Please read this Agreement carefully. By accessing or using our Website, you agree to be bound by this Agreement and all of its terms without change. Neither Element nor its representatives are engaged in rendering legal services or other such advice. Your use of the Website is subject to the additional disclaimers and notices that may appear throughout the Website.
Element and its representatives assume no responsibility for any consequence relating directly or indirectly to any action or inaction based on the information, services, or other material on our Website. Element and its representatives cannot guarantee that the information on this Website is accurate, complete and up-to-date, and will not be responsible for any damage or loss related to, any inaccuracy, incompleteness, or lack of timeliness of the information or services on the Website.
Other Policies and Agreements
Your purchase and use of Element products on the Website or otherwise is subject to any terms or policies posted on this Website from time to time including, without limitation, the Element Terms of Service available here, the Element Shipping and Return Policy for Direct Sales available here and the Element Limited Warranty available here. Your use of certain apps and other software provided by third parties on the Element products may be subject to third party terms and conditions made available on such apps or software services.
Personal and Noncommercial Use Limitation: Prohibited Uses
Via the Website, we may provide information, marketing material, and e-commerce services (the “Services and Information”) relating to our products and services and an interface through which you may customize and purchase Element products (“Products”). We grant you access to this Website during the term of this Agreement solely to receive the Services and Information and purchase Products. You may access, download, and print materials as necessary to receive the Services and Information. You may not license, copy, distribute, create derivative works from, frame in another Web page, use on any other website, or sell any information, databases, or lists obtained from this Website. When we request, you agree to provide true, accurate, and complete user information. You will not access or attempt to access password protected, secure or non-public areas of the Website without our prior written permission. You will comply with all privacy laws.
All materials on this Website (as well as the organization and layout of the Website) are owned and copyrighted, licensed by, or used with permission that is granted to Element. No reproduction, distribution, or transmission of the copyrighted materials at this Website is permitted without the prior written permission of Element.
If you use this Website and create a user account, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If your status as a user of this Website is terminated, you will (i) stop using the Website and any information obtained from the Website, and (ii) destroy all copies of your account information, password and any information obtained from this Website.
You agree that you will not disclose Confidential Information to any person or entity outside of your organization. You will not use or permit the use of any Confidential Information except as necessary in connection with the Services and Information. You will use at least the same degree of care in safeguarding the Confidential Information as you use in safeguarding your own confidential information, but in no event will you use less than due diligence and care. “Confidential Information” means all information or material that: (i) is obtained from password-protected portions of the Website or (ii) which is (A) marked “Confidential,” “Restricted,” or other similar marking, (B) known by the parties to be considered confidential, or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable judgment.
No Unlawful or Prohibited Use
As a condition of your use of this Website, you warrant to Element that you will not use this Website for any purpose that is against the law or prohibited by this Agreement. If you violate any of these terms, your permission to use this Website automatically ends.
You may not without our prior written permission use any computer code, data mining software, “robot,” “bot,” “spider,” “scraper” or other automatic device, or program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor or copy any of the Web pages, data or content found on this Website or accessed through this Website. You may not republish Element content or other content from this Website on another Website or use in-line or other linking to display such content without our permission. You may not introduce viruses, spyware, or other malicious code to this Website. You represent and warrant that you use frequently updated, commercially standard virus protection software to ensure that the system you use to access our Website is virus free.
If you are under the age of 13, you may not use this Website.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THIS WEBSITE AND THE PRODUCTS, INFORMATION AND SERVICES OFFERED AT THE WEBSITE IS AT YOUR SOLE RISK. SUBJECT TO THE APPLICABLE ELEMENT LIMITED WARRANTY FOR ELEMENT PRODUCTS, THE WEBSITE AND OUR PRODUCTS, INFORMATION AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ELEMENT AND ITS SUBSIDIARIES AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ELEMENT AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE WEBSITE OR ANY PRODUCTS, INFORMATION OR SERVICES PROVIDED ON THE WEBSITE; (ii) THE COST OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO ON THE WEBSITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (v) ANY OTHER MATTER RELATING TO THE WEBSITE OR THE PRODUCTS, SERVICES AND INFORMATION. IN NO EVENT WILL THE MAXIMUM LIABILITY TO YOU OF ELEMENT, ITS AFFILIATES AND SUBSIDIARIES EXCEED THE AMOUNT YOU PAID TO US FOR THE SUBJECT PRODUCTS OR $100, WHICHEVER IS GREATER. THIS PROVISION WILL NOT AFFECT YOUR RIGHTS UNDER THE APPLICABLE ELEMENT LIMITED WARRANTY. THIS LIMITATION OF LIABILITY APPLIES EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Links to Third Party Sites
Links to Our Website
Use of Submissions
Should you submit to Element any feedback, questions, comments, suggestions, or the like, in whatever form, regarding the content of this Website, such information will be deemed to be non-confidential. We will have no obligation of any kind with respect to such information and will be free to reproduce, use, disclose, and distribute the information to others without limitation. We will be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever including but not limited to developing, manufacturing, and marketing products incorporating such information. You hereby grant us a license for such use.
Changes to Website
We may make improvements or changes in the information, services, products, and other materials on this Website, or terminate this Website at any time. We may modify this Agreement at any time, and such modifications will be effective immediately upon posting of the modified Agreement. Accordingly, you agree to review the Agreement periodically, and your continued access or use of this Website will be deemed your acceptance of the modified Agreement.
Dispute Resolution – Binding Arbitration and Class Action Waiver
You agree that: (1) Any claim, dispute, or controversy (whether in contract, tort, or otherwise) arising out of, relating to, or connected in any way with the Website or the Products, Services and Information provided on the Website will be resolved exclusively by final and binding arbitration conducted pursuant to the American Arbitration Association (“AAA”) Procedures for Consumer-Related Disputes in conjunction with the AAA Commercial Arbitration Rules (if and as applicable depending on the amount in controversy); (2) This arbitration agreement is made pursuant to a transaction governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) The arbitration will be held at the AAA regional office nearest you; (4) The arbitrator’s decision will be controlled by the terms and conditions of this Agreement; (5) The arbitrator will apply South Carolina law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law; (6) There will be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your individual claims and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) The arbitrator will not have the power to award punitive damages against any party; (8) In the event that the administrative fees and deposits you are required to pay under the AAA rules exceed $125, and you are unable to pay the additional fees and deposits, Element retains the right to forward them to the AAA on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Element retains the right to pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) If any part of this arbitration provision is deemed to be invalid or otherwise unenforceable or illegal, the balance of this arbitration provision will remain in full force and effect and will be construed in accordance with its terms as if the invalid or illegal provision were not contained herein.
ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. ELEMENT AND YOU AGREE THAT NO PARTY WILL HAVE THE RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED AS A CLASS ACTION, A PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING.
You understand that, in the absence of this provision, you would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class action basis, and that you have expressly and knowingly waived those rights and agreed to resolve any disputes through binding arbitration in accordance with the provisions of this paragraph. This binding arbitration provision and class action waiver does not apply outside of the United States.
This Website is intended to reach residents of the United States, and all advertising claims contained in this Website are valid only in the United States. This Agreement and the resolution of any dispute related to this Agreement or this Website will be governed by and construed in accordance with the laws of South Carolina, without giving effect to any principles of conflicts of law. Failure by Element to insist upon strict enforcement of any provision of this Agreement will not be construed as a waiver of any provision or right. Subject to the above arbitration provision and class action waiver, any legal action or proceeding between Element and you related to this Agreement will be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of South Carolina, County of Richland. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this Website or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. If any of these terms will be deemed invalid, void, or for any reason unenforceable, that term will be deemed severable and will not affect the validity and enforceability of any remaining term. You may have greater rights than those provided in this Agreement, or some provisions may be prohibited, by virtue of state or federal consumer protection laws. In such a case, to such extent, the subject provisions shall not apply to you.
The Element logo and other logos, product and service names are trademarks and service marks owned by or licensed to Element or its affiliates (the “Marks”). Without the prior written permission of Element, or its appropriate affiliates, you agree not to display or use in any manner, the Marks.
All other trademarks are the property of their respective owners.
Effective Date: October 1, 2017