Terms & Conditions
CONDITIONS OF USE
When you use this website, you are automatically agreeing that both your access to the site and your use of it are:
Subject to the terms and conditions in this legal notice, which may change at any time without notice.
Subject to all applicable laws.
Undertaken at your own risk.
Please refer to this page frequently to review our current terms and conditions of use.
Thank you for shopping at Elephantito. Elephantito is a childrenswear brand that design, produce, and sells children shoes. We are located at 5825 Sunset Drive, Suite 300 -South Miami, FL 33143. We own and operate this website, www.elephantito.com, including any content, functionality, products, and services offered on or through www.elephantito.com (the "Website").
ABOUT THIS WEBSITE
This Website is provided by us solely to provide customers with information about our products and enable customers to make legitimate purchases, and for no other purposes. Use of this Website is governed by the following Terms and Conditions. By using this Website, you agree to these Terms and Conditions and our Returns and Exchanges, incorporated herein by reference, and agree that they control your use of the Website and any purchases you make through the Website. If you do not agree with any part of these Terms and Conditions you may not access or use our Website or order products through the Website.
These Terms and Conditions are a legal agreement that governs your access to and use of our Website and your purchase of products we make available through our Website.
THESE TERMS AND CONDITIONS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND ELEPHANTITO THAT IN ANY WAY RELATE TO THESE TERMS AND CONDITIONS OR YOUR USE OF THE SITE WILL BE RESOLVED BY BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS AND CONDITIONS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW THE SECTION BELOW ENTITLED ARBITRATION FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH ELEPHANTITO.
CHANGES TO THESE TERMS AND CONDITIONS
We may modify, update, or remove portions of these Terms and Conditions at any time, effective upon posting. The version of these Terms and Conditions that are in effect will always be posted on this Website. We will provide notice of any material changes by posting the revised Terms and Conditions with an updated "Last Updated” Date. If you object to any modification to the Website, your sole recourse is to cease using the Website. Your continued use of the Website following any modification will be deemed an acceptance of the changes. Please also note that these Terms and Conditions may be superseded by terms located on particular pages of this Website. Please return to this page periodically to review any changes.
ELIGIBILITY; WEBSITE ACCESS; SECURITY AND RESTRICTIONS; PASSWORDS
You agree to fully, accurately, and truthfully create your Elephantito Account (“Account”), including but not limited to your name, phone number, email address, and password, which become your Elephantito ID and credentials. The Elephantito ID or credentials are personal to you, and you are solely responsible for maintaining the confidentiality of your Elephantito ID or credentials, and for all activities that occur under such Elephantito ID or credentials. You agree to prohibit anyone else from using your Elephantito ID or credentials and agree to immediately notify Elephantito of any actual or suspected unauthorized use of your Elephantito ID or credentials or other security concerns of which you become aware. Your access to the Website may be revoked by Elephantito at any time with or without cause.
You are prohibited from violating or attempting to violate the security of the Website, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Website or any portion thereof without authorization, in violation of these Terms and Conditions or in violation of applicable law.
You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Website, deep-link to any feature or content on the Website, bypass our robot exclusion headers, or other measures we may use to prevent or restrict access to the Website. Violations of system or network security may result in civil or criminal liability. Elephantito may investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of this Website or any activity being conducted on this Website.
When you use the Website, or send emails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. Elephantito may contact you by phone, mail, or email to verify your Account information. Elephantito may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Website and any purchase of products until you provide the information to us as requested.
CAN-SPAM ACT COMPLIANCE
Elephantito is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM ACT”). Emails and newsletters received from us are intended to fully comply with the CAN-SPAM ACT. In the event you receive an email from us which you do not believe is fully compliant with the CAN-SPAM ACT, please contact us immediately at firstname.lastname@example.org.
OWNERSHIP OF THE WEBSITE
All pages within this Website and all content on this Website are owned exclusively by Elephantito and our licensors and are protected by United States and international trademark copyright laws. All copyright, trademark, and other proprietary rights used in this Website are reserved to Elephantito and our licensors. You acknowledge that the content available on this Website including, without limitation, text, graphics, software, photographs, audio and video, is protected by copyright, trademarks, patents, or other proprietary rights and laws. You are hereby granted only a personal non-exclusive, non-transferable, revocable, limited license to view and use this Website for the sole purpose of using or placing an order for products. You may not remove or obscure the copyright notice or other notices displayed on this Website. Except as expressly provided in this Agreement, nothing contained in these Terms and Conditions or this Website shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any trademark, copyright or other intellectual property rights owned by Elephantito or our licensors. Any rights not expressly granted herein are reserved.
You must be at least 18 years old hand have the legal power to enter into contract in order to access and use this Website and order products from us. If you are under 18 you may only use this Website and order products from us if you are at least 16 years old and have the permission of your parent or legal guardian. By using our Website, you confirm that you are at least 18 years old or that you are at least 16 years old and have your parent's or guardian’s permission. If we learn that we have collected personal information from someone under the age of 16, we will promptly delete that information. If you believe we have collected personal information from someone under the age of 18, please contact us at email@example.com.
Elephantito values your trust. We try to use reasonable technical and administrative measures to protect your personal information. Unfortunately, no data transmission can be guaranteed to be 100% secure. If you have reason to believe that your personal data that you provide to us is not secure please immediately notify us at firstname.lastname@example.org so that we may try to address your concerns.
If you submit, upload, post, or transmit any information, personal information, requests, product reviews, comments, ideas, suggestions, information, files, videos, images, or other materials to us or our Website (“User Information”), you agree not to provide any User Information that (a) is false, inaccurate, defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (b) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets, or intellectual property rights of any person or entity, or (c) contains or transmits a virus or any other harmful component. You agree not to contact other Website users through unsolicited email, phone calls, mailings, or any other method of communication. You represent and warrant to Elephantito that you have the legal right and authorization to provide all User Information to Elephantito for use as set forth herein and required by Elephantito. Elephantito may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity.
Any User Information posted on the Website for the public will be considered non-confidential and non-proprietary. By providing any User Information on the Website, you grant Elephantito and Elephantito’s affiliates and service providers, and each of the respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose. You represent and warrant that: (a) you own or control all rights in and to the User Information and have the right to grant the license granted above to Elephantito and its affiliates and service providers, and each of the respective licensees, successors and assigns; and (b) all of your User Information do and will comply with these Terms and Conditions. You understand and acknowledge that you are responsible for any User Information you submit or contribute, and you, not Elephantito, are fully responsibility for such content, including its legality, reliability, accuracy, and appropriateness. Elephantito is not responsible, or liable to any third party, for the content or accuracy of any User Information posted by you or any other user of the Website.
Neither the Website nor the products obtained from the Website may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Elephantito. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Elephantito without express written consent. You may not use any meta tags or any other "hidden text" utilizing Elephantito’s name or trademarks without the express written consent of Elephantito. You may use the Website only as permitted by law.
You agree not to: (i) access the Website or use the Services in any unlawful way or for any unlawful purpose; (ii) post or transmit (1) a message under a false name, or (2) any data, materials, content, or information (including, without limitation, advice, and recommendations) (collectively “Information”) which is (A) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (B) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Website or the Services, personal information, software, equipment, servers, or Information or facilitate or promote hacking or similar conduct; (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity; (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Website or the Services; (v) use robots or scripts with the Website; (vi) attempt to reverse engine, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by this Website; (vii) to have any antivirus or antispyware software running that is set to override the internet browser’s cookies setting; (viii) incorrectly identify the sender of any message transmitted to Elephantito; (ix) alter the attribution or origin of electronic mail, messages, or posting; (x) harvest or collect personal information about any other individual who uses the Website or the Services; and (xi) infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including but not limited to, such rights of third parties.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your mobile phone, computer equipment, computer programs, or data due to your use of this Website.
If you engage in any of these prohibited activities, we reserve the right to cancel your use of this Website, as well as pursue other legal remedies, and report your actions to applicable legal authorities.
This Website may contain links to social media and third-party websites. We do not endorse and are not responsible or liable for any such other websites or any content or materials thereon, including such sites’ availability, accuracy, the related content, products, or services. You are solely responsible for your use of any such third-party websites and you may be subject to any applicable third-party terms and conditions. We will not be responsible for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your mobile phone, computer equipment, computer programs, or data due to your use of any social media or website linked to this Website.
USER GENERATED CONTENT
We want to hear from you. You can share information or communicate with us or other users by providing us with your feedback, text, photos, audio, video, social media posts, and other content (“User Content”). We hope you will use these tools to give us your feedback.
You are not allowed to provide any Prohibited User Content (as defined below). Prohibited User Content may be removed by Elephantito in our sole discretion. “Prohibited User Content” includes:
Content created solely for the purpose of advertising or other commercial content, including company logos, links, or company names;
Spam, unwanted contact, or content that is shared repeatedly in a disruptive manner;
Content that endorses or promotes illegal or harmful activity, or that is sexually explicit, violent, graphic, threatening, or harassing;
Content that is discriminatory;
Attempts to impersonate another person, account, or entity, including a representative of Elephantito;
Content that is illegal or that violates another person’s or entity’s rights, including intellectual property rights and privacy rights; and
Content that includes another person’s private or confidential information.
If you elect to receive marketing text messages from us, either via our website or by sending a text message indicating your consent, you are providing your prior express written consent to receive recurring marketing or promotional text messages from us (each, a “Text Message”) that may be sent through an automatic telephone dialing system. These may include cart abandon messages. Message frequency varies. This service is optional and is not a condition for purchase. You can opt out of receiving any further Text Messages from us at any time by replying “STOP” to any Text Message you receive from us. For help, reply “HELP” to any Text Message you receive from us or email us at email@example.com or our text message service provider at firstname.lastname@example.org.
In addition to any fee of which you are notified, your mobile provider’s message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will we or our affiliates be responsible for any Text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number.
DISCLAIMERS AND WARRANTY
Your use of this Website is at your own risk. Our website and its content and any services or products obtained through the Website are provided on an “as is” and “where available” basis. Except to the extent expressly provided for in these Terms and Conditions and as required under applicable law, we expressly disclaim all representations or warranties or conditions of any kind or nature whatsoever, whether express or implied, and whether arising by statute or otherwise in law, from a course of dealing or usage of trade, and including without limitation, any implied warranties or conditions, any condition or warranty of merchantability, title or non-infringement of third parties rights and any condition or warranty of fitness for a particular purpose. If applicable law does not allow the exclusion of some or all of the above implied warranties to apply to you, the foregoing exclusions will apply to you only to the extent permitted by applicable law.
You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Website or any services or products obtained through the Website or to your downloading of any material posted on it, or on any website linked to it. Neither Eberjey nor any person associated with Eberjey makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy, or availability of the Website. We make no representations or warranties that our Website its content or any services or products obtained through the Website will be accurate, reliable, compatible with your computer, or complete or will be provided on an uninterrupted, timely, secure or error-free basis or that any errors can or will be corrected or that any products, content, data or the results derived therefrom will meet your requirements or expectations or that the website is free of computer viruses and other harmful elements.
GENERAL LIMITATION OF LIABILITY
By using this website, you agree to irrevocably waive any claim against Elephantito or our affiliates or our or their respective officers, directors, managers, members, shareholders, employees and agents (collectively, the “Elephantito Parties”) and in no event will the Elephantito Parties be liable to you, or to any other person, for any losses, costs, or damages of any kind or nature whatsoever, under any legal theory, (including without limitation special, exemplary, punitive, consequential, incidental or indirect damages, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, and loss of data) that are suffered or incurred in any connection with: (a) your use of this website, (b) any content on this website, (c) any failure to provide or delay in delivering any products, (d) hacking, tampering or other unauthorized access or use of the website or your Account or the information contained therein, or (e) any acts, omissions, or failures of any third party however caused and regardless of the form or cause of action; including for breach of contract, tort, negligence, equity, strict liability, by statute or otherwise and whether or not foreseeable, even if the Elephantito parties or any of the Elephantito parties has been informed in advance or ought reasonably to have known of the potential for such losses, costs, or damages.
The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
Some jurisdictions do not allow the exclusion or limitation of certain damages, so the foregoing limitations or exclusions may not apply to you. These Terms and Conditions give you specific legal rights, and you may also have other rights which vary from jurisdictions to jurisdiction. The exclusions and limitations of liability stated in these Terms and Conditions will not apply to the extent prohibited by applicable law.
In the event any of the foregoing limitations are determined to be unenforceable or invalid by a court of competent jurisdiction, in no event will the liability of the Elephantito parties to you exceed twenty five ($25.00) US dollars.
You agree to protect and indemnify the Elephantito Parties (defined above) from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought by:
you personally, or anyone acting on your behalf, in excess of the limitations described above so long as those limitations are permitted by the laws of your state of residence;
third parties a result of your breach of these Terms and Conditions; or
third parties as a result of your violation of any law or the rights of a third party.
SANCTIONS AND EXPORT POLICY
You may not use our Website to purchase products if you are the subject of US sanctions or of sanctions consistent with US law imposed by governments of the country where you reside. You must comply with US or other export restrictions that may apply to goods purchased by you using our Website.
You agree that we may, in our sole discretion, and at any time, terminate or suspend the operation of this Website or your use of the Website, without prior notice to you, for any reason that we, in our sole discretion, deem appropriate. You further agree that we will not be liable to you or to any third party for the consequences of such termination or suspension. In the event of any termination of your use of or access to the Website, you agree that the provisions of the Agreement regarding protection of intellectual property rights and licenses, indemnification, disclaimer of warranties, limitation on liability, and pre-dispute, mandatory binding arbitration, and class action waiver shall survive any such termination.
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE
We disclaim any responsibility or liability for copyrighted materials posted on our Website. We are committed to complying with copyright and related laws, and we require all users of the Website to comply with these laws. Accordingly, you may not store any material or content on the Website, or use the Website to disseminate any material or content that constitutes an infringement of third-party intellectual property rights, including rights granted by copyright law. Owners of copyrighted works in the United States who believe that their rights under copyright law have been infringed may take advantage of certain provisions of the US Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate privileges of any user who repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent.
If you feel that material available over the Website constitutes a copyright infringement, we encourage you to contact us immediately. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim. Please address any such claims to email@example.com along with the following information:
An electronic or physical signature and full legal name of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
A description of the copyrighted work or other intellectual property that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Website, including at a minimum, if applicable, the URL of the link shown on the Website where such material may be found;
Your address, phone number, and email address;
Include the following statement, "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)”; and
Include the following statement, "I hereby state that the information in this Copyright Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
GENERAL TERMS AND CONDITIONS
These Terms and Conditions and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding, or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or the documents referred to in them.
Elephantito may transfer its rights and obligations under these Terms and Conditions to any company, firm, or person at any time if it does not materially affect your rights under it. You may not transfer your rights or obligations under these Terms and Conditions to anyone else. These Terms and Conditions are personal to you and no third party claiming through you is entitled to benefit under these Terms and Conditions.
If we delay exercising or fail to exercise or enforce any right available to us under these Terms and Conditions, such delay or failure does not constitute our waiver of that right or any other rights we have under these Terms and Conditions or otherwise.
We will not be liable to you for any lack of performance, or the unavailability or failure, of the Website, or for any failure or delay by us to comply with these Terms and Conditions, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
All notices given by you to us must be sent to Elephantito at firstname.lastname@example.org. Notice will be deemed received and properly served immediately when a confirming email or other electronic communication is sent to you. In proving the service of any notice via email, it will be sufficient to prove that such email was sent to the email address you provide in your customer agreement with us.
If any provision of these Terms and Conditions is found unenforceable, then that provision will be severed from these Terms and Conditions and not affect the validity and enforceability of any remaining provisions.
In these Terms and Conditions: (i) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (ii) all usage of the words “including” or “include” or the phrase “e.g.” in this Agreement shall mean “including, without limitation”; (iii) the division into separate Articles, Sections, and Subsections, and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions; (iv) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; (v) if any action is required to be taken on a day which is not a business day, then such action shall be taken on the next business day; and (vi) the parties agree that the Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Agreement.
Nothing contained in these Terms and Conditions or this Website shall be deemed or construed to have created a joint venture, partnership, independent contractor, or employment relationship between Elephantito and you or any other person based on your use of the Website or purchasing products on the Website. Neither Elephantito nor you are authorized to act as an agent or legal representative of the other party or have any power or authority to bind or commit the other party.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY, AS THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH US, AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You acknowledge and agree that before initiating any claim against us, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by US certified mail to Elephantito 5825 Sunset Drive, Suite 305, South Miami, FL 33143. You agree to negotiate with us in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after our receipt of your written dispute, you agree to the dispute resolution provisions below.
All disputes arising out of, relating to, or in connection with these Terms and Conditions or your use of the Website including without limitation, products ordered or purchased through the Website, that cannot be resolved informally or in small claims court will be resolved through binding arbitration on an individual basis, except that you and Elephantito are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. You and Elephantito are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms and Conditions and any other contractual relationship between you and Elephantito.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association ("AAA"). The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of AAA, as modified by these Terms and Conditions. The AAA’s rules are available at http://www.adr.org/consumer or by calling +1 800 778 7879, or by requesting them from us by writing. During the arbitration, the amount of any settlement offer made by Elephantito or you shall not be disclosed to the arbitrator. You may download or copy a form notice for the dispute and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after Elephantito receives notice at our address listed above that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $10,000. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. The arbitrator is bound by the terms of these Terms and Conditions. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope and enforceability of these Terms and Conditions, including, but not limited to, this arbitration agreement. The arbitration will be conducted by a single arbitrator selected by the AAA. Arbitrations will be held in Miami, Florida.
If the claim is for $10,000 or less, the party initiating the arbitration may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. If the arbitrator issues you an award that is greater than the value of Elephantito’s last written settlement offer made before an arbitrator was selected (or if Elephantito did not make a settlement offer before an arbitrator was selected), then Elephantito will pay you the amount of the award or US $1,000, whichever is greater.
Except as expressly set forth herein, the payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. If the arbitrator finds that either the substance of your claim or the relief sought in the arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Elephantito for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim.
You and Elephantito waive any constitutional and statutory rights to go to court and have a trial in front of a judge or a jury. Rather, you and Elephantito elect to have claims and disputes resolved by arbitration. In any litigation between you and Elephantito over whether to vacate or enforce an arbitration award, you and Elephantito waive all rights to a jury trial and elect instead to have the dispute be resolved by a judge.
Notwithstanding the foregoing, either you or Elephantito may bring an individual action in small claims court.
This agreement to arbitrate will survive the termination of your relationship with Elephantito.
To the extent the parties are permitted under these Terms and Conditions of Service to initiate litigation in a court, both you and Elephantito agree that all claims and disputes arising out of or relating to the Terms or the use of the Products will be litigated exclusively in the federal and state courts located in Miami-Dade County, Florida. You and Elephantito consent to the personal jurisdiction of both courts.
In order to avoid irreparable injury to Elephantito, in the event of any breach or threatened breach by you of the provisions of this Agreement, we shall be entitled to seek an injunction or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting us from pursuing any other remedies available to us for such breach or threatened breach, including the recovery of monetary damages from you.
If the arbitration terms and conditions of this section are found to be unenforceable, then (i) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms and Conditions shall remain in full force and effect, and (ii) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Miami-Dade County, Florida.
CLASS ACTION WAIVER
YOU AND COMPANY 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 PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. Likewise, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
LIMITATION ON TIME TO FILE CLAIMS
Any cause of action or claim you may have arising out of or relating to these Terms and Conditions or the Website must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
Except to the extent they are preempted by US federal law, the laws of the State of Florida, without giving effect to its principles of conflicts of law, shall govern all disputes arising out of these Terms and Conditions.
The Elephantito logo, and other marks used on this site are the registered and unregistered trademarks of MGF Design Group, Inc (the “Marks”) and our property. You are not permitted to use these Marks or the property of other third parties without our prior written consent or the consent of such third party which may own the trademarks.
This policy was last modified in May 2022.