Effective Date: June 30, 2022
Last Updated Date: October 10, 2022
1. INTRODUCTION AND ELIGIBILITY
Please read these Terms of Use ("Terms") carefully before using the Service.
These Terms include Element's Privacy Policy, which is incorporated by reference into these Terms. By using the Services, you agree to be bound by Element's general Privacy Policy which can be found here. We have included several annotations in boxes to help explain or emphasize key sections. These annotations are for convenience only and have no legal or contractual effect.
This agreement is a legally binding contract. It may change as our business changes. Upon amendment of the Terms, we will notify You on such change by [email and/or pop up notification on the website] and You agree that You will review it regularly. You hereby agree and acknowledge that Your continued use of the Service following such notifications means You accept any changes made to these Terms.
1.1. Binding Agreement: These Terms constitute a binding agreement between You and Element, Inc. and its affiliates and subsidiaries (including Element Software Nigeria Limited) ("Element," "we," "us"). "You" and "users" shall mean all Users of the Service. You accept these Terms each time You access the Service. If You do not accept these Terms, You must not use the Service. If You are under 18 years of age, You represent and agree that You shall not use or access the Service at any time or in any manner.
1.2. Revisions to Terms: Element reserves the right to revise these Terms at any time by posting an updated version. Upon amendment of the Terms, we will notify You on such change by notification on the website. You undertake to visit the Element website periodically to review the most current Terms, and herby acknowledge to be bound by them if You continue using the Service after a change to these Terms.
The terms "post" and "posting" as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the Service.
2. THE SERVICE
The "Service" as used in this Term means any website, mobile application, or Internet service under the control of Element, Inc., whether partial or otherwise, in connection with providing Element's authentication services. Element provides its customers with services and tools to help them monitor and authenticate the time, location and personal identity of its Users.
2.1. Service Changes and Improvements: The Service may continue to change over time as we refine and add more features. We may also discontinue providing the Services or specific features included within the Services, in whole or in part, temporarily or permanently, in our sole discretion.
2.2. Accuracy and Up-Time: We strive to ensure the Service accurately collects and reports information. However, there may be instances where data is not accurately collected or reported or other problems occur that prevent the Service from working as intended, such as unplanned outages. You are solely responsible for notifying Your service provider of any inaccuracies or problems with the Service. You may also notify us at admin@discoverelement.com. We will attempt to fix any inaccuracies and technical problems. We are not responsible, legally or otherwise, for the collection or reporting of inaccurate information, any Service outages, or any other problems with the Service, or the consequences therefrom.
2.3. Privacy: You undertake that You have fully read, understood, and agreed our Privacy Policy. You agree that we may collect and use Your biometric data for user-authentication purposes and for providing and improving the Service and our services generally. We will treat information, including Your biometric data, as described in our Privacy Policy.
3. ELIGIBILITY TO USE THE SERVICE
3.1. Children: No part of the Service is directed to persons under the age of 18. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
3.2. Agent of a Company, Entity, or Organization: If You are using the Service on behalf of a company, entity, or organization (collectively "Organization"), then You represent and warrant that You:
3.2.1. are an authorized representative of that Organization;
3.2.2. have the authority to bind that Organization to these Terms; and
3.2.3. agree to be bound by these Terms on behalf of that Organization.
4. YOUR ACCOUNT
4.1. You hereby acknowledge and agree that You shall be responsible for:
4.1.1. Your log-in credentials;
4.1.2. Keeping Your information accurate; and
4.1.3. Any activity resulting from the use of Your log-in credentials on the Service.
4.2. You represent and warrant that the information You provide to Element upon the licensing of the Service and at all other times will be true, accurate, current, and complete.
4.3. Element will not be liable for any loss that You may incur as a result of someone else using any of Your account or user credentials, either with or without Your knowledge. You will be solely responsible and agree to be held liable for any losses and/or damages incurred by Element due to any third party using Your account or user credentials. You agree that we have the right (but not an obligation) to hold and assume that the usage of Your user credentials are done by Yourself (to the extent that there is no evidence of unauthorized usage reports of Your user credentials) and entitled to conclude that the usage/activity that was performed or transmitted by You and therefore holds You accountable. You further agree and acknowledge that You are bound and will be solely responsible for any damages that may arise in the future resulting from use and/or access to the site from Your user credentials.
5. COMMUNICATIONS
5.1. The Service may allow Your service provider to contact You. You agree to receive such messages.
5.2. Element may communicate with You by email or posting notice on the Service. You may request relevant information about the functioning of facial recognition systems and on the use of facial recognition systems. Element shall grant You access to Your personal biometric data upon request.
5.3. You agree to receive email from us at the email address associated with Your account for customer service-related purposes, such as to notify You of Service changes and planned outages. You also agree to receive calls, text messages, push notifications, emails, and other communications. If You believe spam originated from the Service, please email us at admin@discoverelement.com.
5.4. Communicate with Others: You may be able to use the Service to call, text message, send a push notification, or send email or other messages to users of the Service. You acknowledge and agree that You will send communications only to individuals who have given You their express permission to be contacted in that way. You agree that You will not send unsolicited marketing messages or broadcasts (i.e., spam) using the Service.
5.5. Electronic Notices: By using the Service or providing Personal Information to us, You agree that we may communicate with You electronically regarding security, privacy, and administrative issues relating to Your use of the Service. If we learn of a security system's breach, we will take steps to notify You electronically by posting a notice on the Service or sending an email to You where such breach is likely to result in high risks to your freedoms and rights. We will also report the security system’s breach to the National Information Technology Development Agency (NITDA) within 72 hours of becoming aware of such breach.
6. ELEMENT'S CONTENT OWNERSHIP AND USE
Element owns or has rights to all of the content we make available through the Service, but You may use it as You use the Service. You may not use our logo without our written permission.
6.1. The contents of the Service includes: designs, text, graphics, images, video, information, data, logos, button icons, software, audio files, computer code, and other content (collectively, "Element Content"). All Element Content and the compilation (meaning the collection, arrangement, and assembly) of all Element Content are the property of Element or its licensors and are protected under copyright, trademark, and other laws.
6.2. License to You: We authorize You, subject to these Terms, to access and use the Service and the Element Content solely for Your personal use of the Service, at our discretion. Any other use is expressly prohibited. This license is revocable, exclusive, may not be assigned/sub-licensed, and non-perpetual at any time without notice and with or without cause. Unauthorized use of the Element Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Element Content on any copy You make of the Element Content.
6.3. Element Marks: "Element," the Element logo, and other Element logos and product and service names are or may be trademarks of Element (the "Element Marks"). Without our prior written permission, and except as solely enabled by any link as provided by us, You agree not to display or use the Element Marks in any manner.
7. USER CONTENT AND OUR LICENSE TO USE IT
You own all of the content You post using the Service. However, you hereby consent to the use of such content by Us for any business purpose related to the Service. We may also modify Your content to make it work better.
7.1. Intellectual Property Rights : The Service may provide You with the ability to create, post, or otherwise transmit content, such as Your biometric data ("Your User Content"). You hereby undertake to transfer any and all intellectual property right(s) You may have to any of the content You post or otherwise transmit on or through the Service to Us.
7.2. Company's Right to Transfer Your User Content: By creating, posting, or sharing Your User Content, such as Your Biometric Data, You grant Element consent and the right to transfer Your data to the United States or any other country which has been determined to have adequate data safeguards in line with applicable laws.
7.3. Company's Use of Posted Content on the Service: By creating, posting, or sharing Your User Content on or through the Service, and subject to Element's Privacy Policy, You grant Element a perpetual, irrevocable, world-wide, non-exclusive, royalty-free, fully paid up, transferable license to use, modify, and exploit Your User Content for the purposes of providing and improving the Service and our services generally. This license will continue even after You stop using the Service; however, we will delete Your User Content as described in our Privacy Policy. We are not required to retain Your User Content, and we shall make reasonable efforts to provide to You (to the extent that they remain available) or delete Your User Content upon Your request in line with applicable laws.
7.4. The Service contains content from users and other Element licensors. Except as provided within these Terms, You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Service.
8. SUGGESTIONS AND SUBMISSIONS
8.1. We appreciate Your comments, but if You send us creative ideas, we can use them without compensating You.
8.2. We appreciate hearing from our users and welcome Your comments regarding the Service. Please be advised, however, that if You send us creative ideas, suggestions, inventions, or materials ("Creative Ideas"), we shall:
8.2.1. own, exclusively, all now known or later discovered rights to the Creative Ideas;
8.2.2. not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Creative Ideas; and
8.2.3. be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to You or any other person.
9. USER CONTENT DISCLAIMERS, LIMITATIONS, AND PROHIBITIONS
9.1. You are responsible for Your actions when using and relying on the Service or content available on the Service.
9.2. We do not represent or guarantee the truthfulness, accuracy, or reliability of data or content posted or transmitted by users ("User Content"). You accept that any reliance on material posted or transmitted by other users or third-party service providers will be at Your own risk. By using the Service You accept the risk that You might be exposed to data or content that is objectionable or otherwise inappropriate.
9.3. You agree to use the Service strictly in accordance with this Term, the Master Service Contract and all applicable laws.
9.4. You agree to use the Service only for its intended purpose and in an authorized manner. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You shall not:
9.4.1. attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service;
9.4.2. use data mining, robots, or other data gathering devices on or through the Service;
9.4.3. post incomplete, false, or misleading information, impersonate another person, or misrepresent Your affiliation with a person or entity;
9.4.4. disclose personal information about another person or harass, abuse, or post objectionable material;
9.4.5. sell, transfer, or assign any of Your rights to use the Service to a third party without our express written consent;
9.4.6. post advertising or marketing links or content, except as specifically allowed by these Terms;
9.4.7. use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to Element or others; or
9.4.8. access the Service from a jurisdiction where it is illegal or unauthorized.
10. CONSEQUENCES OF VIOLATING THIS TERMS
10.1. If You do not act in accordance with the provisions of this Term, we may prohibit Your use of the Service.
10.2. We reserve the right to suspend or terminate Your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to You in the future.
10.3. Element may review and remove any User Content at any time for any reason, including for activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Service.
10.4. You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of Your breach of these Terms and Your use of the Service.
11. ELEMENT'S LIABILITY
We are not liable for the actions of users when they use the Service. We may also change the Service at any time and are not liable for how this may affect You. We do not guarantee the quality or accuracy of any content You view using the Service.
11.1. Changes to the Service: We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without any liability.
11.2. User Disputes: You hereby agree that We shall not be held responsible for any disputes or disagreements between You and any third party You interact with using the Service. You assume all risk associated with dealing with third parties.
11.3. You agree to resolve disputes directly with the other party. You release Element of all claims, demands, and damages in disputes among users of the Service. You also agree not to involve us in such disputes. You agree to act with caution and reasonability when using the Service.
11.4. Content Accuracy: We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at Your own risk.
11.5. Third-Party Websites and Applications: The Service may include links to third party websites and applications. You are responsible for evaluating whether You want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from Your use of them.
11.6. Third-Party Functionality: The Service may allow You to use third-party content and functionality. You use such content or functionality subject to such third parties' terms and conditions. We make no promises and disclaim all liability of specific results from the use of the Service.
11.7. DISCLAIMER OF WARRANTIES
You use the Service at Your own risk. We make no warranties or guarantees.
11.7.1. Released Parties Defined: "Released Parties" include Element and its affiliates, officers, employees, agents, partners, suppliers, and licensors including Element Software Nigeria Limited.
11.7.2. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
11.7.2.1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED OR DISPLAYED ON, OR ADVERTISING ON, THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT;
11.7.3. THE RELEASED PARTY MAKE NO WARRANTY THAT:
11.7.3.1. THE SERVICE WILL MEET YOUR REQUIREMENTS;
11.7.3.2. THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
11.7.3.3. THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE;
11.7.3.4. THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONS; AND
11.7.3.5. ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND
11.7.4. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
11.7.5. LIMITATION OF LIABILITY AND INDEMNIFICATION: We are not liable for anything that happens to You involving the Service. If You use the Service in a way that causes us to be included in litigation, You agree to pay all legal fees and costs for the Released Parties.
11.7.6. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ELEMENT OR ANY OTHER RELATED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
11.7.6.1. THE USE OR THE INABILITY TO USE THE SERVICE;
11.7.6.2. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR IN CONNECTION WITH THE SERVICE;
11.7.6.3. UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
11.7.6.4. STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE;
11.7.6.5. YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR
11.7.6.6. ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
11.8. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES' COLLECTIVE MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF ELEMENT CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $1.00.
11.9. You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) Your use of or reliance on any third-party content, (ii) Your use of or reliance on any Element Content, or (iii) Your breach of these Terms. We shall provide notice to You promptly of any such claim, suit, or proceeding.
12. EXPORT REGULATIONS
You understand that Element is subject to by agencies of the U.S. government, including, but not limited to, the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. You warrant that You will comply in all respects with the Export Administration Regulations and all other export and re-export restrictions applicable to the technology and documentation licensed hereunder.
13. GENERAL TERMS
These Terms constitute the entire agreement between You and Element concerning Your use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms and the Privacy Policy are for convenience only and have no legal or contractual effect.
13.1. No Warranty as to Errors
13.1.1. The Service is provided “as is”, “as available” basis and without any representation or warranty. To the fullest extent permissible under applicable laws, Element disclaims all such warranties, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, freedom from errors, suitability of content, availability, payment or realization of transactions.
13.1.2. Element may at its sole discretion conduct a verification or authentication to the information provided by the user on the Ser vice. However, it does not warrant the accuracy, adequacy, correctness or completeness of the information provided on the Service and expressly disclaims liability for any errors or omissions in such information. Element. It does not guarantee and promise any specific results from use of the Service.
13.1.3. Element shall not be responsible for what users post on the Service or any offensive, inappropriate, obscene, unlawful or otherwise objectionable content uploaded by other users on the Service. Element is not responsible for the conduct, whether online or offline, of any user of the Service or its products or services.
13.1.4. Element shall not be liable for any loss or damages including those that result from Your negligence in securing Your personal information, electronic device used to access the Service, and internet connection from cybercrime, such as but not limited to phishing, virus, trojan, malwares, and bugs. You hereby agree to exercise and implement additional security tools such as using a licensed antivirus and to take precautionary actions when accessing public Wifi.
13.2. Risks
13.2.1. Any risk of misunderstanding, errors, damages, costs or losses incurred by the use of the Service is entirely at Your own risk and You hereby agree that Element shall not be obliged to take any responsibility for that matter.
13.2.2. Element is not responsible for any indirect losses and consequences (such as loss of income, loss of profits, failure to realize expected profit and other commercial or economic losses of any kind) or loss or damage to the data, in the contracts, lawsuit, under any regulations or otherwise (including negligence) arising out of or in connection with the use of our features and services through the Service.
13.3. Links
13.3.1. For Your convenience, Element may include hyperlinks to other sites or content on the internet which are owned or operated by third parties. The linked site or content is not under our control and Element is not responsible for any errors, omissions, delays, defamation, libel, lies, pornography, obscene content, inaccuracies or other material contained in the content, or consequences of accessing any related website as well as accuracy of the information, content, products or services offered by, or the information practices employed by sites linked to or from the Service. Since third party websites may have different privacy policies and/or security standards governing their sites, we advise You to review the privacy policies and terms and conditions of these sites prior to providing any personal information.
13.3.2. Additionally, Element is not responsible for any risks of personal data and data security for the access of third-party sites linked to or from the Service. In such case, You hereby agree that Element shall be held free from responsibility for any damage or loss resulting from Your accessing such links, including but not limited to any damage or loss related to virus, spyware, malware, worm, trojan, fault, bugs, or any other damages.
13.3.3. You acknowledge that any link to other sites or content is not a form of endorsement or verification of such sites or content by Element, and You agree that Your access to the use of linked sites or content is entirely at Your own risk.
13.4. Advertisement
Element may display banners, java applets and/or other things required in the site for advertising purposes or advertisement of the Services. You acknowledge and agree that You do not have the right to receive any payment, fees, reimbursement and/or commissions in connection with such advertisements and/or other promotional materials.
13.5. Termination
13.5.1. Element may terminate or suspend Your access to or ability to use the Service immediately, for any reason, including breach of these Terms.
13.5.2. Termination of Your access to and use of the Service shall not relieve You of any obligations arising or accruing prior to termination or limit any liability that You otherwise may have to Element or any third party.
Parties agree that these Terms shall and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity, termination or enforceability (including non-contractual disputes or claims) shall be governed by and construed in accordance with Nigerian law. In the event of any dispute, difference, controversy or claim arising out of or relating to this Term (including any question as to the existence, validity, breach or termination of this Term, or the consequences of its nullity), either party may give to the other party written notice of that dispute, difference, controversy or claim. Upon delivery of such notice, the parties shall attempt in good faith to resolve amicably the dispute, difference, controversy or claim. If the notified dispute, difference, controversy or claim has not been resolved by negotiation within 30 days after delivery of such notice, the dispute, difference, controversy or claim shall be finally settled by a sole arbitrator appointed by the Parties under the Arbitration and Conciliation Act, Chapter A18, Laws of the Federation of Nigeria, 2004. The place of arbitration shall be Lagos, Nigeria and the proceedings shall be conducted in English Language. In the event that any provision of this Term is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Term will remain in full force and effect.
Contact Information
Element, Inc.
228 Park Avenue South, #85931
New York, NY 10003
Element Software Nigeria Limited