TERMS OF SERVICE
December ___, 2017
Welcome to Elements for Athletes! Elements for Athletes is the operator of www.getyourelements.com (the “Site”). Throughout these Terms of Service, the terms “we”, “us” “Elements for Athletes” and “our” refer to Elements for Athletes, LLC. Elements for Athletes offers the Site, including all information, tools and services available from the Site, to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated below. NOTE THAT SECTION 25 OF THESE TERMS OF SERVICE CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
By visiting our site or by accepting these terms and conditions “Terms of Service,” or “Terms,” or upon check out when purchasing something from us (the “Products”), or by your signing up for a membership (“Membership”) or autoship (“Autoship”), or otherwise to access the “Service” and agree to be bound by the following Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please read these Terms of Service carefully before accessing, using our website or opting to accept these Terms. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to your agreement to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. You are encouraged to review these Terms each time you use the Site because your use of the Site after the posting of changes will constitute your acceptance of the changes.
We grant you a personal, limited, non-transferable, non-exclusive license to access and use the Site. We reserve the right, in our sole discretion and without notice to you, to revise the Products and Services available on the Site and to change, suspend or discontinue any aspect of the Site and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. Your continued use of the Site will constitute your acceptance of any such changes.
Section 1 – Use of Site and App
You may use the Site only for your own noncommercial personal use and in compliance with these Terms. You are responsible for your own communications, including the transmission, uploading or posting of information to the Site and are responsible for the consequences of such communications. Any other use of the Site requires the prior written consent of Elements for Athletes. You may not otherwise copy, modify, or distribute the contents of this Site without the prior written consent of Elements for Athletes. You may not modify, publish, transmit, participate in the transfer of, sell, create derivative works from, or in any way exploit any of the content found on the Site, in whole or in part.
We require all members to agree not to use the Site, and specifically prohibit any use of the Site, for any of the following purposes:
- Posting, communicating or transmitting any material that infringes on any intellectual property, publicity or privacy right of another person or entity;
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Posting any information which is untrue, inaccurate or not your own;
- Use or attempt to use another user’s account without authorization from such user and Elements for Athletes;
- Use the Site and Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site, and Service or that could damage, disable, overburden or impair the functioning of the Site, and Service in any manner;
- Engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation;
- Attempting to interfere in any way with the Site or Elements for Athletes’s network security, or attempting to use the Site to gain unauthorized access to any other computer system;
- Using the Site to drop ship merchandise to third parties;
- Bulk purchases for resale;
- Purchase of Products for commercial use or in connection with distribution via a commercial meal service (e.g. school cafeteria; school snacks, etc.);
- Use of the Service or shipment of Products outside the United State; and
- Having more than one account per household
You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Site. Further, you may not use any such automated means to manipulate the Site such as automating what are otherwise manual or one-off procedures. You may not take any action to interfere with, or disrupt, the Site or any other user’s use of the Site including, without limitation, via means of overloading, “flooding”, “mailbombing” or “crashing” the Site, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms. You may not frame portions of the Site within another web site. You may not resell use of, or access to, the Site to any third party without the prior written consent of Elements for Athletes.
Section 2 – Site Not for Minors
The Site is not targeted toward or intended for use by anyone under the age of 18. By agreeing to these Terms of Service, you represent that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Elements for Athletes account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party. You may not use the Services or sign up for a Membership if you are not at least 18 years of age. If we later discover or suspect that a person is at least 18 years of age, we reserve the right to take steps to cancel access to the Service, including cancellation of such person’s Membership.
A breach or violation of any of the Terms will result in an immediate termination of your access to the Services.
Section 3 – Fraud Protection
As part of our order processing procedures, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
Section 4 – Elements for Athletes Membership
To take advantage of the Services, you may be required to sign up for a Membership, an Autoship plan (any order consisting of two or more calendared purchases) or to purchase Products. Membership does not currently require the payment of any fees.
AUTOMATIC RENEWAL TERMS: All Memberships renew automatically for the same period they were first established until you cancel.
OTHER MEMBERSHIPS: From time to time Elements for Athletes may offer you a Membership for fixed periods of a year or less. These Memberships renew automatically for the same initial period selected until you cancel. By not opting out of these shorter Membership offers, you agree and acknowledge that your Membership has an initial pre-payment feature for the term of Service identified in the email offer and a recurring Membership Fee at the then-current Period Membership rate. You accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by Elements for Athletes after the expiration date of your payment card.
CANCELLATION POLICY FOR MEMBERSHIPS: You may cancel your Membership at any time by emailing us at [email protected]. Upon cancellation you will not be charged for any renewal periods and your Membership will not continue past the then current period. However, all Membership Fees paid prior to termination of your Membership are non-refundable and you shall be responsible for any charges to your chosen payment method for the Membership prior to your cancellation.
AUTOSHIP: By agreeing to participate in Autoship to replenish your Elements for Athletes Products, you agree and acknowledge that your participation in the Autoship Program, or Membership, has an automatic recurring payment charge at the designated frequency in the amount of the then-current retail price of your selected product displayed on the relevant “Upcoming Deliveries” section of you account on the Site and you accept responsibility for all recurring charges prior to cancellation, including where applicable any charges processed by Elements for Athletes after the expiration date of your payment card.
AUTOSHIP RENEWAL TERMS: Subject to available inventory, the product you selected for auto replenishment will be automatically sent to you at the designated frequency (e.g. every month) unless (i) you choose to skip a delivery or (ii) the item(s) is/are out of stock, and your default payment method will be automatically charged 24 hours after your “Change by” deadline for that shipment. You will be charged the amount of the then-current retail price for the product on the relevant “Upcoming Deliveries” section of the Site until you cancel all of your Autoship Items. Cancellations will apply to all future deliveries that have not passed their “Change by” deadline.
CANCELLATION POLICY FOR AUTOSHIP: To cancel your Autoship at any time, you may (i) login to your account, (ii) go to your “Your Account” page and click on the “Autoship” tab, then select “My Autoship Items,” then click the cancel button for every product. If you leave any product “un-cancelled” you will continue to be enrolled in Autoship.
The Autoship Program is a beta test Program (“Beta Program”). Elements for Athletes reserves the right to change or discontinue this Beta Program. We may make these changes at any time, with or without notice. Your continued participation in the Beta Program will constitute your acceptance of these terms and conditions, policies and service offerings. You also agree that Elements for Athletes will own and have the sole right to use any ideas, information, understandings, and concepts derived from your evaluation of the Beta Program or any other suggestions or information you disclose, without restriction and without compensating you in any way.
Section 5 – Trial Offers
Elements for Athletes may, from time to time, to the extent legally permitted offer free trial Memberships for a limited period of time (“Free Trial”). The terms and conditions of such Free Trial will be communicated to you when you sign up for the Free Trial.
AUTOMATIC RENEWAL FOR TRIAL PERIODS: Once your free trial ends, we (or our third party payment processor) will begin billing your designated payment method on a recurring basis for your Membership (plus any applicable taxes and other charges) for as long as your Membership continues, unless you cancel your Membership prior to the end of your free trial.
CANCELLATION POLICY FOR TRIAL PERIODS: You may cancel your Membership at any time prior to the end of the trial period by contacting us at 866_________ or email us at [email protected]. Please note that you may not receive a notice from us that your free trial has ended or that the paid portion of your subscription has begun. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion.
Section 6 – Accuracy, Completeness, and Timeliness of Information
We are not responsible if information made available on this site is not accurate, complete or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information.
All descriptions, images, references, features, content, specifications, Products, and prices of Products and Services described or depicted on the Site are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any Products or Services on the Site does not imply or warrant that these Products or Services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from this Site.
This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.
Section 7 – Modifications to the Service and Prices
Prices for Services and any Products made available through the Services are subject to change without notice. If we are going to change the Membership Fees, we will provide you with notice of such change in a commercially reasonable manner.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
Elements for Athletes reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any Product or Service.
Certain Products or Services may be available exclusively online through the Service. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We do not warrant that the quality of any Products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
Section 8 – Accuracy of Billing and Account Information
When you sign up for a Membership or purchase any Product or service made available through the Site (each such purchase, a “Transaction”), you agree to provide current, complete and accurate purchase and account information for all purchases made via our Service on our Site. You agree to promptly update your account and other information, including your email address and credit card account information, expiration dates and shipping address, so that we can complete your Transactions and contact you as needed.
There is no limit to the number of Memberships you may have per household. We reserve the right to cancel your Membership and modify any orders that you have placed through the Services. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order.
In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you grant to Elements for Athletes the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
You agree that by placing an order on the Site and agreeing to these Terms, you are entering into a binding contract with Elements for Athletes and agree to pay all charges that may be incurred by you or on your behalf through the Site at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
Section 9 – Additional Terms and Conditions
You agree that additional terms and conditions may apply to specific Products, orders or your use of certain portions of the Site including with respect to ordering, shipping and return policies, review guidelines, Returns Policy, and refer a friend programs (including the ) (“Additional Terms”), which Additional Terms are made part of these Terms by reference. If there is a conflict between these Terms and the Additional Terms, the Additional Terms shall control.
Section 10 – Optional Tools
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
Section 11 – Third-Party Links
Elements for Athletes has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Service. In addition, Elements for Athletes will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Service, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Elements for Athletes shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site, or between users and any third party, you agree that Elements for Athletes is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Elements for Athletes, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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,” as well as any other statute or regulation of any other state to this effect.
Section 12 – User Comments, Feedback, and other Submissions
If, at our request, you send certain specific submissions (for example Sweepstakes entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials (exclusive of your personally identifiable information), whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your Comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You are responsible for all Comments you contribute, in any manner, to the Service, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You are responsible for all your activity in connection with the Services.
You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third-party.
Section 13 – Copyright Infringement
In accordance with the Digital Millennium Copyright Act (“DMCA”) we’ve adopted the policy below toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the Elements for Athletes’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Elements for Athletes is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- remove or disable access to the infringing material;
- notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
- terminate such content provider’s access to the Services if he or she is a repeat offender.
Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
- A physical or electronic signature of the content provider;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Elements for Athletes is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
- If a counter-notice is received by the Designated Agent, Elements for Athletes may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Elements for Athletes may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Elements for Athletes’s discretion.
Please contact Elements for Athletes’s Designated Agent at the following address:
Elements for Athletes Inc.
Attn: General Counsel
Section 14 – Trademarks
“Elements for Athletes,” the Elements for Athletes logo and any other Elements for Athletes Product or Service names, logos or slogans that may appear on the Sites or Products are trademarks of Elements for Athletes and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Elements for Athletes” or any other name, trademark or Product or service name of Elements for Athletes without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Elements for Athletes and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, Services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Elements for Athletes.
Section 15 – Personal Information
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at 866 ______________
Section 16 – Errors, Inaccuracies, and Omissions
Occasionally there may be information on the Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
Section 17 – Elements for Athletes Samples
Elements for Athletes may offer, or partner with third parties to offer product samples or discounts via the Services (“Samples”). To be eligible for a Sample, you may be required to sign up for a Membership and/or provide Elements for Athletes with certain personal information. You may not attempt to secure more than one of any given Sample and only one Sample shall be provided per household as determined by Elements for Athletes in its sole discretion. We reserve the right to suspend, terminate, or modify your Membership if you attempt to obtain Samples in violation of these Terms. From time to time the offer of Samples may be tied to a Free Trial Period. For terms and conditions of Free Trial Periods, please refer to Section 5 for more information regarding Free Trials.
Section 18 – Disclaimer – No Professional Advice
Any information provided by us regarding the Products or otherwise (e.g. product descriptions, promotional videos, blog posts, or instructions) is for informational purposes only. You should not take any action based upon any information contained on the Site. Use of the Site is not meant to serve as a substitute for professional advice. You should read and strictly follow all product labels, packaging inserts and instructions and all manufacturer directions and warnings and seek independent professional advice when appropriate.
Section 19 – Taxes
Your total price will include the price of the product plus any applicable sales tax; such state and local sales tax based on the shipping address and the sales tax rate in effect at the time you purchase the product. We will charge tax only in states where the goods sold over the Internet are taxable.
Important Kentucky sales tax information regarding the tax you may owe directly to the state of Kentucky. We are not required to and do not collect Kentucky sales or use tax. Your purchase may be subject to Kentucky use tax unless the purchase is exempt from taxation in Kentucky. The purchase is not exempt merely because it is made over the Internet, by catalog, or by other remote means. The Commonwealth of Kentucky requires Kentucky purchasers to report all purchases of tangible personal property or digital property that are not taxed by the retailer and pay use tax on those purchases unless exempt under Kentucky law. The tax may be reported and paid on the Kentucky individual income tax return or by filing a consumer use tax return with the Kentucky Department of Revenue. These forms and corresponding instructions may be found on the Kentucky Department of Revenue’s Internet Web site.
Section 20 – Prohibited Uses
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet; or (l) in a manner inconsistent with, or in violation of, these Terms. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
Section 21 – Disclaimer of Warranties; Limitation of Liability
Elements for Athletes attempts to display information on this site and in connection with the Services as accurately as possible. However, Elements for Athletes does guarantee not make any representations or warranties concerning any content contained in or accessed on the Site or through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Elements for Athletes or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXCEPT IN CASES OF WILLFUL MISCONDUCT AND RECKLESS CONDUCT ON THE PART OF ELEMENTS FOR ATHLETES, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ELEMENTS FOR ATHLETES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ELEMENTS FOR ATHLETES, OR FROM EVENTS BEYOND THE ELEMENTS FOR ATHLETES’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ELEMENTS FOR ATHLETES’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ELEMENTS FOR ATHLETES ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OR EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO ELEMENTS FOR ATHLETES IN CONNECTION WITH THE SERVICES IN THE PRECEDING TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE ELEMENTS FOR ATHLETES SOLE LIABILITY AND OBLIGATION, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE ELEMENTS FOR ATHLETES FROM AND AGAINST, AND COVENANT NOT TO SUE, FOR ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE SERVICES AND THE PRODUCTS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE LIMITATIONS SET FORTH IN THIS SECTION 21 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
Section 22 – Indemnification
You agree to indemnify and hold Elements for Athletes, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your illegal use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms of Service, (c) your posting of any defamatory or infringing content on the Site or App, and (d) your violation of any third party rights in connection with your use of the Service and/or the Site. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Section 23 – Assignment
Section 24 – Termination
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
Account termination may result in destruction of any content associated with your account, so keep that in mind before you decide to terminate your use of the Services.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
Section 25 – Dispute resolution and Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ELEMENTS FOR ATHLETES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 1 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Elements for Athletes agree (a) to waive your and Elements for Athletes’s respective rights to have any and all Disputes arising from or related to these Terms, or the Site, Content or Products, resolved in a court, and (b) to waive your and Elements for Athletes’s respective rights to a jury trial. Instead, you and Elements for Athletes agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions: You and Elements for Athletes agree that any Dispute arising out of or related to these Terms, the Sites, the App, Content, the Service or products sold on the Site is personal to you and Elements for Athletes and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Elements for Athletes agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Elements for Athletes agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Notice; Informal Dispute Resolution
You and Elements for Athletes agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Elements for Athletes shall be sent by certified mail or courier to Elements for Athletes, Inc., Attn: General Counsel, ______________________________________. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Elements for Athletes account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Elements for Athletes cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Elements for Athletes may, as appropriate and in accordance with this Section 25, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 1 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND ELEMENTS FOR ATHLETES AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR ELEMENTS FOR ATHLETES WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND ELEMENTS FOR ATHLETES WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and Elements for Athletes agree that (a) any arbitration will be conducted confidentially in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Los Angeles County, California, or the Southern District of California.
Under these Terms, and as limited by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) and JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
If any term, clause or provision of this Section 25 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 25 will remain valid and enforceable. Further, the waivers set forth in Section 25 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 25 by writing to: Elements for Athletes, Inc., Attn: General Counsel, _________________________________. In order to be effective, the opt out notice must include your full name and email address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 26.
Section 26 – Choice of Law and Venue
These Terms of Service and your relationship with Elements for Athletes are governed by and will be construed under the laws of the State of Utah, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms or to your relationship with Elements for Athletes shall be finally settled in Salt Lake County, Utah, in English. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Utah and the United States, respectively, sitting in the State of Utah, County of Salt Lake. You and Elements for Athletes agree that these Terms affect interstate commerce and that the enforceability of this Section 26 shall be both substantively and procedurally governed by and construed and enforced in accordance with the FAA, to the maximum extent permitted by applicable law.
Section 27 – Petitions
By signing our petition, you agree to receive email from Elements for Athletes and any of its nonprofit partners
Section 28 – Miscellaneous
The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms of Service shall otherwise remain in full force and effect and enforceable. You and Elements for Athletes agree that these Terms of Service are the complete and exclusive statement of the mutual understanding between you and us, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms of Service, and that all modifications to these Terms of Service must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind Elements for Athletes in any respect whatsoever. You and Elements for Athletes agree there are no third party beneficiaries intended under these Terms.
Section 29 – Contact Information
Questions about the Terms of Service should be sent to us at:
Elements for Athletes
249 E Tabernacle, Ste. 301
St George, UT 84770
Attn: General Counsel