Terms of Service
Welcome, and thank you for your interest in www.elevacoffee.com, owned and operated by Eleva Coffee LLC, a New York Limited Liability Company (“ELEVA,” “us” or “we”), and our services made available to you (the "user" or "you") through our website (the "Website" or the “Site”) and any online applications or mobile application and tools we make available to you(the “Apps”). The Website and the Apps together constitute our service (the "Service").
Unless otherwise specified, all references to the Services include the services available through the ELEVA Website and/or any mobile App, as well as any software that ELEVA provides to you that allows you to access the Services. The following Terms of Service are a legally binding contract between you and ELEVA regarding your use of the Service.
Please read the following Terms of Service ("Terms") carefully before accessing or using any of the Service. Each time you access or use the Service, you agree to be bound by these Terms whether or not you register with us. If you do not agree to be bound by all of these Terms, you may not access or use the Service.
In addition, certain areas of the Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.
Description of Service
- ELEVA is a socially conscious purveyor of thoughtfully selected, carefully roasted, high quality coffee sold to homes, offices and restaurants. The Service include (i) ELEVA systems, procedures, processes and technologies, and (ii) any hardware, software, applications, data, reports, and other content made available by or on behalf of ELEVA.
- The Service does not include your User Content as later defined in this Agreement or any software application or service that is provided by you or a third party, which you use in connection with the Service.
- Any modifications and new features added to the Service are also subject to this Agreement.
- ELEVA reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to ELEVA.
Eligibility for Our Service
By using our Services, you represent that you are at least 18 years old. Persons who are at least 13 years of age but under the age of 18 may only use our Services with legal parental or guardian consent. Accordingly, you agree that you are at least 18 years of age or older or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Terms.
Your Access and Use of our Services
- The rights granted to you in these Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (iii) you shall not access the Services in order to build a similar or competitive Service; and (iv) 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. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
- Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
- Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services.
- Our Services may now, or in the future, have "publicly accessible areas" that allow users to post User Content that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that ELEVA shall not, under any circumstances, be liable in any way for any User Content.
- You understand that ELEVA may issue upgrade versions of any mobile App and you consent to receiving automatic upgrades on your mobile device. You also acknowledge and agree that standard carrier data charges may apply to your use of the Service including, without limitation, text messages.
- You shall not use any communication systems provided on our Services including, without limitation email, for any commercial or solicitation purposes. You shall not solicit for commercial purposes any users of our Services without our prior written permission.
- You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Services.
Accounts and Registration
- To access some features of the Service you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, date of birth, e-mail address, physical address, mobile phone number or other personal information). Some of this information may be of a confidential nature and may include personal identifying information and/or financial information ( all "Your Information").
- If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes.
- Keep Your Password Secure. If you have been issued an account by ELEVA in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not ELEVA, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify ELEVA immediately.
- Keep Your Details Accurate. ELEVA may send notices to the email address or text messages to your mobile phone registered with your account. You must keep your email address, mobile phone number and, where applicable, your contact details and payment details associated with your account current and accurate.
- All prices displayed in our Services are in U.S. dollars unless otherwise indicated.
- All applicable taxes and other charges, including delivery charges are additional.
- We reserve the right in our sole discretion to change prices at any time and without notice.
- If we change the price and charges associated with a Subscription Service, we will provide 30 days advance notice of such changes. Such notice may be posted on the Service Website or in any mobile App and shall be effective 30 days after posting to the Service.
- Products are subject to availability.
- We reserve the right to impose quantity limits on any order, to reject all or part of an Order or to discontinue offering certain products without prior notice.
- By providing ELEVA with your method of payment information, you authorize us to charge you for Product purchases or Subscription Services using the secure third party payment processor we make available to you. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for Subscription Services.
- We may automatically renew your Subscription Service and charge you for any renewal term. Except as specifically set forth in this section, all Services are prepaid for the period selected (monthly, yearly or otherwise) and this includes accounts that are renewed.
- You must keep all information in your billing account current. You can access and modify your billing account information on the Service. If you tell us to stop using your payment method and we no longer receive payment from you, we may cancel your Subscription Service. Your notice to us will not affect charges to your account before we reasonably could act on your request.
- We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Subscription Service if you fail to pay in full on time.
You will be responsible for paying any sales tax or other taxes or duties that are required in the state or jurisdiction to which we will ship your Products.
All orders will be shipped to an address designated by the purchaser. All purchases are subject to the carrier shipment contract. All risk of loss, damage and title for items purchased from ELEVA pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
Returns and Refunds
ELEVA is committed to providing you with quality coffee and your full satisfaction. If you are ever dissatisfied with the Products you received from us, please contact us at email@example.com, including your order number and which coffee(s) you would like to return and why.
- If your return is approved, you will be issued a Return Merchandise Authorization Number (RMA) and instruction.
- Shipping costs will not be refunded.
- Refunds will be honored up to 30 days after the shipping date, but not afterward.
- In addition to our one time purchase offerings, ELEVA offers optional Subscription Service plans for the delivery of your coffee to your home, office, business or as a gift. If you subscribe, you can choose delivery every 2 Weeks or 4 Weeks. There may be limits placed on the length of The Subscription Service plans, terms and prices change from time to time and the most current plans, terms and prices may be found on our Website pricing pages here (insert link to subscription pricing page or FAQ).
- A Subscription Service plan is continuous until you cancel it or we suspend or stop providing the Products ordered. You may cancel your subscription at any time, however a Gift Subscription Plan may not be cancelled and is non-refundable.
- When you register for a Subscription Service plan, you expressly authorize our secure third party payment processor to charge your method of payment at the intervals required by your Subscription Service plan.
- You may modify or cancel your Subscription Service plan by contacting us at firstname.lastname@example.org.
- Changes to a Subscription Service plan, including cancelation, may take up to 3 business days to be processed. You will remain responsible for all charges incurred for all shipments that occur prior to the time in which the changes to your Subscription Service plan have been processed.
Privacy and Your Personal Information
- We make no representation as to the completeness, accuracy, or currency of any information on the Service including.
- We attempt to ensure that information on this Service is complete, accurate and current, however, despite our best efforts, the information on our Service may occasionally be inaccurate, incomplete or out of date and ELEVA disclaims any responsibility or liability for such information. By using the Services, you agree to accept such risks.
- As between ELEVA and you, ELEVA or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by ELEVA.
Intellectual Property Rights
- Our names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the "Proprietary Marks"), are owned by ELEVA. You may not use the Proprietary Marks without our prior written permission.
- We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.
- The information, descriptions, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, "Our Content"), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.
- We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").
- All software used on, or within our Services, is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
- You are solely responsible for any damages resulting from your infringement of our, or any third-parties, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
Use of Our Content
- We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work for your noncommercial personal use provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing.
- You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.
User Content Rights and Related Responsibilities; License
- "User Content" means, without limitation, any messages, texts, digital files, images, photos, artwork, videos, audio, comments, feedback, suggestions, reviews and documents, or other content you upload, transmit or otherwise make available to ELEVA and its users via the Services.
- By submitting User Content on or through the Service, you grant ELEVA a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content.
- In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
- You agree that any User Content you submit to our Service may be viewed by other users, any person visiting or participating in the Service and by the public in general.
- ELEVA expressly disclaims any liability for the loss or damage to any User Content or any losses or damages you incur as a result of the loss or damage of any User Content. It is your responsibility to back-up any User Content to prevent it's loss.
- You are solely responsible for User Content, including, without limitation, reviews, comments and feedback. ELEVA may remove or return any User Content at any time for any reason or for no reason at all. We are not responsible for the authenticity, accuracy, appropriateness, or legality of User Content.
- You represent and warrant that all information that you submit is authentic, accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.
- You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material.
- If you receive software from us, its use is governed in one of two ways: If you're presented with license terms that you must accept in order to use the software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the software.
- Any license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by ELEVA, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software.
- We may automatically check your version of the software. We may also automatically download to your device or computer new versions of the software.
- Any software is licensed, not sold. Unless we notify you otherwise, the software license ends when your Service ends. You must then promptly uninstall the software, or we may disable it. You must not work around any technical limitations in the software.
- The software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the software or Service without U.S. government permission to anyone on U.S. government exclusion lists. You represent and warrant that you're not on any of those lists or under the control of, or an agent for, anyone on those lists.
Suspension and Termination of Services
- We reserve the right to modify, suspend or terminate the Service or a Subscription Service plan or your access to the Service for any reason, without notice, at any time, and without liability to you.
- You can cancel your account or a Subscription Service plan at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.
- We reserve the right to refuse access to the Service to anyone for any reason at any time.
Interruption of Service
- Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.
- You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.
Third Party Links, Services and Content
- You acknowledge that we are not responsible for such third party content or services and that we are not an agent of any third party, nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our actions.
- Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by electronic means including, without limitation, email, telephone, text, SMS or by posting notices on our Services. When you use our Services, you consent to communicating with us electronically.
- You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Your use of the Services includes the ability to enter into agreements, including these Terms, and to make transactions electronically, including financial transactions and purchases. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements, financial transactions and purchases.
- Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including purchases, financial transactions, notices of cancellation, policies, contracts, and applications.
- In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
Third Party Social Networking
Violating the security of our App, Site and Services is prohibited and may result in criminal and civil liability. ELEVA may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
We respect the intellectual property rights of others. We reserve the right to remove any User Content on the Services which allegedly infringes another person's copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on the Services which allegedly infringes another person's copyright. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").
A valid complaint under the DMCA must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
- Identification of the copyrighted work that you claim has been infringed.
- Identification of the material that is claimed to be infringing and where it is located on the Service.
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, email address.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
FEDERAL LAW PROVIDES THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
The above information must be submitted to the following DMCA Agent:
DISCLAIMERS; NO WARRANTIES
- ALL PRODUCTS AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ELEVA AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, (COLLECTIVELY, THE “ELEVA PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES AND PRODUCTS WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM US WILL MEET YOUR EXPECTATIONS.
- THE SERVICES CAN INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. FURTHERMORE, THE INFORMATION OR SERVICES AT THIS SITE MAY BE OUT OF DATE. WE MAY MAKE CHANGES TO THE PRODUCTS, INFORMATION AND SERVICES AT THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN AT ANY TIME WITHOUT NOTICE, HOWEVER WE HAVE NO OBLIGATION TO DO SO.
- THE ELEVA PARTIES DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PRODUCT DESCRIPTIONS OR OTHER CONTENT OFFERED AS PART OF THE SERVICES, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
- YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT FROM THE SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SERVICE.
- WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART THEREOF AT ANY TIME.
- THE ELEVA PARTIES ASSUME NO RESPONSIBILITY FOR THE DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS.
- SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- LIMITATIONS OF LIABILITY
- IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICES; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
- THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED IN THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES.
- WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
- OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY USER IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
- You agree that you will be personally responsible for your use of the Service and you agree to defend, indemnify and hold harmless ELEVA and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iv) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (v) any death, or serious physical or serious emotional harm, to any third party resulting from your use of the Services, or (vi) any disputes or issues between you and any third party.
- We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
- By using the Services, you release, to the maximum extent allowed by law, ELEVA, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services, and any interaction with other users through the Services, including without limitation, any death or serious emotional or serious physical harm.
- If you are a California resident, you waive California Civil Code §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.”
- You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
- For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of New York, or a United States District Court for the State of New York, New York County. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
For any dispute you have with ELEVA, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. If ELEVA has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
- You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
- Applicable Law. You agree that the laws of the State of New York, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
- Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services delivered, sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
- Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of New York, New York County. You and we agree to submit to the personal jurisdiction of the courts located within New York for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of New York; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of New York.
- ELEVA is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If ELEVA receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
- Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), ELEVA may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. ELEVA will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
Amendments to this Agreement
We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
Statutory Rights; Notice To California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing, currently at: 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone, currently at (800) 952-5210 in order to resolve a complaint regarding our Site or to receive further information regarding use of our Site.
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at firstname.lastname@example.org.
Last updated: June 29, 2017