Welcome to the Elephants Remember!
Before using Elephants Remember, please take some time to carefully read our Terms of Service below (“Terms,” Terms of Service,” or “Agreement”). This Agreement constitutes a binding contract between you and Elephants Remember.
- Acceptance of Terms
You agree to use the Services only for lawful purposes, and that you are responsible for your use of the Services and communications with us, all of which must comply with these Terms. You agree not to use the Services in any manner that interferes with its normal operation or with any other user’s use and enjoyment of the Services.
You represent and warrant to Elephants Remember that:
- all registration information you submit is accurate and truthful;
- you will maintain the accuracy of such information;
- you have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party;
- you will not violate any rights of Elephants Remember, including intellectual property rights such as copyright or trademark rights; and
- you agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
We may, at our sole discretion, change these Terms from time to time. If changes to the Terms occur, we will notify you by posting the updated terms on the site or by email. Changes to the Terms will never apply retroactively and the updated Terms will give the exact date they go into effect. Your continued use of the Services following the posting of any changes to the Terms means you accept those new terms. As an added precaution, you should review these Terms prior to each use. In addition, some features offered through the Services may be subject to additional terms and conditions. Your use of those additional features means you agree to be subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- Elephants Remember Services
Elephants Remember is a platform focused on helping you find the perfect gift for any occasion! Through Elephants Remember, you can:
- Browse curated gift galleries;
- Sort gifts by age group, types of products, and event type; and
- Set up individual sorting accounts to always find the perfect gift for each of your loved ones.
Creating Your Elephants Remember account
You may view certain Content (as further defined below) on Elephants Remember without registering for an account, but as a condition of using certain aspects of the Services, including purchasing gifts, receiving gift analytics and suggestions, or other subscription based services, you are required to create an account using an email address (“User ID”), password, and billing information.
The Elephants Remember Services are not meant for children under the age of 13. If you are under 13 years of age, you are not authorized to use the Services. In addition, if you are under 18 years old, you may use the Service only with the approval of your parent or guardian.
You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password. You shall never use another User account without the other User’s express permission. If you discover any unauthorized use of your account, or other known account-related security breach, you must report it to contact@InsaneCapital.com immediately. You agree that you are responsible for anything that happens through your account until you close your account or prove that your account security was compromised due to no fault of your own.
Elephants Remember cannot and will not be liable for any loss or damage arising from your failure to comply with this section. Regardless of whether you create an account, you are still subject to the terms and conditions set forth in these Terms covering the delivery of the Services.
Modifications to Service
Elephants Remember reserves the right to modify, suspend, or discontinue the Services (including, but not limited to, the availability of any feature, database, or Content), whether temporarily or permanently at any time for any reason. You agree that Elephants Remember shall not be liable to your or to any third party for any modification, suspension, or discontinuation of the Services. Elephants Remember may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability.
Availability of the Site
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites, including our business partners’ sites, that will affect your use of the Service and that are beyond our control to prevent or correct. Interruptions in the Service that are beyond our control shall not serve as a basis to demand a full or partial refund of an order.
Promotional Discounts and Incentives
From time to time, Elephants Remember may provide you with promotional discounts – for example, as an incentive to use Elephants Remember’s Services, to establish an Elephants Remember account or to refer others to sign up with Elephants Remember. Such promotional programs will be governed by their own terms and conditions which will be presented at the time of such promotions. Unless otherwise provided in the promotional terms, promotional discounts are non-transferrable, cannot be redeemed for cash, and have an expiration date of one (1) year from the date of issue.
Pricing and Product Descriptions.
Elephants Remember partners with various vendors to connect you to a wide variety of products. All order processing and fulfillment on the Elephants Remember Services is provided through our vendor partners.
While Elephants Remember attempts to provide accurate descriptions of products on the Services, we do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a product is not as described, your sole remedy is to return the item, as specified in the return terms.
Additionally, Elephants Remember strives to provide accurate pricing and inventory information regarding the products available on the Services. We cannot, however, insure against pricing and inventory errors. The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. We generally do not charge your credit card until after your order has entered the shipping process. Elephants Remember reserves the right, at its sole discretion, to not process or to cancel any orders for any reason, including orders placed for a products or services that are out of stock or whose price was incorrectly posted on the Services as a result of an error. In addition, we reserve the right to correct any error, inaccuracy, or omission (including after an order has been submitted). If an error occurs or we need to correct an order, we will notify you by email.
Notice to California Residents
California Proposition 65 requires that special warnings be provided when products contain chemicals known by the State of California to cause cancer, birth defects, or other reproductive harm if the use of those products may cause exposure to those chemicals above specific limits. These warnings relate to some but not all tools, lead crystal glassware, ceramic tableware, tiffany style lamps, and electrical cords. Please call us prior to ordering if you have any questions regarding the safety of these products.
Pursuant to California Civil Code Section 1789.3, Elephants Remember provides users of the Services with the following notice: You may report complaints to the Consumer Information Division of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.
- Returns, Refunds and Exchanges
How to Return an Item
You may return a return eligible item for a refund of the merchandise total within 30 days of delivery; all you need to do is ship the item back to us. Make sure the merchandise is in its original packaging, and place it in a shipping box. Attach a label to the sealed box. Be sure to cover any old labels with the new one, or just peel them off. A black marker can also be used to cover any existing bar codes.
Return credits are issued within 72 hours once the item is received by us and inspected. If you return an item, the shipping costs will be deducted from your total return credit amount. At our discretion, a refund may be issued without requiring a return. Please note that depending on your credit card company, it may take an additional 2-10 business days after your credit is applied for it to post to your account.
Items must be in the state that you received them, and in the original packaging to qualify for a refund (please do not wear, assemble, or modify the product in any way). The few exceptions that cannot be returned include:
- Clearance Items
- Gift Certificates
- Personalized Items
- Items Marked as “No-Return” at the time of purchase
How to return a gift
Please contact us at contact@InsaneCapital.com for assistance returning a gifted item. We will some information in order to pull up the account that the gift was purchased on. You may have to provide the phone number, first and last name, or email address of the person who ordered the item.
Any gift item being returned will be refunded to the original purchaser’s method of payment; you cannot obtain a store credit for a returned gift item. We can, at our discretion, process a gift exchange for you for another item.
If an item does arrive damaged or with parts missing, please notify us within 30 days. We’re happy to send you replacement parts as soon as possible.
Risk of Loss
All items purchased from Elephants Remember are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
- Billing and Payment
Creating an Elephants Remember account is free. However, we do charge fees for certain services. When you use a service that has a fee you will have an opportunity to review and accept the fees that you will be charged. If our fees ever change, the changes to fees are effective after we provide you with notice by posting the changes on the App or by email.
By submitting your payment information to Elephants Remember, you authorize Elephants Remember to share this information with our payment processor, Authorize.net, and to charge the billing source you have provided for your account according to the Service you selected until your account is terminated. We do not store your payment information on our servers.
If you purchase a subscription service, you agree to pay all charges to your account made therefor, including but not limited to applicable taxes and fees for the use of additional features not included as part of your subscription service. You will be charged in accordance with the billing terms in effect at the time the fee or charge becomes payable. For any subscription services you purchase that are charged in full upon purchase, you agree that for each renewal term of such subscription service (each a “Renewal Term”), the amount due for the next Renewal Term will be due and immediately payable in full as of the first day of such Renewal Term. For each subscription service, your charge remains for each Term no matter if you access the Services during any Term. In other words, EVEN IF YOU DO NOT USE THE SUBSCRIPTION SERVICE, YOU WILL BE RESPONSIBLE FOR ANY SUBSCRIPTION FEES UNTIL YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION OF AUTOMATIC RENEWAL TERMS BELOW.
Notice of Automatic Renewal
If you have opted for automatic renewal of your Subscription Service, we may send a reminder email to the email address of record for your account before your Billing Date. You acknowledge and agree that this notice is provided as a courtesy only, and we are not obligated or required to provide such notice. You acknowledge and agree that (i) your failure to read, (ii) your inability to receive, or (iii) the failure of Elephants Remember to send the email does not create any liability on the part of Elephants Remember or any third-party service provider.
Cancellation of Automatic Renewal.
To cancel the automatic renewal of a Subscription Service, you must notify Elephants Remember of your intent to cancel by emailing contact@InsaneCapital.com. Elephants Remember agrees that when it receives notice of this cancellation under the conditions stated above, no further charges will be billed to your credit card automatically. Note that cancelling automatic renewal for a subscription service will not automatically terminate your subscription service.
Promotional Trial Subscriptions.
We sometimes offer certain customers free trial or other promotional subscriptions, which are subject to these Terms except as otherwise stated in the promotional offers. At any time before the end of a trial Term, you can cancel your subscription by emailing contact@InsaneCapital.com. AT THE COMPLETION OF A TRIAL TERM, UNLESS YOU CHOOSE TO CANCEL, YOUR SUBSCRIPTION WILL RENEW AUTOMATICALLY AND YOUR CREDIT CARD WILL BE CHARGED TO BEGIN YOUR INITIAL TERM.
Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Elephants Remember based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so.
- Rules and Conduct
As a condition of use, you promise not to use the Services for any purpose that is prohibited by the Terms or law. You are responsible for all of your activity in connection with the Service.
You understand and agree that you will not use the Services to engage in the prohibited conduct below:
- You shall not use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control.
- You agree not to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Services available to any third party, other than as expressly permitted by the Terms.
- You shall not use the Services to Submit Content, or use as a User ID or any name or term that (i) is the name of another person, with the intent to impersonate that person; (ii) is subject to any rights of another person, without appropriate authorization; or (iii) is offensive, vulgar, pornographic or obscene.
- You shall not post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights.
- You shall not attempt to use any method to gain unauthorized access to any paid features of the Services.
- You shall not directly or indirectly: (i) decipher, decompile, remove, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services, except to the extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.
- You shall not, and shall not permit any third party using your account to, take any action, or Submit Content, that constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters; contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of Elephants Remember or any third party; or that impersonates any person or entity, including any employee or representative of Elephants Remember. Additionally, you shall not take any action that imposes or may impose (as determined by Elephants Remember in its sole discretion) an unreasonable or disproportionately large load on Elephants Remember’s or its third-party providers’ infrastructure; interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; bypass any measures Elephants Remember may use to prevent or restrict access to the Service (or other accounts, computer systems, or networks connected to the Service); run Maillist, Listserv, or any form of auto-responder or “spam” on the Service; or use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.
- Termination of Usage
You may cancel your account at any time; however, unless Elephants Remember is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from you of an actual breach, identifying specifically the nature of the breach, you are not entitled to any refunds.
We may suspend or cancel your account without notice or refund to you if you violate this Agreement. If your account is cancelled, we will keep your current account settings on file for 90 days. After that time, Elephants Remember reserves the right to remove such settings from our servers with NO liability or notice to you. Once your account information and account settings are removed, you will not be able to recover this data and you will lose access to all of your content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). If you cancel the Services before the end of your current paid-up subscription period, your cancellation will take effect immediately and you will not be charged again.
- Third-Party Sites
The inclusion or integration of third-party services or links does not imply control of, endorsement by, or affiliation with Elephants Remember. Your dealings with third parties are solely between you and such third parties. You agree that Elephants Remember will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. Elephants Remember expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third party website or application.
The Services may also permit you to link to other websites or resources on the internet. Links on the Services to third party websites, if any, are provided only as a convenience to you. The Linked Sites are not under the control of Elephants Remember and Elephants Remember is not responsible for the contents of any Linked Site. If you use these links, you will leave the Services.
Without limiting the foregoing, your correspondence or business dealings with, participation in promotions of or purchases from, third parties found on or through the use of the Services, including payment for and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that Elephants Remember shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Services.
- Elephants Remember Intellectual Property and User Content
Elephants Remember grants you a nonexclusive, nontransferable, limited right and license to use the Services, subject to these Terms. Unless a particular right is expressly granted, it is excluded. The Services may be accessed only by the account holder. Unless otherwise expressly authorized, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
The Services make accessible various content, including, but not limited to, videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, campaigns, other material and information, and associated trademarks and copyrightable works (collectively, “Content”). Users may have the ability to contribute, add, create, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible (“Submit”) Content, like when users create an invite, name an invite, or respond with comments. “User Submissions” means any Content Submitted by Users.
Our Content is protected in many ways, including copyrights, trademarks, service marks, trade secrets, and other rights and laws. You agree to respect all legal notices, information, and restrictions contained in any Content accessed through the Services. You also agree not to change, translate, or otherwise create derivative works based off our Content.
You have a limited, revocable, non-exclusive, non-transferrable license to use the website and our Content solely for permitted activities related to our Services as outlined in these Terms.
We, including third party partners and our affiliates, may ask you for Feedback (as further defined below) on your experience with the Services. Elephants Remember shall become the owner of any reviews, comments, suggestions or other feedback regarding the Services posted to the Site or on Elephants Remember’s social media pages (collectively, “Feedback”) and it may share with any of its affiliates. Elephants Remember will not be required to treat any Feedback as confidential, and will not be liable for any Feedback posted on the Site or elsewhere. Without limitation, Elephants Remember will have exclusive ownership of all present and future existing rights to the Feedback of every kind and nature everywhere and will be entitled to use the Feedback for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Feedback. You acknowledge that you are responsible for whatever material you submit, and you, not Elephants Remember, have full responsibility for the Feedback, including its legality, reliability, appropriateness, originality, and copyright. Additionally, you specifically waive any “moral rights” in and to the User Content.
To the extent that you decide to post any content (“User Content”), including Feedback, on the Services or on Elephants Remember’s social media pages, you agree not to, and shall not permit any third party using your account to, post or transmit any unlawful, infringing, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, indecent, harmful, offensive, hateful or racially, ethnically or otherwise unlawful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, is tortious, violates any law or contract, infringes others’ intellectual property rights or otherwise violates any applicable local, state, national or international law. Specifically, you agree that your User Content will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Elephants Remember all of the license rights granted herein. Elephants Remember may refuse to accept or transmit User Content. Additionally, Elephants Remember shall have the right to delete, edit, modify, reformat, excerpt, or translate any of your User Content.
- Claims of Copyright Infringement
Elephants Remember complies with the Digital Millennium Copyright Act (DMCA). Elephants Remember will remove infringing materials in accordance with the DMCA if properly notified that Content infringes copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify Elephants Remember’s Copyright Agent by email at contact@InsaneCapital.com or by mail to Elephants Remember ATTN: Copyright, ADDRESS. Please do not send notices or inquiries about anything other than alleged copyright infringement or other intellectual property claims to our Agent for Notice. Your email must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site, sufficient for Elephants Remember to locate the material; 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 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 owner or authorized to act on the copyright owner’s behalf.
If you fail to comply with these notice requirements, your notification may not be valid. Under the Copyright Act, any person who knowingly materially misrepresents that material is infringing or was removed or disabled by mistake or misidentification may be subject to liability.
In accordance with the Digital Millennium Copyright Act, Elephants Remember has adopted a policy of, in appropriate circumstances, terminating User accounts that are repeat infringers of the intellectual property rights of others. Elephants Remember also may terminate User accounts even based on a single infringement.
If you believe that your 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 post and use the material in your Content, you may send a written counter-notice containing the following information to the Copyright Agent: (1) Your physical or electronic signature; (2) 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; (3) A statement 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; and (4) Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Dallas, Texas, 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, the Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the Company’s sole discretion.
- Warranty Disclaimer
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, ELEPHANTS REMEMBER AND ITS AFFILIATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, “ELEPHANTS REMEMBER”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND PERTAINING TO THE SERVICES AND THE MATERIALS HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, SECURITY, ACCURACY, AVAILABLITY, USE REASONABLE CARE AND SKILL, AND NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. ELEPHANTS REMEMBER MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR FREE OF VIRUSES OR BUGS, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (IV) ANY ERRORS IN OR ON THE SERVICES WILL BE CORRECTED. ANY MATERIAL, CONTENT, OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED AND/OR USED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, CONTENT OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ELEPHANTS REMEMBER PARTIES ON OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
Electronic Communications Privacy Act Notice (18 USC §2701-2711): ELEPHANTS REMEMBER MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. Elephants Remember will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on the Elephants Remember’s equipment, transmitted over networks accessed by the Services, or otherwise connected with your use of the Services.
- Limitation of Liability
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN NO EVENT SHALL ELEPHANTS REMEMBER, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE HUNDRED U.S. DOLLARS ($100.00). SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, ELEPHANTS REMEMBER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Dispute Resolution and Arbitration
It is Elephants Remember’s goal that the Services meet your expectations and live up to our promises to you. However, there may be instances when you feel that Elephants Remember has not fulfilled its obligations or you may have a different type of problem or dispute that needs special attention. In those instances, Elephants Remember is committed to working with you to reach a reasonable resolution that satisfies you; however, we can only do this if we know about and understand your issue. Therefore, for any problem or dispute that you may have with Elephants Remember, you acknowledge and agree that you will first give Elephants Remember an opportunity to resolve your problem or dispute. In order to initiate this dispute resolution process, you must first send us a written description of your problem or dispute within thirty (30) days of the Services being performed by sending an email to: contact@InsaneCapital.com or by mail to ATTN: Elephants Remember ADDRESS.
You then agree to negotiate with Elephants Remember in good faith about your problem or dispute. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after Elephants Remember’s receipt of your written description of it, you agree to the further dispute resolution provisions below.
Mutual Agreement to Arbitrate
YOU AND ELEPHANTS REMEMBER AGREE THAT WE WILL RESOLVE ANY CLAIM OR CONTROVERSY AT LAW OR EQUITY THAT ARISES OUT OF OR RELATES TO THESE TERMS OR THE SERVICES THROUGH BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. You agree that, except as expressly set forth below, the sole and exclusive forum and remedy for any and all disputes and claims that cannot be resolved informally and that relate in any way to or arise out of your use of the Services and these Terms, shall be final and binding arbitration, except to the extent that either party has, in any manner infringed upon or violated or threatened to infringe upon or violate the rights of either party or any third party patent, copyright, trademark, trade secret, privacy or publicity rights, in which case both sides acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought by either party and/or the applicable third party(ies). You and we acknowledge that the Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration law apply to arbitrations under the Agreement (despite any other choice of law provision).
Arbitration under these Terms of Service shall be conducted by the rules and procedures of the American Arbitration Association (the “AAA”). The AAA rules are available at www.adr.org or by calling 1-800-778-7879. The party requesting relief may choose to resolve the dispute through binding non-appearance based arbitration in which the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions. The arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties.
Regardless of the size of the claim, you and we agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees and expenses. As a limited exception to the mutual agreement to arbitrate, you and we agree that either party may take claims to small claims court, if the claims qualify for hearing by such court.
You agree that regardless of any statute or law to the contrary, any claim of cause of action arising from or relating to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
WE BOTH AGREE AND WE BOTH UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES WE ARE GIVING UP ANY RIGHT THAT WE MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL CLAIMS SUBJECT TO THIS AGREEMENT.
Arbitration Opt-Out Procedure
You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For new Elephants Remember Users, the Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must email the Opt-Out Notice to Elephants Remember with the title “Arbitration Opt-Out” to conact@InsaneCapital.com. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to your Elephants Remember account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, all other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
Changes to the Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any material changes to this Arbitration Agreement in the future, that change shall not apply to any claim that was filed in a legal proceeding against Elephants Remember prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Services, and shall not be effective as to any claim that was filed in a legal proceeding against Elephants Remember prior to the effective date of removal.
The Terms are personal to you, and are not assignable, transferable, or sublicensable by you except with Elephants Remember’s prior written consent. Any assignment in violation of this section shall be null and void. Elephants Remember may assign, transfer, or delegate any of its rights and obligations hereunder without consent.
All provisions of the Terms that by their nature should survive termination shall survive termination, including, without limitation, intellectual property ownership provisions, warranty disclaimers, indemnity, and limitations of liability. Following termination of your account, however, your license to use Elephants Remember’s Content automatically terminates, and Elephants Remember has no obligation to provide you with use of the Services.
- Notice Policy and Your Consent
Under these Terms you are contracting with Insane Capital LLC, a Texas limited liability company d/b/a Elephants Remember.
Notice should be addressed to Insane Capital LLC d/b/a Elephants Remember [ADDRESS].
For the avoidance of doubt, we are entering into this Agreement as principal and not as agent for any other Insane Capital company. Subject to any permitted assignment, the obligations owed by us under this Agreement shall be owed to you solely by us and the obligations owed by you under this Agreement shall be owed solely to us.
We may give notice by means of a general notice on the Services or via electronic mail to your email address in your account, text message, or by written communication sent by first class mail or pre-paid post to your address in your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or text). You may give notice to us, with such notice deemed given when received by us, at any time by first class mail or pre-paid post to the address set forth above or at such other address as we may advise from time to time, pursuant to this provision.
- Geographic Limits of Service
Elephants Remember make no representation that materials contained on the Services or products described or offered on or via the Site are appropriate or available for use in jurisdictions outside the United States, or that these Terms comply with the laws of any other country. Accessing the Service is prohibited from territories where the Content or Services are illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws. You agree that you will not access the Services from any territory where the contents are illegal, and that you, and not Elephants Remember, are responsible for compliance with applicable local laws.
Elephants Remember reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Services to any person, geographic area, or jurisdiction we so desire.
- Governing Law and Jurisdiction
Except for the Arbitration Agreement set forth under Dispute Resolution and Arbitration, which is governed by the Federal Arbitration Act, these Terms of Service (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the laws of the State of Texas and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods.
You agree that Elephants Remember and its Services do not give rise to personal jurisdiction over Elephants Remember or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of Texas. You agree that any action at law or in equity arising out of or relating to these Terms, or your use or non-use of the Services, shall be filed only in the state or federal courts located in Dallas County in the State of Texas and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You irrevocably waive any right you may have to trial by jury in any dispute, action, or proceeding.
- Integration and Severability
Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Elephants Remember with respect to the Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Elephants Remember with respect to the Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. If a court in any final, unappealable proceeding holds any provision of these Terms or its application to any person or circumstance invalid, illegal or unenforceable, the remainder of these Terms, shall not be affected, and shall be valid, legal and enforceable to the fullest extent permitted by law.
If you have any questions regarding these Terms, please contact us at contact@InsaneCapital.com or by mail at the address below:
Attention: Elephants Remember Customer Service
[City, St ZIP]
February 23, 2017