Effective date: June 28th, 2016
elusivestars.com is a website and online service that brings together software application developers (“Developers”) and people who test and review their applications (“Members”) to help improve software applications for mobile devices (“Apps”).
Our Legal Terms
The following is a legal agreement that governs all use of the elusivestars.com website (the “Website”), which is owned and operated by elusivestars, LLC (“elusivestars”), third-party Apps, testing of Apps performed by Members (“Testing”) and all related services provided by elusivestars (“Services”).
This Website and Services were created for Testing of Apps in the United States of America. Registration and use of the Website is void where prohibited.
elusivestars does not control the safety or reliability of any Apps that are provided as part of our Services. You agree to use the Website and Apps at your own risk.
Your Acceptance of this Agreement by Use
You agree to be bound by this Agreement if you access or use any part of the Website at any time whether or not you create an account and register as a Member or Developer. You also agree to have this Agreement provided to you in electronic format and agree to receive information electronically.
If you are a Developer and entering into this Agreement on behalf of a business, legal entity, or organization (an “Entity”), you represent and warrant that you have the authority to bind the Entity to this Agreement and give the licenses contained herein. The terms “you” or ‘your” shall refer to such Entity, its affiliates, and authorized individuals who use the service under the Entity’s account.
elusivestars.com is only an Internet Service Provider
elusivestars.com is an Internet service provider who provides an on-line automated platform that matches Developers who want early feedback about their Apps and Members with mobile devices. The Website allows Developers and Members to communicate with each other. elusivestars.com also provides an automated service for Developers to make payments to Members.
elusivestars does not control the content, quality, safety or reliability of the Apps or the feedback provided by Members.
elusivestars is not an employment service or an employer of any Member. Developer and Member each acknowledges and agrees that their relationship is that of independent contractors. The Member shall perform Testing as an independent contractor and nothing in this Agreement shall be deemed to create an agency, employer-employee relationship, partnership, or joint venture between any Developer and Member or between elusivestars and any Member or Developer.
Each Member is solely responsible for paying any income tax, payroll tax, payroll withholding, sales and use tax, governmental reporting or other legal requirements under applicable law.
elusivestars is not responsible for any tax or withholding, including but not limited to unemployment insurance, social security or payroll withholding tax in connection with Member payment or services for Developers. Developers and Members are responsible for all related taxes or penalties.
Consent to Changes
elusivestars may also modify or discontinue, temporarily or permanently, the Website or any part thereof with or without notice. Prices of all related Services and Payment Terms may also be changed or modified without prior notice. elusivestars shall not be liable to you or any third party for any modification, price change, suspension, or discontinuance of Services.
To be able to download and test Apps, you must register for a “Member Account” and become a registered Member. To be eligible to be a Member you must be: (1) 18 years or older at the time of registration or over the age of 13 with the express permission of your parent or legal guardian who consents to this Agreement; (2) mentally competent to agree to this Agreement and comply with all terms and conditions; and (3) owner or authorized user of a mobile device.
When registering your Account, you must fill in all mandatory fields as prompted with true, accurate, complete and current information about yourself, including your full legal name, and information about your mobile devices. You must also promptly update your Account information if it becomes inaccurate or misleading in any way. elusivestars may suspend or terminate your Account if it in its sole discretion suspects that your information is incomplete, inaccurate, or untrue.
You cannot sign up for more than one Member Account. Your Member Account is not transferable and any attempt to transfer your Account will be null and void.
As long as you are a Member, you also agree to maintain an accurate, active email account to receive communications from elusivestars related to this Website, its administration, Services and your use.
elusivestars Device Application
After you register as a Member, before you are able to perform Testing, you may be required to download the elusivestars Device Application (“EDA”) onto your mobile device. The EDA will identify important information about your mobile device that will be used for matching your device with Developer specifications.
elusivestars hereby grants registered Members a non-exclusive, non-transferable, revocable, restricted license to copy and use the EDA solely for performing Testing services as a registered Member.
To be authorized to upload Apps and request Testing by Members, you must register for a “Developer Account” and become a registered Developer. Agents for an Entity may create a Developer Account on behalf of the Entity.
To be eligible to register as a Developer you must be: 1) authorized to legally bind the owner of the App if creating the Developer Account for an Entity; 2) 18 or older at the time of registration; and (3) mentally competent to agree to this Agreement and comply with its terms and conditions.
If you use this Website or become a Member or Developer, you represent, warrant, and covenant that: (a) you are at least thirteen (13) years old; (b) if you are under eighteen (18) years old you have the express permission of your parent who has agreed to this Agreement on your behalf to participate in the Services; (c) all statements about your personal information are current, true, and accurate; (d) you will update your personal information or device information if it becomes inaccurate; (e) you will use the Website and other Services or perform Testing in strict accordance with this Agreement and all applicable city, state, and federal government laws, regulations, and ordinances; (f) you will not infringe or misappropriate the intellectual property rights of elusivestars or other third parties; and (g) you will not attempt to copy, mimic, reverse engineer, decompile or deconstruct any App that you download from this Website.
When you become a registered Member or Developer, you will be required to select a password. You are responsible for the security and integrity of your password. You must keep your password confidential and agree not share or give your password to any other person or allow another person access to your Account. You are responsible for all activities that occur under your Account.
You also agree to notify elusivestars immediately if you believe that the security of your password or Account has been breached or that another person has used or accessed your Account. You also agree not to use the password, username, or Account of another registered Member.
An Entity may have multiple Developer accounts. Employees and contractors of an Entity with a Developer Account may use the Entity username and password as authorized by the Entity. The Entity is responsible for all activity under its Account.
The Website and all other materials that are included in or are otherwise a part of the Website, including, without limitation: logos, graphics, trademarks and service marks, copyrightable works including software applications, instructions and other content are owned, licensed or controlled by elusivestars and other third parties and are protected from unauthorized use, copying and dissemination by copyright, trademark, and other laws, rules and regulations. Except as expressly set forth in this Agreement, no rights (either by implication, estoppel or otherwise) are granted to you. elusivestars and Developers maintain all right, title and interest to their intellectual property.
Registered Developers may be able to upload Apps and request testing by Members who own specific types of mobile devices and match specific demographic criteria.
Developer agrees and additionally warrants that: 1) it owns the rights to Apps that it makes available on the Website or has the authority to grant the licenses in Section 11 of this Agreement; 2) it will not upload, post, distribute, link to, or transmit a virus, Trojan horse, malware, worm or other disruptive or harmful software; and 3) it will not use the Website or Services for any illegal purpose or in violation of any applicable local, state, federal or international law; and 4) it will assume any and all liability arising from or related to any App that it submits to the Website; and 5) elusivestars has no responsibility to you or any third party for the App or any related consequences of use of the App.
In its sole discretion, elusivestars may take down any App at anytime without prior notice to You.
Developer’s Licenses to elusivestars. If you upload, submit, or post an App (“Your App”) to the Website, you hereby grant and agree to grant to elusivestars a worldwide, royalty-free, non-exclusive, sublicenesable, transferable license to host, use, copy, reproduce, adapt, publish, publicly perform, publicly display, archive and distribute Your App for the purpose of enabling elusivestars to provide Services. You further give elusivestars permission, in its sole discretion, the right to use your trade names, trademarks, service marks, logos, and domain names in presentations, marketing materials, customer lists, reports or other listings for the purpose of advertising or publicizing your use of elusivestars, without any compensation to you.
Developer’s License to Members. If you upload, submit or post Your App to the Website, You hereby grant and agree to grant to Members who Test Your App a non-exclusive, royalty-free, non-transferable license, with no right to sublicense, to use, copy, display, and perform Your App for the purpose of testing Your App and providing feedback to You.
Developer is responsible for terminating Member use of the tested App, if desired.
Your Member Reviews
After registering as a Member and Testing specific Apps, you may be allowed to add, upload, post, transmit and store limited types of content, comments, and suggestions on the Website related to your review of Apps (hereinafter “Your Reviews” or “Content”). You are solely responsible for all the information, statements, facts and material of Your Reviews.
In connection with Your Reviews you represent and warrant that: 1) you personally downloaded the referenced App and completed the Testing; 2) Your Review is true, accurate, and candid; and 3) Your Review does not contain any profane, vulgar, obscene, illegal or tortious content.
elusivestars in its sole discretion may prevent any Member for any reason from participating in Testing. elusivestars at its sole discretion may also modify, alter, or delete Your Reviews. You understand and agree that elusivestars is not obligated to use Your Reviews and that you may not receive any consideration or compensation for Your Reviews or for any exploitation of them in any manner whatsoever.
You hereby assign and agree to assign all rights, title and interest in and to all Your Reviews and the associated intellectual property rights to elusivestars. You understand and agree that this means that elusivestars and its authorized affiliates, licensees, successors and assigns may exploit Your Review in any manner whatsoever, for any purpose whatsoever in all formats, on or through any media, software, formula or medium now known or hereafter developed and that elusivestars and its authorized affiliates, licensees, successors and assigns is free to use any ideas, concepts, know-how or suggestions contained in any of Your Reviews for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products or services without compensation to you of any kind.
You understand that elusivestars will own the intellectual property rights to Your Reviews and have sole discretion regarding the all uses of Your Reviews and that Your Reviews will not be returned or deleted upon termination of your Account.
The following conduct is prohibited while using the Website, Services or performing Testing (“Prohibited Conduct”). At its discretion, elusivestars may investigate alleged conduct that violates this provision and it may terminate your access and use of the Website or Services or take appropriate legal action.
Prohibited Conduct includes but is not limited to:
Impersonating another person or entity;
Using or attempting to use another Member’s Account or personal information;
Deleting, modifying, attempting to modify, disassemble, decompile or reverse engineer any App;
Deleting legal designations including trademark and copyright notices in any Apps;
Interfering with the operation or Services of the Website in any way;
Unauthorized framing or linking of the Website or portions thereof;
Damaging, disabling, circumventing or attempting to circumvent security technology, devices and programs associated with the Website, Apps or associated Services;
Using the Website in a way that would impair or damage the operation of the Website;
Taking any action that would place an unreasonable load on the Website’s infrastructure;
Attempting to decompile, decipher, disassemble or reverse-engineer any of the software comprising or in any way making up a part of the Website or Apps;
Collecting or harvesting information with automated programs including but not limited to using spiders, robots, harvesting bots, or scrapers; and
Uploading any viruses, worms, Trojan horses, time bombs or other destructive programs or devices that damage, detrimentally interfere with, surreptitiously intercept or expropriate any data, information or system.
DMCA Notice and Takedown Procedure
elusivestars respects the intellectual property rights of others and expects Users and Registered Members to do likewise. elusivestars complies with the provisions of the Digital Millennium Copyright Act (“DMCA”) and responds to allegations of copyright infringement in notices that comply with the provisions of the DMCA. As part of our DMCA compliance, we may take down, remove or disable access to allegedly infringing Website Content. Then, pursuant to the DMCA, we will make a good-faith attempt to contact the person who posted the Content to allow them to make a counter notification.
elusivestars has established a Designated Agent with the US Copyright Office. The contact information for our Designated Agent is:
5715 Hwy 85 North #1071
Crestview FL 32536
If you are a copyright owner or agent of a copyright owner and believe that any Content on the Website infringes your copyrights, you may request that such Content be removed from the Website by submitting a notification pursuant to the DMCA.
To request removal of any Content that you believe infringes your copyright, please send a written notice (“Notice”) to our Designated Agent.
DMCA Designated Agent
5715 Hwy 85 North #1071
Crestview FL 32536
Your written Notice must contain all of the following information:
Your full name, address, telephone number, and email address;
A description of all copyrighted works claimed to be infringed sufficient for identification of the works;
A description of where the works claimed to be infringed are located on the Website including a link to the works;
Your statement that you have a good faith belief that use of the works in the manner complained of is not authorized by the copyright owner, its agent or the law;
A statement under penalty of perjury that the information you have provided in your Notice is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
Your physical or electronic signature.
You understand and acknowledge that if your Notice does not comply with all of the above requirements, your DMCA Notice may not be valid. Also, note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Content posted by Users or Registered Members is the responsibility of the User or Member and not elusivestars.
If you believe that your Content has been erroneously removed because it was improperly identified as violating a copyright, you may send us a counter notice to have your Content re-posted (“Counter Notice”).
If you choose to send a Counter Notice, you must send a written Counter Notice to our Designated Agent at the following.
DMCA Designated Agent
5715 Hwy 85 North #1071
Crestview FL 32536
Your written Counter Notice must contain all of the following information:
Your full name, address, telephone number, and email address;
Identification of your Content that has been removed or to which access has been disabled and the location at which your Content appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
A statement that you consent to jurisdiction of Federal District Court for the judicial district in which you are located (or, if you live outside of the United States, for a federal district court in Scottsdale, Arizona), and that you will accept service of process from the person who provided the notification of infringement; and
Your physical or electronic signature.
You understand and acknowledge that if your Counter Notice does not comply with all of the above requirements, your DMCA Counter Notice may not be valid. Also, note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
elusivestars will terminate registration of repeat alleged infringers.
DISCLAIMER OF WARRANTIES
USE OF THE WEBSITE, SERVICES OR APPS IS AT YOUR OWN RISK. THE WEBSITE, SERVICES, AND APPS ARE PRESENTED “AS IS.” ELUSIVESTARS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER RELATED TO THE WEBSITE, SERVICES, APPS, LINKED SITES, OR ANY CONTENT THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE WEBSITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ELUSIVESTARS EXPRESSLY DISCLAIMS REPRESENTATIONS AND WARRANTIES OF ANY AND ALL KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO: (1) WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (2) WARRANTIES OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR USE OR WARRANTY OF TITLE; (3) WARRANTIES RELATING TO TRANSMISSION OR DELIVERY OF THE WEBSITE OR APPS OR THAT USE OF THE WEBSITE WILL BE CONTINUOUS OR UNINTERRUPTED OR AVAILABLE AT A PARTICULAR TIME OR IN A PARTICULAR LOCATION; (4) WARRANTIES RELATED TO THE ACCURACY, COMPLETENESS, SAFENESS, RELIABILITY OF THE WEBSITE CONTENT, APP REVIEWS OR APPS WHETHER POSTED BY ELUSIVESTARS, A REGISTERED MEMBER OR DEVELOPER, OR BY ELUSIVESTARS EQUIPMENT OR PROGRAMMING ASSOCIATED WITH THE WEBSITE, APPS OR ASSOCIATED SERVICES; AND (5) WARRANTIES RELATING TO PERFORMANCE, CORRECTION, CHANGES, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY ELUSIVESTARS OR ANY OTHER PERSON OR ENTITY. ELUSIVESTARS DISCLAIMS ANY RESPONSIBILITY FOR ANY ERROR, DELETION, OMISSION, OR DEFECT IN WEBSITE CONTENT OR APPS OR ITS TRANSMISSION AND FOR DAMAGE TO YOUR COMPUTER, MOBILE DEVICE OR OTHER EQUIPMENT FROM YOUR USE OF THE WEBSITE, APPS OR SERVICES AND THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO YOUR INFORMATION, APPS, COMPUTER OR MOBILE DEVICE.
LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, ELUSIVESTARS, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES, AGENTS OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE WEBSITE, SERVICES, OR APPS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY FOR INDIRECT, DIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, LOSS OF REVENUE, INCOME OR ANTICIPATED PROFITS OR SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, (EVEN IF ELUSIVESTARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING BUT NOT LIMITED TO DAMAGES ARISING OUT OF OR RELATED TO WEBSITE OR APP ACCESS, USE, MISUSE, CONTENT, TRANSMISSION, OPERATION, HOSTING OR WEBSITE USER, REGISTERED MEMBER OR DEVELOPER CONTENT OR CONDUCT INCLUDING BUT NOT LIMITED TO DAMAGES RELATED TO PAIN AND SUFFERING, EMOTIONAL DISTRESS, PHYSICAL INJURY OR TRADEMARK, COPYRIGHT OR PATENT INFRINGEMENT AND TRADE SECRET MISAPPROPRIATION.
ELUSIVESTARS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE, SERVICES OR THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). YOU AGREE TO RELEASE ELUSIVESTARS, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE WITH ANOTHER MEMBER OR DEVELOPER. ELUSIVESTARS IS NOT REPONSIBLE FOR THE CONTENT, APPS, DATA OR ACTIONS OF THIRD PARTIES, AND YOU RELEASE ELUSIVESTARS AND EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES AND AGENTS FROM ANY CLAIMS AND DAMAGES KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. ELUSIVESTARS’ LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend and hold harmless elusivestars and its directors, officers, employees, agents, affiliates, licensees, or subsidiaries against any and all claims, demands, or suits brought by any party including but not limited to all expenses, costs, losses, liability, reasonable attorneys’ fees and costs, arising out of or related to your access and use of the Website, Services or Apps, including but not limited to a breach of a warranty or covenant of this Agreement or Your Reviews or Apps that are posted, uploaded, or associated with the Website.
This Agreement will continue to apply until you or elusivestars terminates it. You may terminate this Agreement at any time by ceasing to access and use the Website or Services.
Your use of the Website may be terminated at anytime without prior notice, with or without cause for any reason, including but not limited to elusivestars’ determination that you have breached this Agreement including a violation of any warranty, uploaded or transmitted prohibited content or engaged in Prohibited Conduct. Your registered use of the Website will be terminated upon your death. Termination of your access and account is at the sole discretion of elusivestars.
The disclaimer of warranties, assignment of Your Reviews, licenses, the limitation of liability, indemnification and the jurisdiction and choice of law, assignment and enforceability and any other applicable provisions shall survive any termination of this Agreement.
Jurisdiction and Choice of Law
This Agreement and any use of the Website or Services shall be governed by and construed under the laws of the State of Arizona, without regard to its conflict of laws provisions. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the use or access to the Website, Services, or Apps or these terms that is not subject to arbitration as outline below must be in the state or federal courts located in Arizona and you hereby consent and submit to the exclusive personal jurisdiction and venue of the courts located in Arizona for any such legal proceeding. Any cause of action or claim you may have must be commenced within in one (1) year after such claim or cause of action arises.
Developers or Members may not assign this Agreement or delegate its duties. elusivestars may assign this Agreement (and any license contained in it) to any person or entity without condition or restriction.
No waiver of any term or condition of or any breach of this Agreement or of any part of it, shall be deemed a waiver of any other term or condition or of any later breach of this Agreement or of any part of it.
If any provision of this Agreement is found to be unenforceable, void, or unlawful, that provision is severed from this Agreement and does not affect the enforceability and validity of this Agreement or any of the other provision.
This Agreement constitutes the complete agreement between the parties and supersedes all other agreements, promises, representations, and negotiations, whether written or oral, between the parties regarding the subject matter of this Agreement.