Posted: July 17, 2019
Effective: July 17, 2019
means a User who offers and / or provides their services through our App; who creates and uses an “Artist” account; or who identifies as an Artist on the App.
means any text, images, video, audio or other multimedia content, software or other information or material submitted to, subsisting on or accessible from the App
means an order for services placed by a User to an Artist through the App.
We, us or our
means AKBrand Enterprise Inc., a corporation incorporated under the laws of Canada and which operates as “ELLEZIBA”.
User, You or your
means the person accessing or using the App or its Content
1.4 The App is intended for and directed to persons over the age of 18 years.
2. Restrictions on Use
2.1 The App is for your use only. As a condition of your use of the App, you agree:
a. not to use the App for any purpose that is unlawful under applicable law, or prohibited by these terms;
b. not to infringe any third-party right;
c. not to defame or disparage anybody or make comments of an obscene, derogatory or offensive manner or otherwise use the App or its Content in a way that brings us or any third party into disrepute or causes us to be liable to any third party;
d. not to use the App in a false or misleading manner;
e. not to reverse engineer, decompile, copy, modify, distribute, transmit, license, sublicense, display, revise, perform, transfer, sell or otherwise make available to any third party or otherwise publish, deep-link, create derivative works from or exploit in any way the App or its Content except as permitted by us under these terms or as expressly provided under applicable law and/or under any Additional Terms;
f. not to impose an unreasonable load on our infrastructure or interfere with the proper working of the App; use any robot, spider, scraper or other automated means to access the App and collect content for any purpose without our express written permission; or use the App to distribute viruses or malware or other similar harmful software code;
g. not to harvest or otherwise collect information about others, including email addresses, without their consent;
h. not to bypass measures used to prevent or restrict access to the App;
i. not to represent or suggest that we endorse any other business, product or service unless we have separately agreed to do so in writing; and
j. that you are solely responsible for all costs and expenses you may incur in relation to your use of the App and shall be solely responsible for keeping your password and other account details confidential.
2.2 We reserve the right to prevent or suspend your access to the App if you do not comply with any part of these terms or any applicable law.
3. Ownership, use and intellectual property rights
3.1 The App and all intellectual property rights in the App (including without limitation any Content) are owned by us and/or our licensors. We and our licensors reserve all our intellectual property rights (which include without limitation all copyright, trade-marks, domain names, design rights, database rights, patents and all other intellectual property rights of any kind) whether registered or unregistered anywhere in the world.
3.2 Nothing in these terms grants you any rights in the App other than as necessary to enable you to access the App. You agree not to adjust to try to circumvent or delete any intellectual property notices contained on the App and in particular in any digital rights or other security technology embedded or contained within any App Content.
3.3 ELLEZIBA is our trade-mark. Other trade-marks and trade names may also be used on the App. The use or misuse of any trade-marks or any other Content on the App except as provided in these terms is strictly prohibited. Nothing contained on the App shall be construed as granting, by implication, estoppel or otherwise, any license or right to use any trade-mark without our prior written permission.
4.1 Any software made available for downloading is our copyrighted work and/or that of our licensors. You may only use such software in accordance with the terms of the end user license agreement, if any, which accompanies the software and, subject thereto, in accordance with these terms. Any reproduction or redistribution of software not in accordance with the end user license agreement and/or these terms is expressly prohibited, and may result in civil and criminal penalties.
4.2 Our software is warranted only to the extent expressly required by Canadian law or, if applicable, according to the terms of the end user license agreement. We hereby disclaim all other warranties, conditions and other terms (whether express or implied) with regard to the software, including all implied warranties and conditions of satisfactory quality, freedom from defects and fitness for a particular purpose.
5. Submitting information to the App
5.2 Where the App enables you to communicate with us and/or other Users, you may not use the App to transmit harmful or offensive (e.g., violent, obscene, discriminatory, defamatory or otherwise illegal) communications or material which might otherwise bring us or the App into disrepute. Although we reserve the right to monitor, edit, review or remove communications on the App from time to time, we are under no obligation to do so and assume no responsibility or liability arising from any Content posted on the App nor for any error, omission, infringement, defamatory statement, obscenity, or inaccuracy contained in any such information. Our right to use submissions or other material provided by you is non-exclusive, freely transferable and worldwide so you shall be entitled to use your own material yourself subject to applicable law.
6. Accuracy of information and availability of the App
6.1 While we use reasonable efforts to include accurate and up-to-date information on the App, we do not represent, warrant or promise (whether expressly or by implication) that any Content is or remains available, accurate, complete and up to date, free from bugs, errors or omissions or fit or suitable for any purpose. Any reliance you may place on the information on the App is at your own risk and we may suspend or terminate operation of the App at any time at our sole discretion. Nothing in these terms shall operate to prejudice any mandatory statutory requirement or your statutory rights. Content on the App is provided for your general information purposes only and to inform you about us and our products and news, features, services and other websites, which may be of interest. It does not constitute technical, financial or legal advice or any other type of advice and should not be relied on for any purpose.
6.2 While we make commercially reasonable efforts to ensure that the App is available, we do not represent, warrant or guarantee in any way the App's continued availability at all times or uninterrupted use by you of the App.
7. Orders, Payments, Refunds and Cancellations
7.1 If you are an Artist, you agree to provide all services offered in an Order which was placed with you.
7.2 Users will be charged the Artist’s fee for a service at the time their Order is accepted by the Artist. The fee will be held by us or our third party payment processing provider on the Artist’s behalf pending the completion of the Order. You agree that we are not acting as a fiduciary or trustee with respect to such funds.
7.3 An Order has been completed when both the Artist and User have marked the Order as completed through the App. We charge Artists a fee for completed Orders equal to 15% of the Artist’s fee for the Order. Our fee is deducted from the amount paid by Users for an Order. Within 5 business days of the completion of the Order, we will transfer the remaining balance of the Artist fee to the Artist.
7.4 All advertised Artist fees are inclusive of applicable taxes. If you are an Artist, you are solely responsible to collect and remit any applicable taxes resulting from the sale of your services on the App. You agree that we are not responsible for the withholding, collection or payment of any applicable taxes on your behalf.
7.5 A User who has placed an Order may obtain a full refund if they cancel the Order at least 48 hours prior to the start of the appointment with the Artist. Cancellations of an Order on less than 48 hours’ notice will be subject to a 10% fee which is payable to the Artist (less our fee of 15% of the amount paid to the Artist). The remaining balance of the total fee will be refunded to the User.
7.6 An Artist may cancel an Order which was accepted by them at least 72 hours prior to the start of the appointment. We reserve the right to charge Artists a fee for late cancellations equal to the lesser of (i) 10% of the total fee for the cancelled Order; and (ii) $50 CAD.
7.7 We may change the fees in effect from time to time, but will give you advance notice of these changes via an email to the email address associated with your account.
8. Hyperlinks and third party sites
8.1 The App may contain hyperlinks or references to third party websites other than the App. Any such hyperlinks or references are provided for your convenience only. We have no control over third party websites and accept no responsibility for any content, material or information contained in them. The display of any hyperlink and reference to any third party website does not constitute an endorsement of such third party's website, products or services. Your use of a third party site may be governed by the terms of that third party site.
9.1 Artists and Users are required to mark an Order as “completed” once the Artist has performed the services offered in the Order. For greater certainty, if a User is not satisfied with the quality of the services, but all services offered were provided, the Order has been completed. In the event of a dispute between an Artist and a User regarding whether the Artist provided the services offered in the Order, the following procedure shall govern:
a. Either party may, within 30 days of the date of the Order subject to the dispute, deliver a written dispute notice by email to firstname.lastname@example.org containing the following information:
i. the words “Dispute Notice” in the subject of the email;
ii. the contact information of the other party;
iii. particulars of the Order;
iv. a detailed description of the dispute; and
b. Elleziba will forward the dispute notice to the other party. The other party will have 10 business days to send us by email to email@example.com a written response to the dispute notice with supporting documentation .
c. Elleziba may request additional information from either party.
d. Based on the information provided to us, we will determine whether the Artist provided the services offered in the Order.
You agree not to hold us responsible for any determination which we make pursuant to the dispute resolution process in section 9.1. Your also agree that such determination does not represent a binding determination of the rights of either party.
9.2 Subject to the previous section, Artists and Users are solely responsible for resolving all disputes that arise between them. However, we may at our own discretion endeavour to assist where possible in the resolution of disputes. We can be contacted at 1-800-979-0711 or firstname.lastname@example.org for request to assist in a dispute. If we decide to assist, we will only be an informal mediator, the responsibility for resolution of disputes remains solely with Artists and Users.
9.3 You agree that any cause of action that you may have related to the App or your use of the App must commence within one (1) year after the cause of action arises, otherwise such cause of action shall be permanently barred.
9.4 You agree and hereby irrevocably submit to the exclusive personal jurisdiction and venue of the courts of the Province of Ontario with respect to any dispute related to the App or your use of the App. You agree and hereby waive the right to a trial by jury or to participate in a class action with respect to any claims arising in relation to the App or your use of the App.
10. Warranties and limitation of liability
10.1 You agree that your use of the App is on an “as available” basis. As stated above, except as otherwise expressly required by applicable law, we make no representations, warranties, conditions or other terms (whether express or implied) in relation to the provision of the App, including without limitation as to completeness, accuracy and currency or any Content on the App, or as to satisfactory quality, or fitness for a particular purpose.
10.2 To the maximum extent permitted by applicable law, we exclude all liability (whether arising in contract, tort, breach of statutory duty or otherwise) which we may otherwise have to you as a result of any error or inaccuracies in any Content, the unavailability of the App for any reason, and any representation or statement made on the App.
10.3 Although we require that Users provide accurate contact information, we do not verify the accuracy of any information provided. We also do not verify the identity of any User, conduct any background checks or otherwise vet any user of the App, including any Artist. It is your sole responsibility to ensure your own personal safety when communicating, meeting or interacting in any way with a User you have met through the App.
10.4 As we are not involved in the Orders between Artists and Users or the services provided by Artists, you agree that you bear all risks and you agree to release us (and our officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) and our designees from claims, demands, and damages (actual and consequential) of every kind and nature, now and in the future, arising out of or in any way connected with your use of the App.
10.5 We will not be liable for any loss or damage we cause which we could not reasonably anticipate when you started using the App, for example if you lose revenue, salary, profits or reputation as a result of your use of the App and/or the acts or omissions of any third party such as other Users of the App or any other indirect or consequential loss or damage you may incur in relation to the App and its Content.
10.6 Under no circumstances shall our aggregate liability to you for any and all claims arising from your use of the App exceed the greater of $20 CAD or the total amount of all fees paid to us (which does not include amounts transferred to an Artist for an Order).
10.7 Notwithstanding any other provision of these terms, we do not exclude or limit our liability for death or personal injury arising from our negligence, for any fraudulent misrepresentation made by us on the App or for any other statutory rights which are not capable of being excluded.
10.8 Any exclusions and limitations of liability in these terms shall be subject to the Additional Terms in respect of matters covered by those Additional Terms and as otherwise required by law.
11.1 You agree at all times to indemnify, defend and hold us harmless and our agents, suppliers, affiliates and their respective officers, directors, employees and agents against all actions, proceedings, costs, claims, damages, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by us directly or indirectly in respect of your use of the App; any alleged violation by you of these Terms; or any alleged violation of any applicable law or regulation.
12.1 We may vary these terms from time to time. We will notify you if these terms will be updated by posting a notice on the App or via email to the email address associated with your account at least 30 days prior to the effective date of the update. By continuing to use and access the App following the update, you agree to be bound by any variation made by us. If you do not agree to the new terms, please cancel your account prior to the effective date of the update to the terms.
12.2 Unless otherwise expressly stated in these terms, all notices from you to us must be in writing and sent to our contact address at email@example.com and all notices from us to you will be displayed on our website from to time.
12.3 If any part of these terms is unenforceable (including any provision in which we exclude or limit our liability to you) the enforceability of any other part of these terms will not be affected. If we choose not to enforce any right that we have against you at any time, then this does not prevent us from later deciding to exercise or enforce that right.
12.5 You may not assign, sub-license or otherwise transfer any of your rights and obligations in these terms to any other person.
12.6 These terms shall be construed in accordance with and governed by the laws in effect within the Province of Ontario.
12.7 The parties acknowledge that they have required that these terms and all related documents be prepared in English. Les parties reconnaissent avoir exigé que la présente convention et tous les documents connexes soient rédigés en anglais.