1. Acceptance of Terms.
Elite Card Processing, LLC (referred to herein as “Elite”, “us”, “we”, “our”) provides its Service (as defined below) to You (as defined below) through its web site located at http://www.elitesalonbooking.com and any of the subdomains of http://www.elitesalonbooking.com (the “Site”), subject to this Terms of Service agreement (collectively the “Terms”). These Terms are a legal agreement between You (“You”, “Your”), as a current or prospective customer of our Services (“You,” “Your”) and governs Your use of such services, including mobile applications, websites, software, cloud-based solutions, hardware, and other products and services (collectively, the “services”).
By accepting these Terms or by accessing or using the Service as defined below, You acknowledge that You have read, understood, and agree to be bound by the Terms. If You are entering into the Terms on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to the Terms, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the Terms, You must not accept the Terms and may not use the Service.
Elite reserves the right, in its sole and absolute discretion, to change, modify, update, add, or remove portions of the Terms at any time, with or without notice to You. Please check the Terms available on the Site periodically for changes. Your continued use of the Service after any change is posted to the Terms will signify Your acceptance of those changes.
2. Description of Service.
The “Service” includes (a) the Site, (b) the system, tools and services provided by Elite through the Site, and (c) all software, data, text, images, sounds, video, and content made available through the Site or Service (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to the Terms.
3. Scope of Agreement.
These Terms cover Your use of the Service, including, but not limited to, the process by which consumers reserve seats with You, schedule appointments with You, enroll or subscribe to services provided by You, purchase goods or services provided by You, as well as Your management of such schedules, seats, appointments, enrollments, subscriptions or purchases through the Service, Your promotion of the service through referrals, and You agree that these Terms apply to Your use of the Service.
By using the Service, You also consent and agree to the terms of Elite’s Privacy Policy, the Elite Referral Program Terms and Conditions, and all other Elite legal policies applicable to You, available on the Site or in the dashboard of the Service.
4. Service Changes.
Elite has the right to change or modify, upgrade, add to, or discontinue the Service or any portion or feature thereof at any time without notice by posting the revised version on the Site or communicating it to You through the Service (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Service after the posting of a Revised Version constitutes Your acceptance of such Revised Version. Elite also reserves the right to assign or transfer the Terms, in whole or in part, without restriction.
You agree to Elite’s E-Sign Consent. We may provide disclosures and notices required by law and other information about Your Elite Account to You electronically, by posting it on our website, pushing notifications through the Service, or by emailing it to the email address listed in Your Elite Account or that You otherwise provide to Elite. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by You within twenty-four (24) hours of the time posted to the Site, or within twenty-four (24) hours of the time emailed to You unless we receive notice that the email was not delivered. If You wish to withdraw Your consent to receiving electronic communications, contact our support at [email protected]. If we are not able to support Your request, You may need to terminate Your Elite Account.
5. Registration.
You must register to access and use the Service. If You are registering on behalf of a company, by registering You agree that You have the requisite authority to register on behalf of such company. You may register third parties as additional users of the Service within Your Elite Account. You are responsible for compliance with these Terms by such third parties.
You agree and acknowledge that Your login may only be used by one (1) person – a single login shared by multiple people is not permitted. You may create separate logins (“Account Users”) for as many people as Your Elite Account plan allows.
You further agree that You are solely responsible for Your secure use of the Service, including securing account authentication credentials, setting the necessary permission levels for Account Users and taking any appropriate steps to securely store any data downloaded from the Service.
You represent that any information You provide during registration or at any time thereafter is true, accurate, and complete and that You will update all such information as necessary to maintain its truth, accuracy, and completeness. Failure to do so shall constitute a breach of these Terms. You shall be responsible for maintaining the confidentiality of Your password, all Account Users’ passwords, and will be solely liable for all actions taken via Your Elite Account and/or under Your password, whether or not made with Your knowledge or authority.
By registering, You agree that You will use the Service only for the purposes advertised on the Site or in other marketing material published by Elite, that You are a valid business desiring to use the Service to advertise Your business and generate online reservations, appointments, subscriptions, enrollments, purchases from consumers using the Service, and that any contact information You provide, such as email addresses and phone numbers, is Your valid and active contact information.
By registering, You agree that You will use Your Elite Account to list and offer services that are directly provided by You. You are not authorized to list, offer, promote or sell services provided by others.
By registering, You agree that Elite will notify You by email of changes or proposed changes that will affect Your Elite Account until You unsubscribe to receive such emails.
6. Fees; Payment Terms.
You agree to pay all charges as set forth on the Site and/or on pages accessed through the “Account” section of Your Elite Account, and/or in these Terms. You agree that the address and email address You provide in Your Elite Account settings are valid personal and/or business addresses and that Elite may invoice You at such addresses or through other electronic or facsimile communications.
You are responsible for all applicable taxes that arise from or as a result of Your use of the Service. For the avoidance of doubt, all sums payable by You to Elite under the Terms shall be paid free and clear of any deductions or withholdings whatsoever. Other than taxes that may be charged by Elite to You and remitted to the appropriate tax authorities on Your behalf, any deductions or withholdings that are required by law shall be borne by You and paid separately to the relevant tax authority. All fees paid to Elite by You pursuant to these Terms are nonrefundable.
Elite reserves the right, at any time and at its discretion, to change any fees and any other pricing terms. Any changes shall be posted on the Site and will be effective immediately.
7. Payment Authorization; Invoicing.
Elite may charge You with immediate and/or recurring fees.
Immediate fees include one-off fees and the first installment of a recurring fee. Immediate fees are charged to Your nominated credit card immediately, upon Your request via the Site. The order page will show such fees for Your review. Immediate fees are non-refundable. Elite will invoice You automatically for any recurring fees. The invoice will be sent to You via email or other electronic means. All invoices will also be accessible from the Billing section of Your Elite Account.
Payment of invoices for recurring fees is due within 7 days from the date the invoice is issued (“Due Date”). Elite will charge Your nominated credit card for the amount due and owing on or after the Due Date. You can dispute recurring fees before the Due Date, by submitting Your request in writing to us (either via email, mail, or by submitting a support ticket via the Site) before the Due Date. You cannot dispute recurring fees after their Due Date.
By adding i.e., nominating a credit card to Your Elite Account, You warrant that such credit card is good and valid, that You are authorized to use such credit card to pay the fees due on Your Elite Account, and You authorize Elite to charge such credit card for the recurring fees on or after the Due Date, and for any immediate fees.
Once an amount has been charged to Your credit card, it is not refundable.
Elite will generate a tax invoice/receipt for every amount charged to Your credit card. This tax invoice/receipt will be accessible in the Billing section of Your Elite Account.
8. Credits.
You may purchase credits to enable additional services provided by Elite, including but not limited to the sending of SMS messages and faxes. Purchased credits are assigned exclusively to Your Elite Account and are not transferable.
Credits are used whenever Elite performs specific actions according to the settings that You have configured in Your account. These actions include the sending of SMS messages or facsimiles (“faxes”). The number of credits used for each action is advertised in the “purchase credits” section of Your Elite Account and can change at any time.
Due to the nature of mobile networks, it is not possible to guarantee a timely delivery of SMS messages. Messages can get lost or delayed, for various reasons outside our control. Elite cannot be held responsible for the loss or delay of SMS messages.
Due to the nature of fax transmissions, it is not possible to guarantee a timely delivery of faxes. Faxes can be delayed, or never received, for various reasons outside our control. Elite cannot be held responsible for the loss or delay of faxes. We will use the appropriate number of credits (as advertised in the “purchase credits” section of Your Elite Account) for the transmission of a fax only when we will receive an electronic receipt confirming that the fax has been received by the destination fax machine.
Due to the nature of email transmissions, it is not possible to guarantee that emails are actually received by the intended recipients. Emails may never reach the recipient’s mailbox for various reasons outside our control, including but not limited to spam filtering, incorrect or changed addresses, recipient disk quotas. Elite cannot be held responsible for the failed or delayed delivery of emails, however when appropriate we or our partners will retry the delivery several times before giving up.
9. Nonpayment.
If, for whatever reason, Elite charges Your credit card pursuant to these Terms, and the payment is not successful, Elite reserves the right to suspend Your access to the Service and/or Your Elite Account. If You fail to pay the applicable invoice within 90 days of the date of suspension, or to otherwise negotiate a payment plan for all amounts then due, Elite reserves the right to deactivate Your Elite Account. Once Your Elite Account is deactivated, You will no longer be able access it. When Your Elite Account is deactivated, Elite will keep a backup of its data, without processing it. In the event Elite deactivates Your Elite Account for non-payment, all amounts due and unpaid from You to Elite for use of the Service shall become immediately due and payable. In the event of non-payment and the exhaustion of the procedures set forth in this section, Elite reserves the right to seek payment using any remedies allowed to it by law. Elite may at its discretion, and subject to technical feasibility, agree to restore a deactivated Elite Account upon Your written request. In this case a restore fee will be charged prior to such reactivation.
10. Electronic Communications.
Elite reserves the right to contact You for service and support related issues. We reserve the right to contact You through e-mail, faxes, text or voice messages, or notices posted on the Site. Notices will be deemed effective at the time they are sent by Elite or as of date they are posted, regardless of whether You actually read any such notices.
You may opt-out of receiving promotional email communications we send to You by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that You would not like to receive future promotional calls. You may only opt-out of text messages from Elite by replying STOP. You acknowledge that opting out of receiving communications may impact Your use of the Services.
We also provide Services that allow You to send short message service (SMS) messages to Your customers (the “Seller-Initiated SMS Services”). You will only use the Seller-Initiated SMS Services in compliance with the Terms and all other applicable laws and regulations of the jurisdiction from which You send messages and in which Your messages are received.
You consent that any emails, surveys, other information or feedback You provide to Elite through the Service or via any other medium, except for Personally Identifiable Information, as defined in the Elite Privacy Policy, can be used by Elite in any manner, including but not limited to for testimonials, reviews and ratings on Elite or third party websites.
11. Compatible Mobile Devices and Third-Party Carrier.
We do not warrant that the Service will be compatible with Your mobile device or carrier. Your use of the Service may be subject to the terms of Your agreements with Your mobile device manufacturer or Your carrier. You may not use a modified device to use the Service if the modification is contrary to the manufacturer’s software or hardware guidelines, including disabling hardware or software controls—sometimes referred to as “jail broken.”
12. Account Access.
Elite reserves the right to access any or all Your Elite Accounts in order to respond to Your requests for technical support. We shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your data. We will not disclose Your data except if compelled by law or if permitted by You.
We have implemented technical and organizational measures designed to secure Your personal information from accidental destruction, loss, alteration and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Your personal information for improper purposes. You provide Your personal information at Your own risk.
You are solely responsible for safeguarding your password and for restricting access to the Service from Your compatible mobile device(s) and computer(s). You will immediately notify us of any unauthorized use of Your password or Elite Account or any other breach of security. You will immediately take all reasonable steps to mitigate the effects of a security breach and will cooperate with Elite and provide all information requested by Elite to remediate the breach. Any assistance provided by Elite in relation to a security breach does not in any way operate as acceptance or acknowledgement that Elite is in any way responsible or liable to You or any other party in connection with such breach.
Notwithstanding Sections 12, and 31, in the event of any dispute between two or more parties as to Elite Account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Elite Account subject to dispute) will be final and binding on all parties.
13. Intellectual Property.
We grant You a license to use the Service in accordance with these Terms. You agree not to use, copy, modify, reformat, rent, lease, lend, frame, create derivative works, publicly display, download, store, reproduce, transmit, provide links to, republish, upload, post, reprocess, or make the Service available to third parties. We reserve all rights not expressly granted in the Terms.
We retain all rights in and to, including without limitation, the copyrights, patents, and trade secrets, trademarks, registered trademarks or service marks contained in or relating to the Service (collectively the “Elite Intellectual Property”) that are the exclusive property of Elite and/or its licensors. We do not transfer any rights in or to the Elite Intellectual Property to You.
Content of the Service that incorporates or includes any of the Elite Intellectual Property may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Elite or the rightful owner, as applicable.
The name Elite Card Processing and the various logos used or displayed on the Service are trademarks of Elite and for example, only Elite (and its affiliated companies) and its authorized licensees may use the Elite logo in advertising, promotional, and sales materials. Licensees may use Elite assets only as specified in their agreement with Elite and pursuant to applicable guidelines.
14. User Warranties.
You are responsible for ensuring that You can fulfill all reservations, bookings, purchases and subscriptions made through the Service and for communicating changes directly to Your customers. You are responsible for managing availability for the online scheduling of appointments and reservations including settings for staff, resources and services provided, bookable days and times for staff, resources and services provided, and lead times as may be appropriate to prevent double-bookings and other events which would adversely affect Your customers and their experience with the Service. You are responsible for reviewing Your online appointments and reservations often and regularly. If You cannot honor any appointment or reservation made through the Service, You agree to promptly communicate such change to the relevant customers. You are responsible for charging customers’ credit cards only under explicit authorization by the customer. You are responsible for handling customer inquiries professionally and promptly. You are responsible for honoring cancellation/reschedule requests according to Your advertised policy.
You further acknowledge and agree that given the nature of the Service and the number of clients and volume of information submitted and different functionalities of the Service, Elite cannot evaluate the compliance with all applicable laws, statutes, rules, regulations, ordinances and other pronouncements having the binding effect of law of any applicable government authority, court, tribunal, agency, legislative body, commission or other instrumentality of: (i) any government of any country; (ii) any state, province, county, city or other political subdivision thereof; or (iii) any supranational body (“applicable law”) of each type of data collection and processing requested by You, and that Elite is a worldwide Service and some functionalities might be not allowed in some jurisdictions. Therefore, You agree to perform a legal analysis and find adequate legal counselling before using any Service functionalities in order to assess the compliance of each functionality with the applicable law.
You further acknowledge and agree that, if required by the applicable law, You have provided notice of lawful collection and processing and/or obtained (or will obtain) all consents and rights necessary to lawfully collect and process data using the Service.
You agree that the Service is not intended for use by minors and that You are not a minor.
15. Use of the Service.
You may not use the Service in any manner that is illegal or harmful to the Service. Among other restrictions, You agree that You shall not, nor shall You allow any third party, directly or indirectly to:
16. Copyright Infringement.
If You believe that Your copyrighted work has been copied in a way that constitutes copyright infringement or that there is infringing material available through the Service, please notify us immediately. You must provide the following information in writing:
The above information must be submitted to our legal address:
Elite Card Processing, LLC
13701 Maugansville Rd., Ste. 5
Hagerstown, MD 21740
17. User Submissions.
Materials, including but not limited to text, software, data, images, graphics, photos of Service, audio, audiovisual, videos, and content of any nature provided by Elite (“Content”) or by other users of the Service (“User Submissions”) to the Site is owned by the party contributing such content.
As a user of the Service, You are solely responsible for Your own User Submissions. By transmitting Your User Submissions, You represent that You have all rights and authorizations necessary to post, submit, display, produce, or otherwise transmit, such content. In connection with Your User Submissions, You agree that You will not submit material that is or contains the intellectual property of a third party that You do not have permission to use.
You shall retain all of Your ownership rights in Your User Submissions; however, by submitting material to Elite, You grant Elite the irrevocable, fully transferable rights to use, reproduce, distribute, modify, transmit, prepare derivative works of, display and produce the material as is required in order to provide the Service, and to grant these rights to others. To the extent You do not have ownership rights to any of Your User Submissions, You shall indemnify Elite for any claim regarding Elite’s use of Your User Submissions.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim, action, audit, investigation, inquiry, or other proceeding instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) Your violation of any law, rule or regulation of the United States or any other country; (e) any third-party claims made by Your Buyer regarding Elite’s processing of Your customer/Buyer’s Personal Information in connection with providing You with the Services; and (f) any other party’s access and/or use of the Services with Your unique name, password or other appropriate security code; and (g) any transaction, purchase, good or service in respect of which Elite provides, or provided, You with payment processing services in accordance with the Terms.
Elite does not guarantee any confidentiality with respect to any User Submissions and will not treat any User Submissions as confidential. When using the Service, You may be exposed to User Submissions from a variety of sources, and Elite is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions, which may be inaccurate, infringing, offensive, indecent, or objectionable.
18. Data Retention.
Elite shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any User Submission.
In the event this Agreement is terminated (other than by reason of Your breach), Elite will make available to You a file of Your User submissions within 30 days of termination if You so request at the time of termination, before deleting Your Elite Account.
Elite reserves the right to withhold, remove and/or discard User Submission without notice for any breach, including, without limitation, non-payment. Upon termination for cause, Your right to access or use Your User Submission immediately ceases.
19. Links to Third-Party Sites.
The Site may contain links to other websites (“Linked Third Party Sites”). Elite does not endorse, or approve of the operators of the Linked Third Party Sites or the information, graphics and material on those Linked Third Party Sites. (“Linked Third Party Material”).
Elite is providing these links to You only as a convenience and the inclusion of any link does not imply endorsement or approval of the Site.
Subject to any applicable law, which cannot be excluded, Elite makes no warranties or representations:
20. Third-Party Applications and Integrations.
You agree that the Service allows the integration with third party apps, integrations, and services (“Third Party Applications”).
You agree that You are solely responsible and liable for the use of Third-Party Applications. You further acknowledge and agree that Third Party Applications will access and process Your Elite Account data based on the permissions and authorizations that You will have to grant when You install the Third-Party Applications.
These Third-Party Applications may have their own terms and conditions of use and privacy policies and Your use of these Third-Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Elite does not endorse and is not responsible or liable for the behavior, features, or content of any Third-Party Applications or for any transaction You may enter into with the provider of any such Third-Party Applications.
If deemed appropriate, You agree that You are fully and solely responsible to uninstall or disable any Third-Party Applications.
21. Privacy.
Your Personal Information. By using any part of the Service, You acknowledge our data practices that apply to You, as set out in the Elite Privacy Notice (the “Privacy Notice”). The Privacy Notice explains how Elite collects, uses, and protects the personal information You provide to us where Elite makes use of Your personal data to provide You with the Service or for its own purposes. You are required to familiarize yourself with the Privacy Notice prior to using the Service.
Your Customers’ and Employees’ Personal Information. Elite will process certain of Your customers’ or employees’ personal data on behalf of Your business as a service provider (“data processor”). In such circumstances, You agree that You will comply with the data protection laws applicable to You and will provide data subjects with information on the processing of their personal information which satisfies the transparency requirements of such data protection laws and which ensures that personal data may be processed fairly, lawfully and in a transparent manner. If you or your business are located in California, please see Section 28.
22. Cancellation and Termination.
You are responsible for canceling Your Elite Account. The Elite Account owner (as defined in the sign-up procedure) can cancel the account at any time through the “account” section of Your Elite Account. There are no other means of canceling Your Elite Account. In particular, written, or oral request to us to cancel Your Elite Account does not constitute the cancellation thereof. We may terminate the Terms or any Additional Terms or suspend or terminate Your Elite Account or Your access to any Service, at any time for any reason. We may add or remove, suspend, stop, delete, discontinue, or impose conditions on Service or any feature or aspect of a Service
You will permanently lose access to all of Your content upon cancellation.
Backups of a deleted Elite Account are stored for 7 days after such Elite Account was canceled and Elite will not process data stored therein. This allows Elite, upon written request of the Elite Account owner, to restore accounts that might have been accidentally deleted. A restore fee may apply to restore a deleted Elite Account. To comply with privacy regulations, after 7 days, the Elite Account and all its content is permanently deleted and can no longer be recovered. If a deleted Elite Account is restored, billing will resume immediately according to the old billing schedule.
If You cancel the Service before the end of Your current paid-up subscription period, Your cancellation will take effect immediately and You will not be charged again, but no fees will be refunded.
Elite reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate Your account (any part thereof) or use of the Service and remove and discard any of Your content in the Service, for any reason, including, if Elite believes that You have violated these Terms of Service.
When using Elite without a monthly subscription (‘Free’ plan, where available), You are required to sign in to Your account at least once every 90 days, to show that the account is still in use. Elite will delete accounts without monthly subscription where the user has not signed in for more than 90 days. Elite will send email reminders before proceeding to delete the account.
Elite will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your Elite Account.
Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Your use of Service, may be referred to appropriate law enforcement authorities.
If these Terms or Your Elite Account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms will end, (b) You agree to immediately terminate and cease use of all Services, (c) we may (but have no obligation to) delete Your information and Elite Account data stored on our servers, and (c) we will not be liable to You or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of Your information or Elite Account data. In addition to any payment obligations under the Payment Terms, the following sections of the Terms survive and remain in effect in accordance therewith upon termination: 2 (Description of Service), 12 (Account Access), 13 (Intellectual Property), 14 (User Warranties), 17 (User Submissions), 23 (Disclaimer of Warranties), 24 (Limitation of Liability), 20 (Third-party apps and integrations), 21 (Privacy), 22 (Cancellation and Termination), 26 (Jurisdiction), 27 (Waiver), 28 (Ownership), 30 (Disputes), 31 (Binding Individual Arbitration), 32 (Assignment), and 33 (Limitation on Time to Initiate a Dispute).
23. Disclaimer of Warranties.
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW AND ELITE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT ELITE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM ELITE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
24. Limitation of Liability.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL ELITE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, ELITE SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE MONTHLY SERVICE FEE PAID OR PAYABLE BY YOU FOR THE ONE MONTH PRECEDING THE TIME OF ANY CLAIM FOR MONETARY DAMAGES OR ONE HUNDRED ($100) U.S. DOLLARS, WHICHEVER IS LOWEST. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
25. Sole Remedy.
Your only remedy for any dispute with Elite is to stop using the Service.
26. Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflicts of laws rules. You expressly agree that the exclusive jurisdiction for any claim or dispute hereunder and Your use of the Service resides in the courts of the State of Maryland, and You agree also to submit to the personal jurisdiction of these courts for the purposes of litigating any such claim or action.
27. No Waiver.
A lack of enforcement will not result in waiver of any term. Also, no waiver by either party of any breach or default shall be deemed to be a waiver of any preceding or subsequent default.
These Terms, and any applicable Additional Terms or Policies, are a complete statement of the agreement between You and Elite regarding the Services. In the event of a conflict between these Terms and any other Elite agreement or Policy, these Terms will prevail and control the subject matter of such conflict. If any provision of these Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws.
28. California Businesses.
If You are a “Business” as defined by the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., (“CCPA”) then this provision 28 applies to You. For purposes of this Section 28, “process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the CCPA.
a) For purposes of this Section 28, “Buyer Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by Elite in connection with its Services to You. Buyer Personal Information does not include information Elite receives about Your customers (“Buyers”) for purposes of Elite’s digital receipt, customer directory and email marketing tools (“Elite Buyer Features”). It does include information that Your Buyer has provided You through Elite Appointments, Elite Invoices, or to receive Loyalty-related or promotional text messages. For details about our privacy practices with respect to Elite Buyer Features, please refer to our Buyer Features Privacy Notice.
b) We may receive Personal Information from Buyers for the purpose of performing Services on Your behalf as described in these Terms. We agree that we will process Buyer Personal Information collected, processed, stored or transmitted by, or accessible to us in the course of these Terms, and other Applicable Terms of Service referenced above, only on Your behalf, and for the purpose of providing You with the Services in these Terms and other applicable terms linked above based on the products You use. We acknowledge that we are prohibited from: (i) selling the Buyer Personal Information; (ii) retaining, using, or disclosing the Buyer Personal Information for any purpose other than providing to You the Services specified in these Terms(s), and other applicable Terms of Service referenced above. As part of, and for purposes of, facilitating the Services, Elite may (i) de-identify or aggregate the Buyer Personal Information; and (ii) process the Buyer Personal Information for operational purposes, including, without limitation, verifying or maintaining the quality and safety of the Services; improving, updating or enhancing the Services either for You or for our customers generally; detecting and preventing fraud, and for protecting the security and integrity of our Services; and complying with our legal obligations. You acknowledge and agree that Buyer Personal Information that You disclose to Elite is provided to Elite for the parties’ business purposes.
c) We reserve the right to delete Personal Information stored pursuant to these Terms in the ordinary course of business, pursuant to our retention schedules.
29. Ownership.
We reserve all rights not expressly granted to You in the Terms. The Service is protected by copyright, trademark, patent and other laws of the United States and other countries. We own all rights, title, and interest, in and to the Services and all copies of the Services. The Terms do not grant You any rights to our trademarks or service marks.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit feedback, comments or ideas about the Services (“Ideas”). Submitting Ideas is entirely voluntary, and we will be free to use such ideas as we see fit without any obligation to You.
30. Disputes.
When you see the word “Dispute” in these terms, here’s what it means.
“Disputes” are defined as any claim, controversy, or dispute between You and Elite, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), whether arising before or during the effective period of the Terms, and including any claim, controversy, or dispute based on any conduct of You or Elite that occurred before the effective date of these Terms, including any claims relating in any way to the Terms or the Service, or any other aspect of our relationship.
31. Binding Individual Arbitration.
This section provides details about how we will resolve disputes through the arbitration process.
General. You and Elite agree that any and all Disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST ELITE. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
Pre-Filing Requirement to Attempt to Resolve Disputes. Before an arbitration is commenced, you or Elite agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Elite should be sent by mail to Elite, Inc., Attn: Arbitration Provision, 13701 Maugansville Rd., Ste. 5, Hagerstown, MD 21740. Any Notice sent to You will be sent to the address on file for Your Elite Account. The Notice must: (i) include Your name and Elite Account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that state courts in the City of Hagerstown or County of Washington, Maryland, or federal court for the District of Maryland, referenced below, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
Scope of Arbitration. If we are not able to resolve the Dispute by informal negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Commercial Arbitration Rules for that forum, except You and Elite will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
Arbitration Procedures. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in San Francisco, California, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Elite values Your privacy, particularly with respect to Your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
Arbitration Fees. In accordance with the AAA Rules, the party initiating the arbitration (either You or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to You and Elite also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
Court Proceedings. Subject to and without waiver of the arbitration provisions above, You agree that any judicial proceedings (other than small claims actions as discussed above) will be brought in and You hereby consent to the exclusive jurisdiction and venue in the state courts in the City of Hagerstown and County of Washington, Maryland, or federal court for the District of Maryland.
32. Assignment.
These Terms, and any rights and licenses granted hereunder, may not be transferred, or assigned by You and any attempted transfer or assignment will be null and void.
33. Limitation on Time to Initiate a Dispute.
Any action or proceeding by You relating to any Dispute must commence within one year after the cause of action accrues.
34. Third Party Beneficiaries.
No provision in these Terms, and any applicable Additional Terms is intended or shall create any rights with respect to the subject matter of these Terms, and any applicable Additional Terms in any third party.