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Last updated: August 1, 2022
These Terms of Service apply to Elliott Affiliates, Ltd.’s (“EA”, “We” or “Us” or equivalent pronouns) services located at https://ealtd.com/, https://manage-performance.com/, and subdomains thereof, and mobile applications provided by Us or that are otherwise authorized to obtain data from such domains and subdomains (collectively the “Services”). Upon use of the Services for any purpose, including but not limited to viewing the content on the Services, these terms of service (the “Terms of Service”) constitute a contract by and between the person using this Services (“You” or equivalent pronouns) and Us. If You have also executed separate agreements with Us to license our software or obtain our Services, those agreements control over any conflicts with these Terms of Service. Your use of the Services constitutes an agreement to these Terms of Service, Our Privacy Policy and Our Acceptable Use Policy. We do not consent to Your use of the Services unless You have agreed to these Terms of Service, therefore if You do not agree to these Terms of Service, immediately cease any and all use of the Services; You do not have permission to access the Services unless You agree to these Terms of Service, and You conform Your conduct to the terms and conditions herein.
You must be using our Services as a Named User and Authorized User of one of our licensed customers (“Licensee(s)”). The terms Named User and Authorized User are defined in our agreement with the Licensee, but are repeated here:
If You do not meet the requirements of being a Named User and Authorized User, you may not use or access our Services.
As a Named User, you may not share, disclose, or misuse your login credentials to the Service. You agree to keep such login credentials confidential, including using an encrypted password manager or other tool that prevents other persons from obtaining or using Your login credentials. You must immediately report to us any actual or suspected loss of Your login credentials. We may suspend Your access to the Service at any time without notice if we suspect that Your login credentials have been lost, stolen or misused. This right is for Our benefit only, We do not undertake any duty to monitor Your login credential use, or to notify you if We suspect misuse. We may log certain information about You and Your machine used to login, and We may elect to apply additional verification procedures to Your login attempts, which may include secondary verification such as sending you additional temporary secondary codes to use when logging in.
Introduction. Please read the following carefully before using the Services. By accessing the Services, You acknowledge, represent, warrant and covenant that:
Changes and Notice. We may change these Terms of Service and/or Our Privacy Policy and Acceptable Use Policy at any time by posting revisions to Our Services. Your use and continued usage after such changes are posted constitutes acceptance of each of the revised Terms of Service and/or Privacy Policy and Acceptable Use Policy. We encourage You to familiarize Yourself with Our policies. Our Privacy Policy may be found at a link for “Privacy Policy” or equivalent on the Services.
Eligibility; No Access by Children. Use of the Services is void where prohibited. The Services are intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Services by anyone under 18 is unauthorized, unlicensed and in violation of these Terms of Service. By using the Services, You represent and warrant that You are 18 or older and that You agree to and to abide by all of the terms and conditions of these Terms of Service. We may terminate Your access, delete Your profile and any content or information that You have posted on the Services and/or prohibit You from using or accessing the Services (or any portion, aspect or feature of the Services) for any reason, or no reason, at any time in Our sole discretion, with or without notice, including if We believe that You are under 18.
Ownership Acknowledgment. All rights and property interests, including but not limited to patents, copyrights, trade secrets, trademarks and other proprietary rights recognized under applicable law in or relating to the Services and all modifications, adaptation, derivative works and enhancements thereto (regardless of whether such enhancements, modifications, and other alterations or derivatives thereof arise from any suggestion, input, idea, contribution, or other submission by You (“Contributions”)), are owned exclusively by Us and/or Our licensors, and all such rights not expressly granted herein are reserved to Us. For the avoidance of doubt, You hereby assign over to us (and automatically assign over to us in the future) all right, title, and interest to all intellectual property rights described or disclosed in any and all Contributions by You. Notwithstanding the above, We shall not acquire through this Agreement any ownership interest in Your personal information (defined herein to be User's email address, regular address, phone and fax number, and any payment information relating to User).
Copyrights and Limited License. All words, pictures, content, graphs, charts, data and other matters presented or made available on the Services sourced from Us are Our proprietary property and copyrighted “Copyright 20__ Elliott Affiliates, Ltd.” (the “Information”). We grant You a limited, royalty free, non-exclusive, revocable license to make use of the Information solely for the benefit of the Licensee of our Services for whom you are personally providing services. All other rights are expressly reserved. For the avoidance of doubt, and including by way of example and not limitation, except to the extent necessary to make use of the Services, You are not authorized to use, and You specifically covenant that that You will not use, the Information on the Services to:
No License to Trademarks. All trademarks, service marks, tradenames or other identifying marks displayed in respect of the Services (the “Marks”) are owned by Us and/or Our licensors. The Services may also contain trademarks of third parties; such marks are owned by third parties and unless expressly stated, We are not affiliated with or associated with the owners of such third party marks, and such marks are used on the site solely to identify the goods and services of such owners and not to represent any affiliation with such trademark owners. Except as applicable law may otherwise provide, or except as agreed to in writing by Us, We do not consent to any use of Our Marks by any person and do not grant You any right to use the Marks displayed on this Services.
Misuse of the Services. You violate these Terms of Service and engage in unauthorized use of Our computer systems when You make any use of the Services that is not in conformity to the limitations and permitted uses above, or that violate Our Acceptable Use Policy set out below, which is incorporated by reference.
Available Remedies. We do not validate, error check or otherwise confirm the truth or accuracy of Information posted on the Services; reports generated by the Service are based on the objective facts input into the Service. When We become aware of any incorrect Information, harmful activities or if We receive any claim from a third party, in Our sole and unfettered discretion We may take steps to stop the activity, such as removing the offending materials, denying the offender access to the Services, removing or deleting Your account (and preserving the related data in case of any claim by a third party) or any other action We deem appropriate. We may be required to remove or block access to content or postings upon receipt of a proper notice of copyright infringement, and We may do so by disabling an entire page or record, instead of disabling solely the allegedly infringing content. The sole and exclusive remedy for any claim against Us shall be for Us to repair, replace or otherwise correct any defective information or report, or remove erroneous or illegal Information.
Disclaimers as to Information; Limitations of Liability. EXCEPT FOR ANY EXPRESS WARRANTIES MADE BY US IN WRITING IN THE DOCUMENTATION, WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE INFORMATION FOR ANY PURPOSE AND THE SERVICES AND ALL INFORMATION IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND AND ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES AND/OR THE INFORMATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT, ARE SPECIFICALLY DISCLAIMED. IN NO EVENT SHALL WE AND/OR OUR CONTRIBUTORS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE INFORMATION OR THE SERVICES. THERE IS NO WARRANTY THAT ANY INFORMATION, SERVICES, CONTENT, COMPUTER PROGRAM OR ANY EFFORTS PROVIDED BY US WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. YOUR SOLE REMEDY IN THE EVENT YOU HAVE ANY CLAIM AGAINST US IN RESPECT OF THE SERVICES OR THE INFORMATION IS FOR US TO REPAIR, REPLACE OR OTHERWISE CORRECT (OR REMOVE) THE INFORMATION. IF ANY OF THE ABOVE LIMITATIONS FAIL TO APPLY, YOU AGREE OUR MAXIMUM LIABILITY TO YOU IS $10 FOR ANY BREACH OR OTHER VIOLATION OF YOUR RIGHTS.
Linking; No Framing. Except as contemplated solely to use the Services as intended, We do not consent to publicly linking any part of our Services that are protected by a login, or “framing” or displaying any of Our Information in connection with, inside of, in relation to, or otherwise as part of, any other website or other information provider.
Electronic Communications. You agree to transact business with Us using electronic communications, either via web forms on the Services, or via email. Electronic communications will be deemed received by You when Your email or other electronic communication system reports that any email/communication We send You, has been received by Your system, regardless of whether You ever actually open or read such communication. We may, but are not required, to use return receipt requests. Unless specifically required by applicable law, You consent to receive all notices, information, and other communications from Us concerning any subject matter, via electronic email or other electronic communication. It is Your responsibility to maintain a valid email address and electronic communication service addresses, and We may terminate Your access to the Services at any time that We determine You are in violation of these Terms of Service, or fail to maintain a valid electronic communication address.
Direct Database Access prohibited. You may not directly access Our database except via the standard browser / graphic user interface. You may not use (and We do not consent to) any robot, script, or other automated tool to access or use the Services, any Information, or any data or the database. You may not manually access or copy the database, Information or Services or any part of thereof, except solely and exclusively in accordance with Your license granted above. The above shall not prohibit any act permitted by law, as by, for example, a bona fide search engine that is automatically indexing the Services for its search engine database (as long as the result of a query to such search engine returns a link back to the Services), and the search engine is not re-presenting the Information in a manner that is or would be competitive to the Services, or using the Information to present in a search query response to a user, links to competing websites.
Termination. We may terminate Your access to the Services for any reason, or no reason, at any time in Our sole discretion, with or without notice, if we determine that You are violating these terms.
Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by You to Us are non-confidential and shall become Our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You.
Indemnity. You agree to defend, indemnify, and hold harmless Us, Our affiliates, and Our respective officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) any User Content or other material You provide to the Services, (ii) Your use of any of Our Information or Our Marks, (iii) Your use of the Services, (iv) Your conduct in connection with the Services or with other users of the Services, (v) Your breach of the terms of these Terms of Service, the Acceptable Use Policy, or the Privacy Policy, or (vi) Your violation of any applicable international, country, federal and state laws, rules and regulations.
Arbitration. Except for solely equitable claims which may be pursued immediately and directly in court, all claims by a party for breach of this Agreement that are not resolved by mutual written agreement shall be settled by binding arbitration before a single arbitrator under the rules of the American Arbitration Association. The location of such arbitration shall be in the State that Our principal offices are located at the time the dispute arises, or at a location determined by the arbitrator(s). The parties shall mutually agree on an arbitrator or if they cannot, the arbitrator shall be appointed under the rules of the American Arbitration Association. Arbitration may be commenced by either party by giving written notice to the other party that the dispute has been referred to arbitration under this Section. Any award rendered by the arbitrator shall be conclusive and binding upon the parties, provided that any such award shall be accompanied by a written opinion giving the reasons for the award. This Section shall be specifically enforceable by the parties and the decision of the arbitrator may be filed under the Federal Arbitration Act or any equivalent state arbitration act as an award of arbitration and shall be a judgment of record in such court; provided however, that either party may appeal the decision of the arbitrator as if such decision had been rendered by such court sitting without a jury, subject to all court rules and procedures for collection and stay of judgment. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared. In all cases each of the parties IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A DEMAND A TRIAL BY JURY of any claim arising out of or related to this Agreement or the performance or non performance of either party.
Governing Law; Choice of Forum. These Terms of Service and Your use of the Services shall be governed and construed in accordance with the laws of the State of Maryland, exclusive of its conflicts of laws principles. You consent and submit to the sole and exclusive jurisdiction and venue over any action, suit, or other legal proceeding that may arise out of or in connection with these Terms of Service, by the state or federal courts of the State of Maryland.
Reservation of rights. We reserve all rights not expressly granted herein. Except as set forth in these Terms of Service, no express or implied license or right of any kind is granted to You regarding the Services. Except as expressly permitted herein, You covenant not to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile or reverse engineer the Services or any software comprised in the Services, or to create derivative works based on, or obtain possession of any source code of, or technological material relating to, the Services or any portion thereof and You shall not (except as expressly permitted in this Agreement) license, sublicense, sell, resell, transfer, assign, distribute, provide as a service bureau or software-as-service or otherwise commercially exploit or make available to any third party the Services in any way.
External tools. When using a standard browser, you may configure the browser with certain settings, and also some browsers have privacy plugins, that allow you to control what programs, data and information your browser stores and sends back (“Privacy Tools”). For example, several Privacy Tools will block advertiser cookies, prevent Flash from running, block advertising tracking, and so on. Our Services do not seek to circumvent your ability to use such Privacy Tools, however, our Services may not function correctly if certain Privacy Tools are enabled. Due to the large number of browsers, browser versions, plugins, versions of plugins, and operating systems, we are unable to test our site against these Privacy Tools to determine whether it will function correctly.
Communications Decency Act Notice. We notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. You can discover some of the providers of such parental control technology by searching for “parental control software” using a major search engine.
Please contact us with any questions regarding these Terms of Service.
Acceptable User of EA Service. You agree as follows in respect of the acceptable and unacceptable uses of the Services (as defined in the Terms of Service). You will not and agree not to:
The above list of acceptable and unacceptable uses of the Service is not intended to be exhaustive, but rather illustrative of the range of unacceptable uses. We have the right in Our sole discretion to determine whether any particular conduct is an acceptable use of the Services. In cases where We determine You engaged in conduct that You reasonably believed did not violate this policy in good faith, We will provide You electronic notice of Our determination that such conduct is not an acceptable use, and provided You cease such conduct not later than 24 hours after such notice, You will not be considered to be in breach of these Terms of Service solely in respect of such action, provided however that we reserve all of our rights and remedies.