Terms of Service
Last Updated: August 27, 2020
By accessing or using the applications and services owned or operated by Elios, whether through our software app(s) or website (our "Services"), you are accepting and agreeing to be bound by the terms and conditions set forth below (these "Terms").
We may update these Terms from time to time, so please review them frequently. For Elios customers who accepted a version of this Agreement prior to modification, the revisions will become effective 30 days after posting on Elios.com. Your continued use of Elios Services means you accept the changes. Once you accept a version of the Agreement, however, we will not enforce future material changes without your express agreement to them. If you are asked to accept material changes to this Agreement and you decline to do so, you may not be able to continue to use the Elios Services.
Because our Services continue to evolve, we may change or discontinue all or any part of the Services, at any time and without notice, in our sole discretion. For residents of certain countries, you agree to the arbitration agreement and class action waiver described in Section 24 to resolve disputes with Elios.
Table of Contents
• Downloading Our App
• Creating an Account
• Cancellation of a Subscription
• Free Trials
• Alerts and Notifications
• Content You Provide
• General Prohibitions
• Copyright Policy
• Third Party Links
• Tile Hardware Limited Warranty
• Disclaimer of Warranty for App and Services
• Limitation of Liability
• General Provisions
• Third Party Trademarks
• Dispute Resolution by Binding Arbitration
• Contacting Us
Subject to your compliance with these Terms, Elios grants you a limited non-exclusive, non-transferable license to download and install a copy of our desktop or mobile software app (the "App") on a single device that you own or control and to run such copy of the App and use our Services solely for your own personal non-commercial purposes. We reserve all rights in and to the App and Services not expressly granted to you under these Terms. You may not: (i) copy, modify or create derivative works based on the App or Services; (ii) distribute, transfer, sublicense, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App or Services available to multiple users through any means.
2. Downloading Our App
When you download our App from the Apple App Store, Google Play or other app store or app distribution platform (an "App Store"), you acknowledge and agree that:
◦ These Terms are concluded between us, and not with the App Store, and that we (not the App Store), are solely responsible for our App.
◦ The App Store has no obligation to furnish any maintenance and support services with respect to our App or handle any warranty claims.
◦ The App Store is not responsible for addressing any claims you have relating to our App, including product liability claims, consumer protection claims, intellectual property infringement claims, or any claim that our App fails to conform to any applicable legal or regulatory requirement.
◦ The App Store is a third party beneficiary of these Terms and has the right to enforce these Terms against you (as it relates to your license of our App through their App Store). You must also comply with the App Store's terms of service when using our App.
3. Creating an Account
In order to use certain features of our Services, you must have an account with us. By creating an account, you represent that (a) all required information you provide is truthful and accurate; (b) you are of legal age to agree to these Terms; and (c) your use of our Services does not violate any applicable law or regulation or these Terms. You are responsible for maintaining the confidentiality of your password and for any and all use of your account. You should notify us immediately if you suspect any unauthorized use of your account or access to your password. You may not (a) use the account or username of any other user; (b) allow someone else to use your account or username; or (c) sell, lend, transfer, or otherwise share your account, temporarily or permanently, with someone else. If you violate these Terms, we reserve the right to issue you a warning, suspend or even terminate your account (along with your ability to access and use the Services).
We may allow you to purchase Elios hardware products ("Products") through our Services. We may also require that you purchase a subscription to use certain features of the Services (a “Subscription”). By purchasing Products or a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to provide additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment methods represented by Payment Information that you provide us. You acknowledge and agree that we have no liability with respect to any act or omission by your payment provider. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
If you purchase a Subscription, you will be charged a subscription fee, plus any applicable taxes and other charges (a “Subscription Fee”), at the beginning of your Subscription, and at the start of each billing period thereafter, at the then-current Subscription Fee. You may elect to pay your Subscription Fee on a monthly basis (a “Monthly Subscription”), or on an annual basis (an “Annual Subscription”). If you choose a Monthly Subscription, we (or our third-party payment processor) will automatically charge you each month on the anniversary of the commencement of your Monthly Subscription, using the Payment Information you have provided until you cancel your Monthly Subscription. If you choose an Annual Subscription, we (or our third-party payment processor) will automatically charge you annually on the anniversary of the commencement of your Annual Subscription, using the Payment Information you have provided until you cancel your Annual Subscription. If you have an Annual Subscription, we will send you a reminder at least thirty (30) days prior to each renewal with the then-current Subscription Fee. We reserve the right to change our Subscription Fees for Monthly and Annual Subscriptions. We will provide you advance notice of any increase in the Subscription Fees applicable to your Subscription.
You may change your Monthly Subscription to an Annual Subscription, or your Annual Subscription to a Monthly Subscription, by contacting us via http://support.myElios.com, if you signed up on Elios.com, or via the applicable App Store where you downloaded the App, if you signed up through the App. If you change your Monthly Subscription to an Annual Subscription, or your Annual Subscription to a Monthly Subscription, your billing date may also change. If you change from a Monthly Subscription to an Annual Subscription, on your next billing date, you will be charged the then-current Subscription Fee for an Annual Membership, and your Annual Subscription will renew on an annual basis. If you change from an Annual Subscription to a Monthly Subscription, at the next renewal date for your Annual Subscription, you will be charged the then-current Subscription Fee for a Monthly Membership, and your Monthly Subscription will renew on a Monthly basis.
6. Cancellation of a Subscription
YOUR PURCHASE OF A SUBSCRIPTION IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND AT ANY TIME. But if something unexpected happens in the course of completing the Transaction for your purchase of a Subscription, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction.
Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Monthly or Annual Subscription period. If you signed up on Elios.com, you may cancel your Subscription by logging into your account at https://www.MyElios.com/dashboard/ and selecting “Cancel Subscription.” If you signed up through the App, you may cancel your Subscription via the applicable App Store where you downloaded the App. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current subscription period. If you cancel, your Subscription will continue until the end of your then-current subscription period and will then terminate without further charges.
7. Free Trials
We may offer you a free trial period at the start of your Subscription (a “Free Trial Period”). The Free Trial Period for your Subscription will last for the period of time specified when you signed up. When you try our Subscription through a Free Trial Period, you must create an account and provide your Payment Information. By accepting a Free Trial Period, you agree that, at the end of the Free Trial Period, you will be charged the then-current Subscription Fee for a Monthly or Annual Subscription, as specified in the offer for the Free Trial Period, and at the start of each subsequent billing period. You authorize us to charge you using the Payment Information you provided when you accepted the offer for the Free Trial Period. We may validate your Payment Information and the payment method you provided by requesting a temporary authorization to the financial institution that issued your payment method. If we determine that your Payment Information or payment method is invalid, we may revoke your Subscription and terminate your Free Trial Period. You may cancel your Subscription, as described in these Terms, at any time before the end of the Free Trial Period. You will not be charged a Subscription Fee after you cancel your Subscription.
8. Privacy And Consent To Use Data
You agree that Elios may collect and use technical data and related information—including but not limited to technical information about your device, system and application software—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Elios products and Services. Elios may use this information to improve its products or to provide services or technologies to you.
9. Alerts and Notification
As part of the Services we provide, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you outside or inside the App ("Push Messages"). You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services (with the possible exception of infrequent, important service announcements and administrative messages). Please be aware that third party messaging fees may occur for some of the Push Messages depending on the message plan you have with your wireless carrier.
10. Content You Provide
You are responsible for the content, such as any text, images, and other material and information, that you upload or post on or through our Services (your "Content"), and its legality, reliability, and appropriateness. You should only upload or post Content that you create or have the right to use and publish. By uploading or posting your Content you give us the right and license to store, reproduce, modify, create derivative works of, publish, distribute, transfer, transmit, publicly display, publicly perform, and use your Content in connection with providing our Services. You agree that we can also make your Content available to other users of the Services, who may view and/or use your Content, subject to these Terms.
The content contained on Elios Sites, such as text, graphics, images, audio, video and other material, as well as the domain names, tagline, organization and user look and feel (collectively, the "Content"), is protected by copyright, trademark and other such laws in the United States and foreign countries, and is owned or controlled by Elios or by third parties that have licensed their Content to Elios. Unauthorized use of the Content may violate copyright, trademark, and other laws. Where a Elios Site is configured to enable the download of particular Content, you may download one copy of such Content to a single computer for your personal, noncommercial home use only, provided that (a) you retain all copyright and other proprietary notices contained in the original Content, (b) you may not sell or modify the Content or reproduce, display, publicly perform, distribute, or otherwise use the Content in any way for any public or commercial purpose without the prior written permission of Elios, and (c) you may not use the Content in a manner that suggests an association with any of our products, services or brands.
You may not, without the prior written permission of Elios, "mirror" on any other server any material contained on any Elios Site. The use of the Content on any other website or in a networked computer environment for any purpose is prohibited, without the express written permission of Elios. The trademarks, logos and service marks (the "Marks") displayed on the Elios Sites are owned by Elios or third parties. You are prohibited from use of those Marks without the express, written permission of Elios or such third party. If you would like information about obtaining Elios's permission to use the Content on your website, email webmaster@Elios.com.
In the event that we offer downloads of software on a Elios Site and you download such software, the software, including without limitation any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") is licensed to you by us or third-party licensors for your personal, noncommercial home use only. We do not transfer title to the Software to you. You may not distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-readable form. UNLESS OTHERWISE SPECIFICALLY AND EXPRESSLY STATED ELSEWHERE, Elios HEREBY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED OR STATUTORY.
TO THE FULLEST EXTENT PERMITTED BY LAW, Elios SHALL NOT BE LIABLE FOR (1) ANY INACCURACY, ERROR IN OR FAILURE OF THE SOFTWARE; (2) ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) ARISING FROM ANY DOWNLOAD OR USE MADE OF THE SOFTWARE, OR OCCASIONED BY ANY SUCH INACCURACY, ERROR OR FAILURE OF THE SOFTWARE.
Public Forums and Communication
"Public Forum" means an area, site or feature offered as part of any Elios Site that offers the opportunity for users to submit content ("User Submissions") for viewing by one or more Elios Site users, including without limitation a message board, forum, social community environment, conversation page, or blog.
You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any User Submission to a Public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures voluntarily and at your own risk. You should use good judgment when posting information, remarks or other content regarding other users, service providers, Elios or any other third party. You may be held legally responsible for damages suffered by other users, Elios or third parties as a result of legally actionable or defamatory comments, remarks or other information or content that you post to a Elios Site. Elios is not legally responsible for any User Submissions, even if a User Submission is defamatory or otherwise legally actionable.
You are and will remain solely responsible for the User Submissions you distribute on or through any Elios Site in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum. You will be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from a User Submission. By submitting material to any Elios Site, you automatically grant, or warrant that the owner of such material has expressly granted, Elios the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright or other rights that may exist in such material. You also permit any other user to access, view, store or reproduce the material for that user's personal use. You hereby grant Elios the right to edit, copy, publish and distribute any material you make available on any Elios Site.
You acknowledge that your use or reliance upon any User Submission posted in any Public Forum is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice, or recommendations posted or sent by users in any Public Forum, and we specifically disclaim any and all liability in connection therewith. We do not confirm nor verify the qualifications, background, or abilities of users or the information they post in any Public Forum. Therefore, we recommend that you be careful and exercise common sense and good judgment when using any Elios Site or Public Forum.
Rules of Conduct: you agree that you will not submit any User Submission on any Elios Site that:
• is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person;
• is bigoted, hateful, or racially or otherwise offensive;
• is violent, vulgar, obscene, pornographic or otherwise sexually explicit, or otherwise harms or can reasonably be expected to harm any person or entity;
• is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a User Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
• infringes or violates any right of a third party, including: (a) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (b) right of privacy (specifically, you must not distribute another person's personal information of any kind without their express permission) or publicity; or (c) any confidentiality obligation;
• is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
• contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Elios Sites or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the Elios Sites;
• (a) does not generally pertain to the designated topic or theme of the relevant Public Forum; (b) violates any specific restrictions applicable to a Public Forum, including its age restrictions and procedures; or (c) is antisocial, disruptive, or destructive, including "flaming," "spamming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the Internet; or
• is false or misleading.
We have the right (but not the obligation) to review any or all portions of your Content and delete (or modify) any of your Content from our Services for any reason, including if we believe, in our sole judgment, your Content violates these Terms, or that we believe threatens the safety of, or harms any other person, or creates liability for us or any other person. We reserve the right (but have no obligation) to investigate and take appropriate action, including removing your Content from our Services (or modifying it), suspending or terminating your account and/or suspending or terminating the provision of our Services to you, and/or reporting you to law enforcement authorities, if you violate any provision of these Terms. In order to cooperate with governmental requests, subpoenas or court orders, to protect our systems, service providers, partners, and other users, or to ensure the integrity and operation of our business and systems, we may access and disclose any information or content we consider necessary or appropriate, including your account information (i.e. name, e-mail address, etc.), IP address and traffic information, usage history, your Content, and your conduct.
12. General Prohibitions
You agree not to do any of the following:
◦ Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
◦ Use the Services to track the location of, or collect any personally identifiable information from, any other person without their express permission;
◦ Intercept or "sniff" the communication packets between the Elios hardware and mobile devices or attempt to reverse engineer the Elios Bluetooth Low Energy profile or Elios protocol;
◦ Access, tamper with, or use non-public areas of the Services, Elios's computer systems, or the technical delivery systems of Elios's providers;
◦ Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
◦ Attempt to access or search the Services or Content or download Content from the Services through the use of any tool, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Elios or other generally available third party web browsers;
◦ Submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
◦ Violate any applicable law or regulation, including by stalking , harassing , or tracking others for unlawful or criminal purposes.
Encourage or enable any other individual to do any of the foregoing.
If you or someone using your Elios Account violates these rules and fails to remedy this violation after a warning, Elios may take action against you, including revoking access to certain or all Elios Products and Services or terminating your Elios Account as described in Section 17. In case of severe violations, Elios may take these actions without issuing a prior warning. When practical, Elios will notify you of the action it will take in response to violations of these rules or breach of this Agreement.
13. Copyright Policy
It is our policy to remove, or disable access to, material that infringes any copyright on our Services after we have been notified by the copyright owner or the copyright owner's legal agent. If you believe that your work has been copied and posted on through our Services in a way that constitutes copyright infringement, please provide our copyright agent with the following information:
◦ an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
◦ an identification of the copyrighted work that you claim has been infringed;
◦ a description of where the material that you claim is infringing is located on our Services;
◦ your address, telephone number, and e-mail address;
◦ a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or law;
◦ a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Notice of claims of copyright infringement should be sent to our Copyright Agent either via email at copyright@MyElios.com or by mail addressed to Copyright Agent, Elios, 63 East 11400 South #242 Sandy, Utah 84070.
14. Third Party Links
Our Services may contain links to content or services provided by third parties ("Third Party Links"). These Third Party Links are not under our control, and we are not responsible for their content, services, performance, operation, availability, business practices or policies. We are providing these Third Party Links to you only as a convenience but we do not imply any endorsement or recommendation of their content or services, or of any association of us with such third parties. If you access any of these Third Party Links, you do this entirely at your own risk and any charges or obligations you incur in your dealings with these third parties, are your responsibility. The websites available through the Third Party Links are subject to their own terms and policies, including privacy and data gathering practices. Elios is not responsible for the content of linked third-party sites and does not make any representations or warranties regarding the content or accuracy of materials on such third-party websites or the privacy practices of such third parties. If you decide to access linked third-party websites, you do so at your own risk.
You acknowledge that all intellectual property rights in our Products, App and Services, including the underlying software and technology and the information and content available on our Services, are owned by us and our suppliers (including other users), and are protected by law throughout the world. If you provide any suggestions, ideas, feedback, or recommendations to us regarding our Products, App or Services ("Feedback"), we may use this Feedback for any purpose and without any obligation to you. By providing us with Feedback, you give us a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner any and all Feedback.
Elios may allow or require you to download updates or patches onto your Elios device of Elios app. Certain updates may be required to continue use of Elios products and services. You consent to Elios automatically installing available updates to Elios products and services. Failure to install available updates may render Elios products and/or services unusable.
You can terminate your account at any time by deactivating your account or by providing notice of termination to us. We reserve the right to terminate or suspend your account or your access to any or all portions of the Services at any time, for any reason, including your violation or breach of any provision in these Terms. Upon termination, all rights and licenses granted to you in these Terms immediately end. If your account or access to our Services is terminated or suspended because you violated these Terms, you will not be entitled to any refund of any fees or payments and you will have no further right to access any of the foregoing or your account.
18. Elios Hardware Limited Warranty
Elios may offer a warranty for your Product. For information about the warranty that may apply to your Product, and warranties related to a Subscription, please visit https://myElios.com/warranties.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS ARE LIMITED TO THE DURATION OF THE APPLICABLE EXPRESS WARRANTY. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction and which are not varied by this clause to the extent to do so would breach such applicable law.
19. Disclaimer of Warranty for App and Services
We will use reasonable efforts to correct any discovered defects in the App or Services. However, to the maximum extent permitted by applicable law, your access to and use of our App and Services is at your own risk. We are not responsible for the content provided by, or the conduct of, any user and you bear the entire risk of using the App and Services and any interactions with other users. Our App and Services are provided on an "AS IS" and "AS AVAILABLE" basis and, to the maximum extent permitted by applicable law, we do not represent, warrant, or guarantee that the App and Services will be provided uninterrupted, error-free, virus-free, or that defects will be corrected. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES REGARDING THE APP AND SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IMPORTANT: WITHOUT LIMITING THE FOREGOING, THE APP AND THE SERVICES ARE DESIGNED SOLELY TO HELP YOU LOCATE YOUR LOST PERSONAL ITEMS (SUCH AS KEYS, WALLETS, AND BACKPACKS) WITHIN A CLOSE PROXIMITY. THEY ARE NOT DESIGNED NOR DO THEY PROVIDE ANY REAL-TIME TRACKING CAPABILITIES. WE DISCLAIM ANY LIABILITY RESULTING FROM ANY USE OF THE APP AND/OR THE SERVICES FOR ANY PURPOSE OTHER THAN THEIR INTENDED DESIGN. If applicable law requires any warranties with respect to our App or Services, all such warranties are limited in duration to the longer of thirty (30) days from the date of your first use or the minimum duration allowed by law.
20. Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY LAW, WE WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, REVENUES, OR DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, RELATED TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF THE PRODUCTS, APP OR SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ANY CLAIM RELATED TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF THE PRODUCTS, APP OR SERVICE, IS LIMITED TO (A) THE AMOUNT YOU HAVE PAID TO Elios FOR THE PRODUCT GIVING RISE TO THE CLAIM, (B) THE AMOUNT YOU HAVE PAID TO Elios FOR YOUR Subscription GIVING RISE TO THE CLAIM IN THE 12 MONTHS BEFORE THE CLAIM AROSE, OR (C) FIFTY DOLLARS ($50) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Elios, AS APPLICABLE.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the above exclusions or limitations may not apply to you. For instance, certain legislation in Australia provides consumer guarantees or impose obligations on Elios which cannot be excluded, restricted or modified, or only to a limited extent. These Terms of Service are subject to such legislation, including without limitation the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010.
22. General Provisions
These Terms constitute the entire agreement between us with respect to the subject matter and supersede any prior understandings and agreements. These Terms will be governed by and construed in accordance with the laws of the State of Utah, without regard to or application of conflicts of law rules or principles. The exclusive jurisdiction for all disputes, claims or controversies arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content will be the state and federal courts located in Utah and you and Elios each waive any objection to jurisdiction and venue in such courts. If any part of these Terms is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of these Terms will remain in full force and effect.
23. Third Party Trademarks
Apple and the Apple logo are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Google Play, the Google Play logo, and Android are trademarks of Google Inc. The Bluetooth® word mark and logos are registered trademarks owned by Bluetooth SIG, Inc. and any use of such marks by Elios, Inc. is under license. All other trademarks and trade names are properties of their respective owners.
24. Dispute Resolution by Binding Arbitration
THIS SECTION APPLIES TO ALL CONSUMERS WHO ACCEPT THE TERMS OF THIS AGREEMENT. IT EXCLUDES RESIDENTS OF QUEBEC, RUSSIA, SWITZERLAND, BRAZIL, MEXICO, THE MEMBER STATES OF THE EEA, AND THE REPUBLIC OF KOREA BRINGING CLAIMS OUTSIDE OF THE UNITED STATES. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AND Elios EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
This Section offers a streamlined way to resolve disputes between us if they arise. Most of your concerns can be resolved quickly and satisfactorily by contacting Elios customer care. If Elios cannot resolve your concern, you and Elios agree to be bound by the procedure in this Section to resolve disputes between us.
This Section is an agreement between you and Elios, and applies to our respective agents, employees, subsidiaries, predecessors, successors, beneficiaries and assigns. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Section. This Section shall be interpreted broadly and shall survive termination of this Agreement.
A. Claims Covered by Arbitration
All disputes, claims or controversies arising out of or relating to this Agreement, any Elios product or service and its marketing, or the relationship between you and Elios ("Disputes") shall be determined exclusively by binding arbitration. This includes claims that accrued before you entered into this Agreement. The only Disputes not covered by this Section are claims (i) regarding the infringement, protection or validity of your, Elios’s or Elios’s licensors' trade secrets or copyright, trademark or patent rights; (ii) if you reside in Australia, to enforce a statutory consumer right under Australia consumer law; and (iii) brought in small claims court.
B. Informal Negotiations
You and Elios shall first attempt to resolve any Dispute informally for at least 30 days before initiating arbitration. The informal negotiations commence upon receipt of written notice from one person to the other ("Notice of Dispute"). The Notice of Dispute must: (a) include the full name and contact information of the complaining party; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought. Elios will send its Notice of Dispute to your billing or email address. You will send your Notice of Dispute to: Elios 63 East 11400 South #242, Sandy, Utah 84070, ATTENTION: Legal Department.
C. Binding Arbitration
If you and Elios cannot resolve a Dispute informally, you or Elios may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, or if you send Elios a notice to the Notice of Dispute address above indicating that you are unable to pay the fees required to initiate an arbitration, Elios will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator shall make a decision in writing, and shall provide a statement of reasons if requested by either party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. You and Elios may litigate in court to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
YOU AND ELIOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall not consolidate another person's claims with your claims, and shall not preside over any type of representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If this specific subsection is found to be unenforceable, then the entirety of this agreement to arbitrate shall be null and void.
If you live in the United States, arbitration will take place at any reasonable location convenient for you. For residents outside the United States, arbitration shall be initiated in the County of San Mateo, State of California, United States of America, and you and Elios agree to submit to the personal jurisdiction of that court, in order to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
If the arbitrator rules in your favor on the merits of any claim you bring against Elios and issues you an award that is greater in monetary value than Elios's last written settlement offer made before Elios makes its final written submissions to the arbitrator, then Elios will:
◦ Pay you 150% of your arbitration award, up to $5,000 USD over and above your arbitration award; and
◦ Reimburse the arbitration fees that you paid to the AAA.
G. Changes to this Arbitration Agreement
Elios will not enforce material changes to this section in the future unless you expressly agree to them.
25. Contacting Us
If you have any questions about these Terms, please contact us at terms@MyElios.com.