Welcome to the Eljin website, operated by Eljin Productions, Inc. (“Eljin”), and located at https://eljininc.com (the “Site”). The Site is comprised of an online payment processing platform that allows publishing companies (each, a “Publisher”) to submit and process payments to professional talent providers (each, a “Vendor”) for services rendered, and allows Vendors to receive and track all payments from Publishers. The following terms and conditions (“Terms”) govern your access to, and use of, all or part of this Site.
By accessing, viewing, or using the content, material, or services available on or through this Site, you certify that you have read, understand, and agree to be legally bound by these Terms, as well as our Privacy Policy, each of which is incorporated by reference as if fully set forth herein. You further certify that you are 18 years of age or older. If you do not agree to these Terms, or if you are under 18 years of age, or if you are not a legal resident of the United States, you are not granted permission to use this Site and must exit immediately.
THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER CLAUSE. BY USING THE SITES, YOU ARE ACCEPTING THIS AGREEMENT AND, WHILE YOU MAY STILL PURSUE CLAIMS AGAINST ELJIN, YOU ARE AGREEING THAT YOU MUST PURSUE YOUR CLAIMS IN A BINDING ARBITRATION PROCEEDING (AND NOT IN A COURT) AND ONLY ON AN INDIVIDUAL (AND NOT A CLASS ACTION) BASIS. PLEASE READ THESE TERMS CAREFULLY TO UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES.
Eljin can be contacted at legalnotices@eljininc.com
1. License to Use the Site.
Subject to these Terms, Eljin hereby grants you a personal, limited, terminable, revocable, non-exclusive, nontransferable, nonsublicenseable license to access and use the Site solely for business use in accordance with these Terms. You shall be responsible, at your sole expense, for procuring, operating, and maintaining the computer system, mobile device, hardware, software, and other items necessary or appropriate to enable you to exercise your rights and licenses hereunder. Without limiting any other provisions of these Terms, all software and other materials, including the Site, made available to you are the copyrighted work of Eljin or its licensors. Copying or distributing the Site or the Site Content (as defined below) is expressly prohibited
2. Registration.
In order to access certain content, material, services, products, or benefits on the Site, you may be asked to register and create an account. By registering an account on the Site, you represent that you are at least 18 years of age or older. You are fully responsible for your account at all times, including use of the account by any third party, and maintaining the confidentiality of your password. Eljin will not be held responsible or liable for any misuse of your account in the event that a third party has access to or uses your password or login in any way.
As part of the registration process, you may be asked to select a user name and password, and may be required to provide certain information about yourself including some types of personally identifying information, such as your email and your address, and information regarding your employer, employment history, and union affiliation, as well as bank account information. Additional information may be collected by Eljin or its third-party providers at this time for security and anti-fraud purposes. You agree that the information that you provide to us on registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up to date at all times. Should any of the information you provide on the Site change, please login to your account and update such information directly on the Site. Any personal information that you provide to us via the Site is subject to our Privacy Policy.
By registering with the Site, you hereby authorize Eljin to verify any representations and warranties you make either pursuant to these Terms or within any materials submitted during the registration process, including conducting background checks, contacting any provided references or affiliations, and reviewing public records. You acknowledge that while Eljin reserves the right to verify these representations and warranties, Eljin is not obligated to do so, and may choose not to do so, in Eljin ’s sole discretion.
Depending on your intended uses of the Site, you may be asked to designate your account as either a Vendor Account (i.e., for Vendors) or a Publisher Account (i.e., for Publishers). Your obligations and rights under these Terms may vary depending on whether you registered as a Publisher or Vendor.
You may cancel your account in your account settings on the Site. Or, alternatively, you may email us at legalnotices@eljininc.com and we will do it for you.
3. Special Vendor Terms.
If you are a Vendor, you may be a party to one or more separate services agreements, statements of work, or work orders with either Eljin or a Publisher (collectively, the “Artist Agreements”). These Terms are in addition to and subject to any such Artist Agreements. In the event of a conflict between these Terms and any Artist Agreement to which you are a party, the terms of the Artist Agreement shall control.
If you are a Vendor, you hereby agree that the applicable Artist Agreement governs terms of delivery, satisfaction by you of any obligations with respect to work product or deliverables, and the amount and terms of payment of any funds to you by Publisher. Eljin is not responsible for any failure by any Publisher to pay amounts owed to any Vendor. Any dispute over amounts owed by Publisher to Vendor shall be solely between the Publisher and the Vendor.
In order to use the payment services made available through the Site, Vendors must complete and submit the ACH Registration. In the event of an overpayment to Vendor, Vendor hereby agrees that Eljin may withdraw funds from Vendor’s account as described in the ACH Registration. Vendor hereby authorizes payment to SAG-AFTRA pursuant to any SAG-AFTRA coverage opt-in executed by Vendor. If Vendor has identified an agent on its registration (the “Agent”), Vendor hereby authorizes and appoints such Agent to act as its agent to collect and receive all sums of money payable to Vendor under any Artist Agreement, and Publisher’s payment to Agent of any payments under the Artist Agreement will be a valid discharge of Publisher’s and Eljin’s obligations under any Artist Agreement and these Terms. Publisher and Eljin each may rely entirely on Vendor’s direction with regard to Agent and Publisher and Eljin assume no responsibility or obligation with respect to Agent independent of Publisher and/or Eljin’s obligations to Vendor.
4. Special Publisher Terms.
If you are a Publisher, these Terms are in addition to and subject to any services agreement between you and Eljin (the “Publisher Services Agreement”). In the event of a conflict between these Terms and any Publisher Services Agreement between a Publisher and Eljin, the Publisher Services Agreement shall control.
5. Intellectual Property.
As between you and Eljin, Eljin owns or licenses all data, content, graphics, forms, artwork, images, photographs, functional components and any software concepts and documentation and other material on, in or made available through the Site (“Site Materials”), as well as the selection, coordination, arrangement, and organization and enhancement of the Site Materials. All Site Materials are protected pursuant to copyright, trademark, patent and other applicable laws. You agree not to remove or alter any copyright notice or any other proprietary notice on any Site Materials. As between you and Eljin, all names, trademarks, service marks, certification marks, symbols, slogans, or logos appearing on the Site are proprietary to Eljin or its affiliates, licensors, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Unless expressly written otherwise by Eljin, you do not have any rights of any kind in or to the Site Materials, other than the right to use the Site Materials in accordance with these Terms.
Certain features of the Site may allow you to contribute comments, feedback, information, content, text, files, graphics, postings, and other materials and information for access, use, viewing and commentary by other users to the Site (“User Content”). By contributing User Content, you represent that you have the full legal right to provide the User Content and that use of the User Content by the Site and all other persons and entities will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including as a result of your failure to obtain consent to post personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, regulation, or agreement; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) impersonate any person or entity or falsely state or otherwise imply an affiliate with a person or entity or is generally false, deceptive, misleading, deceitful, misinformative or constitutes a “bait and switch”; (e) be obscene, child pornographic, or indecent; (f) violate any community or Internet standard; (g) constitute misappropriation of any trade secret or know-how; or (i) constitute disclosure of any confidential information owned by any third party.
You retain all right, title and interest in and to the User Content that you submit and all intellectual property rights embodied therein. Upon your submission of User Content or other material or information to Eljin, you grant Eljin a worldwide, perpetual, irrevocable, transferable, license to access, use, distribute, reproduce, display, modify, create derivative works based upon, and sublicense, the User Content, all without any compensation to you whatsoever. If you believe that any content or postings on the Site or the Application violate your intellectual property or other rights, please follow our Complaint Procedure in Section 13 of these Terms.
6. Unauthorized Activities.
You agree to use the Site and the services only for purposes that are permitted by these Terms of Use and in compliance with all applicable laws, regulations, and generally accepted practices or guidelines in the relevant jurisdictions.
You agree that you will not use the Site for: (a) any illegal or unauthorized purposes that violate any local, national, or international laws (including to import, export, copyright, and trademark laws); (b) contacting any other user of the Site who has requested not to be contacted; (c) stalking or harassing anyone; (d) modifying, copying, distributing, displaying, performing, reproducing, publishing, licensing, creating derivative works from, transferring, selling any of the Site Materials, unless otherwise authorized by these Terms or in a separate written agreement with Eljin; (e) attempting to gain unauthorized access to Eljin’s computer system or engaging in any activity that interferes with the performance of, or impairs the functionality of the Site or any services provided through the Site; (f) data mining, scraping, robots, or for releasing spiders, crawlers or any other data gathering or extraction tools, except to the extent the Site is indexed by general purpose consumer accessible search engines, including Google, Yahoo, MSN, or Bing; (g) promoting any effort to compete with Eljin, including using the Site to provide, alone or in combination with any other product or service, any service to any third party or any use that causes a reduction or loss of business for Eljin as related to an existing or potential customer; (h) cheating or plagiarizing; (i) using the Site to access or collect any personally identifiable information, including any names, email addresses or other such information for any other purpose than those permitted in this Agreement; or (j) removing, circumventing, disabling, damaging or otherwise interfering in any way with any security-related features of the Site aimed at preventing or restricting the unauthorized use of the Site or any of the Site Materials. You agree to use the Site only for the purpose and manner for which it was specifically designed; any other use of the Site or Site Materials without prior written permission of Eljin is strictly prohibited. You acknowledge and agree that the unauthorized use of the Site or the Site Materials could cause irreparable harm to Eljin and that in the event of such unauthorized use, Eljin shall be entitled to an injunction in addition to any other remedies available at law or in equity.
7. Errors, Inaccuracies, and Omissions.
Occasionally there may be information on the Sites that contains typographical errors, inaccuracies, or omissions that may relate to information and material on the Site. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information on the Site that is inaccurate at any time without prior notice. We cannot and do not review all communications made available on or through the Sites, but, although not obligated to, may review, verify, make changes to or remove any User Content, Site Materials, or the Site, including information submitted in connection with the Site Materials or other features at any time, with or without notice in our sole discretion.
8. Third Party Websites and Content.
Eljin is a private company and is not affiliated with any Publisher or Vendor. The Site may contain links to other websites or feature services of third parties for the convenience of users: (a) in locating information, products, or services that may be of interest; or (b) with performing or receiving the services, and complying with any requirements associated with such transactions. Use of such third-party links or third-party services on or made available through the Site is entirely at your own risk. Eljin does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of any third-party websites or services is at your own risk, and subject to the terms and conditions of such third parties. Eljin does not endorse any product, service, or treatment provided on a third-party website or advertised or provided on the Site.
9. Disclaimer.
Eljin does not take part in, nor is Eljin in any way responsible or liable for, any interactions, negotiations, contracts, agreements, disputes, discussions, or any other matters whatsoever between Publishers and Vendors, except to the extent necessary to maintain the Site. For the avoidance of doubt, Eljin disclaims any and all responsibility for the services or products provided by any Vendor or Publisher, and Eljin disclaims any and all responsibility for the failure of any Vendor or Publisher to perform any services or provide any goods.
Eljin, its subsidiaries, affiliates, and licensors, expressly disclaims, to the fullest extent permitted by law, any express or implied warranties: (i) that the Site, Site Materials, services, advice, information or links provided on the Site will meet your requirements; (ii) that the Site will be uninterrupted, timely, secure or free from error; (iii) that defects in the operation or functionality of any software provided to you as part of the Site will be corrected; and (iv) regarding the Site, Site Materials, User Content, services, advice, information or links provided by any third parties or users. No advice or information, whether oral or written, obtained by you from the Sites shall create any warranty not expressly stated in these Terms.
No conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Site or Site MATERIALS except to the extent that they are expressly set out in these Terms. THE SITE, SITE MATERIALS, USER CONTENT, SERVICES, PRODUCTS, INFORMATION, AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SITES ARE MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS.”
10. LIMITATION OF Liability.
IN NO EVENT WILL ELJIN BE LIABLE FOR DAMAGES OTHER THAN ACTUAL AND DIRECT DAMAGES PROVEN IN A COURT OF LAW. IN NO EVENT SHALL ELJIN’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF ELJIN AND ITS LICENSORS SHALL NOT EXCEED TEN DOLLARS ($10).
Without limiting the foregoing, you understand and acknowledge that Eljin shall not be liable to you for:
a) Any indirect, incidental, consequential, punitive or exemplary losses which may be incurred by you arising out of your use of, or inability to use, the Site or the services, including any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, or any loss of data suffered by you; or
b) Any loss or damage which may be incurred by you as a result of: (i) any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Sites; (ii) any changes that Eljin may make to the Sites; (iii) the deletion of, corruption of, unauthorized access to, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Site; (iv) the use of any products or services obtained on or through the Site; or (v) any other matter relating to the Site, the Site Content, or the Comments.
The limitations on Eljin’s liability to you in this Section 10 shall apply whether or not Eljin has been advised of or should have been aware of the possibility of any such losses arising.
IF YOU ARE DISSATISFIED WITH THE SITE OR THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.
11. Indemnification.
You agree to defend, indemnify and hold harmless Eljin, its officers, directors, members, employees, agents, affiliates, licensors and suppliers, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Sites; (ii) your violation of any of these Terms, including the Privacy Policy; (iii) your violation of any third party rights, including without limitation any copyright, intellectual property, or privacy rights; or (vi) the use by any other persons accessing this Sites using your Internet account or account login. This defense and indemnification obligation will survive these Terms and your use of the Sites. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and you shall cooperate in all reasonable respects in such defense. You may not settle any claim contemplated in this Section 11 without the prior written consent of Eljin.
12. Internet Security.
Eljin uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. Eljin will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Eljin shall not be liable to you for any modification, suspension, or discontinuance of the Site.
You understand that the technical processing and transmission of any Site Materials and User Content may be transferred unencrypted and involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent to or from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to us via the Site or the Internet, including, for example, personal information such as your name or address. Eljin assumes no responsibility for: (a) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication; and (b) any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Site, including any injury or damage to you or to any person’s computer related to or resulting from use of the Site.
13. Complaint Procedures.
If you believe that any content or postings on this Site violates your intellectual property or other rights, please notify Eljin via e-mail to legalnotices@eljininc.com with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
14. Changes to these Terms; Termination.
Eljin reserves the right at any time to modify, alter or update these Terms. Eljin will notify you on the Site or by email of any new or revised Terms, including information regarding the location of the new or revised terms and conditions. Your use of the Site following any changes means that you agree to follow and be bound by the terms as changed. It is the obligation of users visiting the Site before the change to learn of changes to the Terms since their last visit. Eljin may suspend or terminate your account and/or your ability to use the Site, or any services on the Site for failure to comply with these Terms, for providing Eljin with untrue or inaccurate information about yourself, for infringement upon Eljin proprietary rights, or for any other reason whatsoever or for no reason.
15. Dispute Resolution.
Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration conducted by the American Arbitration Association (the “AAA”). Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow the terms of these Terms, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate shall be for a court of competent jurisdiction to decide. Arbitration shall take place in New York, New York, unless Eljin elects otherwise.
You and Eljin expressly intend and irrevocably and voluntarily agree that each will not assert a class action or representative action against the other in arbitration, in court or otherwise. You and Eljin further agree that each do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any controversy or claim filed either in court or submitted to arbitration with respect to the other. This provision is material and essential to the arbitration of any controversy or claim.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York. The arbitrator shall not be bound by rulings in prior arbitrations involving different Eljin users, but is bound by rulings in prior arbitrations involving the same Eljin user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall still apply.
You can choose to reject this agreement to arbitrate by mailing us a written opt-out notice (“Opt-Out Notice”). The Opt-Out Notice must be postmarked no later than thirty days after the date you accept these Terms for the first time. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street number and address, city, state, and zip code), phone number, and the email address used to log in to the Eljin account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms will continue to apply. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
If any action is brought to enforce any rights or obligations under these Terms, the prevailing party will be entitled to recover its reasonable attorneys’ fees, arbitration costs and other collection expenses, in addition to any other relief awarded.
16. Governing Law and Jurisdiction.
Without limiting the terms of Section 15, these Terms and use of the Site are governed by the laws of the State of New York, without regard to New York conflict of laws rules. If the arbitration agreement is deemed unenforceable or void, you irrevocably consent to the exclusive jurisdiction of the federal and state courts in New York, New York, for purposes of any legal action arising out of or related to the use of the Site or these Terms.
17. Miscellaneous.
The Site is controlled and operated from within the United States. Without limiting anything else, Eljin makes no representation that the Site, Site Materials, User Content, services, products, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws.
Subject to Sections 3 and 4 of these Terms, these Terms, including the Privacy Policy, constitute the whole legal agreement between you and Eljin and govern your use of the Site and any transactions you may have with Eljin through the Site and completely replaces and supersedes any prior agreements or understanding, arrangements, undertaking or proposal, written or oral, between you and Eljin in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these Terms. Notwithstanding the foregoing, you understand that Eljin may make changes to these Terms from time to time. Nothing in these Terms shall be construed as making Eljin the partner, joint venturer, agent, legal representative, employer, contractor, or employee of any other party. You do not have the power or authority to obligate or bind Eljin in any manner whatsoever. The waiver or failure of Eljin to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.” If any court of law, having the jurisdiction to decide a matter arising out of these Terms, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of the Terms and the remaining provisions will continue to be valid and enforceable.
The Site is controlled and operated from within the United States. Without limiting anything else, Eljin makes no representation that the Site, Site Content, services, information or other materials available on, in, or through the Site is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Site from other locations do so on their own volition and are responsible for compliance with applicable laws.
Dated: July 1, 2019
Copyright © 2019 Eljin Productions, Inc.; All rights reserved.