General Statements.
The following terms and conditions must be agreed to by you as a condition to receiving the Services (as defined below) that ELUXR Inc., a Delaware corporation (the Company) provides. These terms and conditions form a binding legal contract, and by accepting these terms and conditions (this Agreement), you hereby acknowledge and agree that you have read, understood and agreed to be bound by the terms and conditions of this Agreement. If you are an individual, you represent and warrant to the Company that you are at least 18 years of age. If you are agreeing to this Agreement on behalf of a legal entity, you hereby represent and warrant to the Company that you have the due legal authority to bind such legal entity, on behalf of itself and any affiliates, and the terms you and your will refer to such legal entity (on behalf of itself and any affiliates). If for any reason you are unwilling or unable to agree to this Agreement, you must not accept this Agreement and must not use the Services or access the Company’s website, applications or any other functionality provided by the Company. If you provide access to or otherwise make available the Services in whole or in part in any form to any third person, including any directors, officers, managers, independent contractors, employees, or agents (Third Party Users), you hereby represent and warrant that you will ensure that such Third Party Users adhere to the terms and conditions of this Agreement and acknowledge and agree that you shall remain responsible and liable for the acts or omissions of all Third Party Users to the same extent as if you had carried out such acts or omissions yourself.
Modifications.
The Company may modify this Agreement in its sole discretion at any time without prior notice (including accessibility to certain portions of the Services, whether or not such portion of the Services is provided free of charge or based on monthly, percentage or other fees, and the amounts charged for such Services). The most current version of this Agreement is posted at http://eluxr.com/legal. Any changes to this Agreement become effective immediately upon posting of the same. Use of the Services following the posting of any modification or change will be treated as acceptance and understanding of such modified Agreement. You hereby agree and acknowledge that, if you do not agree with any changes or modifications made to this Agreement, your only remedy will be to discontinue use of the Services.
Company Property.
The Company reserves all rights, title and interest in and to its website, applications, platform, Services provided, products, names, designations, proprietary marks, trademarks, logos and all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
License.
The Company hereby agrees to provide to you with the following services: the following services: (a) a platform for you to make offers, receive offers, purchase and/or sell precious and semiprecious stones, jewelry and other similar luxury goods, (b) the ability to search for stones, jewelry and luxury goods by certain criteria, (c) a pop-up selling platform, (d) [add as needed], and (e) provide services that are related thereto as the Company may elect from time to time (the Services). To the extent that any new features are added to the description of the Services, they are also covered by the terms of this Agreement and further subject to any payment which the Company may require in order to access such additional Services. As part of the Services, you are receiving a non-exclusive, non-transferrable license to use the Company’s proprietary technology and such license is subject to the full, faithful and continuous performance and observance by you of all of your obligations under this Agreement, as the same may be amended or modified from time to time. The Services (including your license to use the Company’s proprietary technology) may be terminated at any time by the Company in its sole discretion for any reason set forth in this Agreement. The license granted hereby is solely a license to use the Company’s proprietary technology in compliance with this Agreement and is not a license to maintain, distribute, modify, enhance or create derivative works from any of the Company’s proprietary technology. Except as explicitly set forth above, you are not allowed to use, transmit or store, in any format whatsoever, any copyrighted, trademarked, proprietary or Company information (including extracts or screen shots of any Company website, technology or applications) without the prior express written permission of the Company. Any rights not explicitly granted in this Agreement are hereby reserved by the Company.
Suspension of License.
The Company reserves the right to suspend the license provided above or any of the Services at any time and for any reason whatsoever. Without limiting any of the foregoing, the Company does not permit the Services to be used in a manner that (a) is misleading, defamatory, libelous, offensive, obscene, infringing or otherwise objectionable, (b) suggests you are an affiliate, partner or otherwise related to the Company, or that the Company is related to any other individual or entity, (c) would infringe upon any third party intellectual property rights (including, but not limited to, trademarks, copyrights or other protected information), (d) implies or suggests that editorial content has been approved, authorized, composed, or edited by, or otherwise represents the views of, the Company or its directors, officers or employees, (e) is illegal, violates any governmental or quasi-government regulatory requirements, or which the Company shall reasonably determine to have a negative or deleterious effect on the Company, its services or other licensees, (f) harm minors in any way, (g) impersonates any person or entity, or misrepresents any affiliation with any person or entity, (h) uses a user name or e-mail address that implies that you are a different person or entity or which misrepresents your affiliation with any person or entity, (i) uses a user name, e-mail address, name or other identifier that infringes on third party intellectual property rights (including, but not limited to, the use of trademarked or copyrighted material), (j) provides a user name and password to any third party for its use or otherwise attempts to transfer the existing license, (k) engages in any use of “junk mail”, “spamming”, “chain letters”, pyramid schemes or offers for investment opportunities, or other similar invasive and unsolicited advertising, (l) engages in the transmission of any virus, Trojan horse, “time bomb”, “Easter egg” or other malicious or dangerous computer code, file, program or software designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (m) engages in any form of internet spying, including the installation of spyware or any similar program, computer code, file or cookie, (n) engages in “phishing” or any other form of request for personal information using deception or misrepresentation of any kind, (o) defames, abuses, harasses, stalks, threatens or otherwise violates the legal rights of others, including without limitation others' privacy rights or rights of publicity, (p) harvests or collects information from any other licensee, (q) interferes with or disrupts the Company’s servers or networks or its provision of services to any licensee, or (r) engages in any fraudulent or unlawful purpose, or otherwise intentionally or unintentionally violate any applicable local, state, Federal or international law.
No Obligation to Provide Services.
The Company is not obligated to offer any Services or ensure the functioning of its website or applications and may suspend or withdraw any functionality at any time in its sole and absolute discretion. The Company further reserves the right to modify or discontinue any Services at any time without notice. The Company is not responsible for any service interruptions, outages or slowdowns which affect your ability to use any functionality of the Services and/or the Company’s website or applications. Product features that interoperate with third party applications depend on the continuing availability of such third party applications. The Company is not responsible for the functioning of any third party applications. If any third party application is temporarily or permanently unavailable for any reason outside of Company’s control, the Company may cease providing such product features without entitling you to any refund, credit, or other compensation.
Company Oversight.
The Company has the right to monitor your use of the Company’s website and/or your use of its Services at any time, as well as to collect non-personally identifiable information (Non-PII) with respect to you and other users. You acknowledge that the Company may use Non-PII for any reasonable business, administrative, security or operating purposes, as well as use such Non-PII to generate reports, analyses, market reviews and similar products, which the Company may sell to or share with third parties. No personally identifiable information will be shared with any third parties except as required by law, court order or the order of any governmental or quasi-governmental regulatory body which may have jurisdiction over the Company. In the case of any required disclosure of personally identifiable information, the Company will, if permitted, disclose to you that it has been required to provide such personally identifiable information.
Company Diligence.
As a condition to receiving the Services or continuing to receive the Services, the Company has the right to conduct a diligence review of your business. Such diligence review may include (without limitation) a review of your business activities, revenue, profits and losses, size, jurisdiction of formation and jurisdictions of operations, ultimate beneficial ownership, industry reputation, operating history and creditworthiness before allowing you to access the Services. You agree to permit the Company to run a credit check on you and, to the extent reasonably required, you will take steps necessary to receive consent by key owners and/or officers for a credit check of such individuals. The Company may require additional materials from you as reasonably requested by the Company to permit it to conduct such diligence review. Upon the completion of such review, the Company reserves the right in its sole and absolute discretion to either (a) terminate this Agreement immediately or (b) permit you to access the Services on the terms and conditions set forth generally in this Agreement. If the Company terminates this Agreement, you will have no remedy against the Company except to the extent that the Company fails to return any confidential and/or proprietary information which was delivered to the Company by you for the Company’s review.
Functionality.
The Company cannot foresee or test the Services for every possible interaction, operating environment or functionality, and as a result the Company cannot guarantee or promise in any way that the Services will function without error in any particular environment or functionality. It is your sole responsibility to report errors to the Company. You are also solely responsible for determining whether your hardware and software capabilities are sufficient to access the Company’s website and applications and use their respective functionalities. Furthermore, technical processing and transmission of information related to the Services may be transferred unencrypted through various networks (including third party applications, systems and networks) as part of the normal functioning of the Internet, and the Company is not responsible for any misuse of information which results from such transmission. Additionally, the Company makes no warranty or covenant, express or implied, regarding the security of any of your information or that unauthorized third parties may not intercept, or otherwise gain access to, any of your information.
No Responsibility for Third Parties.
The Company shall not be responsible in any way for any offers or transactions conducted between licensees using the Company’s Services. The Company makes no representations, warranties, covenants or other promises regarding (a) the identity of any licensee, (b) the legality of any offers or transactions consummated or proposed by any licensee, (c) the truthfulness of any statements made by any licensee using the Company’s functionalities, (d) the validity or proper implementation of any payment, shipping, return/refund policies or other promises made by any licensee using the Company’s functionalities, or (e) any other aspect of any licensee’s use of the Services or interaction with the Company generally, all to the maximum extent permitted by law.
Further Limitation of Liability.
THE COMPANY WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, GOODWILL, USE, DATA OR INTANGIBLE ASSETS, FOR ANY REASON WHATSOEVER OR HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES., INCLUDING, BUT NOT LIMITED TO, INTERRUPTION IN THE SERVICES OR INABILITY TO MAKE USE OF THE SERVICES, ANY MATTER RELATING TO THIRD PARTY APPLICATIONS (INCLUDING INTERRUPTION OF ANY SUCH APPLICATIONS OR INABILITY TO MAKE USE OF THE SAME FOR ANY REASON, INCLUDING TERMINATION OF THE SAME), OR ANY UNAUTHORIZED MODIFICATIONS OF ANY OF YOUR CONTENT BY THIRD PERSONS, ALL TO THE FULLEST EXTENT PERMITTED BY LAW.
Without limiting any of the foregoing, the Company specifically makes no representations and warranties regarding any contracts which are offered on the Company’s website and/or through the Services, including (but not limited to) errors in labeling or identification of any information whatsoever, the accuracy of information and/or pricing provided by third parties, any errors in the application of any filters, blacklists or other functionalities provided by the Company’s website, or any other malfunctions or errors in the Company’s platform which do not lead to direct damages.
NO WARRANTIES.
THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND ANY LICENSE PROVIDED, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ALL SERVICES AND LICENSES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY. THE COMPANY FURTHER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY THAT SERVICES PROVIDED WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE.
No Affirmative Obligations.
You acknowledge and agree that the Company does not have any affirmative obligation to perform any due diligence with respect to third parties using the Services and/or the Company’s website, nor is the Company responsible for any acts by such third parties, including fraud, misrepresentation, other wilful misconduct or negligence, and you further acknowledge in connection with the foregoing that you will look solely to the third party with whom you have entered into a contractual arrangement by using the Services in the event of any loss, damage or claim whatsoever in connection therewith. The Company is solely providing a platform for you to directly contract with others and among other things, is not responsible for any of the information which is provided to the Company’s website or accessible through the Services to the extent that the same is provided by third parties. Without limiting the generality of the foregoing, the Company shall not be liable for determining whether pricing is accurate, whether risks associated with contracts or counterparties have been identified or disclosed in full or whether any links to other websites are free from malware, accurate or truthful.
Your Obligations.
You acknowledge and agree that you are solely responsible for (a) maintaining the security of your account and personal information, (b) updating any billing information, (c) your use of the Services and any consequences thereof, (d) any and all content which you post or make available in connection with the Services, and (e) any actions by any of your Third Party Users. The Company has no obligation to store or preserve any of your information following termination of this Agreement. The Company is not responsible for any loss of information which occurs other than as a direct result of the Company’s wilful misconduct or gross negligence.
Your Negative Covenants.
You hereby covenant that you will not use the Services or the Company’s website to sell, offer, upload, post, or provide information regarding, or transmit or make available offers, contracts or content that (a) is or may be, in the Company’s reasonable determination, unlawful, fraudulent, harmful, threatening, intimidating, degrading, abusive, harassing, tortious, defamatory, obscene, indecent, pornographic, encouraging criminal conduct, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or which could otherwise give rise to criminal and/or civil liability, (b) infringes any patent, trademark, trade secret, copyright or any other proprietary right of any person or entity, (c) you do not have a right to make available under any law in any applicable jurisdiction or as the result of any contractual or fiduciary relationship (including, but not limited to, proprietary and confidential information, insider information and privileged communications), (d) is personally identifiable information about any individual without such individual’s express prior written consent, (e) is material, non-public information about any partnership, corporation, limited liability company or other legal entity without express prior written authorization, or (f) pertains to the sale or distribution of prescription medication, any pornographic image, firearms, movie or computer files, or any investment product of any sort. You further hereby covenant that you will not perform any of the following activities: (i) modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Company’s proprietary technology, (ii) remove any copyright, trademark or other proprietary rights notice from any Company product or materials originating from the Company, (iii) frame or mirror any part of the Company’s proprietary technology, (iv) create a database by downloading and storing content from the Company, or (v) use any robot, spider, site search or retrieval application or other device to retrieve, index, "scrape," "data mine" or in any way gather content from any other licensee or from the Company, or reproduce or circumvent the navigational structure or presentation of the Company’s website without the Company’s express prior written consent.
No Secondary Market for Contracts.
You hereby covenant that any contracts you enter into using the Services or the Company’s website are for actual delivery to yourself or a direct client of yours on whose behalf you are acting as an agent, and you further covenant that you will not attempt to buy or sell contracts, attempt to enter into swaps or hedges, engage in any activities to create direct or indirect offsets, or engage in any other activities that involve trading in contracts rather than in precious and semiprecious stones, jewelry or similar luxury goods. You additionally covenant that you will not attempt to use the Services or the Company’s website, application or functionalities in any fashion with the purpose of engaging in any activities described in the foregoing sentence elsewhere.
Payment Terms.
Automatic payments will be debited from your bank account or charged to your credit card on the payment due date indicated on your billing statement. In the event that a billing adjustment is necessary, a notification will be emailed to the account holder of record. Account adjustments shall not require pre-authorization. If you need to update your checking or savings account information, you must either mail us a voided check for the new account included with this form, or update your banking information online. Your request must arrive in our office no later than 10 business days before the next scheduled transaction. Your account may be subject to additional charges if your payment is rejected, reversed, or refused by your financial institution. If payment is not received within 30-days of the specified due date, the Company has the right to suspend your account until the balance is paid in full.
Form of Payment.
You must provide the Company with valid credit card information, a bank or cashier’s check or ACH payment (as the Company may in its sole and absolute discretion determine from time to time) to pay the Company’s commissions. Invoices will be provided to you on a monthly basis, aggregating the past month’s activity and any amounts due to the Company from any prior time period. All invoices must be paid promptly upon receipt. You must maintain accurate and up-to-date information regarding your bank account, credit card or ACH information to permit the Company to charge commissions. You hereby authorize the Company to draw on such account, credit card or ACH information to pay commissions. You are solely responsible for maintaining complete and accurate billing and contact information. You are also solely responsible for paying all taxes associated with any underlying contract and any taxes imposed on the commissions anywhere outside the United States.
Indemnification: Costs and Fees.
You hereby agree, to the fullest extent permitted by applicable law, to indemnify the Company and hold it harmless against any claim brought against the Company by a third party in connection with your use of the Company’s website, application or functionalities and/or the Services, and shall indemnify the Company for any damages finally awarded against, and for reasonable attorney’s fees incurred by, the Company in connection with any such claim. You further agree that you shall pay on demand all of the Company’s reasonable costs and attorneys’ fees incurred in connection with the collection of any charges due to the Company under this Agreement in addition to any other amounts set forth in this Agreement. You additionally agree to pay all of the Company’s reasonable attorneys’ fees and other costs incurred by the Company to defend against any action by you, unless the Company shall be declared to have been at fault by the unappealable and final judgment of a court of competent jurisdiction. The foregoing disclaimer shall not apply to the extent prohibited by applicable law, but shall in all cases apply to the fullest extent permitted under applicable law.
Governing Law, Submission to Jurisdiction, Waiver of Jury Trial.
This Agreement shall be construed in accordance with, and this Agreement and all matters arising out of or relating in any way whatsoever (whether in contract, tort or otherwise) to this Agreement shall be governed by, the law of the State of New York. You hereby irrevocably submit to the exclusive jurisdiction of any New York State or Federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to this Agreement, and you hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such New York State or Federal court. You further hereby irrevocably waive, to the fullest extent that you may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. You agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. YOU HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING. You further hereby (a) certify that no representative, agent or attorney of the other has represented, expressly or otherwise, that the Company would not, in the event of a proceeding, seek to enforce the foregoing waiver and (b) acknowledge that the Company has been induced to enter into this Agreement by, among other things, the waiver and certification in this paragraph.
Miscellaneous Provisions.
Except as otherwise set forth herein, this Agreement may be terminated by you or the Company upon 30 days’ written notice, provided that your payment obligations for contracts entered into prior to such termination will survive such termination. No waiver by the Company of a breach of any provision of this Agreement shall operate or be construed as a waiver of any subsequent breach. The Company may update this Agreement from time to time in its sole and absolute discretion, and will notify you of any changes in the terms and conditions of this Agreement. Continued use of the Services will constitute your consent to such changes. You may not amend or modify this Agreement without the prior written consent of the Company. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. You hereby agree that nothing in this Agreement shall entitle any person or entity other than the Company or you to any claim, cause of action or right of any kind. For purposes of clarity, your Third Party Users are explicitly precluded from making any claim, cause of action or right of any kind on the basis of this Agreement. The Company may assign or transfer this Agreement or any of its obligations hereunder in its sole and absolute discretion and without any restrictions. This Agreement constitutes the entire agreement between you and the Company pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of you, the Company or any third party pertaining to the subject matter of this Agreement. Nothing contained in this Agreement is intended to create a partnership, joint venture or other legal entity and you shall not in any way represent to any third party that a partnership, joint venture or other legal entity has been formed as a result of this Agreement or your relationship with the Company hereunder generally. The various headings of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provisions hereof. The language used in this Agreement will be deemed the language chosen by the Parties to express their mutual intent, and no rules of strict construction will be applied against either Party. Nothing contained in this Agreement shall be deemed to limit the Company’s ability to recover damages from you for material breaches of this Agreement or limit your obligations hereunder. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) you represent that you are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) you shall not permit customers or Third Party Users to access or use products or services in violation of any U.S. export embargo, prohibition or restriction. You acknowledge that all of the foregoing constitutes a valid contract between you and the Company, even though it is electronic and has not been physically signed by you or the Company. In the event that the Company requests that you execute a physical copy of this Agreement, you hereby agree to comply with the same within thirty (30) days.