Effective Date: July 2020
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE, SUCH AS YOUR GRANTS AND WAIVERS OF RIGHTS, THE LIMITATIONS OF OUR LIABILITY, YOUR INDEMNITY OF US, AND ARBITRATION OF CERTAIN DISPUTES.
1. ACCEPTANCE OF TERMS
2. CHANGES TO THE TERMS
We may, at any time and for any reason, make changes to the Terms. The most recent version of the Terms will be posted on the Website and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means, which could include notification through the Website or via the most recent email address you have provided to us. If you continue to use the Services after the changes become effective, then you shall be deemed to have accepted those changes. If you don’t agree to these changes, you must cease using the Services.
3. Elivate ACCOUNT
You may be required to create an account to use some of the features of the Services. You must keep your password confidential at all times and you are solely responsible for maintaining the confidentiality and security of your account, all changes and updates submitted through your account, and all activities that occur in connection with your account. In creating an account, you represent to us that all information you provide in such process is true, accurate and correct, and that you will update your information as necessary to keep it accurate. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information. You agree to notify us immediately of any unauthorized use of your account by contacting us at the information provided below and to change your password.
4. AGE REQUIREMENTS
Elivate may sell products made for children, but it is Elivate’s intention to only sell such products to adults. If you are under the age of majority in your jurisdiction, you may use the Services only with involvement of a parent or guardian. It is Elivate’s intention to never collect or maintain information from children at the Site unless the disclosure of such information is done with verifiable parental or guardian consent.
5. PLACING AN ORDER ON Elivate
Order Acceptance and Billing
All billing information provided must be truthful and accurate. Providing any untruthful or inaccurate information constitutes a breach of these Terms and may result in order cancellation as well as account termination. Prior to accepting an order, we may also request additional information from you. We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by our credit and fraud checks. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. Elivate may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s). You will not be charged for most orders until the order has shipped.
Elivate reserves the right to limit the quantity of items purchased per person, per business, per household or per order for any reason. These restrictions may apply to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. We will notify you should such limits be applied. Elivate also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers who break minimum advertised price rules and or is incorrectly reselling products that have been purchased. For purposes of these Terms, reselling shall be defined as purchasing or intending to purchase any product(s) from Elivate for the purpose of engaging in a commercial sale of that same product(s) with a third party.
Elivate cannot confirm the price of an item until after your order is placed. Pricing errors may occur on the Site. Elivate reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Elivate. Elivate may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products may be different on Elivate.com from prices available on Elivate’s mobile applications (pricing and availability remain subject to confirmation at checkout for mobile users).
Title and Risk of Loss
All items purchased through Elivate are made pursuant to a shipment contract. The risk of loss and title for such items pass to you upon Elivate’s tender of the item to the carrier.
Returns and Refunds
Returns and refunds are available only as described in our Terms of Sale. While Elivate will strive to provide returns and refunds, excessive or abusive returns or attempted returns will void our Terms of Sale and any guarantees on future orders or keeping the account active and in good standing.
Proof of Delivery (P.O.D.)
Through the Order History functionality of the website you can view Proof of Delivery (P.O.D.) details for orders and lines. Proof of Delivery (P.O.D.) includes the time of delivery, full delivery address, and the name and signature of the person who accepted your shipment. After placing orders it is important to download the P.O.D.’s and store for future use. NOTE: The website only retains P.O.D. detail information for shipments made within the last 120 days.
6. INFORMATION PROVIDED ON THE SITE
Elivate attempts to be as accurate as possible. However, Elivate does not warrant that product descriptions or other content on the Site are accurate, complete, reliable, current, or error-free. The information on the Site is for information purposes only. Before you act on information you have found on the Site, you should confirm any facts that are important to your decision. Product information contained on the Site may be different from information contained on the product materials due to manufacturer changes. If a product offered by Elivate is not as described, your sole remedy is to return it in unused condition.
7. INTELLECTUAL PROPERTY RIGHTS
All content on the Services (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, information, code and software, and the selection and manner of compilation and presentation) (the “Content”), is owned by Elivate, other content providers (such as Elivate’s suppliers) or their licensors, and may be protected by copyright, trademark, and other applicable laws.
Your access to and use of the Service does not grant you any license or right to use any trademark, logo, or service mark displayed on the Services. Elivate, other content providers, or their licensors retain full and complete title to and reserve all rights in the material on the Services, including all associated intellectual property rights. Elivate neither warrants nor represents that your use of materials on the Services will not infringe rights of third parties.
You may access the Services only for your personal and non-commercial use, and you may not modify or delete any copyright, trademark or other proprietary notice relating to the material you access.
All software used on the Services is the property of Elivate or our licensors and protected by United States and international copyright laws. Subject to these Terms, Elivate hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable license to use the Services for your personal, noncommercial use only. This license does not include any: (i) resale or commercial use of the Site or its Content; (ii) any collection and use of any product listings, descriptions, or prices; (iii) any derivative use of the Site or its Content; (iv) any downloading or copying of account information for the benefit of another merchant; or (v) any use of data mining, robots, or similar data gathering and extraction tools. You may not attempt to discover any source code, modify, publish, adapt, transmit, participate in the transfer or sale of, exhibit, distribute, display, reverse engineer, decompile, dissemble, perform, reproduce, create derivative works from, or in any way exploit any of the Services, in whole or in part. Downloading or copying the Services (including the Content) for other than personal use is expressly prohibited without the prior written permission of Elivate or any other copyright owner. You acknowledge that you do not acquire any ownership rights by accessing, downloading, or copying any of the Services (which includes the Content), nor may you frame or utilize framing techniques to enclose any trademark, logo, or copyrighted material from the Services or use any meta tags or any other hidden text utilizing our names or trademarks, without the express written consent of Elivate.
Without Elivate’s prior permission, you agree not to display or use in any manner the Elivate marks.
All rights not expressly granted herein are reserved. You agree to abide by all additional restrictions displayed on the Site as they may be updated from time to time.
8. RESTRICTIONS ON ACCESS AND USE
When accessing and using the Services, you specifically agree to:
- Only use (or attempt to use) the Site through interfaces provided Elivate;
- Comply with the instructions in any robots.txt file present on the Site;
- Provide all equipment that is necessary to access the Site;
- Protect the security of the password that you use to access the Services and immediately notify Elivate at termsofusecontact@Elivate.com if you believe or have reason to believe that such security has been breached or that your password has been obtained without your permission.
When accessing and using the Services, you specifically agree not to:
- Engage in activity that is in violation of these Terms or is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- Engage in conduct that is fraudulent or otherwise harmful to Elivate, our partners, or any other user;
- Display to others, mirror, or frame the Services, or any component of the Services;
- Access the Services if we have prohibited you from such access;
- Circumvent any rules or terms set forth on the Services including those relating to any promotion, contest or program on the Services; Access, tamper with, or use non-public areas of the Services, Elivate’s computer systems, or the technical delivery systems of Elivate or Elivate’s providers;
- Probe, scan, or test the vulnerability of the Services or breach any security or authentication measures;
- Interfere with the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure intended to protect, limit access to, or control the Services;
- Decipher, decompile, disassemble, or reverse engineer any of the software used on or in connection with the Services;
- Collect any personally identifiable information from users of the Services or use any such information found on the Services;
- Use a third party’s credentials, conceal your true IP address, or otherwise impersonate or misrepresent your identity, your affiliation with any person or entity;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- Use the Services to determine whether a third party holds any type of account, or to learn about or verify information about the account that is not yours;
- Use the Services to advertise or perform any commercial solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Elivate trademark, logo, URL, or product name without Elivate’s express written consent.
- Infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
- Engage in activity that may interrupt, destroy, or limit the functionality of the Services or of any computer software or hardware or telecommunications equipment;
- Disrupt the normal flow of dialogue or act in a manner that negatively affects other users’ ability to engage in real time exchanges;
- Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
- Provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or
- Collect or store personal data about other users in connection with the prohibited conduct and activities set forth in the above paragraphs. Extract any content or information from the Site (whether by manual or automated means) for any commercial purpose.
You likewise agree that you will not attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited in this list of bulleted items, or attempt, permit, encourage, assist, or allow any other violation of these Terms.
You agree not to, directly or indirectly (e.g., through a third party), attempt to access, search, or otherwise use the Services (such as by attempting to retrieve information from or about the Services) through the use of any engine, software, tool, agent, device, or mechanism (including, without limitation, spiders, robots, crawlers and data mining tools) other than generally available third-party web browsers that (1) provide accurate and complete User-Agent information in the HTTP header, such as Safari, Firefox, Chrome, and Internet Explorer and (2) have not been modified with plugins or otherwise in a manner that facilitates automated or faster-than-normal access to, searching of, or other use of the Services. You also agree not to disregard our robots.txt files (but in the event of a conflict between these Terms and the Services’ robots.txt file, the more restrictive of the two shall apply.)
9. CONTENT AND INTERACTIVE SITE FEATURES
You acknowledge that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. Elivate is not responsible for any Content that you upload, download, post, email, transmit or otherwise make available or access via the Services.
Elivate may provide certain interactive features, such as blogs, for the exchange of ideas and information by visitors. If Elivate provides such features, and you choose to submit content through those features (“Your Content”), you represent and warrant that: (1) you own or otherwise have all necessary rights to Your Content; (2) all information you provide is true, accurate, current and complete, and does not violate these Terms; (3) Your Content will not cause injury to any person or entity; and, (4) you are not under the age of 13.
By posting Your Content, you are granting Elivate (and those authorized by Elivate) a limited, non-exclusive, transferable, royalty-free, perpetual, irrevocable, world-wide license to use, reproduce, distribute, adapt, display, publish, modify, create derivative works from, and translate such content for any educational, promotional, or other purposes without any obligation to compensate you or any other third party in any way for such use. You also grant Elivate (and those authorized by Elivate) the right, but not the obligation, to use the name that you submit with such content. You are solely responsible for Your Content. Elivate assumes no responsibility or liability arising from the posting of Your Content or for any error, defamation, libel, omission, obscenity, danger, or inaccuracy contained in any posted information or from any failure or delay in removing such content or from your violation of the Children’s Online Privacy Protection Act.
You will not insert your own or a third party’s advertising or promotional content into your posting. Elivate reserves the right to monitor content or information provided by Site visitors in its sole discretion, to edit or remove any content that, in Elivate’s judgment, does not comply with the foregoing rules, or is otherwise objectionable, inappropriate, or inaccurate. Elivate is not responsible for any user-generated content that is posted on the Site or for any failure or delay in removing such content.
You can terminate your use of the Services at any time by ceasing further use of the Services. We may terminate your use of the Services and deny you access to the Services in our sole discretion for any reason or no reason, including your violation of these Terms. You agree that any termination of your access to the Services may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and/or bar any further access to your account or the Services. You agree that we shall not be liable to you or any third party for the discontinuation or termination of your access to the Services.
12. AUTOMATED QUERIES ARE NOT ALLOWED
Automated queries may never be sent by you to our Services unless Elivate has provided you with express written permission. "Sending automated queries" includes, among other things:
- using any software that sends queries to our Site to determine how a Website or Webpage "ranks" for various queries;
- "meta searching"; and
- performing "offline" searches on the Site.
13. INTERSTATE DATA TRANSMISSIONS
You understand that the technical processing and transmission of the Services, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Services and software embodied within the Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Elivate and/or content providers who provide content to the Services. You may not attempt to override or circumvent any of the usage rules embedded into the Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Services, in whole or in part, is strictly prohibited.
By agreeing to these Terms, you acknowledge that Use of the Services results in interstate data transmissions because of Elivate’s network architecture, business practices, and the manner in which electronic communications are processed.
14. INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
15. NO RESALE OF SERVICES
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Services, unless expressly permitted and authorized by Elivate in a separate agreement between you and Elivate.
16. MODIFICATIONS TO SERVICES
Elivate may modify, refuse to make available, remove, or discontinue, temporarily or permanently, the Services (or any part thereof) and/or delete any Content, data, materials or information stored on the Site or in the Services at any time with or without notice in Elivate’s sole discretion. You agree that Elivate shall not be liable to you or to any third party for any such deletion, modification, suspension or discontinuance of the Services or Content.
Your correspondence or business dealings with, or participation in promotions of, advertisers and/or companies found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser and/or company. You agree that Elivate shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers and/or companies on the Services.
18. THIRD PARTY CONTENT, LINKS, AND ADVERTISEMENTS
You agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Elivate and its subsidiaries and affiliates, and as to each, their officers, directors, employees, contractors, agents, licensors, service or third party providers, subcontractors, and suppliers, from and against any and all claims, losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees and court costs, arising out of or relating to your access to or use of the Services, any content you post, submit, transmit, or otherwise make available through the Services, your violation of law or infringement of the rights of a third party, your use or misuse of the Services, your connection to the Services, or your other violation of these Terms. Elivate reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with Elivate if and as requested by Elivate in the defense of such matter.
20. DISCLAIMER OF WARRANTIES
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THIS AGREEMENT. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY MADE TO YOU BY THE MANUFACTURER OF THE ITEM. THE SERVICES, AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, ADVICE, AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES ARE PROVIDED SOLELY ON AN 'AS IS' AND 'AS AVAILABLE' BASIS, AND THEREFORE YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. WE DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. THESE DISCLAIMERS INCLUDE, WITHOUT LIMITATION:
- THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE;
- ANY WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING;
- ANY WARRANTIES OF NONINFRINGEMENT;
- THAT ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
- THAT THE SITE WILL BE SECURE;
- THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE WILL BE VIRUS-FREE; AND
- THAT COMMUNICATIONS SENT FROM THE SITE ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Elivate IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Elivate OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU AGREEMENT.
THE PRODUCTS ON OUR SITE ARE INTENDED FOR PERSONAL, NOT COMMERCIAL USE, UNLESS OTHERWISE INDICATED. AS SUCH, YOU ASSUME THE RISK WHEN PURCHASING PRODUCTS FOR A COMMERCIAL OR BUSINESS USE OR APPLICATION.
A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICES. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY OR COMPANY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICES. IMMEDIATELY DISCONTINUE USE OF THE SERVICES AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICES: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
21. LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER Elivate, Elivate S EMPLOYEES, BOARD OF DIRECTORS, OR INVESTORS, NOR ITS SUPPLIERS OR THIRD PARTY CONTENT PROVIDERS WILL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR, OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO:
- THE SERVICES, OR ANY OTHER SERVICES OR SITES YOU ACCESS THROUGH A LINK FROM THE SERVICES;
- THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES
- ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US;
- ANY DELAY ON OR INABILITY TO USE THE SERVICES OR ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED ON OR OBTAINED THROUGH THE SERVICES;
- Elivate’S REMOVAL OR DELETION OF ANY MATERIALS SUBMITTED OR POSTED ON THE SERVICES, OR;
- THERWISE ARISING OUT OF YOUR USE OF THE SERVICES;
IN EACH CASE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF Elivate, ITS SUPPLIERS OR THIRD PARTY CONTENT PROVIDERS, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER Elivate NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY SELLER, SHOPPER, OR OTHER USER OF THE Elivate SITES.
22. NO THIRD PARTY BENEFICIARIES
These Terms are not enforceable by or for the benefit of any third party.
23. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Elivate agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement. Opt-Out Right. You have the right to opt out and not be bound by the provisions requiring arbitration by sending written notice of your decision to opt out to Elivate by email to termofusecontact@Elivate.com AND by U.S. Mail to Elivate, Elivate, 6333 Hudson Crossing Parkway, Hudson, Ohio 44236. The notice must be sent within 30 days of your first use of any of the Services. If you do not opt out via this method, you will be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of the provisions requiring arbitration, Elivate will not be bound by them either. If any clause within this Arbitration Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
If any controversy, allegation, or claim arises out of or relates to the Service, including without limitation, the Content, these Terms, or any additional terms, our privacy practices related to the Service and offers made on and transactions and communications conducted through the Service (collectively, “Dispute”), or to any of Elivate’s actual or alleged intellectual property rights or claims of piracy or unauthorized use of the Site (an “Excluded Dispute”), then you and Elivate agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 23. Your notice to us must be sent by email to termofusecontact@Elivate.com and by U.S. Mail to Elivate, 6333 Hudson Crossing Parkway, Hudson, Ohio 44236. Subject to Section 23, for a period of sixty (60) days from the date of receipt of notice from the other party, Elivate and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Elivate to resolve the Dispute or Excluded Dispute on terms with respect to which you and Elivate in each of our sole discretion, are not comfortable.
Binding Arbitration. If we cannot resolve a Dispute as set forth above, (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then, subject to this Section and as permitted by applicable law, ANY AND ALL DISPUTES ARISING BETWEEN YOU AND Elivate (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT, OR NEGLIGENCE – COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICE. The Federal Arbitration Act, not state law, shall govern the arbitrability of all disputes between Elivate and you regarding these Terms and the Service. Elivate and you agree, however, that the laws of the state of Ohio shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Elivate, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to Ohio’s choice of law principles that might apply other laws.
Disputes will be resolved by a single arbitrator and solely by binding arbitration in accordance with the then-current commercial Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to arbitrate the Dispute then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Elivate consent to in writing. If Elivate’s or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted, through a telephonic hearing, or by an in-person hearing under the AAA Rules, solely based on documents submitted to the arbitrator. You or Elivate may choose to pursue a claim in small claims court where jurisdiction and venue over you and Elivate otherwise qualifies for such small claims court and where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to still provide Elivate with advance notice by email to termofusecontact@Elivate.com and by U.S. Mail to Elivate, Inc., 9394 West Dodge Road, Suite 300, Omaha, Nebraska 68114-3319.
If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Elivate to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Elivate will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply applicable law and the provisions of these Terms and will be bound by these Terms and will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, [except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.]
Parents, Subsidiaries, Affiliates. This Arbitration Section will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Elivate, or any employee, officer, director, or investor of Elivate, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person’s access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
Survival. This Arbitration section shall survive any termination of your account or the Services.
24. CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Elivate and you agree to resolve any dispute will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Elivate and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Elivate customers, and cannot be used to decide other disputes with other customers.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Omaha, Nebraska.
If any clause within this Class Action Waiver Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Class Action Waiver Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Elivate, or any employee, officer, director, or investor of Elivate, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Class Action Waiver section shall survive any termination of your account or the Services.
25. DMCA NOTICE
If you are a copyright owner or an agent thereof and believe that any content, information, or communication on the Services infringes upon your copyrights, you may submit a written notice of infringement pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the "DMCA"). All notices of infringement should be sent to the Designated Agent of Elivate identified below and should include the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest, (b) a description of the copyrighted work that you claim has been infringed, (c) a description of where the material that you claim is infringing is located on the Services, (d) your address, telephone number, and e-mail address, (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Notices of infringement should be directed to the following Designated Agent of Elivate:
Name, Address, Phone
If you submit a notice of infringement that knowingly materially misrepresents that any Content, information, or communication on the Services is infringing upon a copyright, you may be held liable for damages and attorneys’ fees. If you believe that your content, information, or communication has been removed from the Site due to an erroneous claim of infringement, you may have remedies available to you under the DMCA.
26. ELECTRONIC COMMUNICATIONS
You agree to receive communications from Elivate electronically, such as emails, texts, mobile push notices, or notices and message on this Site, and to retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that Elivate provides to you electronically satisfy any legal requirements that such communications be in writing.
27. GENERAL INFORMATION
Entire Agreement You agree to receive communications from Elivate electronically, such as emails, texts, mobile push notices, or notices and message on this Site, and to retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that Elivate provides to you electronically satisfy any legal requirements that such communications be in writing.
Governing Law and Choice of Forum
These Terms and the relationship between you and Elivate shall be governed by, construed, and enforced in accordance with the laws of the State of Nebraska, excluding its conflict of law provisions, and for claims not subject to arbitration, such claims shall be brought exclusively in the courts located within Douglas County, Nebraska. You and Elivate agree to submit to the personal and exclusive jurisdiction of the courts located within Douglas County, Nebraska, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
Statute of Limitations
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 the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You may not assign or otherwise transfer these Terms, by operation of law or otherwise, without Elivate’s prior written consent. Subject to the foregoing restriction, these Terms will be binding on, inure to, and enforceable against the parties and their respective successors and assigns. Elivate may assign these Terms in its sole discretion by providing you notice of the same. For example, Elivate may unconditionally assign or otherwise transfer these Terms to any successor in interest, such as an acquirer of Elivate (via merger, sale of stock, etc.) or a buyer of substantially all of its assets.
The section titles in these terms are for convenience only and have no legal or contractual effect.
28. CONTACT US
If you have any questions or concerns with respect to these Terms or the Site, or to report any violations of these Term, please contact us at: