Ellie Mae Terms of Use

Effective Date: These Terms of Use are Effective as of April 19, 2010.

I. General

These Terms of Use, and our Privacy Policy, as each is amended from time to time, apply to you when you view, access or otherwise use the web site located at www.elliemae.com (the “Website”). The Website is owned by Ellie Mae, Inc. (“Ellie Mae”), with offices at 4420 Rosewood Drive, Suite 500, Pleasanton, CA 94588. For the purposes of these Terms of Use, the terms “we,” “us” and “our” refer to Ellie Mae and “you” or “your” refer to a user of this Website. (a) Only authorized users who have entered into a separate license agreement with Ellie Mae may use our products and services. These Terms of Use (“Terms”) govern your use of the Website only, but do not authorize you to access or use Ellie Mae’s proprietary real estate industry solutions and/or software (the “Ellie Mae Services”). Only authorized users who have entered into separate agreements with Ellie Mae expressly authorizing access to the Ellie Mae Services (collectively, the “Customer Agreements”) and are in material compliance with the terms of such Customer Agreements, are authorized to access or use Ellie Mae Services. Some Ellie Mae Services allow for web-based access, and for such services you will be required to create a user account with the Website and be in material compliance with any terms and conditions associated with that user account. If you are interested in entering into a Customer Agreement or creating an account with Ellie Mae, please contact us. (b) All site visitors are subject to these Terms of Use, and must be over the age of 18. By accessing or using the Website, you are acknowledging that you are over 18 years of age, and that you have read, understand and agree without limitation or qualification to be bound by these Terms. If you do not agree with these Terms or are not over the age of 18, you do not have the right to access or otherwise use the Website and, accordingly, you should not do so. (c) Ellie Mae may modify these Terms of Use. Ellie Mae reserves the right to modify these Terms from time to time without notice. However, if any material element of these Terms, as determined by Ellie Mae in its sole discretion, is modified, Ellie Mae will post a notice to Website visitors notifying them that the Terms have changed and maintain that notice for a period of one week. If you do not visit the Website for more than one week, it is your responsibility to review these Terms upon your next visit. Ellie Mae will summarize material changes since the last version of these Terms at the top of our Terms of Use webpage, but you should also read the updated Terms in full to ensure that you understand and agree to the changes we have made. If you do not agree to the modified Terms, you should not use the Website.

II. Privacy Policy

In addition to these Terms, you use of and access to the Website is also subject to our Privacy Policy, which is incorporated by reference herein. Our Privacy Policy contains additional terms relating to our potential collection, use and disclosure of your personal information as a site visitor. You agree that you have read, agreed to and understand Ellie Mae’s complete Privacy Policy.

III. Use of the Website and Website Content

(a) Your Right to Use the Website. Subject to the terms and conditions in these Terms, and excluding access to the Ellie Mae Services, which is governed by the Customer Agreements, we grant you a nonexclusive, nontransferable, nonsublicensable, revocable, limited right to access and display the Website, copyrighted text, software, music, videos, graphics, photos, interactive features, logos, trademarks and other proprietary materials and information provided hereon (collectively, “Website Content”), subject to the limitations set out in Section III(b) below. (b) Limitations on Use of Website. The rights granted to you under these Terms with respect to the use of the Website are subject to the following limitations:

  • your use of the Website is conditioned upon your prior acceptance of these Terms of Use;
  • you agree not to distribute in any medium any part of the Website or Website Content without our prior written consent;
  • you agree not to alter or modify any portion of the Website or Website Content;
  • you agree not copy, reproduce, distribute, display portions of or link to this Website or any Website Content contained hereon for commercial purposes without our prior express written consent (including, but not limited to, the sale of advertising on the Website, or the use of the Website to generate advertising or subscription revenue);
    +you agree to use the Website and the Website Content only for lawful, personal and informational purposes, and you agree that you will not use the Website in any manner which violates any applicable local, state, national or international law; and
  • Ellie Mae reserves the right to suspend or discontinue access to all or any portion of the Website at any time.

(c) Ownership and Copyright Protection. The Website and all Website Content contained thereon is protected by copyright as a collective work under United States copyright laws, and is owned or controlled by, or licensed to, Ellie Mae or the party listed as the provider of the applicable Website Content. Except as expressly stated in these Terms, the Website and all Website Content (including without limitation all look and feel) is owned by or licensed to Ellie Mae to the fullest extent permitted by applicable laws. The Website and all Website Content is provided “as is” solely for your personal use and informational purposes. UNAUTHORIZED COPYING, REPRODUCTION, DISTRIBUTION, MODIFICATION, COPYING, PUBLISHING, DISPLAY, ADAPTING, UPLOADING, CREATING DERIVATIVE WORKS, POSTING, OR TRANSMITTING OF ANY OF THE WEBSITE CONTENT IS PROHIBITED. Ellie Mae reserves all rights not expressly granted in and to the Website and the Website Content on behalf of itself or its licensors. In accessing and displaying any Website Content in accordance with the limited rights granted under this Agreement, you agree maintain and abide by all copyright, trademark and other notices contained in such Website Content, or if none, you abide by the following copyright and trademark notice with respect to such Website Content: © 2010 Ellie Mae, Inc. The Ellie Mae logo and all associated trademarks and logos used herein are trademarks of Ellie Mae, Inc. Other company and product names, logos and trademarks used herein are the property of their respective owners. All rights reserved. (d) Trademarks. “Ellie Mae,” “Encompass360,” “CenterWise,” “Ellie Mae Network,” “Encompass Compliance Service,” “Mavent” and other marks, product names and company names appearing on the Website, are trademarks and service marks of Ellie Mae and/or their respective owners, and are protected by law. They may be used publicly only with prior written permission from Ellie Mae. Fair use of the trademarks and service marks requires proper acknowledgment in accordance with the above copyright and trademark notice. Notwithstanding anything to the contrary in this Section, Ellie Mae disclaims any right, title or interest in or to any third-party trademarks, service marks and/or logos appearing on the Website, and such trademarks, service marks and/or logos constitute the property of their respective third-party owners. (e) Linked Sites. Links may appear on the Website to third party website(s) (including the websites of third parties from whom we have collected or with whom we have shared information) which are not owned or operated by Ellie Mae (“Linked Sites”). These links are provided solely as a courtesy to our Website visitors. Ellie Mae reserves the right to add, change, decline or remove any link at any time. Each Linked Site may have an individual privacy policy and/or terms of use which govern your use of and access to such Linked Site, and we recommend that you review the policies applicable to these sites prior to your use of such Linked Site. Ellie Mae is not responsible for and does not endorse or warrant any materials, information, goods or services available through Linked Sites or any privacy or other practices of such Linked Sites.

IV. Website Accounts

Some areas of the Website can be accessed and viewed by you without requiring registration or login to the Website. However, in order to access and use the Ellie Mae Services and certain other features or areas of the Website, you will be required to enter into a Customer Agreement and, for web-based access to the Ellie Mae Services, create a customer account with the Ellie Mae or the Website.

V. Disclaimer of Warranty, Limitation of Liability and Indemnification

(a) No Warranty. THE WEBSITE MAY CONTAIN ERRORS AND DEFECTS OR MAY SUFFER INTERMITTENT DOWNTIME AND IS PROVIDED “AS IS”, “AS-AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, ELLIE MAE, AND ITS AFFILIATES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY REFERRED TO AS ” ELLIE MAE” FOR THE PURPOSES OF SECTION V) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE WEBSITE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, THAT THE WEBSITE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR FREE, THAT THE WEBSITE AND OUR SERVERS ARE SECURE, OR AS TO THE ACCURACY, RELIABILITY, QUALITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCT PROVIDED ON OR THROUGH THE WEBSITE, AS WELL AS ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; PROVIDED THAT THIS SECTION V SHALL NOT OPERATE TO EXCLUDE OR DISCLAIM THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF USE. USE OF THE WEBSITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF ANY INFORMATION, CONTENT OR SERVICES ACCESSED THROUGH OR OBTAINED BY MEANS OF THE WEBSITE. (b) Limitation of Liability. ELLIE MAE SHALL NOT BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF USE, EVEN IF ELLIE MAE HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES. IN ADDITION, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF ELLIE MAE RELATING TO YOUR USE OF THE WEBSITE EXCEED TEN DOLLARS ($10.00). Because some states or jurisdictions do not allow certain exclusions or limitations of liability, in such states or jurisdictions the above limitations and exclusions may not apply to you. In such states or jurisdictions, Ellie Mae’s liability is limited to the extent permitted by law, thereby minimizing Ellie Mae’s liability to you to the lowest amount permitted by applicable law. (c) Indemnification. You agree to defend, indemnify and hold Ellie Mae harmless from and against any liability, loss, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, or demand based on or arising out of: (i) your use of or access to the Website or products or services hosted thereon; (ii) your violation of any third party proprietary or other rights; (iii) your breach of these Terms of Use; or (iv) your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on Ellie Mae’s infrastructure. You shall not settle any such claim, action or demand unless such settlement completely and forever releases Ellie Mae from all liability with respect to such claim or unless Ellie Mae consents to such settlement in writing (which consent shall not be unreasonably withheld).

VI. Governing Law; Dispute Resolution

(a) Dispute Resolution. You and Ellie Mae agree that we will first attempt to resolve any legal or equitable claim relating to these Terms of Use (referred to as “Claim”) informally. Accordingly, neither of us may start a formal proceeding (except for Claims involving any violation of the federal trademark or copyright laws, or for injunctive relief) for at least thirty (30) days after one of us notifies the other of a Claim in writing. Ellie Mae will use commercially reasonable efforts to send its written notice by first class mail, return receipt requested, or national overnight courier to your billing address, if available, with a copy via email to your email address. In the event that Ellie Mae does not have a contact method for you or cannot obtain one with reasonable commercial efforts, you acknowledge and agree that Ellie Mae may pursue Claims against you as a “John Doe” defendant and employ legal processes to obtain your identity. You will send your written notice by first class mail, return receipt requested, or national overnight courier to Ellie Mae, Inc., 4420 Rosewood Drive, Suite 500, Pleasanton, CA 94588. If we cannot resolve a Claim informally, you and Ellie Mae each agree to submit to personal jurisdiction in San Francisco, California and agree that any and all Claims either of us asserts shall be exclusively brought in the appropriate state or federal court in San Francisco, California, provided that neither you nor Ellie Mae shall be precluded from filing a Claim in small claims court for disputes within the small claims court jurisdictional level. (b) Governing Law and Attorneys Fees. This Agreement is governed in all respects by the substantive laws of the State of California, without regard to its conflict of law rules, and of the United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. The Website is intended for and directed to residents of the United States and all information, advertising and claims contained on the Website are valid in and applicable only to the United States. If any action at law or in equity is necessary to enforce these Terms, the prevailing party shall be entitled to reimbursement from the other party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing party may be entitled.

VII. Miscellaneous

(a) Suggestions and Feedback. Ellie Mae welcomes feedback or inquiries about our products. If you elect to provide any feedback or comments of any nature to Ellie Mae, all of such feedback and comments shall be the sole and exclusive property of Ellie Mae, and Ellie Mae shall have the right to use such feedback in any manner and for any purpose in Ellie Mae’s discretion without remuneration, compensation or attribution to you, provided that Ellie Mae is under no obligation to use such feedback. (b) Interpretation, Assignment and Entire Agreement. These Terms of Use, together with our Privacy Policy, form the complete and exclusive agreement between you and Ellie Mae relating to the Website (excluding any use of the Ellie Mae Services, which are governed by the Customer Agreements), and they supersede all prior or contemporaneous proposals, oral or written, understandings, representations, conditions, warranties and all other communications between you and Ellie Mae. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Ellie Mae without restriction. Subject to the Ellie Mae’s modification rights set forth in Section I(d) above, no amendment of any provision of these Terms of Use shall be effective unless set forth in a writing signed by you and a representative of Ellie Mae, and then only to the extent specifically set forth therein. These Terms of Use may not be explained or supplemented by any prior course of dealings or trade by custom or usage. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms of Use shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. (c) Contact Us. If you have any questions, comments or concerns regarding these Terms of Use and/or the Website, please send an email to: privacy@elliemae.com. Please note that communications made through e-mail or the Website’s messaging systems shall not be deemed to constitute legal notice to Ellie Mae or any of its officers, employees, agents or representatives. You may provide legal notice to Ellie Mae in writing by first class mail, return receipt requested, or national overnight courier, at: Attn: General Counsel Ellie Mae, Inc. 4420 Rosewood Drive, Suite 500, Pleasanton, CA 94588