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 email@example.com 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
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.
3.3 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.
3.4 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
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 above. You 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
4.4 Other Restrictions on User Conduct
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
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
8. Third Party 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.
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.
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
12.2 Termination of Services by Elemental
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
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
14.4 Waiver of Jury Trial
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
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.
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.
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.
15.4 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
15.7 Governing Law
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