term of this Agreement. Such limited license is expressly conditioned upon your full compliance with this Agreement, as well as all applicable laws. Any unauthorized access or use of the Elephanti Platform other than as expressly permitted herein is strictly prohibited. You understand and acknowledge that your unauthorized access or use of the Elephanti Platform will cause Elephanti irreparable harm and injury for which there is no adequate remedy at law. Accordingly, you agree that Elephanti will be entitled to injunctive and other equitable relief in the event of your unauthorized access or use of the Elephanti Platform.
7.3 Your Merchant Content. By posting, displaying, publishing or disseminating any Merchant Content on or through the Elephanti Platform, (1) you hereby irrevocably and unconditionally grant to the Company a free, gratis, fully paid up, royalty-free, non-exclusive, freely sub licensable, freely transferable, unrestricted license to use, copy, reproduce, display, exhibit, perform, publish, distribute, transmit, prepare derivative works based upon, and otherwise exploit such Merchant Content THROUGHOUT THE WORLD and IN PERPETUITY for any and all purposes (commercial and non-commercial), in any and all media now known or hereafter devised (including, without limitation, television, radio, print, internet, mobile, wireless, electronic and digital media); you further acknowledge and agree that, if and to the extent such Merchant Content contains your identity (such as name, likeness, voice or otherwise), the foregoing license shall automatically cover and extend to our use of your identity embodied therein in conjunction with such Merchant Content; and (2) you hereby acknowledge and agreed that the Company shall have the right (but not the obligation), at any time and in our sole discretion, to remove, delete, block, disable or deny access to any such Merchant Content if the Company believes, in its sole judgment, that such Merchant Content violates this Agreement or any applicable law, or may expose or subject the Company the Elephanti Platform to liability of any kind, or may adversely affect the Company's or the Elephanti Platform's reputation or goodwill.
7.4 Copyright Policy. To comply with the Digital Millennium Copyright Act of 1998 ("DMCA") and the Copyright Act (Chapter 63) of Singapore ("SCA"), the Company has adopted a Copyright Policy, which constitutes an integral part of this Agreement and is incorporated herein by this reference. All Merchant Content and Consumer User Content are subject to this policy.
7.5 Linking to Elephanti. You may link to the Elephanti Platform, but subject to the following conditions:
You link to the Elephanti Platform entirely at your own risk; we make no representation or warranty, express or implied, regarding the Elephanti Platform or any Platform Content (all of which is provided "as is" and "as available"); and we are under no obligation to support your link to the Elephanti Platform.
8. Disclaimer of Warranties
BY USING THE ELEPHANTI PLATFORM, YOU EXPRESSLY UNDERSTAND, ACKNOWLEDGE AND AGREE AS FOLLOWS:
9. Limitation of Liability
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR TOTAL LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH CASE, THE COMPANY'S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. Relationship of the Parties
Nothing contained herein shall be deemed to constitute either party, or any of its employees, an employee, agent or legal representative of the other party for any purpose. The relationship hereby established shall be as between principals, and the parties acknowledge and agree that this Agreement does not create an agency or any partnership, or other form of joint venture or other joint or common enterprise between the parties hereto, and none should be implied.
11. Governing Law; Dispute Resolution
By using the Elephanti Platform, you expressly acknowledge and agree that:
(1) The Elephanti Platform shall be deemed solely based in Singapore;
(2) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its conflict of laws principles;
(3) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles. All disputes and controversies which may arise between Elephanti and you in relation to or in connection with this Agreement or the Elephanti Platform or any Platform Content, shall be referred to and finally resolved by binding arbitration in New York County, New York, U.S.A., in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules") then in effect. The arbitration shall be conducted before three (3) arbitrators appointed in accordance with the ICC Rules. The award rendered by the arbitrators shall be final and binding upon both parties and each party hereto waives to the fullest extent permitted by law any right it may otherwise have under the laws of any jurisdiction to any form of appeal of, or collateral attack against, such award. The arbitration shall be conducted in the English language. The arbitrators' authority to resolve disputes and to make awards is limited to disputes between the parties alone, and is subject to the limitations of liability set forth herein. Judgment upon any awards rendered by the arbitrators may be entered in any court of competent jurisdiction, including any court having jurisdiction over any of the parties or their assets. Notwithstanding the foregoing, either Elephanti or you may seek provisional/preliminary equitable or injunctive relief from any court of competent jurisdiction in aid of arbitration, and any such application for provisional/preliminary relief shall not be deemed a waiver of the right to arbitrate. You and Elephanti agree that in the event that any proceeding is brought in connection with this Agreement, the arbitrators or court, as the case may be, may award the prevailing party reasonable attorneys' fees and costs.
(4) Any claim by you or any of your Registered Affiliates in relation to the Elephanti Platform or any Platform Content must be brought within one (1) year of the date of the event giving rise to such claim.
You may not assign this Agreement or any of your rights or obligations hereunder without the express prior written consent of the Company. Any purported assignment by you without our consent shall be null and void.
13. Entire Agreement; Severability; Waiver
This Agreement represents the entire agreement and understanding between you and Elephanti regarding the use of the Elephanti Platform (including any Platform Content) and supersedes any and all prior or contemporaneous agreements or understandings, written or oral, between the parties relating to the subject matter hereof.
If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, all of which shall remain in full force and effect. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
14.1 To Merchant. The Company may provide any notice to you under this Agreement by: (i) posting a notice on the Elephanti Platform; or (ii) sending a message to the email address then associated with your profile. Notices provided by posting on the Elephanti Platform are effective upon posting and notices provided by email are effective the date the email is sent. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your profile when we send the email, whether or not you actually receive the email.
14.2 To Company. To give the Company notice under this Agreement, you must contact the Company as follows: (i) via email at merchant_support@Elephanti.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Elephanti, Att: Merchant Services, Level 26, Prudential Tower, 30 Cecil Street, Singapore 049712. We may update the address for notices to us by posting a notice on the Elephanti Platform. Notices provided by e-mail delivery or registered or certified mail will be effective three business days after they are sent.
14.3 Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
15. Account Verification; Account Security
If you do not provide verification within 4 days after we send the initial verification email, we will send one reminder email to you. If there is still no verification by you within 4 days after we send the reminder email, we will consider your registration/account incomplete and may inactive. If your registration/account status remains incomplete and inactive for more than 14 days after your initial registration, we reserve the right to cancel your registration/account without notice.
15.2 Account Security. Merchants who register on the Elephanti Platform are solely responsible for safeguarding their account access information (including username and password). If you share your account access information with others, you will be responsible for all activities on your account by those with whom you share account access information. Please immediately notify us of any unauthorized use of your account access information or any unauthorized or suspicious activity on your account.
Without limiting other remedies, we may limit, suspend, or terminate this Agreement and your use of the Elephanti Platform, prohibit access to the Elephanti Platform and delete your account, with immediate effect and without any notice to you, if the Company believes that you are in breach of this Agreement, have been charged with copyright infringement, trademark infringement, or infringement or violation of any other right of any person or entity, or are engaging in fraudulent, immoral or illegal activities, or for any other reasons, in the Company's sole discretion. We will effect such termination by providing notice to you at the email address you have provided, and/or by preventing your access to your Merchant account. The Company reserves the right to cancel your account if it has been inactive for more than six months. We also reserve the right to discontinue all support for the Elephanti Platform, and/or for any features, services or content accessible through the Elephanti Platform at any time with or without cause. You may terminate this Agreement on ten (10) days' prior written notice, upon full payment of any outstanding balance, with or without cause. Upon termination of this Agreement by either of us: (i) all rights and licenses granted to you with respect to our Services via the Elephanti Platform shall immediately terminate; (ii) you will immediately cease any and all use of the Elephanti Platform; and (iii) you will immediately remove all copies of the Elephanti Platform and Elephanti Content from all hard drives, networks and other storage media and destroy all copies in your possession or under your control.
17. Force Majeure
Neither party will be responsible for any failure or delay in its performance under this Agreement, excluding your payment obligations, due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy or supplies, war, terrorism, riot, or natural disasters.
18. Consent to Electronic Communications, Etc.
By using the Elephanti Platform, you consent to receiving electronic communications from the Company. These communications are part of your relationship with the Company and may include, for example, notices about your account, notices about changes, updates, new features, and other important information concerning the Elephanti Platform, notices about your Merchant Home & Profile Pages, and notices concerning your transactions or relationships with Consumer Users.
Also, the Company may from time to time provide changes and updates (including, without limitation, bug fixes and error corrections) to the Elephanti Platform. If you do not accept and install such changes and updates after receiving our notice thereof, some or all portions of the Elephanti Platform may stop working properly and your continued access and use of the Elephanti Platform may be affected.
19. Processing of Application
By selecting "Agreed" you have submitted your application to participate as a Merchant on the Elephanti Platform. You will receive an electronic confirmation of our acceptance of the application.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND ALL TERMS AND CONDITIONS SET FORTH HEREIN AND YOU CONSENT TO BE BOUND BY THIS AGREEMENT.
© 2013 Elephanti, All Rights Reserved.