Terms of Use

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PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS TERMS OF USE IS A LEGAL CONTRACT BETWEEN YOU (“YOU” OR “USER”) AND ELEMENTAL BEVERAGE COMPANY, INC. (“ELEMENTAL,” “COMPANY,” “WE” OR “US”).

By accessing elementalbeverage.co, or any other website with an authorized link to this Terms of Use (“Website”), registering an account, purchasing and/or using any products we make available on the Website, or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), clicking on a button or taking another action to signify your acceptance of this the Terms of Use, you represent that (1) you have read, understand and agree to be bound by the Terms of Use, (2) you are of legal age to form a binding contract with Elemental Beverage Company, and (3) you have the authority to enter into the Terms of Use. Except as otherwise provided herein, if you do not agree to be bound by the Terms of Use, you may not access or use the Services.

IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT ELEMENTAL BEVERAGE COMPANY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 3.4 BELOW.

PLEASE BE AWARE THAT SECTION 14 OF THIS TERMS OF USE, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS TERMS OF USE. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.  UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. 

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY ELEMENTAL BEVERAGE COMPANY IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Elemental Beverage Company will make a new copy of the Terms of Use available on the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website.  We will also update the “Last Updated” date at the top of the Terms of Use. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. Registration

When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Elemental Beverage Company immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Elemental Beverage Company service at any given time. Elemental Beverage Company reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Elemental Beverage Company.

2. Purchasing Products

2.1 Product Descriptions

Certain products available on our Website may be available exclusively online through the Website. These products may have limited quantities. We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. Descriptions, images, references, features, content, specifications, products, prices, and availability of any products are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product; to honor, cancel or impose conditions or limitations on the honoring of, any coupon, coupon code, promotional code, referral credit or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product made on this Website is void where prohibited.

2.2 Order Acceptance

Each part of any order that you submit to Elemental Beverage Company constitutes an offer to purchase. If you do not receive a message from Elemental Beverage Company confirming receipt of your order, please contact our Customer Service department before re-entering your order. Elemental Beverage Company's confirmation of receipt of your order does not constitute Elemental Beverage Company's acceptance of your order. Elemental Beverage Company is only deemed to have accepted your order once (i) the product(s) you ordered have been shipped, (ii) your membership is activated or (iii) you are granted access to the online course (product(s) ordered and subscription(s), collectively, the “Product”). If you do not receive an email from Elemental Beverage Company confirming receipt of an order that you placed, please contact Elemental Beverage Company at support@elementalbeverage.co before you attempt to place another order.

2.3 Order Issues

Although we strive to accept all valid orders, Elemental Beverage Company reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.

2.4 Order Cancellation

If any Product is discontinued or otherwise becomes unavailable, Elemental Beverage Company reserves the right to (i) cancel your order and provide you a refund for the amount paid for the Product or (ii) for online courses, if you have already commenced an online course, issue you a pro rata refund.

2.5 Restrictions on Resale

To protect the intellectual property rights of Elemental Beverage Company and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. Elemental Beverage Company reserves the right to decline any order that we deem to possess characteristics of reselling.

3. Fees and Purchase Terms

3.1 Payment

You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Elemental Beverage Company with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms of Use to determine your rights and liabilities. By providing Elemental Beverage Company with your credit card number or PayPal account and associated payment information, you agree that Elemental Beverage Company is authorized to immediately invoice your Account for all fees and charges due and payable to Elemental Beverage Company hereunder and that no additional notice or consent is required. You agree to immediately notify Elemental Beverage Company of any change in your billing address or the credit card or PayPal account used for payment hereunder. Elemental Beverage Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.

3.2 Subscription Fees

You will be responsible for payment of the applicable fee for any Services to which you subscribe (each, a “Service Subscription Fee”) at the time you create your Account and select your annual package (each, a “Service Commencement Date”). Except as set forth in the Terms of Use, all fees for the Services are non-refundable. No contract will exist between you and Company for the Services until Company accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.

3.3 Taxes

Elemental Beverage Company’s fees are net of any applicable Sales Tax.  If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Elemental, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Elemental Beverage Company for any liability or expense we may incur in connection with such Sales Taxes.  Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Elemental Beverage Company is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

3.4 Automatic Renewal

Your subscription will continue indefinitely until terminated in accordance with the Terms.  After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an additional equivalent period, at Elemental Beverage Company’s then-current price for such subscription.  You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Elemental Beverage Company that your subscription will be automatically renewed, you will have thirty days from the date of the Elemental Beverage Company notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page.  If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Elemental Beverage Company at support@elementalbeverage.co or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires.  However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  Upon renewal of your subscription, if Elemental Beverage Company does not receive payment from your payment provider through the App Store as described herein, you agree that Elemental Beverage Company may either terminate or suspend your subscription, and continue to attempt to charge your payment provider until payment is received (upon receipt of payment through the App Store, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).

3.5 Discounts and Promo Codes

We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Elemental Beverage Company communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.

3.6 Free Trials and Other Promotions

Any free trial or other promotion that provides access to the Services at no charge must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.

4. User Content

4.1 Responsible Party for Content

You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“User Content”). Elemental Beverage Company has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Elemental Beverage Company reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Elemental Beverage Company shall have the right to remove any content that violates this Terms of Use or is otherwise objectionable to Elemental Beverage Company.

4.2 Ownership of Your Content

Elemental Beverage Company does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.  Subject to any applicable account settings that you select, you grant Elemental Beverage Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Services to you and to our other Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated aboveYou agree that you, not Elemental Beverage Company, are responsible for all of Your Content that you Make Available on the Services.

4.3 Ratings and Reviews

Ratings and reviews posted by users on our Services are User Content that is not endorsed by Elemental Beverage Company and does not represent the views of Elemental Beverage Company. Elemental Beverage Company does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable product or service; (ii) you will not provide a rating or review for any product or service with respect to which you have a competitive, ownership or other economic interest or employment relationship; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will be relevant, applicable to the product or service you are reviewing, and comply with the terms of this Terms of Use. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.

4.4 Other Restrictions on User Conduct

You agree not to use the Services for any purpose prohibited by this Terms of Use or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Elemental Beverage Company's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Elemental Beverage Company. You may not send any unsolicited e-mail message, commercial or non-commercial, to any e-mail address you have gathered from the Services.

5. Feedback

You agree that your submission of any ideas, suggestions, documents, and/or proposals to Elemental Beverage Company (“Feedback”) is at your own risk and that Elemental Beverage Company has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Elemental Beverage Company the right to use any Feedback in any way at any time without any additional approval or compensation.

6. Ownership of and License to Use the Services

6.1 Use of the Services

Except with respect to User Content, Elemental Beverage Company and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Terms of Use, Elemental Beverage Company grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Terms of Use. Elemental Beverage Company, its suppliers and service providers reserve all rights not granted in this Terms of Use.

6.2 Trademarks

Elemental Beverage Company’s stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services are the property of Elemental Beverage Company and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. 

7. Restrictions on Use of Services

The rights granted to you in this Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (including images, text, page layout or form) of Elemental Beverage Company; (c) you shall not use any metatags or other “hidden text” using Elemental Beverage Company’s name, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Terms of Use; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Elemental Beverage Company pursuant to this Terms of Use.

8. Third Party Services

The Services may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Elemental Beverage Company. Elemental Beverage Company is not responsible for any Third-Party Websites, and provides these Third-Party Websites only as a convenience. Elemental Beverage Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, our Terms of Use and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

9. Indemnification

You agree to indemnify and hold Elemental Beverage Company, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors (each, an “Elemental Beverage Company Party” and collectively, the “Elemental Beverage Company Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of the Terms of Use; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Elemental Beverage Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Elemental Beverage Company in asserting any available defenses. This provision does not require you to indemnify any of the Elemental Beverage Company Parties for any unconscionable commercial practice by such party or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, the Terms of Use or your access to the Services.

10. Disclaimer of Warranties and Conditions

10.1 As Is

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ELEMENTAL BEVERAGE COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. This Section 10 does not affect in any way our return policy or limited warranty for goods purchased on the Website. If for any reason you are not satisfied with a purchase you make on the Website, please return it in accordance with the terms of our return policy or limited warranty, available at https://elementalbeverage.co/pages/return-policies.

  • (a) ELEMENTAL BEVERAGE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
  • (b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
  • (c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ELEMENTAL BEVERAGE COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
  • (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ELEMENTAL BEVERAGE COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
  • (e) FROM TIME TO TIME, ELEMENTAL BEVERAGE COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ELEMENTAL BEVERAGE COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
  • CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

10.2 Coffee

ALTHOUGH MANY STUDIES HAVE INDICATED THAT CONSUMING COFFEE MAY BE BENEFICIAL TO YOUR HEALTH, ELEMENTAL BEVERAGE COMPANY IS AWARE THAT COFFEE MAY CAUSE ALLERGIC OR OTHER MEDICAL PROBLEMS FOR SOME PEOPLE, AND THAT SCIENTIFIC STUDIES MAY YET UNCOVER OTHER CHARACTERISTICS THAT ARE UNDESIRABLE, AT LEAST FOR SOME PEOPLE. ELEMENTAL BEVERAGE COMPANY ENCOURAGES YOU TO MAKE YOUR OWN DETERMINATION ABOUT WHETHER CONSUMING COFFEE IS APPROPRIATE FOR YOU, AND WE ENCOURAGE YOU TO PREPARE COFFEE IN A WAY THAT WILL NOT CAUSE YOU ANY HARM. YOUR DECISIONS ARE YOUR OWN RESPONSIBILITY, AND ELEMENTAL BEVERAGE COMPANY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO ANY ADVERSE CONSEQUENCES YOU, OR ANYONE WITH WHOM YOU MAY SHARE YOUR COFFEE, EXPERIENCE.

11. Limitation of Liability

11.1 Disclaimer of Certain Damages

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ELEMENTAL BEVERAGE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ELEMENTAL BEVERAGE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Disclaimer of Third Party Conduct

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE ELEMENTAL BEVERAGE COMPANY PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.

11.3 Cap on Liability

UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE ELEMENTAL BEVERAGE COMPANY PARTIES ARE LIABLE TO YOU EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO ELEMENTAL BEVERAGE COMPANY BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR IF NO AMOUNTS HAVE BEEN PAID DURING SUCH PERIOD, THEN ONE HUNDRED DOLLARS ($100).

11.4 User Content and Settings

THE ELEMENTAL BEVERAGE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

11.5 Basis of the Bargain

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELEMENTAL BEVERAGE COMPANY AND YOU.

11.6 Exclusions

THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.

12. Term and Termination

12.1 Term

The Terms of Use commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms of Use.

12.2 Termination of Services by Elemental

You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Elemental Beverage Company will refund your Service Subscription Fee, if already paid pursuant to Section 3.1 or 3.2, for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms of Use, or if Elemental Beverage Company is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Elemental Beverage Company has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Elemental Beverage Company’s sole discretion and that Elemental Beverage Company shall not be liable to you or any third party for any termination of your Account.

12.3 Termination of Services by You

If you want to terminate the Services provided by Elemental Beverage Company, you may do so by closing your Account for all of the Services that you use.

12.4 Effect of Termination

Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Elemental Beverage Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

12.5 No Subsequent Registration

If your registration(s) with or ability to access the Services, or any other Elemental Beverage Company community is discontinued by Elemental Beverage Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Elemental Beverage Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Elemental Beverage Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

13. International Users

The Services are controlled and offered by Elemental Beverage Company from its facilities in the United States of America. Elemental Beverage Company makes no representations that the Services are appropriate or available for use in other locations, and those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

14. Dispute Resolution

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Elemental Beverage Company and limits the manner in which you can seek relief from us.

14.1 Applicability of Arbitration Agreement

You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Elemental Beverage Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Elemental Beverage Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Terms of Use or any prior version of this Terms of Use.

IF YOU AGREE TO ARBITRATION WITH ELEMENTAL BEVERAGE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST ELEMENTAL BEVERAGE COMPANY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE ELEMENTAL BEVERAGE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THE TERMS OF USE, INCLUDING THIS ARBITRATION AGREEMENT.

14.2 Arbitration Rules and Forum

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at the following address: Elemental Beverage Company, Attention: Legal Notices, 586 Pleasant Street #4, Watertown, Massachusetts 02472.  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Elemental Beverage Company will pay them for you.  In addition, Elemental Beverage Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  Likewise, Elemental Beverage Company will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.   Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

14.3 Authority of Arbitrator

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Elemental Beverage Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms of Use (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

14.4 Waiver of Jury Trial

YOU AND ELEMENTAL BEVERAGE COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Elemental Beverage Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

14.5 Waiver of Class or Consolidated Actions

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court.

14.6 30-Day Right to Opt Out

You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following e-mail address: Elemental Beverage Company, 586 Pleasant Street #4, Watertown, Massachusetts 02472, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Elemental Beverage Company username (if any), the email address you used to set up your Elemental Beverage Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

14.7 Severability

If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

14.8 Survival of Agreement

This Arbitration Agreement will survive the termination of your relationship with Elemental Beverage Company.

14.9 Modification

Notwithstanding any provision in this Terms of Use to the contrary, we agree that if Elemental Beverage Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Elemental Beverage Company.

15. General Provisions

15.1 Electronic Communications

The communications between you and Elemental Beverage Company use electronic means, whether you visit the Services or send Elemental Beverage Company e-mails, or whether Elemental Beverage Company posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Elemental Beverage Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Elemental Beverage Company provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.

15.2 Release

You hereby release Elemental Beverage Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by an Elemental Beverage Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.

15.3 Assignment

This Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Elemental Beverage Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

15.4 Force Majeure

Elemental Beverage Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

15.5 Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns.

15.6 Exclusive Venue

To the extent the parties are permitted under the Terms of Use to initiate litigation in a court, both you and Elemental Beverage Company agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in Norfolk County, Massachusetts.

15.7 Governing Law

THIS TERMS OF USE AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS TERMS OF USE.

15.8 Notice

Where Elemental Beverage Company requires that you provide an e-mail address, you are responsible for providing Elemental Beverage Company with your most current e-mail address. In the event that the last e-mail address you provided to Elemental Beverage Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Terms of Use, Elemental Beverage Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Elemental Beverage Company at the following address: Elemental Beverage Company, 586 Pleasant Street #4, Watertown, Massachusetts 02472. Such notice shall be deemed given when received by Elemental Beverage Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

15.9 Waiver

Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.10 Severability

Subject to Section 14.5, if any portion of the Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

15.11 Export Control

You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.

15.12 Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

15.13 Entire Agreement

The Terms of Use is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.