Terms of Service

Last Updated: January 10, 2024

Please read these Terms ("Terms," "Terms of Service," "Terms of Use") carefully before using elusive-concepts.com, (the "Site," or "Website"). Elusive Concepts, LLC (the "Company," "Elusive Concepts," "we," "us," or "our") has created these Terms to govern your use of this Website, as well as your interactions with us including, without limitation, registering an account, contacting us, or purchasing products or services ("Services").

Your access to and use of this Website is conditional upon your acceptance of and compliance with these Terms. These Terms apply to everyone, including but not limited to visitors, clients, users, and others who wish to access and use the Website.

By visiting this Website, contacting us, or using our Services, you (1) acknowledge that you have read and understand these Terms of Use, (2) agree to be bound by them, and (3) that you have the ability and authority to accept them.

We may update these Terms from time to time, at our sole discretion, and without notice. Your continued use of this Website or our Services after any such update constitutes your acceptance of such update.

If you do not agree with these Terms or are unable to accept them, you are not authorized to use our Website or Services.

For ease of reference, these Terms have been divided into the following sections:

Products and Services
Works Created by Elusive Concepts
Hosting
Use of Website and Services
General Terms

1. Products and Services

Elusive Concepts offers various products and services through this Website. The following Terms apply to offers, promotions, and sales of products, services, and subscriptions.

1.1. Pricing, Quotes, and Proposals

The prices of services offered on this Website are based on individual client needs, and are customized for each individual project. Elusive Concepts will create a "Quote" or "Proposal" for each project before beginning any work. Quotes are based off a brief description of a project, and generally include a range of prices as an estimate for the final cost of the project. Proposals are based on interviews with the client and include an in-depth description of a project as well as a full breakdown of costs. These prices do not include taxes or other fees that you may be charged.

We charge a non-refundable $100 fee to create a full proposal for a project. If the client agrees to the proposal, the fee is credited toward the final cost of the project.

1.2. Billing and Purchases

Elusive Concepts uses third-party payment providers (e.g., PayPal and Stripe) to authenticate payments for billing and purchases. We do not directly process payments and are not responsible for the collection, use, or security of your billing information by third-party partners. When you purchase products or services from our Website, or pay a bill on your account, you are interacting with Elusive Concepts and a third-party partner. Please read the terms and conditions and privacy policies of applicable third-party partners to understand their terms and conditions.

You hereby represent and warrant that you have the legal right to use the payment method(s) in connection with any purchase and that the information that you supply to us and to the third party payment processor(s) is true, correct and complete.

You may provide a card to be kept on file for automatic renewal of subscription services or for use as a default payment type. Card details are maintained through our third-party provider (Stripe) and are never hosted on Elusive Concepts servers. By providing a card to be kept on file and enabling auto renewal, you are granting Elusive Concepts permission to initiate a payment or a series of payments on your behalf. The frequency and amount of payments depends on your active subscription plan.

1.2.1. Advance Payments

We may ask for advance payment on certain projects or at certain stages of projects. Advance payments are a partial payment of the total purchase price of a service used as an assurity or to offset the cost of expenses accrued during the project. Any advance paymence are credited to the final purchase price of the product or service and are non-refundable.

1.2.2. Subscription Services

Elusive Concepts provides subscription services to its clients for website hosting and maintenance. Subscription plans may include multiple levels of service tiers, with increasing costs.

Subscription plans are pre-paid for their duration which means your card is charged at the beginning of the subscription period. When you purchase a subscription you will be asked to provide a valid credit card which will be charged immediately as per the subscription plan. Your subscription will then be active for the duration of the subscription plan. If you choose to have your subscription to automatically renew, your card will be kept on file with our payment provider and charged again when your current subscription plan expires. You may change your subscription plan or disable auto-renewal at any time by logging into your account and visiting your account details (see Upgrading a Subscription Plan and Downgrading a Subscription Plan below).

Upgrading a Subscription Plan - When you upgrade to a higher level tier, you will be asked to provide a valid credit card. If you have an active paid subscription, the the cost of the new plan will be prorated for any time remaining on your current plan. The prorated cost of the new plan will be charged to your card immediately. If your subscription is set to automatically renew, it will be renewed for the full price of the new subscription plan at the end of the plan's duration.

Downgrading a Subscription Plan - Subscription plans are prepaid for the plan duration and downgrading a subscription has no effect until the end of the current subscription period. Your current subscription will remain active until its expiration date. If you downgrade to another subscription plan and your subscription is set to automatically renew, it will then be renewed for the price and duration of the new plan. If you disable automatic renewal, then your subscription will be cancelled at the end of the current plan period.

Cancelling a Subscription - Subscription plans are prepaid for the plan duration and cancelling a subscription has no effect until the end of the current subscription period. Your current subscription will remain active until its expiration date. If your subscription is set to automatically renew, it will be cancelled at the end of the current plan period.

We do not offer the option to revoke your subscription shortly after making your purchase.

1.3. Cancellations, Returns, and Refunds

Orders of products and services may have different cancellation, return, or refund policies depending on the type of product or service. To request a cancellation, return, or refund please contact our customer service team.

1.3.1. Cancellations

Services: Once a customer has approved the service or project, and signed the contract, services may only be cancelled based on the cancellation terms outlined in the contract. If no cancellation terms are included in the contract, the service may not be cancelled once the contract is signed.
Stock Items: Customers may cancel orders of stock items up until the order has shipped. Once we ship an item, we are unable to cancel the order.
Custom Items: Customers may cancel custom orders as long as the order status is within the "processing" or "accepted" stage. Once we begin assembling the item, or preparing for shipment, we can no longer cancel the order. If an item has design or text personalizations, you may not cancel your order once the proof is approved.
Digital Downloads: Customers may cancel digital downloads as long as the item has not been downloaded. Once you download the item, we can no longer cancel the order. If you have difficulty downloading the item, please create a support ticket.

1.3.2. Returns

Only physical products are elligible for return. Digital Downloads, Services, and Subscriptions may not be returned.

Please be aware that actual colors may vary slightly from images shown due to monitor and screen settings. You may view color and material options before you order. If you have questions about product options before ordering, please contact our customer service team.

We work to ensure that all products are free of material defects at the time of shipping. Please be sure to inspect your items upon delivery and refuse shipment if the item is damaged. If there is a manufacturing problem with your item, please let us know within five business days of receipt.

Stock Items: Customers may return stock items within thirty days of receipt as long as they are unused and undamaged. Our customer service team will review your return request and notify you of how to return the item.
Custom Items: We can only accept returns on custom items damaged in transit. Elusive Concepts is not responsible if you are not happy with color or style choices. Personalized items (specifically those including a name or custom text) are final sale orders.

In some cases, we may be able to exchange or alter the item if it does not meet your expectations. Please use the "Request a Return" button below to make such a request. Our customer service team will review the request and notify you of your options.

1.3.3. Refunds

We do not offer refunds on purchases of Products or Services made on this Website or directly through Elusive Concepts, LLC. Purchases of physical items that are elligible for return and are returned in good condition will be refunded for the original purchase price, not including shipping. Purchases that have been cancelled may be elligible for a full or partial refund based on the status of the order.

1.4. No Warranty on Purchases

The items or services displayed or sold on this Website are provided "as is." No warranty, express or implied (including any implied warranty of merchantability, of satisfactory quality or fitness for a particular purpose or use) shall apply to any items or services displayed or sold on this Website, whether arising by law, course of dealing, course of performance, usage of trade or otherwise.

2. Works Created by Elusive Concepts

As part of the Services offered through this Website or directly through Elusive Concepts, LLC., some services may fall under Work-for-Hire. This applies to any source-code, writing, images, video, digital asset, or other media (collectively, "Works") produced by Elusive Concepts and delivered to the Client for contracted Services.

Works Created for Hire will be goverened by a separate, signed Work-for-Hire Agreement between Elusive Concepts, LLC and the client. Without such an agreement, all Works created by Elusive Concepts or any other deliverables prepared by Elusive Concepts, its members, or its employees shall not be deemed a work-for-hire as defined under Copyright Law and shall be governed under these terms.

2.1. Rights and Licenses

All Works created by Elusive Concepts and rights relating to them, including copyright and ownership rights of the Works, remain the sole and exclusive property of Elusive Concepts, LLC.

This license provides the Client with the limited right to reproduce, publicly display, and distribute the Works only for promotional or advertising purposes directly related to the Services provided. Works used for any purpose not directly related to the Services must be with the express, written permission of an authorized member of Elusive Concepts and the payment of additional fees, unless otherwise agreed to in writing.

Works may be uploaded to any listing service solely for promotion of the Services during the pendency of these terms of service. However, regardless of any terms of service of the listing services, at no time does this terms of service provide Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106.

Works may contain copyright and license management information at the discretion of Elusive Concepts in the form of either 1) a copyright notice and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the parties. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to Elusive Concepts, LLC for any penalties and awards available under the statute.

2.2. Relationship of the Parties

The parties agree that Elusive Concepts is an independent contractor and shall not be deemed to be an employee of the Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by these terms. The Client is not authorized to act as agent or bind Elusive Concepts, LLC.

2.3. Creation

The manner and method of creating any Works produced by Elusive Concepts are solely at the discretion of Elusive Concepts and the Client has no right to control the manner and method of production under these terms.

Elusive Concepts will use their best efforts to: (a) ensure that the Works conform to Client specifications; and (b) submit all Works to Client in publishable quality, on or before the applicable deadlines.

2.4. Fees

All fees and expenses payable under these terms of service are due upon the delivery of the Works and payable irrespective of whether Client makes actual use of the Works. If full payment has not been received within thirty (30) days, all rights are revoked at Elusive Concepts' discretion. In the event rights are revoked, all Works in the possession of Client must be removed from all forms of storage media and permanently destroyed within ten (10) days.

2.5. Transfer and Assignment

The Client may not assign or transfer these terms or any rights granted under it.

2.6. No Exclusivity

These terms of service do not create an exclusive relationship between Elusive Concepts and the Client. Elusive Concepts shall be entitled to offer and provide similar services to other clients, solicit other clients and otherwise advertise services.

3. Hosting

As part of the Services offered through this Website or directly through Elusive Concepts, LLC., some services may include Web of File Hosting services. The following Terms govern the use of Elusive Concepts servers for Web and File Hosting. Failure to comply with these Terms may result in the termination of hosting services.

3.1. Resctricted and Illegal Use of Servers

The following restrictions apply to all content hosted on servers owned or controlled by Elusive Concepts, as well as any activity performed while accessing our servers.

3.1.1. Adult Content

Adult content is strictly prohibited from Elusive Concepts' servers. No adult content may be uploaded to, stored on, or served from our servers. Further, no files on our servers may contain links to adult content. Elusive Concepts will be the sole discretionary in such matters.

3.1.2. Copyright Violation – Illegal Use

Violation of copyrights held by individuals and corporations or other entities can result in civil and criminal liability for the offending parties, and can involve the ISP in litigation and possible loss of reputation. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

Any instance of copyright violation discovered on Elusive Concepts servers will result in the removal of such materials and may result in termination of hosting services. Furthermore, Elusive Concepts will always comply with requests by law enforcement or court officers in regards to providing access to hosted content and the party responsible for such hosted content.

3.1.3. Distribution of Internet Viruses, Worms, Trojans, and Other Destructive Activities

Distribution of viruses, worms, trojans, and other destructive activities, such as hacking, can result in serious civil and or criminal liability under federal and state law and are strictly prohibited. Any instances of such activity are cause for immediate termination of hosting services and will be reported to local law enforcement.

3.1.4. Server Abuse

Any attempts to undermine or cause harm to any Elusive Concepts' server or customer are strictly prohibited.

3.1.5. Server Resources

Any web site that uses an unusually high amount of server resources (such as, but not limited to, CPU time, memory usage, and network resources over their allotted limits) will be given the option to either pay additional fees (which will depend on the resources required), reduce the resources used to an acceptable level, or upgrade its service to a Dedicated Server plan.

3.2. Non-Payment / Overdue Accounts

Payment for hosting services are due on the first day of the beginning month of the subscription period and are renewed monthly or yearly (invoices are emailed approximately mid-month of the last month of the subscription period). Invoices are presented to clients via an email notification (please make sure your email filters and spam blockers accept email from elusive-concepts.com). Please notify us if your email address changes. Hosting account suspension or termination may occur without further notice after one month of any amount being overdue for any service provided by Elusive Concepts. We want to keep your business, so we will attempt to remind you several times for a timely payment. Suspended accounts will be subject to a $250 reinstatement fee.

4. Use of Website and Services

4.1. License

Subject to your compliance with these Terms of Use, the Website, Online Services, and other offerings of Elusive Concepts are provided to you on a nonexclusive, fully revocable basis. Elusive Concepts may terminate or suspend any or all portions of the Website or Services at any time and for any reason with no liability to you.

4.2. Restrictions

You agree not to engage in any of the following:

impersonate or attempt to impersonate Elusive Concepts or its employees, representatives, subsidiaries, or divisions;
impersonate any other individual or entity or misrepresent your identity or your affiliation with another individual or entity;
use any means including, without limitation, agents, robots, scripts, or spiders to access, monitor, data scrape, link or frame to content, images or artwork (except as expressly authorized by Elusive Concepts), or copy or transfer any part of the Website or Services (including, without limitation, any Registration Data);
use any manual process or means to monitor or copy any of the material on this Website or for any other unauthorized purpose;
probe, scan, or test the vulnerability of the Website or Services, or breach the security or authentication measures on the Website or any part of the Services;
reverse look-up, trace or seek to trace any Registration Data in any way and for any reason;
take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or Services;
send or attempt to send any advertising or promotional material, including but not limited to spam, junk mail, chain mail, or any similar material;
use any device, software, or program to interfere or attempt to interfere with the proper working or authorized uses of the Website or Services, or with any other person's use of the Website or Services;
use any device, software, means, or routine that interferes with the proper working of the Website or Services, including but not limited to viruses, trojan horses, worms, logic bombs or other such materials;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any message transmittal you send on or through the Websites or via the Services;
attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server(s) on which the Website is stored, or any server, computer, or database connected to the Website;
attempt to attack or attack the Website or Services via a denial-of-service attack or a distributed denial-of-service attack;
use the Website or Services in any way that violates any applicable federal, state or local laws, rules or regulations.
or violate any applicable rules, policies, guidelines, or policies.

Illegal or unauthorized use of the Website or Services, including collecting user names or email addresses for the purpose of sending unsolicited email, is strictly prohibited. Commercial advertisements (via emails, forums, etc.) and other forms of solicitation in violation of these Terms of Use may be removed from the Website and Services without notice and may result in termination of your account.

4.3. Consent to Account Access

To ensure that Elusive Concepts can provide high-quality services that are responsive to your needs, you understand that Elusive Concepts' representatives will have access to your account, Website usage, Registration Data, and purchase information. You authorize our representatives to review such information as reasonably necessary to investigate complaints, to provide you with customer service, or for such other purposes as contemplated in our Privacy Policy.

4.4. Links to Other Sites

The Website and Services may contain hyperlinks to third-party websites. These links are provided as a convenience to you. We do not control and are not responsible for the content of such third-party websites or the conduct of the operators of such third party websites, and we do not make any representations regarding the accuracy, copyright, or other statutory or regulatory compliance, legality, or decency of any of the content or other materials on such third-party websites. Further, it is your responsibility to take precautions to ensure that whatever links you click on, or software that you download, whether from this Website or other websites or applications, is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature. If you decide to access linked third-party websites, you do so at your own risk.

Our inclusion of hyperlinks to third-party websites does not imply any endorsement of the material on such websites or any association with their operators.

4.5. User Content

As part of your use of the Website or Services, you may be able to create, include, refer to, transfer, upload, stream, display, host, promote, disseminate, post, make available, distribute, link to, or transmit messages, artwork, text, displays, images, photographs, graphics, screenshots, data, databases, information, files, pictures, video, audio, music, software and other materials and content, whether in written, digital, oral, machine-readable, electronic or visual form, to our Website or Services (collectively, "User Content").

By posting or submitting any User Content to or through the Website or Services, you hereby irrevocably grant to Elusive Concepts a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content (in whole or in part) in any media and to incorporate the User Content into other works in any format or medium now known or later developed. The foregoing grants shall include the right to exploit any proprietary rights in such User Content, including but not limited to, rights under copyright, trademark or patent laws under any relevant jurisdiction.

You represent and warrant that:

you own or control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to the Website and Services;
the User Content may be viewed by other parties;
the User Content is accurate and not misleading;
the User Content and your use of such User Content does not violate any law, rule, or regulation;
the User Content is not inappropriate, profane, indecent, harmful, threatening, abusive, defamatory, harassing, tortuous, vulgar, obscene, libelous, pornographic, harmful to minors, racially, ethnically, or otherwise objectionable or that may be invasive of another's right of privacy or publicity;
your User Content does not contain any macro, bot, virus, trojan horse, keystroke logger, worm, time bomb, cancelbot, corrupted data, or other file, code, or computer programming routing that is intended to or results in damage, detrimentally interferes with the Website or Services; and
User Content you supply does not violate these Terms of Use and will not violate any rights of any third party or cause injury to any person or entity.

You agree to pay for all royalties, fees, and any other monies owed to any person by reason of any User Content posted by you.

You are solely responsible for the User Content that you post, store, or upload on or through the Website and Services. Elusive Concepts does not have an obligation to delete, screen or edit any of the User Content posted, stored or uploaded on or through the Website and Services. However, Elusive Concepts reserves the right to delete, screen, or edit any User Content posted, stored, or uploaded at any time and for any reason without notice. Without limiting the foregoing, Elusive Concepts may remove any User Content that in our sole judgment violates these Terms of Use.

The following is a non-exhaustive list of types of User Content that you are prohibited from posting on our Website:

content that harasses others;
content that is discriminatory or offensive;
swearing, name calling, and otherwise abusive content;
pornographic or sexually explicit content;
content displaying, depicting, or suggesting violence;
content that exploits or abuses children;
content encouraging or committing illegal acts;
content sharing personal information without consent;
content infringing on an individual's rights, including intellectual property rights;
content advertising products or services without our permission;
content whose purpose is spamming others.

4.6. Intellectual Property Ownership

The Website and Services (including all content residing thereon) are the sole property of Elusive Concepts, LLC, and are protected by copyright, trademark, and other intellectual property laws ("EC Intellectual Property"). You are granted a limited, revocable, non-sub-licensable right to access and use EC Intellectual Property solely in connection with your use of the Website and Services. Any use of EC Intellectual Property other than as specifically authorized by Elusive Concepts is strictly prohibited and will terminate the rights granted herein. All goodwill generated by your use of Elusive Concepts' trademarks shall automatically inure to the benefit of Elusive Concepts, LLC.

4.6.1. Infringements

You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to Elusive Concepts or others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Elusive Concepts to remove any content or information from its Website which we believe infringes the intellectual property rights of others upon receipt of and proper notification to Elusive Concepts by the intellectual property owner or the owner's legal agent. If you infringe other's intellectual property rights, we, at our sole discretion, may also terminate your account.

We respect the intellectual property rights of others. If you believe that any content appearing on our Website infringes your intellectual property rights, we want to hear from you. Please forward the following information in writing to the address listed below:

your name, address, telephone number, and e-mail address;
a description of the work that you claim has been infringed;
an explanation about the nature of the infringement (e.g., whether it is a trademark, copyright, or other type of infringement of your intellectual property);
the exact URL, or a description of each place where alleged infringing material is located;
a statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the intellectual property owner or authorized to act on the owner's behalf.

Name and address of agent to receive notification of claimed infringement:

Intellectual Property Agent
ATTN: Legal
Elusive Concepts, LLC.
74 Hillairy Avenue
Morristown, NJ 07960

E-mail: infringement@elusive-concepts.com (Only use this email address to report potential copyright and trademark infringement claims. All other email messages will be deleted without response.)

Please note that we will not process your complaint if it is not properly filled out or is incomplete. You may be held accountable for damages, including but not limited to costs and attorneys' fees, for any misrepresentation or bad faith claims regarding the infringement of your intellectual property rights by the Content on this Website.

4.7. Privacy Notice

In addition to the disclosures contained in these Terms, please refer to our Privacy Policy for information on how we collect, use and disclose your personally identifiable information.

4.8 No Warranty on Website

ELUSIVE CONCEPTS PROVIDES THE WEBSITE, SERVICES, ACCOUNTS, AND ALL OTHER FEATURES, PRODUCTS, AND DOCUMENTATION "AS IS." ELUSIVE CONCEPTS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

Without limiting the foregoing, we do not ensure continuous, uninterrupted, error-free, secure or virus-free operation of our Website, Services, or your account. Nor do we ensure that defects in any portion of the same will be corrected. Elusive Concepts may change, modify, disable, suspend or remove any such feature, product, service, software, art, graphics, or other content, in whole or in part, at its sole discretion. Elusive Concepts does not control or endorse User Content or the related content, messages, facts, views, opinions, recommendations, data, files, video, audio, graphics, or information exchanged by means of the Site including, without limitation, information contained in the public postings areas of the Website or Service and information provided or statements made by a celebrity, "expert," or similar guests and, therefore, Elusive Concepts specifically disclaims any liability resulting therefrom. You acknowledge that the Website and the Services have not been developed to meet your individual requirements. Elusive Concepts disclaims suitability of the Websites and Services for any purpose. We are not liable for any delay or failure to perform resulting from any causes beyond our reasonable control. We expressly reserve the right to correct any pricing errors on our Website. The inclusion or offering of any product or service on this Website does not constitute an endorsement or recommendation of such product or service by us.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES; AS SUCH THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU IN ITS ENTIRETY.

4.9. Limitation of Liability; Indemnification

IN NO EVENT SHALL ELUSIVE CONCEPTS, LLC., OUR LICENSORS, AFFILIATES, OR SUPPLIERS, OR EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY ANTICIPATED OR LOST PROFITS, REVENUE, DATA, CONTENT, HARDWARE, SOFTWARE, INJURY, INFORMATION OR SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, STRICT PRODUCT LIABILITY AND NEGLIGENCE) ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM POSSESSION, USE, INABILITY TO USE, FAILURE TO PERFORM, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER OR OTHER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF OR MALFUNCTION OF THE WEBSITES OR SERVICES (AND ANY COMPONENTS THEREOF), YOUR ACCOUNTS, ANY FUNCTION OR FEATURE AVAILABLE, ACCESSED, DISTRIBUTED OR VIEWED THROUGH THE WEBSITE, THESE TERMS, THIRD-PARTY WEBSITES, OR SERVICES ACCESSED, DISTRIBUTED, OR ADVERTISED IN OR THROUGH THE WEBSITE OR SERVICES, THE DOWNLOADING OR USE OF ANY SOFTWARE OWNED OR OPERATED BY US OR ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, DAMAGE TO PROPERTY AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DAMAGES FOR PERSONAL INJURY, EVEN IF WE, OUR LICENSORS AND SUPPLIERS, AND EACH OF OUR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. THE TOTAL AGGREGATE LIABILITY OF ELUSIVE CONCEPTS, LLC., OUR LICENSORS OR ANY OF OUR OR THEIR RESPECTIVE PARENT OR AFFILIATED COMPANIES TO YOU OR ANY THIRD PARTIES IS LIMITED TO THE AMOUNT OF FEES ACTUALLY RECEIVED BY ELUSIVE CONCEPTS FROM YOU. YOU AGREE TO WAIVE ANY RIGHT TO EQUITABLE RELIEF INCLUDING, WITHOUT LIMITATION, INJUNCTIVE RELIEF AGAINST ELUSIVE CONCEPTS, LLC., ITS LICENSORS, THEIR PARENTS OR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS TO ENFORCE THE TERMS HEREOF; HOWEVER, THE FOREGOING SHALL NOT PRECLUDE ELUSIVE CONCEPTS AND/OR ITS LICENSORS FROM SEEKING ANY INJUNCTIVE RELIEF. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. SOME STATES DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY; AS SUCH THEY MAY NOT APPLY TO YOU IN THEIR ENTIRETY. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD ELUSIVE CONCEPTS, LLC., ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, CURRENT AND PAST OFFICERS AND EMPLOYEES HARMLESS FROM ANY CLAIM, ACTION, SUIT, DEMAND, OR DAMAGES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES, ASSERTED BY ANY THIRD PARTY ARISING IN CONNECTION WITH THE USE OF YOUR ACCOUNTS, THE WEBSITE AND SERVICES.

4.10. Termination; Survival

You may cease using the Website and Services, as well as terminate your account, at any time. Elusive Concepts may, at any time, for any reason, and at its sole discretion, deactivate your account, or discontinue any part of the Website or Services with or without notice to you. In addition, Elusive Concepts, at its sole discretion, may immediately terminate your account without notice if: (a) you breach any provision of these Terms; (b) you infringe any third party intellectual property rights; or (c) Elusive Concepts is unable to verify or authenticate any information you provide to us. Upon termination of your account, all rights granted to you under these Terms of Use will immediately terminate with no further obligations or liability to you. Sections 4.6 (Intellectual Property), 4.8 (No Warranties), and 4.9 (Limitation on Liability; Indemnification), together with any licenses granted to Elusive Concepts hereunder, will survive termination for any reason.

5. General Terms

These Terms shall be governed and construed in accordance with the laws of the state of New Jersey, United States, without regard to its conflict of laws provisions. THESE TERMS SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE SALE OF INTERNATIONAL GOODS, THE UNIFORM COMMERCIAL CODE, NOR INCOTERMS.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of that right or provision. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between you and us regarding our Website, and supersede and replace any prior agreements we might have had with you regarding the Website.

Any controversy or claim arising out of or relating to these Terms, including but not limited to the interpretation or breach thereof, shall be resolved in a court of competent jurisdiction in Morris County, New Jersey, U.S.A.

YOU AND ELUSIVE CONCEPTS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION.

5.1. Language; Interpretation

It is the express wish of the parties that these Terms and all related documents have been drawn up in English. The headings of sections, paragraphs and subparagraphs of these Terms are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections, paragraphs or subparagraphs.

5.2. Compliance with Law; U.S. Export Controls

You will comply with all applicable laws regarding your installation, copying, and use of the Website and Services and your access to your accounts. Without limiting the foregoing, software available in connection with the Website and Services may be subject to United States export controls. No feature, function, software, or any component thereof may be downloaded from the Site or Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any software is at your sole risk. You further agree not to upload to the Website or servers controlled by Elusive Concepts any data or software that cannot be exported without prior written government authorization including, but not limited to, certain types of encryption software.

5.3. Equitable Remedies

You hereby agree that Elusive Concepts would be irreparably damaged if these Terms were not specifically enforced. Therefore, you agree that Elusive Concepts will, in addition to any other remedy it may have under these Terms, at law or in equity, be entitled without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms.

5.4. Severability; Waivers

If any provision of these Terms is found to be invalid or unenforceable by any court having competent jurisdiction, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. The failure of Elusive Concepts to insist upon or enforce any of the provisions of these Terms, or to exercise any rights or remedies under these Terms, will not be construed as a waiver of Elusive Concepts' right to assert or rely upon any such provisions, rights, or remedies in that or any other instance; rather, the same will be and remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term.

5.5. Modification

These Terms may be amended, altered, or modified at any time and for any reason by Elusive Concepts at its sole discretion with no prior notice. If any future changes to these Terms are unacceptable to you or cause you to no longer be in compliance with these Terms, you must terminate your account. The continued use of your account, the Website, or the Services means you accept any and all such changes. You acknowledge and agree that you have no interest, monetary or otherwise, in any feature, content or availability of the Website, Services or your account.

5.6. No Assignment

These Terms and the rights granted herein are personal to you, and may not be assigned. Elusive Concepts may transfer or assign these Terms, the Website, and the Services, in whole or in part, to third-parties of our choosing.

5.7. Trademark and Copyright Notification

Unless otherwise indicated, all trademarks appearing on the Website and Services are the property of Elusive Concepts, LLC. All rights reserved. All artwork, images, text, proprietary software and other copyrightable images are the copyrights to Elusive Concepts. All rights reserved. All other trademarks and copyrightable content are the property of their respective owners and used under license.

5.8. Force Majeure

Elusive Concepts shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause such as acts of god, war, pod people, terrorism, riots, the zombie apocalypse, embargoes, acts of civil or military authorities, Plan 9, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.

5.9 Governing Law; Venue and Jurisdiction; Time Limit to Bring Claims

These Terms and your interactions with Elusive Concepts (including your use or inability to use the Website and Services) shall be governed by laws of the State of New Jersey, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts within Morris County, New Jersey, for any claims arising out of or relating to your use of the Website, the Services, your interactions with Elusive Concepts, the use (or lack thereof) of any of Elusive Concepts' products, and these Terms. In no event shall any claim, action, or proceeding by you related to or arising from these Terms, the Website, the Services (including your use, or inability to use the Website or Services), or any other interaction you may have with Elusive Concepts, be instituted more than one (1) year after the cause of action arose.

You agree that exclusive jurisdiction for any dispute, claim, or demand related in any way to the Service or Elusive Concepts will be decided by binding arbitration. All disputes between you and Elusive Concepts of any kind or nature arising out of these Terms or your use of the Service, shall be submitted to Judicial Arbitration and Mediation Services, Inc. ("JAMS") for binding arbitration under its rules then in effect in the Morris County, New Jersey area and to be conducted in Morris County, New Jersey for residents of North and South America, Japan, and residents of Asia, and London for residents of Europe and Africa, before one arbitrator to be mutually agreed upon by both parties.

To the fullest extent permitted by applicable law: (i) no arbitration will be joined to an arbitration involving any other current or former customer, end user or licensee of Elusive Concepts', whether through class arbitration proceedings or otherwise; (ii) no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between the parties); (iii) and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between the parties). The parties agree to share equally in the arbitration costs incurred. In the event any litigation is brought by either party in connection with these Terms, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.

Those who choose to access the Website and Services from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable. Should a court of competent jurisdiction determine that other laws apply, these Terms shall be enforced to the fullest extent permitted by the laws of the applicable jurisdiction and be interpreted to give maximum effect to the terms and conditions hereof.

Should any portion of this Section be found illegal or unenforceable, you agree that such portion shall be severed and the remainder of this Section shall be given full force and effect.

5.10 Notices

All notices given by you or required under these Terms shall be in writing and addressed to:
Elusive Concepts
ATTN: Customer Support
74 Hillairy Avenue
Morristown, NJ 07960