Terms of Service

ELMO USA Corp.’s ElmoUSA.com Terms of Service

Welcome to ELMO USA, Corp.'s ElmoUSA.com website (the “Site”) and the services available through the Site or otherwise provided by ELMO USA, Corp. (the “Services”). Use of the Site is contingent upon your acceptance of and compliance with these Terms of Service (the “Agreement”) and our Privacy Policy which is recited separately. This Agreement constitutes a valid and binding agreement between ELMO USA, Corp. (the “Company,” “ELMO” “us,” “we”) and you (“you,” “your”, “user,” “customer”). If you have any questions about this Agreement, please send us an e-mail at elmo@elmousa.com. IF YOU DO NOT ACCEPT THIS AGREEMENT, WE WILL NOT GRANT YOU ANY LICENSE OR USE RIGHTS HEREUNDER, NOR SELL YOU ANY MERCHANDISE AND YOU SHOULD EXIT THIS SITE IMMEDIATELY.

1. ELIGIBILITY TO MAKE PURCHASES AND USE OF THE SITE WITHIN CERTAIN TERRITORIES.

You must be 18 years of age or older to enter this Site and/or download any of the content available on the Site on your own. You understand that you may not use the Site for purposes of making merchandise or product purchases if you live in a country outside of the United States. If you are under the age of 18, please exit the Site. ELMO reserves the right to ask for proof of age and to withhold or terminate your membership if you are below the specified age requirement. Use of the Site is void in any jurisdiction where prohibited. You represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. You hereby warrant that if you are a corporation or other legal business entity, such entity is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent or agents to enter into this Agreement. The purchase of merchandise through the Site is strictly limited to parties who can lawfully enter into and form contracts on the Internet in accordance with the laws of the State of New York. Your use of this Site is governed by the ELMO privacy policy, which is available at http://www.elmousa.com/privacy-policy (the “Privacy Policy”). The Site may be used only by parties who meet these eligibility requirements.

It is understood that we may from time to time use information provided by you, including personally identifiable information to conduct anti fraud background checks in the due course of our business, which may result in disclosures of such personally identifiable information to a third party credit reference or fraud prevention agency, which may keep a record of such information. By placing an order for merchandise through the Site, you have made an offer to purchase such merchandise, and therefore expressly authorize ELMO to perform credit checks and, in ELMO’s sole discretion, to transmit or to obtain your credit card information or credit report information (including any updated information) to or from third parties, including but not limited to PayPal, in order to authenticate your identity, to validate your credit card, to obtain an initial credit card authorization and/or to authorize individual purchase transactions.

2. ORDERS SUBJECT TO CERTAIN CONDITIONS.

All orders are subject to acceptance and availability. Please note that items that you may order are not reserved and may be purchased by other customers. ELMO reserves the right to designate and ship to a single address, when multiple items have been ordered by any given customer. Any potential returns and refunds of ELMO products purchased through the Site are subject to ELMO’s refund and refund policy set forth in sections 24 and 25 of this Agreement.

3. PRICING POLICY.

All prices displayed on the Site shall be in US Dollars, exclusive of any applicable taxes, duties, or fees. We reserve the right to charge applicable sales taxes, including, but not limited to New York and/or California state sales tax for goods shipped to certain destinations. We also reserve the right to charge any applicable duties, tariffs, fees, VAT taxes, etc. that may apply to any given customer. Prices for any merchandise designated or displayed on the Site are subject to change in the event applicable currency exchange rates change before your order is accepted. If you are a customer whose credit card or other payment method is not denominated in US Dollars, the final price for any merchandise ordered will be calculated in accordance with the applicable exchange rate on the day your credit card company processes the transaction or the day the other payment method is consummated.

4. ORDER ACCEPTANCE AND CONTRACT.

It is understood that an email acknowledging the details of your order, following placement of your order does NOT constitute an acceptance of your order, merely confirmation of receipt of such order by ELMO. We reserve the right not to accept yours or any customer order or to sell goods to any person or party, for any reason, in our sole discretion including, for purposes of illustration only, if we cannot obtain payment, or if the ordered item is no longer in stock. In the event of such refusal to process an order, a suspension of an order, or refusal to sell merchandise, we shall not bear any liability to you or any third party as a result. An order shall be deemed completed only upon packing and shipping of that order, unless expressly cancelled by you beforehand and only when such merchandise is shipped shall a contract between you and ELMO be formed. All sales contracts consummated between you and us shall be perfected in the State of New York, USA and shall be interpreted in the English language.

5. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION ON THIS SITE.

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk. This site may contain certain historical information. Historical information necessarily is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on the site. You agree that it is your responsibility to monitor changes to the site. The particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors of products offered on the site.

6. ORDERS, PROHIBITION ON RESELLING, AND PRICE

You hereby warrant and agree that You may not purchase any item from the Site for purposes of reselling any such item by you or any other person and you may not resell any item purchased from this site. The prices displayed on the site are quoted in U.S. dollars and are intended to be valid and effective only in the United States. In the event a product is listed at an incorrect price, we have the right to refuse or cancel orders placed for the product listed at the incorrect price, regardless of whether the order has been confirmed or your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we will issue a credit to your credit card account.

7. CHANGES TO SITE, SITE “FAQ”, AND/OR TERMS AND CONDITIONS OF SERVICE.

ELMO reserves the right, in its sole discretion, to change, modify, add or remove any portion of the Site or this Agreement, in whole or in part, at any time. ELMO reserves the right, at its sole discretion, to change its fees and billing methods, including the addition of supplemental fees or separate charges for content, products, or services provided by ELMO. Changes to this Agreement will be effective when posted. ELMO will notify all users by way of announcement on the Site, if and when changes are made. You agree to review this Agreement periodically to be aware of any changes. Your continued use of the Site after any changes to this Agreement are posted will be considered acceptance of those changes. You also hereby consent to the exchange of information and documents between us electronically over the Internet or by e-mail and accept the risks including security and privacy risks from internet and e-mail communications.

8. MODIFICATIONS TO SITE AND/OR SERVICES.

ELMO reserves the right at any time to modify or discontinue, temporarily or permanently, the Site, to alter the design, content, layout, copy, and functionality of the Site or any service offered through the Site (or any part thereof), with or without notice. You agree that ELMO shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or any service offered through the Site.

9. SOFTWARE.

At any time, ELMO may, in its sole discretion, provide to users certain software that may be either accessible, useable, or downloaded from, by, or through the Site. In the event you access or download software from this Site, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by ELMO or a third party software provider (“Third Party”). In the event that the Software is proprietary to ELMO, under no circumstances shall title to the software be transferred to you by ELMO. ELMO retains full and complete title to the Software, and all intellectual property rights therein. Should ELMO make available for access or download, a third party's software (“Third Party Software”) through the Site, your access or download and use of such Third Party Software shall be subject to the Terms of Service set forth by such Third Party, and any applicable license agreement in connection with its software. ELMO does not grant you the right to redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form, unless such right is specifically granted herein.

10. PURCHASE INFORMATION ACCURACY.

In order to make purchases through the Site, you will be requested to provide your personal details. By way of example only, Customers may be asked to provide their real name, phone number, e-mail address and other requested information as indicated. Furthermore, when ordering items, you will be required to provide payment details and you represent and warrant that the payment details you provide on ordering are both valid and correct and you confirm that you are the person referred to in the billing information provided. You hereby warrant that the credit card information provided by you is correct, and you shall promptly notify ELMO of any changes to such credit card information.

11. OWNERSHIP AND INTELLECTUAL PROPERTY.

“ELMO” and “ELMO USA” are trademarks of ELMO. All information appearing on or through the Site, as well as the Site and the Services themselves, including documents, copy, text, images, logos, design elements, graphics, (“Content”) as well as the arrangement and composition thereof, are the sole property of ELMO or its third party licensors. Any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is expressly prohibited without the express written consent of the applicable copyright owner or licensor. ELMO reserves all rights in the Site and the Services that are not expressly granted. You acknowledge and affirm that other third party trademarks, names, and logos on this Site are the intellectual property of their respective third party owners. You further acknowledge and agree that Content made available to you through the Site and/or Services may be subject to the intellectual property rights of third parties. Nothing in this Agreement shall be deemed to assign or transfer to you any rights to any such intellectual property.

12. USER CONTENT AND LICENSE.

The Site may invite you to participate in blogs, online forums, promotions, surveys and other functionality and may provide you with the opportunity, to create, submit, post, transmit or distribute content and materials to ELMO and/or via the Site, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information (collectively, "User Content").

You agree and warrant that either: (a) your User Content is wholly original to you and you exclusively own the rights to your User Content, including the right to grant all of the rights and licenses in these Terms of Service; or (b) all parties whose materials are included in your User Content, or who contributed in any way, are depicted in, or have any rights to your User Content, have granted you permission to submit and license your User Content to ELMO as set forth herein, with full knowledge that ELMO may exploit it in any manner whatsoever.

In either case, You make such warranties without ELMO incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.

You grant to ELMO the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, make derivative works from, re-title, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same. You further agree that ELMO is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or ELMO, for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or services using such User Content; and without remuneration of any kind. You further perpetually and irrevocably grant ELMO the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligations to you. You also grant to ELMO the right to sub-license and authorize others to exercise any of the rights granted to ELMO under these Terms of Service; and each such third parties will be entitled to benefit from the rights and licenses granted to ELMO under these Terms of Service. Without limiting the generality of the forgoing, you authorize ELMO to publish your User Content in a searchable format that may be accessed by users of the Site and the Internet. Except as prohibited by law, you waive any rights of attribution and/or any so-called moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.

ELMO has no obligation to monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensee's licensed rights to your User Content, including, without limitation, by bringing and controlling actions in your name and on your behalf (at ELMO's cost and expense, to which you hereby consent and irrevocably appoint ELMO as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

Except as otherwise described in the Site's posted Privacy Policy available at http://www.elmousa.com/privacy-policy, you agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned. You should also be aware submissions of User Content may not be secure, and you should consider this before submitting any information to ELMO.

You further acknowledge and agree that ELMO will not have any obligation to review, monitor, display, accept or exploit any User Content and ELMO may, in its sole discretion, delete, move, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that ELMO reserves the right to treat User Content on any Site, or on certain portions of any Site, as content stored at the direction of users for which ELMO will not exercise editorial control except to enforce the rights of third parties and the content restrictions when violations are brought to ELMO's attention. Such User Content posted at your or other users' direction need not, however, be maintained on the Site by us for any period of time and you will not have the right, once posted, to access, archive, maintain or otherwise use such User Content on the Site. You agree and understand that ELMO is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation thereof.

13. COMPLIANCE WITH LAW.

Any use of the Site including but not limited to posting, distributing, or otherwise making available any content or materials (including but not limited to text, graphics, video, property listings, software programs or audio) must be lawful and you expressly agree to avoid any use that is potentially or actually unlawful, harassing, libelous, abusive, threatening, harmful, bigoted, racially offensive, obscene or otherwise objectionable, or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or judicial ruling. You shall not falsely claim to be or represent any third parties including but not limited to ELMO personnel or another user or customer.

14. TERMINATION.

You understand and agree that ELMO may, in its sole discretion and at any time, terminate your password, or any Content posted or submitted by you to the Site or any service, for any reason. ELMO may also, in its sole discretion and at any time, discontinue any service or limit or restrict any user's access thereto, for any reason. You understand and agree that ELMO may take any one or more of these actions without prior notice to you. Should ELMO take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information submitted and/or posted by you including your submitted Content. You understand and agree that ELMO shall not have any liability to you or any other person for any termination of your access to any service and/or the removal of information concerning your account. You agree not to use or attempt to use the Site, for any fraudulent, unlawful, harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, customers, facilities, or to any person.

15. LINKED SITES.

ELMO is not necessarily affiliated with Web sites which may be linked to or from the Site (the “Linked Sites”) and is not responsible for their content. Links from the Site to the Linked Sites are for your convenience only and you access them at your own risk. ELMO reserves the right, in its sole discretion, to refuse, block, remove, edit, or demand payment for, any hypertext links to, or addresses of, other web sites posted on user pages, posts, or listings.

16. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.

ALL SERVICES PROVIDED THROUGH THIS SITE, INCLUDING BUT NOT LIMITED TO SURVEYS, DATA COLLECTION, MESSAGING, AND USER WEB PAGES, ARE PROVIDED TO YOU “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS. ELMO DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR SERVICE FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ELMO DOES NOT GUARANTEE THAT THE MATERIALS, INFORMATION OR SERVICES PROVIDED THROUGH THIS SITE WILL BE ERROR-FREE, OR CONTINUOUSLY AVAILABLE, OR FREE OF VIRUSES OR OTHER HARMFUL MATERIALS. ELMO DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES OFFERED THROUGH THIS SITE. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THIS SITE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM DOWNLOADING SUCH MATERIAL AND/OR DATA.

ELMO EXPRESSLY DISCLAIMS ANY AND ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES IN ANY EVENT EVEN IF ADVISED BEFOREHAND OF SUCH DAMAGES AND IN NO EVENT SHALL ELMO BE LIABLE FOR SUCH DAMAGES RESULTING FROM THE ACTIONS OR CONDUCT OF ANY ELMO USER. TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ELMO'S LIABILITY FOR ANY LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND INCLUDING THAT WHICH MAY BE DUE TO ELMO'S ACTUAL OR ALLEGED NEGLIGENCE, SHALL NOT EXCEED THE AMOUNT A CUSTOMER OR USER PAID FOR THE USE OF THIS SITE OR FOR ANY PRODUCTS ORDERED THROUGH THE SITE.

BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

17. HOLD HARMLESS AND INDEMNIFICATION.

By using the Site, you agree to indemnify and hold ELMO and its respective parents, subsidiaries, affiliates and agents, and each of their respective officers, directors, employees and Third Party Providers harmless, including but not limited to reasonable attorneys' fees, from and against any claim or demand, made by any third party due to or arising out of your use of the Site, including but not limited to violation of the Agreement or the infringement of any intellectual property or other right of any person or entity.

18. GOVERNING LAW.

If there is any dispute arising out of the Site, by using the Site, you expressly agree that any such dispute shall be governed by the laws of the State of New York, U.S.A. and the federal laws of the United States of America, without regard to its conflict of law provisions and excluding that body of law known as conflicts of law and the United Nations Convention on Contracts for the Sale of Goods. You expressly agree to submit to the exclusive jurisdiction of the exclusive jurisdiction of and venue in the federal and state courts located in New York County, New York, U.S.A. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section 18. ELMO’s performance under this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement shall abridge ELMO’s rights to comply with any governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by ELMO with respect to such use.

19. SEVERABILITY.

If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

20. NO PARTNERSHIP.

In no event shall your use of the Site create a partnership, joint venture, broker relationship, employee-employer, agency, or franchiser-franchisee relationship. The Site’s relationship with you is that of an independent contractor.

21. CALIFORNIA RULES.

In accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

22. NO ADDITIONAL WARRANTY FOR ELMO PRODUCTS

It is hereby acknowledged that this Agreement cannot and does not augment, modify, or in any way affect any warranty provided by ELMO in connection with any ELMO product either purchased through an authorized ELMO distributor or this Site. Notwithstanding the foregoing, ELMO reserves the right, in its sole discretion, to provide additional warranties solely for ELMO products purchased via the Site in the future.

23. ENTIRE AGREEMENT.

It is hereby acknowledged that this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. A printed version of these Terms of Service shall be admissible in judicial or administrative proceedings based on or relating to use of the site to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

24. CANCELLATION AND RETURN POLICY FOR NON-DEFECTIVE PRODUCTS PURCHASED THROUGH THE SITE.

We value your interest and support of ELMO products and wish to make certain that you are completely satisfied with the product(s) you have chosen to purchase. Under this policy, you may return the product(s) purchased for a refund of the purchase price paid, less shipping and handling, deductions, and applicable restocking fees as follows:

ELMO Product(s) may be accepted for return within thirty (30) days from the date of purchase (invoice date) only with written authorization from ELMO. Please call 1-800-947-3566 or email to customer-service@elmousa.com to obtain a Return Material Authorization (“RMA”) number before returning any merchandise.

ELMO Product(s) must be returned securely in their original packaging along with any and all other items that were included in the original packaging (i.e., without limitation, accessories, warranty card, owners manuals, etc.)

ELMO Product(s) which have been returned with missing packaging, manuals, accessories, software cables, etc., will result, in our sole discretion, in a deduction from the refund issued. In addition, we may, in our sole discretion, charge restocking fees and/or handling fees. Restocking fees and/or handling fees will not exceed fifteen percent (15%) of the original purchase price.

ELMO Product(s) returned to ELMO must reference the RMA number and include the RMA authorization form issued. The returned package must be prepaid and insured at your expense. If you choose not to insure the shipment, you accept the risk of loss or damage during the shipment. ELMO is not responsible for any loss or damage that may occur during shipping.

25. RETURN POLICY FOR DEFECTIVE PRODUCTS PURCHASED THROUGH THE SITE.

Defective merchandise will be accepted for return within sixty (60) days from the date of purchase (invoice date), only with express prior written authorization from ELMO. Please call 1-800-947-3566 or email customer-service@elmousa.com to obtain a Return Material Authorization (“RMA”) number before returning any product(s).

ELMO Product(s) must be returned securely in their original packaging along with any and all other items that were included in the original packaging (i.e., without limitation, accessories, warranty card, owners manuals, etc.)

ELMO Product(s) which have been returned with missing packaging, manuals, accessories, software cables, etc., will result, in our sole discretion, in a deduction from the refund issued. In addition, we may, in our sole discretion, charge restocking fees and/or handling fees. Restocking fees and/or handling fees will not exceed fifteen percent (15%) of the original purchase price.

ELMO Product(s) returned to ELMO must reference the RMA number and include the RMA authorization form issued. ELMO will pay for return shipping charges only if the return is due to damaged or defective products. Once your RMA has been approved, if you have been issued a call tag you have seven (7) days in which to take the product to the identified carrier. If you are responsible for shipping the return, then you have seven (7) days to ship the product via a trackable carrier. ELMO is not responsible for any loss or damage that may occur during shipping.

ELMO reserves the right to refuse any shipment returned that does not comply with this return policy.