Welcome to Elements’ website, which is operated by Elements LLC (“Elements” or “Us”). The following terms and conditions (“Terms”) govern your use of the Elements website located at www.elementsdrinks.com and any other websites operated by Elements (the “Site”) unless there are different terms posted on those other websites.
YOU MAY NOT USE THE SITE OR THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS. IF YOU ARE UNDER THE AGE OF 18, YOU MUST OBTAIN THE CONSENT OF YOUR PARENT OF GUARDIAN TO USE THE SITE. IN ORDER TO PURCHASE PRODUCTS ON THE WEBSITE, YOU MUST BE AT LEAST 13 YEARS OLD AND YOU MUST OBTAIN THE CONSENT OF YOUR PARENT OR GUARDIAN BEFORE MAKING A PURCHASE OF PRODUCTS ON THE WEBSITE AND BEFORE SUBMITTING ANY USER CONTENT.
TERMS RELATING TO YOUR USE OF THE SITE
The Site and Services are only for your personal, non-commercial use.
You may use the Site and Services only for your personal, non-commercial use. You may not commercially distribute, publish, license, or sell any information, products, or services obtained from the Site or Services.
Accounts, passwords, and security.
The Site and Services allow you to create an account. If you choose to create an account, you must provide current, complete, and accurate information, as prompted by the registration form. You will also be prompted to choose a username and password. You are responsible for keeping your account information and password confidential and you may not transfer your account to another person or company. You are responsible for all activity that occurs under your account. You must immediately notify Us if you become aware of any unauthorized use of your account or other breach of security.
Unlawful and prohibited uses.
As a condition of your use of the Site and Services, you warrant to Us that you will not use the Site or Services for any purpose that is unlawful or prohibited or that is not expressly permitted by these Terms. For example, but without limitation, you may not access or use the Site or Services (a) in violation of any local, national, or international laws (including import, export, copyright, and trademark laws); (b) in any manner that could damage, disable, overburden, or impair any Elements server, or the network(s) connected to any Elements server, or interfere with any other party's use and enjoyment of the Site or any Services; (c) to gain or attempt to gain unauthorized access to any Services, other accounts, computer systems, or networks connected to any Elements server or to any of the Services, through hacking, password mining, or any other means; (d) to gain or attempt to gain access, through any means, to any materials or information that is not intentionally made available through the Services; (e) through a robot, spider, or other automated means; (f) to send unsolicited mail or communications, including any promotions or advertising; or (g) in a way that infringes the rights of or willfully harms any person or entity, including Elements.
Elements reserves the right at all times to (a) disclose any information to the extent necessary to satisfy any applicable law, regulation, legal process, or governmental request; or (b) edit, refuse to post, or remove any information or materials, in whole or in part, in Elements' sole discretion; or (c) to terminate your account, or to cease offering the Site or Services, in whole or in part, in Elements’ sole discretion, without prior notice.
Certain features of the Site or Services may allow you to upload, post, or otherwise submit pictures, comments, feedback, information, or other materials and information that may be available to other users of the Site or Services (“User Content”). By posting User Content, you represent and warrant that you own or otherwise control all rights to the User Content, including without limitation, all rights necessary for you to upload, post, or submit the User Content. You also represent and warrant that the User Content will not infringe or violate the rights of any third party, including the rights of publicity, personality, or privacy. You represent and warrant that the User Content will not violate any law, or in any manner infringe or interfere with the rights of others, including but not limited to the use of names, information, or materials that (a) libel, defame, or invade the privacy of any third party, (b) are obscene or pornographic, (c) are harmful, threatening, offensive, abusive, harassing, vulgar, false or inaccurate, racially, sexually, ethnically or are otherwise objectionable or otherwise contrary to the laws of any place where such Submissions may be accessed; (d) constitute personal attacks on other individuals; (e) infringe the intellectual property, trade secret or proprietary rights of any third party; (f) promote criminal or other illegal activity; (g) promote or advertise any person, product or service or solicit funds; or (f) are deemed confidential by any contract or policy. Elements does not claim ownership of your User Content, but by submitting it, you (i) grant Elements a nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such User Content throughout the world in any media now known or hereafter created without attribution; (ii) grant Elements the right to pursue at law any person or entity that violates your and/or Elements’ rights in the User Content; and (iii) forever waive any and all of your rights, including but not limited to moral rights, if any, in and to the User Content, including, without limitation, any all rights or requirements of attribution or identification of you as the author of the User Content or any derivative thereof. You further acknowledge and agree that the User Content is non-confidential and does not contain proprietary information. Elements does not pay compensation for any of your User Content and has no obligation to post or use any User Content you may provide to Us, and Elements may remove any User Content at any time in its sole discretion.
Elements does not accept or consider unsolicited ideas, including ideas for new products, advertising campaigns, promotions, or marketing plans. PLEASE DO NOT SEND ANY ORIGINAL CREATIVE ARTWORK, SAMPLES, OR IDEAS.
If you send us ideas or materials, Elements will not compensate you for them and will not treat them as proprietary or confidential.
Third Party Websites and Content.
The Site may contain links to or features of other websites for the convenience of users in (a) locating information, products, or services that may be of interest, or (b) contributing User Content or making User Content available to or through the Site. Use of such third party links or features is entirely at your own risk. Elements does not recommend and expressly disclaims any responsibility for the content, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of any third party’s website is at your own risk and subject to the terms and conditions of such other websites. Elements does not endorse any product, service, or treatment provided on a third party website or advertised or provided on the Site. On social media sites such as Instagram and Snapchat, you may see posts which include a caption stating, “In partnership with Elements” or “#ElementsPartner.” These statements indicate that the person making the post may have been compensated by Elements for making that post.
TERMS RELATING TO THE SALE OF PRODUCTS TO YOU
Any and all orders placed through the Site or Services are subject to our Shipping Policy. For more information, click [here](https://elementsdrinks.com/pages/track-your-order) to view the Shipping Policy, which is incorporated into these Terms. Please note that there may be locations to which Elements cannot ship products.
You must be an end user to purchase products from the Site or use the Site’s Services. Resellers are not eligible to purchase products or use the Services.
Product display and colors.
Elements attempts to display product colors and images accurately, but we cannot guarantee that the color that you see on your monitor will exactly match the color of the product.
Elements reserves the right, at its sole discretion, to refuse or cancel any order for any reason. For example, but without limitation, we may refuse or cancel your order because of limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by Elements’ credit and fraud avoidance staff. Elements may place a limit on quantities ordered. Elements may also require additional verifications or information before accepting any order. Elements will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your payment has been received, Elements will issue a credit to your account in the amount of the charge.
The pricing available on the Site and Services is for information purposes only for use by Elements’ customers and potential customers and subject to change/verification. While Elements strives to provide accurate product and pricing information, pricing or typographical errors may occur. Elements cannot confirm the price of any Elements product or service until after an order is placed. In the event that a product or service is listed on the Site at an incorrect price or with incorrect information, Elements may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Elements' prices and the availability of Elements products or Services are subject to change without notice.
Taxes and other charges.
The prices shown on the Site and Services do not include any taxes or charges that may apply to your purchase, and they do not include shipping or delivery costs. Taxes and delivery costs will be added to the amount of your purchase and displayed on the checkout page.
We offer free returns on unopened and unused products within 28 days of purchase. Please email firstname.lastname@example.org with your order number to begin your return. We will refund your original payment method.
At this time we do not offer exchanges.
Elements offers various payment options, which are specified on the Site and Services. We reserve the right to change our payment options at any time, for any reason. If you use an international credit card to make a purchase, the final price in your currency will depend on foreign exchange rates, taxes, and fees applied by your credit card issuer. If for any reason Elements does not receive payment for a purchase, it may take whatever actions may legally be available, including pursuing collection of the amount owed, in which case you will be responsible for the reasonable fees and expenses of collection.
TERMS RELATING TO BOTH YOUR USE OF THE SITE AND SERVICES AND THE SALE OF PRODUCTS TO YOU
No Representations and Warranties.
The Site, the Site materials, User Content, services, products, information and other materials on, in and made available through the site are made available “As Is.” Use of the Site is entirely at your own risk. Elements and its licensors make no representations or warranties, and disclaim all representations and warranties, with respect to the site, the user content, the site materials, services, products, data and other materials on, in and made available through the site, express or implied, written or oral, arising from course of dealing, course of performance, usage of trade, or otherwise, including the implied warranties of merchantability, fitness for a particular purpose, accuracy, systems integration, non-interference, quality, title, and non-infringement.
Limitation of liability.
Elements and its licensors shall not be liable for any indirect, special, incidental, consequential, exemplary, extra-contractual, or punitive damages of any kind whatsoever, including lost revenues or lost profits, which may or does result from the use of, access to, or inability to use the site, the user content, the site materials, services, products, data and other materials on, in and made available through the site, regardless of legal theory, whether or not you or Elements had been advised of the possibility or probability of such damages, and even if the remedies otherwise available fail of their essential purpose. Under no circumstances will the total liability of Elements and its licensors to you or any other person or entity in connection with, based upon, or arising from the site, user content, the site materials on, in and made available through the site, or the services, products, data or other materials offered in connection therewith exceed the price paid by you during the preceding year for use of the site and the services and products. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. The total liability of Elements and its licensors shall not exceed ten dollars ($10). If you are dissatisfied with the Site or with any of these Terms, or feel Elements has breached these Terms, your sole and exclusive remedy is to discontinue using the Site.
You shall indemnify Elements and its directors, officers, employees, agents, contractors and licensors (“Elements Indemnitees”) against all claims, actions, suits, and other proceedings (“Claims”) arising out of or incurred in connection with the Site and your use of the Site, the Site Materials or any services, product or data obtained through the Site, your fraud, violation of law, negligence, willful misconduct, or any other use of the Site, the User Content, the Site Materials, the services, products, information and other materials on, in and made available through the Site (except to the extent attributable to Elements), or any breach by you of these Terms and shall indemnify and hold Elements Indemnitees harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. You may not settle any Claim without the prior written consent of Elements. Elements may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim and to participate in the defense thereof. If Elements does not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to Elements, subject to the right of Elements to assume, at its sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof.
Elements uses reasonable efforts to ensure that the Site is generally available. However, there will be occasions when access to the Site will be interrupted or unavailable. Elements will use reasonable efforts to minimize such disruption where it is within its reasonable control. You agree that Elements shall not be liable to you for any modification, suspension or discontinuance of the Site. You understand that the technical processing and transmission of any Site content may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Elements does not guarantee that any information sent from our Site will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to Elements via the Site or the Internet, including, for example, personal information such as your name or address. Should you elect to send or receive e-mail communications of any kind to or from Elements, You represent and warrant to Elements that your e-mail service has appropriate and adequate security systems necessary to prevent unauthorized access to outbound or inbound e-mail transmissions. You absolve and release Elements and its officers, directors, shareholders, employees, agents, content providers, customers and suppliers from any claim of harm resulting from any cause(s) over which Elements or they do not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses or other damaging code or data, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.
Notice and procedure for copyright infringement and other claims.
If you believe that your work has been used in a way that constitutes copyright infringement, please provide us with the following information:
• A physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that you claim has been infringed;
• A description of where the material that you claim is infringing is located on the site;
• Your address, telephone number, and e-mail address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Elements’ Copyright Agent for notice of claims of copyright infringement on the Site and Services can be reached as follows:
General Counsel, Elements LLC, 180 Varick Street, Suite 504, New York, NY 10014.
For any other claims or complaints, please notify Elements at email@example.com with a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement, made under penalty of perjury: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”
Changes to these Terms; Termination.
The Convention on International Sale of Goods shall not apply to any sale or other transaction made through the Site. These Terms represent the entire agreement between you and Elements with respect to the subject matter hereof and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements, express and implied, and will be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THESE TERMS OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW.
Waiver of jury trial: choice of forum.
By accessing, viewing, or using the Site or Services you consent irrevocably to the exclusive jurisdiction of the federal and state courts located in New York County, New York. YOU IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY.
The Site and Services are controlled and operated from within the United States. Elements makes no representation that the Site, Services, Site Materials, User Content, products, information or materials are appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. If you choose to access the Site or Services from a jurisdiction other than the United States, you do so at your own risk and are responsible for compliance with applicable laws. The waiver or failure of Elements to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third party beneficiary of these Terms or any provision hereof.
Dated: May 14, 2019
Copyright © 2019 Elements LLC; All rights reserved.