*ElfYourself is a registered trademark of OMX, Inc.
EFFECTIVE: November 1, 2019
IMPORTANT! PLEASE READ THESE ELFYOURSELF TERMS OF SERVICE ("AGREEMENT") CAREFULLY BEFORE USING THE ELF APP (DEFINED BELOW) AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. This Agreement only applies to http://www.elfyourself.com, the services, features and content available on http://www.elfyourself.com the ElfYourself mobile app, and any feature, widget or application that posts a link to this Agreement (collectively, the "Elf App"), however accessed, and does not apply to any other web site or unrelated activities by Oddcast Inc. and its partner ("Oddcast" "we," "us" or "our"). The Elf App is brought to you by Oddcast.
You agree to this Agreement by accessing or using the Elf App, registering for services offered on the Elf App, or by accepting, uploading, submitting or downloading any information or content from or to the Elf App. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THIS AGREEMENT, DO NOT USE THE ELF APP. In some instances, both this Agreement and separate terms of service or other conditions may apply to a service or product offered via the Elf App ("Additional Terms"). To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
If you are accessing the Elf App via our application available within Apple Inc.'s ("Apple") App Store ("Apple Platform"), you and Oddcast acknowledge that: this Agreement is entered into between you and Oddcast and that Apple is not a party to this Agreement; Oddcast, and not Apple, is responsible for the Elf App; and your use of the Elf App is also subject to Apple's Usage Rules.
If you are accessing the Elf App via our application available within Google Inc.'s ("Google") Play Store ("Google Platform"), you and Oddcast acknowledge that: this Agreement is entered into between you and Oddcast and that Google is not a party to this Agreement; Oddcast, and not Google, is responsible for the Elf App; and your use of the Elf App is also subject to Google's Usage Rules.
1. OWNERSHIP & LICENSE OF ELF APP MATERIALS:
Unless otherwise explicitly specified, you agree that all Content (defined below) is, as between you and Oddcast, owned or licensed by Oddcast. "Content" includes, without limitation: audio; visual; audiovisual; text; and other elements and materials; graphics; layout; instructions, images; designs; advertising copy; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the "look and feel" of the Elf App; the compilation, assembly and arrangement of the Elf App; and all other materials related to the Elf App in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise. You agree that your right to use the Elf App and Content, as set forth in this Agreement, is subject to using it for personal, noncommercial use only and that such use will not in any way transfer or convey any ownership rights or other proprietary interests therein to you.
Subject to your strict compliance with this Agreement and except as otherwise expressly permitted by this Agreement or Oddcast, Oddcast grants you a limited, personal, non-exclusive, noncommercial, revocable, non-assignable and non-transferable license to download, view and/or play the Content (excluding source and object code) on a single computer for your personal, non-commercial use only, provided that: you maintain all copyright and other proprietary notices contained in the original Content or any copy you may make of the Content; you do not use the Content in a manner that suggests an association with Oddcast’s products, services or brands; you do not modify the Content and you do not allow or aid or abet any third party (whether or not for your benefit): (i) to copy or adapt the object code of any Elf App's software, HTML, JavaScript or other code; or (ii) reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Elf App creates to generate its web pages or any software or other products or processes accessible through the Elf App; and you do not insert any code or product to manipulate the Content in any way that affects any user's experience. You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Content (except as may be a result of standard search engine or internet browser usage), nor will you (b) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Content in any way for any public or commercial purpose except as expressly permitted by this Agreement or Oddcast.
2. TERM/FEES:
We may terminate your access to the Elf App at any time, for any reason, effective immediately, including, without limitation, by sending notice to you via the information you provide in your registration or such other information as you may subsequently provide to us. If we terminate your access due to a breach of this Agreement, you will not be entitled to the refund of any unused portion of subscription fees (if any). If your access to the Elf App is terminated, all rights granted to you under this Agreement will cease immediately, and you agree that you will: immediately discontinue use of the Elf Apps; destroy all materials obtained from the Elf App and all related documentation; and if applicable, pay any amounts owed for use of the Elf App or Content in full within thirty (30) days from the date of such termination and continue to pay any other amounts owed under this Agreement. This Agreement will remain in full force and effect even after your account with or access to the Elf App is terminated, as the terms hereof are not conditioned upon membership. You acknowledge that Oddcast reserves the right to charge for any or all of the Elf App and has the right to terminate your account or access to the Elf App should you breach this Agreement or fail to pay for any fee-based services, as required.
3. ELIGIBILITY, MEMBERSHIP AND REGISTRATION:
Participation on the Elf App is void where prohibited by law. By registering on the Elf App, you represent and warrant that all registration information submitted is truthful and accurate and you agree to maintain the accuracy of such information. By participating on the Elf App, you represent and warrant that your use of the Elf App will not violate any applicable law or regulation. Certain areas or services within the Elf App may require registration or may otherwise ask you to provide information to participate. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to access certain Content or User Materials (defined below) or participate in certain features of the Elf App. When you provide information to the Elf App, you agree to provide only true, accurate, current and complete information. You are solely and fully responsible for maintaining the confidentiality of any username and password and restricting access to your computer (or other internet access device, as applicable), and will be solely and fully responsible for all activities that occur using that username and password to access the Elf App. You agree to: immediately notify Oddcast of any unauthorized use of your username and password or any other breach of security and log off from account at the end of each session. Oddcast cannot and will not be liable for any loss or damage arising from your use if registration on the Elf App.
4. USER CONDUCT & REPRESENTATIONS AND WARRANTIES:
In connection with your use of the Elf App, you agree to act responsibly and in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to: (a) violate any applicable law or regulation, (b) submit any materials that conflict with any of your representations and warranties set forth in this Agreement, (c) infringe, misappropriate or violate the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights, (d) use the content and information available through the Elf App for any unauthorized purpose, (e) interfere with or damage the Elf App, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, (f) use the Elf App to transmit, distribute, post or submit photographs of others or voice or sound recordings of persons other than yourself, except where you have obtained express permission from such other person or entity in connection with any of the foregoing, (g) use the Elf App to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, personal contact information or account numbers, (h) use the Elf App to transmit, distribute, post or submit any defamatory or otherwise illegal materials of any kind; (i) use the Elf App in connection with the distribution of unsolicited commercial e-mail ("Spam") or advertisements, (j) "stalk" or harass any other user of the Elf App, (k) use the Elf App for any commercial purpose whatsoever (including, without limitation, to advertise, market, promote, sell or otherwise exploit any product or service), (m) sell or otherwise transfer any user information (e.g., user profiles) or other user's User Materials), or (n) assist any third party in doing any of the foregoing.
You represent and warrant that:
- You have the full right and power to enter into and perform this Agreement and to grant Oddcast all rights to use the User Materials as contemplated in this Agreement, including, without limitation, the license grants in this Agreement,
- You exclusively own and/or control all right, title and interest (including, without limitation, copyright) in and to the User Materials, and have secured all necessary third-party consents, rights, licenses and permissions, if any, required in order for you to enter into and perform this Agreement and to grant Oddcast all rights to use the User Materials as contemplated in this Agreement (including, without limitation, consents and permissions from owners of any elements that are used or otherwise incorporated into the User Materials),
- the User Materials (and Oddcast’s use thereof as contemplated under this Agreement) do not and will not infringe, misappropriate or violate any rights of any third party, including any trademark, copyright, patent, trade secret, right of privacy or publicity or moral rights of any third party,
- all information that you have provided or will provide to Oddcast is true and complete,
- the User Materials do not and will not violate any law, statute, ordinance or regulation,
- the User Materials do not and will not: (i) be defamatory, libelous, slanderous, or threatening, (ii) contain sexually explicit content that is pornographic, obscene, harmful to minors, violations of child pornography or child sexual exploitation laws (iii) denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, (iv) include images or the likeness of any individual other than you (except where you have obtained express permission from such other individual(s) for such exploitation), (v) encourage or otherwise depict drug use, (vi) make use of offensive language or images, (vii) promote physical harm of any kind against any individual or group or characterize violence, (viii) contain any personal contact information of you or any other individual, (ix) promote an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture installed copy-protect devices, or providing pirated music or links to pirated music files; (x) provide instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (xi) solicit passwords or personal identifying information for commercial or unlawful purposes from other users; and/or (xii) engage in any commercial activities whatsoever or sales without Oddcast' prior written consent.
- the User Materials do not and will not contain any viruses spyware, adware or other programming routines that may detrimentally interfere with computer systems or data, whether those of Oddcast or any third party.
Oddcast may terminate any users' access to the Elf App who are violators of the foregoing, including, without limitation, those who are infringers of third-party intellectual property rights, and may prohibit them from creating new accounts on the Elf App.
In addition to the foregoing, the User Materials you submit MUST NOT include any nudity, violence, or offensive subject matter (as determined by Oddcast in its sole discretion).
5. OWNERSHIP OF USER MATERIALS:
You will at all times retain all right, title and interest in and to the User Materials you provide under this Agreement (including, without limitation, the copyrights therein and thereto), subject to the non-exclusive rights granted to Oddcast under this Agreement.
6. LICENSE TO ODDCAST:
As used in this Agreement, the term "User Materials" means your content, photographs, voice recordings, videos, audio, comments, written work, name(s), trademarks, trade names, likenesses, biographical materials, artwork, liner notes, and other graphical or textual materials that you upload, submit or otherwise provide to Oddcast via the Elf App, and any and all computer-generated images or other artwork or images that you submit to Oddcast via the Elf App.
You hereby grant to Oddcast and its licensees and assigns a worldwide, royalty-free, non-exclusive license to do the following things in perpetuity:
- to prepare and encode User Materials, or any portion thereof for electronic, digital and/or other transmission, manipulation and exhibition in any format and by any means now known or hereafter devised;
- to display, copy, reproduce, create derivative works of, edit, alter, exhibit, publicly perform, broadcast, rebroadcast, transmit, retransmit, promote, distribute through any means (including electronic, analog and digital), and publish and/or otherwise exploit, in digital or physical form, any or all of the User Materials, including any portion thereof, and to include any such materials in compilations or other works, by any and all means in all media now known or hereinafter created, anywhere in the world, and for any purpose (for avoidance of doubt, the rights granted to Oddcast under this Agreement include the rights to make User Materials available on the Elf App, third-party websites and electronic devices);
- to make embed codes to which your User Materials link available;
- to modify, adapt, change or otherwise alter and create derivative works of the User Materials and use the User Materials; and
- to license and/or sublicense to any third party any of the foregoing rights in the User Materials, or any part or element thereof, subject to the terms and conditions of this Agreement.
You hereby disclaim any and all right, title, or interest in any and all material with which User Materials may be combined or into which all or any portion of User Materials may be incorporated.
You acknowledge and agree that all right, title and interest (including, without limitation, copyright, trademark and other intellectual property rights) in and to any and all content, elements and materials created by or for Oddcast incorporating all or any portion of the User Materials will be exclusively owned and controlled, as between you and Oddcast, by Oddcast. You represent and warrant that by submitting User Materials to the Elf App that the User Material is wholly owned or licensed or controlled by you.
User Materials will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Materials. You acknowledge and agree that your relationship with Oddcast is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Materials does not place Oddcast in a position that is any different from the position held by members of the general public, including with regard to your User Materials. None of your User Materials will be subject to any obligation of confidence on the part of Oddcast, and Oddcast will not be liable for any use or disclosure of any User Materials that you provide.
It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, Oddcast does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted.
7. NAME AND LIKENESS:
You hereby grant to Oddcast and its licensees and assigns:
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a perpetual, worldwide, royalty-free, non-exclusive license to use: (i) your name(s), voice recording, photograph and/or likeness(es) and biographical materials; and (ii) any other individual's name, voice recording, photograph and/or likeness and biographical materials, where such other individual appears in the User Materials, in connection with the distribution, exploitation, promotion, marketing and advertising of the User Materials.
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You also agree not to assert any privacy, publicity, moral or similar rights in connection with you User Materials or our use of your User Materials (and to the extent any other person(s) whose name(s), voice recordings, photographs or likeness(es) or performances that are embodied in the User Materials, you represent and warrant that you have obtained all necessary consents from such third parties consistent with the full scope of rights granted to Oddcast in this Agreement, and you agree that such persons will not assert any intellectual property, privacy, publicity, contractual, moral or similar rights, or make any claims that any User Materials are objectionable or otherwise defamatory).
8. THIRD PARTY LINKS AND CONTENT:
The Elf App may contain content from parties other than Oddcast ("Third Party Content"), either through services we offer or through links to third party web sites ("Third Party Sites"). You may also find links to Third Party Content and Third Party Sites in communications you receive from the Elf App. Functionality on the Elf App may also permit interactions between the Elf App and a third party web site or feature, including applications that connect the Elf App or your profile on the Elf App with a third party web site, service or feature. For example, the Elf App may include a feature enabling you to “share” or “post” content from the Elf App or your User Materials with a third party, which may be publicly posted on that third party’s service or application. Using this functionality typically requires you to login to your account on the third party service and you do so at your own risk. Those third parties may collect information about you and your use of the Elf App if you are logged into their service or if you choose to “share” or “post” content to their service or if you log-in to the Elf App using third party credentials. Oddcast does not control, maintain or endorse Third Party Content or Third Party Sites and makes no representations or warranties about either. By using the Elf App, you may be exposed to Third Party Content that is false, offensive, indecent or otherwise objectionable and you agree that Oddcast will not be liable in any way or under any circumstances for any Third Party Content, including, without limitation, any errors or omissions in any Third Party Content or any loss or damage of any kind you may incur as a result of the use of any Third Party Content or Sites posted, stored, accessed or transmitted via the Elf App. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE ELF APP INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. YOU AGREE TO REVIEW AND EVALUATE ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT, AND BEAR ALL RISKS ASSOCIATED WITH, THIRD PARTY CONTENT AND THIRD PARTY SITES.
You may choose, at your sole and absolute discretion and risk, to use applications that connect the Elf App or your profile on the Elf App with a third party service (each, an “Application”) and such Application may interact with, connect to or gather and/or pull information from and to your Elf App profile. By using such Applications, you acknowledge and agree to the following: (i) if you use an Application to share information about you, you are consenting to the information about you or your account (if any) being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if Oddcast has not provided such information; and (iii) your use of an Application is at your own option and risk, and you will hold the Oddcast harmless for that activity. You must read all log-in boxes and other pop-up boxes closely for notices about sharing your information with, through or by any other means identified on an Application.
9. WIDGETS:
Oddcast may provide certain Content that you may choose to include on your personal web page, third party web site or social networking site (“Personal Page”) by pasting the HTML or other code provided by us and labeled as an embed code (or similar identifying label) (“Embed Code”) into your Personal Page (“Widget”). For any Widgets that we make available on the Elf App, we grant you a revocable permission, subject to the restrictions in this Agreement, to include the Embed Code as provided by us (without editing) for inclusion only on your Personal Page and only on a site that: (i) permits you to post the Widget there; and (ii) does not have terms of use or other conditions that purport to give that site operator any interest or right in or to our Embed Code or Content other than to obtain a limited, terminable right to host the Widget and permit its normal operation. Your use of the Widget may display our trademarks contained on the Widget or Content made available via the Widget, but we control the use thereof and all goodwill associated with such use inures exclusively to us. You agree that you will not embed or otherwise make available a Widget on a web page or other location in violation of the prior sentence or that contains content that is distasteful, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable (in our sole opinion). We make no specific warranties about Widgets and we may discontinue providing the services necessary for the Widgets to operate at any time for any reason without any liability to you. In addition, we may disable Widgets that you include on your Personal Page(s) if you violate this Agreement (as determined by us in our sole discretion), or for any or no reason, without any liability to you. You agree that our permission to you to use Widgets on your Personal Page does not provide you (or any third party) with any intellectual property rights in or to the Widget or the Content made available via any Widget. You agree that you will not sell, lease, hypothecate, transfer, license, encumber or otherwise exploit the Content, in whole or in part, or purport to give any third party permission to do so. This includes a prohibition on you or a third party overlaying or otherwise associating advertising with the Widget or Content. You agree to include, and not remove or alter, our trademark, copyright or other proprietary rights notices, as provided by us on a Widget, Widget code or Content made available via a Widget and you agree to comply with Widget usage guidelines that may be provided by us from time to time. You agree not to circumvent, attempt to circumvent, or cause the circumvention of, the security or rights management features in a Widget or any component of a Widget that are designed to prevent users from copying, manipulating or retaining the Content made available via a Widget. You also agree to not use (or attempt to use) any Widget, or any component of a Widget, to display content other than the specific Content provided or intended by us to be displayed via a particular Widget. Any of the Content made available in connection with your site, or otherwise, by our Widgets, third party widgets or otherwise is our exclusive property and no grant of any intellectual property rights is made by Oddcast. We retain the right to demand that you cease any use of our Content upon notice and you will do so.
10. LINKING POLICY:
Oddcast grants you the revocable permission to link to the Elf App; provided, however, that your website, or any third party web sites that link to the Elf App: (a) may only link to the applicable Elf App's home page unless we have provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site; (c) must not imply that Oddcast or the Elf App is endorsing or sponsoring it or its products, unless we have given our prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in Oddcast's sole opinion, harm Oddcast or its products or services; (e) must not use Oddcast's trademarks without the prior written permission of Oddcast; (f) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in our sole opinion), and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to this Agreement. By linking to the Elf App, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in this Agreement, we reserve the right to prohibit linking to the Elf App for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
11. TERMS OF SALE:
To the extent you can purchase a good or service through the Elf App, the purchase transaction will be wholly processed and fulfilled by the designated payment processor. All sales are final.
12. COLLABORATIVE CONTENT AND VIRAL DISTRIBUTION:
Certain functionality on the Elf App permits collaborative creation of content by users (“Collaborative Content”). Your contributions to the Collaborative Content are User Materials except that the resulting content is subject, in addition to all other applicable terms, to the following additional provisions as a condition to your use of any such functionality and the use of Content, if any, made available for use in connection with the Collaborative Content on the Elf App:
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the license to use the Content in connection with Collaborative Content or otherwise in association with User Materials is limited to Content specifically made available by Oddcast for that purpose, and may be revoked by Oddcast at any time without liability to you;
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your use of the Collaborative Content is subject to this Agreement and any additional terms and conditions as Oddcast may from time-to-time require;
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you will not make any commercial use of the Collaborative Content, or the Content made available for use in the Collaborative Content, in whole or in part, or sell, lease, hypothecate, transfer, license, distribute, reproduce, encumber or otherwise exploit same, in whole or in part, except that you may use the Elf App to create Collaborative Content pursuant to this Agreement and, if expressly permitted on the Elf App, you may engage in Viral Distribution pursuant to this Agreement.
If expressly permitted on the Elf App, Oddcast grants you a limited, revocable permission to engage in Viral Distribution of Collaborative Content as may from time to time be made available on the Elf App for such purpose. “Viral Distribution” means, for non-commercial purposes only: (a) sending Collaborative Content to friends, acquaintances at no charge by e-mail or other forms of digital delivery; (b) reproducing copies of Collaborative Content for personal use; and (c) posting and displaying links to Collaborative Content on a personal web site or on a third party web site that permits posting of such links at the direction of users subject to its terms and conditions, provided that such third party web site does not charge for access to the Collaborative Content or associate products, services or advertising with the Collaborative Content.
You agree to include, and not remove or alter Oddcast trademarks, copyrights or other proprietary rights notices specified on the Elf App and within e-mail page(s), when displaying any Collaborative Content, and you agree to comply with usage guidelines that may be provided by Oddcast from time to time. WE DO NOT REWARD YOU FOR VIRAL DISTRIBUTION AND YOU AGREE NOT TO ENGAGE IN SPAMMING OR OTHER UNLAWFUL OR CONTROVERSIAL BEHAVIOR IN CONNECTION THEREWITH.
13. PROPRIETARY RIGHTS:
You agree that all content and materials available on the Elf App are protected by rights of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Oddcast, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from materials or content available on the Elf App, or otherwise use any content, copyrights, trademarks or intellectual property of Oddcast in any way without Oddcast's prior, written consent. You also agree not to retrieve data or other content or any materials from the Elf App to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots" or otherwise. You agree not to use any of Oddcast's content, names or trademarks as metatags on other web sites. You agree not to display any of the Elf App in a frame (or any of our content via in-line links) without Oddcast’s express written permission.
You acknowledge and agree that the name Oddcast, the Oddcast logos, and the layout and design of the Elf App, among other marks that may appear on the Elf App are, as between you and Oddcast, trademarks of Oddcast (the "Oddcast Marks"). Other trademarks and service marks on the Elf App may be the property of the advertisers, content partners and/or providers, or other third parties. You may not use any of Oddcast Marks without Oddcast’s prior written permission, and you may not use any third-party marks without the third party's prior written permission.
14. COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RELATED COMPLAINTS:
Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Elf Apps infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), Oddcast has a designated agent for receiving notices of copyright infringement and Oddcast follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Oddcast's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Oddcast's copyright agent for notice of claims of copyright, trademark, or other intellectual property infringement on or regarding the Elf App can be reached as follows:
Copyright Notices, Oddcast Inc. 34 W 27th St NY NY 10001
NOTE: This contact information is for inquiries regarding potential copyright, trademark, or other intellectual property infringement on the Elf App only. No other correspondence to this contact information will be addressed.
We have a policy of terminating users who (in our reasonable discretion) are repeat infringers.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
Oddcast will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.
15. SWEEPSTAKES, CONTESTS, AND PROMOTIONS
Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via the Elf App may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of User Materials, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).
16. USER DISPUTES:
You are solely responsible for your interactions with other users of the Elf App, whether online or offline. You are solely responsible for all content (including, without limitation, User Materials) you upload to, publish or display through the Elf App, including any email messages. You agree that Oddcast will not be responsible for any damage or harm resulting from your interactions with other Elf App users. We reserve the right, but will have no obligation, to monitor interactions between users and take any action in good faith to restrict access to or the availability of any material that Oddcast or another user may consider to be obscene, lewd, defamatory, lascivious, filthy, offensive, violent, harassing or otherwise objectionable in the sole discretion of Oddcast.
17. ITEMS AVAILABLE FOR DOWNLOAD AND THIRD PARTY PAYMENTS:
To the extent that we make any applications, software or functionalities available for download or use from or through the Elf App (the "Downloadable Items"), such Downloadable Items are the copyrighted work (as between you and Oddcast), of Oddcast or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. Note that if you install certain applications that may be available via the Elf App, you consent to the download of software to your computer and accept this Agreement and any Additional Terms related to such application. With respect to any User Materials that you download from or through the Elf App, you are responsible for all licensing, reporting and payment obligations of any kind to third parties in connection with the User Materials. You also agree that any Downloadable Items you obtain from the Elf App (whether for free or for a fee) are only provided to you for your personal, non-commercial use and are not meant for you to further distribute for commercial purposes.
18. MOBILE
The Elf App may offer features and services that are available to you via your mobile phone or other mobile device. These features and services may include, without limitation, the ability to upload content to the Elf App, receive messages from the Elf App, download applications to your mobile phone or access the Elf App features (collectively, the "Mobile Features"). We may charge for Mobile Features. Also, standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Mobile Features will be disclosed in connection with Mobile Features. The instructions will typically require you to text "STOP" to the applicable shortcode for the Mobile Feature.
If you have registered for Mobile Features connected to your mobile telephone number, you agree to notify Oddcast of any changes to your mobile number and update your account(s) with Oddcast.
19. INDEMNITY:
You agree to defend, indemnify, reimburse and hold Oddcast and its parent, subsidiaries and affiliated entities, and their members, managers, officers, directors, representatives, employees, agents, successors, designees, licensees, sublicensees and assigns harmless from and against any and all claims, damages, investigations, liabilities, loss, damages, judgments, settlements, costs and expenses (including attorney's fees, costs and expenses and court costs) that directly or indirectly arise out of or are directly or indirectly related to:
- your use of the Elf App or activities in connection with the Elf App;
- your User Materials;
- any anticipatory breach, breach or alleged breach of your representations and warranties and/or any anticipatory breach, breach, alleged breach or violation of any other terms and conditions of this Agreement;
- your violation or alleged or threatened violation of any laws, rules regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities;
- information or material transmitted through your computer to the Elf App as User Materials or otherwise, even if not submitted by you, that infringes, violates or misappropriates any rights of a third party, including, without limitation, any trademark, copyright, patent, trade secret, trade dress, defamation, right of privacy or publicity or moral rights of any third party,
- any misrepresentation made by you; and
- Oddcast’s use of your information or your User Materials.
20. ELF APP PERFORMANCE:
You acknowledge and agree that the operation of the Elf App may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Oddcast will not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Elf App. There are no assurances whatsoever that any of the User Materials or any part or element thereof will actually be utilized on the Elf App or if so utilized continue to be available for any particular time. Oddcast has the right, in its sole and absolute discretion, to remove from the Elf App at any time the User Materials or any part thereof. Notwithstanding the foregoing, Oddcast does not control the content of the User Materials and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content you submit to the Elf App. The Elf App may be discontinued at any time, with or without reason and without any liability to you or to any third party for any modification or discontinuance of any or all of the Elf App.
21. NO WARRANTY:
THE ELF APP, INCLUDING, WITHOUT LIMITATION, THE CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ODDCAST OR ANY OF ITS EMPLOYEES; DIRECTORS; OFFICERS; SHAREHOLDERS; AGENTS; VENDORS AND CONTRACTORS MAKE NO WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER EITHER EXPRESS OR IMPLIED, ABOUT, WITHOUT LIMITATION: THE ELF APP; THE CONTENT ON OR PROVIDED THROUGH THE ELF APP; USER MATERIALS; THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE ELF APP; ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT OR THROUGH THE ELF APP; AND/OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO ODDCAST OR VIA THE ELF APP. IN ADDITION, ODDCAST HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
ODDCAST DOES NOT REPRESENT OR WARRANT THAT: THE ELF APP OR THE FUNCTIONS CONTAINED THEREIN WILL BE UNINTERRUPTED, ERROR FREE OR CONTINUOUSLY AVAILABLE, THAT DEFECTS WILL BE CORRECTED; OR THAT THE ELF APP OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. ODDCAST DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE ELF APP IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE ELF APP, THAT YOUR USE IS AT YOUR SOLE RISK. ODDCAST DOES NOT WARRANT THAT YOUR USE OF THE ELF APP IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND ODDCAST SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THIS AGREEMENT. BY ACCESSING OR USING THE ELF APP YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE ELF APP.
IN THE EVENT OF ANY FAILURE OF THE ELF APP TO CONFORM TO ANY WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT, YOU MAY, IF YOU ARE USING THE ELF APP ON THE APPLE PLATFORM, NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE ELF APP TO YOU (IF ANY). ODDCAST AND YOU ACKNOWLEDGE THAT APPLE (IF YOU ARE USING THE ELF APP ON THE APPLE PLATFORM), HAS NO OBLIGATION TO FURNISH ANY MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO THE ELF APP.
IF YOU ARE USING THE ELF APP ON THE APPLE PLATFORM, THEN NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND SUBJECT TO THIS AGREEMENT, ODDCAST AND YOU ACKNOWLEDGE THAT AS BETWEEN APPLE AND ODDCAST, ODDCAST IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS YOU MAY HAVE RELATING TO THE ELF APP OR YOUR POSSESSION AND/OR USE OF THE ELF APP, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE ELF APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
22. NO LIABILITY FOR THIRD PARTY USE:
ODDCAST DOES NOT ENDORSE THE USER MATERIAL OR COLLABORATIVE CONTENT, IS NOT RESPONSIBLE FOR THE USER MATERIAL OR COLLABORATIVE CONTENT AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY THIRD-PARTY (INCLUDING, WITHOUT LIMITATION, PERSONS WHO MAY USE OR RELY ON SUCH USER MATERIALS OR COLLABORATIVE CONTENT) USE OF THE USER MATERIALS OR COLLABORATIVE CONTENT MADE AVAILABLE ON THE ELF APP BY THE USER PURSUANT TO THE TERMS OF THIS AGREEMENT. YOU WILL BE SOLELY RESPONSIBLE FOR SEEKING RELIEF FOR ANY UNAUTHORIZED USE OF YOUR USER MATERIALS BY A THIRD-PARTY, AND NOT FROM ODDCAST. THIS MEANS, AMONG OTHER THINGS, THAT IF ANOTHER PERSON OBTAINS USER MATERIALS FROM ODDCAST (WHETHER OR NOT WITH ODDCAST'S PERMISSION), AND USES THOSE MATERIALS IN A WAY NOT AUTHORIZED PURSUANT TO THE LICENSES GRANTED UNDER THIS AGREEMENT, YOU WILL SEEK REDRESS FROM THE OTHER PERSON AND NOT FROM ODDCAST, AND THAT YOU WILL NOT HOLD ODDCAST RESPONSIBLE OR LIABLE FOR SUCH UNAUTHORIZED USE.
23. EXCLUSION OF DAMAGES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (INCLUDING NEGLIGENCE) WILL ODDCAST, ITS OFFICERS, DIRECTORS, MEMBERS, PARENTS, AFFILIATES, SUBSIDIARIES, LICENSEES, ASSIGNS, SUCCESSORS, AGENTS, REPRESENTATIVES, EMPLOYEES OR LICENSORS BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF AN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: THE ELF APP; THE CONTENT; USER MATERIALS; YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE ELF APP; ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY ODDCAST OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE ELF APP; ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; ANY ERRORS OR OMISSIONS IN THE ELF APP'S TECHNICAL OPERATION; OR ANY DAMAGE TO YOUR OR ANY USER'S COMPUTER, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE OR DEVICE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, WHETHER OR NOT ODDCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTE: SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN NO EVENT WILL ODDCAST’S TOTAL LIABILITY TO USER UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED TWENTY DOLLARS ($20). YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ODDCAST' ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY ODDCAST AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY ODDCAST.
BY ACCESSING THE ELF APP, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
YOU ACKNOWLEDGE AND AGREE THAT ODDCAST HAS ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY SPECIFIED IN THIS AGREEMENT, WHICH ALLOCATE THE RISK BETWEEN YOU AND ODDCAST, AND FORM THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
24. LOCATION OF ELF APP AND EXPORT CONTROLS:
The information provided on the Elf App is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Oddcast to any registration requirement within such jurisdiction or country. The Elf App is controlled and operated from offices located in the United States and we make no representations or warranties that the information, products or services contained on the Elf App are appropriate for use or access in other locations. Anyone using or accessing the Elf App from other locations does so on their own initiative and are responsible for compliance with United States', and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Elf App and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide. Software from the Elf App (the "Software") is further subject to United States export controls. No Software may be downloaded from the Elf App or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
25. GOVERNING LAW, JURISDICTION:
THIS AGREEMENT WILL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS OR ANY OTHER JURISDICTION'S CONFLICT OF LAWS PRINCIPLES AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. THE SOLE VENUE AND JURISDICTION FOR DISPUTES ARISING FROM THIS AGREEMENT WILL BE THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND USER AND ODDCAST IRREVOCABLY AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS.
26. ASSIGNMENT:
Oddcast has the right to assign this Agreement in whole or in part to any person or business entity. You may not assign your rights or delegate your obligations under this Agreement without the prior written consent of Oddcast.
27. ENTIRE AGREEMENT, SEVERABILITY AND MODIFICATION:
This Agreement, together with certain Additional Terms, sets forth the entire understanding and agreement of your and Oddcast as to the subject matter hereof and supersedes all prior proposals, discussions or agreements (oral and written) with respect to such subject matter. If any provision of this Agreement will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. Oddcast’s failure to act with respect to a breach by you or others does not waive Oddcast’s right to act with respect to antecedent, subsequent or similar breaches.
28. STATUTE OF LIMITATIONS:
You agree that regardless of any statute or law to the contrary, any claim or cause of action you believe you may have, arising out of or related to use of the Service or this Agreement, must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.
29. THIRD PARTY BENEFICIARY
If you are using the Elf App on the Apple Platform, you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of the Agreement. If you are using the Elf App on the Apple Platform, you agree that if the Elf App or your possession and use of the Elf App infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
30. MODIFICATION:
Oddcast reserves the right to modify or add to this Agreement at any time (“Updated Terms”). You agree that we may notify you of the Updated Terms by making them available via the Elf App, and that your use of the Elf App after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms, which will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Elf App from that point forward.
