Elliephant Terms of Use Membership

Elliephant Terms of Use.

This document (the “Terms of Use”) governs all services provided by Elliephant Gifts Group Pty Ltd (“Elliephant”, “we”, “our” or “us”) through our internet application, and all content, services, and products available at or through the Platform. These Terms of Use are very important and govern the relationship between us and users.

By accessing any part of our internet application or our website www.elliephant.com  (collectively, the “Platform“), or by having any of your Staff access the Platform, you accept and agree to be bound by the provisions, terms and conditions as set out in these Terms of Use. You are also confirming that you have read and understood the Terms of Use.

IF YOU DO NOT AGREE TO OR UNDERSTAND ALL THE PROVISIONS, TERMS AND CONDITIONS SET OUT BELOW, THEN YOU MAY NOT ACCESS THE PLATFORM OR USE ANY OF OUR SERVICES. 

“Agreement” means all of the provisions, terms, conditions and notices contained or referenced in these Terms of Use, and all other Elliephant rules and policies (including but not limited to the Privacy Policy available on the Platform) and procedures that may be published on the Platform and revised by Elliephant from time to time.

“Customer” means a user whose primary purpose(s) in accessing the Platform is to purchase or obtain goods or services made available by Merchants, learn about the goods and services offered by Merchants or have their Staff learn about the goods and services offered by Merchants.

“Content” means any content, whether created by Elliephant or by a Merchant, featured or displayed throughout the Platform, including but not limited to text, documents, information, data, articles, opinions, images, photographs, graphics, software, applications, video recordings, audio recordings, sounds, designs, features and other materials that are available on the Platform.

“Merchant” means a third party who sells, offers for sale, advertises or promotes its goods or services through the Platform to Customers and/or Staff.

The “Service” and “Services” include all functions and services provided directly by Elliephant through the Platform, including but not limited to providing Content.

“Staff” means employees, staff, contractors, personnel or representatives under your employment, control, direction or supervision.

“Testimonials” are written statements submitted by Users to describe their experience using the Service. For purposes of the Terms of Use, Testimonials constitute Content unless otherwise specified below.

“Users,” refers to you and your that has visited or is using our Platform and/or the Service, and includes Customers.

2. About our Service and our Liability.

Elliephant provides Users with access to the Platform. Apart from facilitating the interactions of Users and Merchants on the Platform and aggregating gifts on the Platform, Elliephant has no other role apart from providing and forwarding occasional information on products and services available through the Platform.

As more particularly set out below, Elliephant, including its officers, directors, shareholders or employees, will not be liable to You or Your Staff for the actions or omissions of any User of the Platform or any Merchant. We make no guarantees, representations or warranties, whether express or implied, with respect to the quality of any products or services offered, provided, purchased or supplied by any User or Merchant (as the case may be) of the Platform.

3. Third Party Applications – Payment Processing

The Platform engages payment processing technology independently developed and maintained by Stripe (www.stripe.com). Elliephant has no role in the development of Stripe’s technology and is simply a client of their service. Users must review and accept Stripe’s terms of use in order to use the payment processing technology available on the Platform. Further information about our policies related to your confidential payment information is included in the Privacy Policy.

4. Independent Parties

Users and Merchants are each independent parties acting in their own personal or corporate capacities, and are not acting as employees, agents, partners or representatives of Elliephant. Elliephant does not make any warranty, guarantee or representation in relation to any products or services offered, promoted or sold by Merchants on or through the Platform.

You acknowledge that you, your Staff, and Merchants, are each independent parties under the Agreement and no other relationship with Elliephant is intended, including a partnership, joint venture, employer/employee, franchise or other special relationship.

You acknowledge that when you or your Staff place an order for the supply of any goods or services through the Platform:

• you or your Staff are placing that order with the Merchant that is required to supply or provide the goods or services the subject of your order;
• that you or your Staff are not placing that order with Elliephant;
• Elliephant is not the supplier or seller of the goods or services the subject of your or your Staff’s order;
• Elliephant is not responsible for performing the sale transaction that is the subject of your or your Staff’s order; and
• to the extent lawful, any claim or right to claim you or your Staff hold in connection with your or your Staff’s order or the delivery, non-delivery or late delivery of any goods or services the subject of that order, is against the relevant Merchant and not Elliephant.

 

5. Full Release and Indemnification.

By using the Platform and/or Service, to the extent lawful Users agree to limit their legal remedies to claims against each other, Merchants or any third parties, excluding Elliephant, who may have caused Users harm or damages.

To the extent lawful:

• Users agree to indemnify and hold harmless Elliephant from and against any and all claim, actions, demands, damages and expenses,, including legal fees and disbursements, incurred or suffered by Elliephant or Elliephant’s directors, officers, shareholders or employees arising out of Users’ use of the Platform and the Service, including but not limited to Users’ violations of any term of the Agreement; and
• Without limiting clause 5(a), you agree to indemnify and hold harmless Elliephant from and against all claim, actions, demands, damages and expenses, including legal fees and disbursements, incurred or suffered by Elliephant as a result of your Staff making or commencing any claim, action or demand against Elliephant or Elliephant’s directors, officers, shareholders or employees.

To the extent lawful, in the event of any dispute between a User and another User, or between one or more Users and any Merchant, Users shall grant Elliephant a release from any and all claims, causes of action, demands and damages (actual and consequential) of every kind and nature whatsoever, known and unknown, arising out of or in any way connected with such dispute, the Platform or the Service.

6. Authorization and Acknowledgement.

By using the Platform and Service, you understand that use of the Platform is a privilege which is granted to Users in exchange for agreeing to the Agreement, including these Terms of Use. Elliephant may terminate your right to access the Platform and the Service without liability and without prior notice.

7. Representation to Enter into Binding Contract.

By accessing the Platform, you represent and warrant that if you are an individual, you have capacity to enter into a binding contract, or, if you are accessing the Service or Platform on behalf of a corporation, partnership, or other entity, that you are authorised to enter into and bind that entity to a contract.

8. Compliance with Laws.

You represent and warrant that:

• you have the authority to bind yourself to the Agreement;
• your use of the Platform and Service will be solely for purposes that are permitted by the Agreement;
• your use of the Service will not infringe or misappropriate the confidentiality or intellectual property rights of any User or third-party; and
• your use of the Service will comply with all applicable local, state/territory and federal laws, rules and regulations, and with all Elliephant policies.

Where you order goods or services in the Platform for or on behalf of your Staff which requires you to upload or input the personal information of any Staff in the Platform, you:

• represent and acknowledge that you have first obtained the written permission of your Staff to do so and that your Staff are aware that such personal information will be provided to one or more Merchants in connection with the supply and delivery or performance of goods or services;
• on request from us you will provide us with written confirmation of your compliance with the obligations in clause 8(e); and
• to the extent lawful indemnify Elliephant in connection with any claim by your Staff alleging breach of any privacy law in connection with your provision of the personal information of your Staff to Elliephant, a Merchant or the inputting or uploading of such personal information to the Platform.

 

9. User Conduct.

You may not use the Platform in any manner that could damage, disable, overburden or impair our or our providers’ servers or network, or interfere with any other party’s use and enjoyment of the Platform or the Service. You may not attempt to gain unauthorised access to the Service or computer systems or networks through hacking, password mining or any other means. In addition to our rights pursuant to the Agreement, we may take any legal action and implement any technical remedies to prevent the violation of this provision and to enforce this Agreement.

10. Constructive Comments and Prohibited Content.

In certain circumstances, Users may be asked to provide Content and/or Testimonials in order to improve the experience of using the Platform, provide constructive comments and feedback on their experience using the Platform, or purchasing goods and services from a specific Merchant. By submitting a Testimonial, Users agree that Elliephant may publish the Testimonial in a public manner.

Elliephant shall not be under any obligation to make any Content or Testimonial public. Testimonials will only be published publicly at the discretion of Elliephant.

You agree that you will not under any circumstances use the Platform to transmit any Content that:

• is false, untrue, misleading, or otherwise incorrectly characterizes your experience using the Platform or the interacting with Elliephant or a User;
• is unlawful or promotes unlawful activities;
• defames, harasses, abuses, threatens or incites violence toward any individual or group;
• is pornographic, inappropriate, discriminatory or otherwise victimises or intimidates any individual group on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability;
• is spam, is machine- or randomly-generated, constitutes unauthorised or unsolicited advertising, chain letters, any other form of unauthorised solicitation or any form of lottery or gambling;
• contains or installs any viruses, worms, malware, Trojan horses or other content that is designed or intended to disrupt, damage or limit the function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
• infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights;
• impersonates any person or entity, including any of our employees, agents or representatives; or
• violates the privacy of any third party.

 

11. Underage Users.

Users under the age of 18 are not permitted to purchase alcohol products through the Platform.

12. Right to terminate accounts.

We reserve the right but not the obligation to, in our sole discretion, determine whether any User conduct is appropriate and complies with the Agreement, or terminate or deny access to and use of the Service to any User for any reason, with or without prior notice.

13. Intellectual Property Infringement.

Elliephant respects others’ intellectual property rights and we require Users to do the same.

We may terminate a User’s access to the Platform if we determine that a User infringes on others’ copyrights or other intellectual property rights (including our intellectual property rights or the intellectual property rights of Merchants).

Elliephant retains ownership of all intellectual property rights of any kind related to the Platform and Service, including applicable copyrights, patents, trademarks and other proprietary rights. Other trademarks, service marks, graphics and logos used in connection with the Platform and the Service may be the trademarks of Users and third parties. The Agreement does not transfer from us to Users any intellectual property whatsoever, and all right, title and interest in and to such property will remain solely with the original owner. We reserve all rights that are not expressly granted under the Agreement.

Except for marks directly owned by and identified with Merchants, Elliephant and all other identifying marks, proprietary marks, or trademarks that appear, are displayed or are used on the Platform or as part of the Service are registered or common law trademarks of Elliephant. These marks may not be copied, downloaded, reproduced, used, shared, stored, modified or distributed in any way without our prior written permission.

14. Email and Electronic Communications.

We use electronic means to stay in touch with Users, including text messages, emails and notifications.

For contractual purposes, until such time as you exercise a written choice to opt out of a particular communication channel, you (i) consent to receive communications from Elliephant in electronic formats, including via text messages sent to the phone number you have submitted via the Platform; and (ii) agree that the Agreement, including all Terms of Use, agreements, notices, disclosures and other communications that Elliephant provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing and physically presented to you.

Users may cancel this Agreement at any time by discontinuing their use of the Platform and the Service.

Elliephant may terminate Users’ access to all or any part of the Platform at any time, with or without cause or reason, with or without notice, effective immediately for any reason deemed appropriate in our sole discretion.

15. Deletion of Account Information

Users may request the deletion of their personal information and identifying information from Elliephant’s servers, and Elliephant will comply with that request in a reasonable timeframe except to the extent Elliephant is required by law to retain such information. Such a request may necessitate the termination of the User’s account. Further information is available in our Privacy Policy on our website.

16. Disclaimer of Warranties.

To the extent lawful, Elliephant provides the Platform, the Content and the Service “as is,” without express or implied warranty or guarantee of any kind. To the extent lawful we make no express or implied warranties or guarantees about the Service to Users. To the maximum extent permitted by law, Elliephant expressly disclaims and excludes the application or and liability for all warranties, whether express, implied and whether pursuant to any statute, law, contract, tort, equity, custom or  usage, with respect to the Platform and the Service including, without limitation, any warranties of merchantability, of satisfactory quality, reliability, fitness for a particular purpose, conformance with a description, title, security, accuracy and non-infringement related to the Platform and any goods or services made available to Customers therein.  To the extent it is illegal to exclude such warranty or guarantee, our liability to You is limited to, at our nomination, the reperformance of the specific Service to which the non-compliance relates or compensation for the monetary amount of the transaction that is the subject of the non-conformance.

Elliephant makes no representation or warranty to Users that the information we provide or that is provided through the Platform is effective, accurate, complete, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location; that the Service will function in an uninterrupted manner or be secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Users assume full responsibility and risk of loss resulting from any use of information, Content or other material obtained from the Platform or the Service.

17. Limitation of Liability.

To the extent lawful Elliephant will not be liable for any damages or losses arising from your or your Staff’s use of the Platform or arising under the Agreement. To the maximum extent permitted by applicable law and without limiting any other provision in this Agreement, in no event will Elliephant be liable to you for any loss of profits, interruption to business, harm to reputation, use of data, or for any incidental, direct, indirect, special, consequential or exemplary damages, however arising, that result from (i) your use or inability to use the Service; (ii) the Service generally or the software or systems that make the Service available via the Platform; or (iii) any interactions with other Users or Merchants, whether based on warranty, contract, tort (including negligence) or any other legal theory, and whether or not Elliephant has been informed of the possibility of such damage, and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. To the extent lawful Elliephant will have no liability for any failure or delay due to matters beyond our reasonable control, including the failure of any integrated or ancillary third-party service used in conjunction with the Service.

18. Modification of Terms of Use.

To the extent lawful Elliephant reserves the right to amend these Terms of Use at any time and will update these Terms of Use in the event of any such amendments.

Upon any changes in these Terms of Use, we will post the amended Terms of Use on the Platform. Users are required to periodically check the Terms of Use for any amendments, but we will take reasonable steps to notify Users of significant material changes.  Your continued use of the Platform and/or the Service following such changes shall constitute your affirmative acknowledgement of the Terms of Use, the modification and agreement to abide and be bound by the Terms of Use, as amended. If at any time you choose not to accept these Terms of Use, including following any modifications made hereto, then you are required to immediately cease your use of the Platform and/or Service.

19. Governing Law.

The Agreement and any access to or use of the Platform or the Service shall be governed by, and construed in accordance with, the laws in force in Victoria, Australia.

20. Disputing Credit Card Charges

In the event a Customer wishes to challenge or dispute any charge made to his or her credit card arising from use of the Platform, the Customer must first contact the applicable Merchant and advise the Merchant of the basis for disputing the charge. The Customer agrees to wait at least 10 business days or such other period required by law, after contacting the Merchant, to allow the Merchant to respond before contacting the Customer’s credit card company to request the recall or modification of the disputed charge.

21. Disputes

If any claim, dispute or controversy occurs between a User and Elliephant relating to the interpretation or implementation of any of the provisions of this Agreement, such dispute shall be resolved by private negotiation.  In the absence of a resolution within 14 days of the making of a claim in writing by a party to this Agreement to the other party, either party may commence court action in a court having jurisdiction in the State of Victoria, Australia, to resolve the dispute. Nothing in this clause prevents either party from commencing court proceedings in a court having jurisdiction in the State of Victoria at any time for the purpose of seeking urgent injunctive relief.  This Agreement and any dispute hereunder are governed by the laws of Victoria, Australia.

22. Severability.

If any portion or provision of the Agreement shall to any extent be declared illegal or unenforceable at law, then the remainder of this Agreement, or the application of such portion of provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of the Agreement shall be valid and enforceable to the fullest extent permitted by law.

23. No Assignment.

Elliephant may assign or delegate the Agreement, including the Terms of Use and/or the Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent and without prior notice to you.

Users may not assign or delegate any rights or obligations under this Agreement, including the Terms of Use or Privacy Policy, without Elliephant’s prior written consent, and any unauthorised assignment and delegation is void.

24. Headings and Summaries.

The headings, captions and summaries in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.

25. No Waiver of Covenants.

Failure by any party to insist upon the strict performance of any of the covenants, agreements, terms, provisions or conditions contained in the Agreement or to exercise any election shall not be construed as a waiver or relinquishment of such covenant, agreement, term, provision or condition but the same shall continue and remain in full force. No waiver shall be deemed to have been made unless expressed in writing.

26. Entire Agreement.

The Agreement, in combination with all policies and guidelines related thereto (including but not limited to the Privacy Policy), incorporated by reference, constitute the entire agreement between you and Elliephant and supersede all prior communications, agreements and understandings, written or oral, with respect to the subject matter of the Agreement.

 

You acknowledge that you fully understand these Terms of Use and will be bound by these Terms of Use.