Elemental Terms of Service
Effective Date: July 22, 2016
These Terms of Service (“Terms”) are a binding contract between you and Dzus Industries, LLC, the company that provides the Elemental Cocktail App, (“Elemental”) exclusively. These Terms govern your use of Elemental sites, services, mobile apps, products, and content (the “Services”). By using the Services, you agree to these Terms. If you do not agree with any of these Terms, you must stop using the Services.
We may change these Terms at any time. If we change them in a manner that is material, we will notify you before they take effect. By using the Services on or after the new effective date, you agree to the new Terms. If you do not agree to them, you should stop using the Services before the effective date. Changes are effective immediately for new users, and apply only prospectively for ongoing users. Archived versions of these Terms can be found here.
Relationship with Apple
You understand that Apple is not a party to this agreement. Apple is in no way responsible for addressing any claims by you or any third party relating to Elemental or the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You acknowledge and agree; however, that Apple and Apple’s subsidiaries, are third party beneficiaries of these Terms, and will have the right to enforce these Terms against you.
The Services are intended for adults only. To register an account with us, you must be creating an account for yourself (and not for a business or entity), and over the legal drinking age in your jurisdiction. You are responsible for everything that happens on your account, including any charges incurred. You agree to use a strong password and prevent others from accessing your account.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Intellectual Property and Licenses
Unless otherwise indicated, all content, images, design, trademarks, logos, and other materials (“Content”) on the Services are owned by Elemental. So long as you comply with these Terms, Elemental grants you a nonexclusive, nontransferable, revocable license to use the Services for their intended purposes on any device you legally own or control. Except as expressly authorized by law, by Elemental, or by the applicable licensor in writing, you are not entitled to reproduce, transmit, license, sell, publicly perform, distribute, adapt, translate, modify, bundle, or to create derivative works of, any or all of the materials or content available on the Services, or to use them for commercial purposes.
You retain ownership of any recipes, images, or other content (“User Content”) you may post to the Services, however, you grant Elemental a world-wide, non-exclusive, royalty free, irrevocable, and transferrable license to store, reproduce, distribute, publicly perform, publicly display, modify, adapt, or make derivative works of your User Content. We will not share or sell your User Content with third parties without your consent.
You also agree that that Elemental is entitled to use (or not use) any feedback or suggestions for improvement you voluntarily provide to us, without any compensation or credit to you.
In the event of any third party claim that the Services or your possession and use of the Services infringes that third party’s intellectual property rights, Elemental, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
The Services are intended for responsible adults of legal drinking age who wish to try new drinks, get information about alcoholic beverages, drinks, cocktails, or explore the bartending profession. It is intended exclusively for entertainment purposes.
Elemental does not advocate the abuse of alcoholic beverages. If you try recipes provided via the Services, you should do so with caution. Elemental does not promote misuse of alcohol, alcoholism, hazing, binge drinking, or any other form of alcohol abuse.
Elemental is not responsible for the effect these drinks may have on people. Some drinks may be bad for your health, and may have been included as a mere novelty. Elemental disclaims responsibility for any adverse effects that may result from the use or application of the recipes provided via the Services.
Do not drink and drive. Do not drink excessively. Excessive consumption of alcohol may cause irreparable damage or harm to your body and may be lethal. Pregnant women and women who may become pregnant should abstain from alcohol.
Disclaimer of Warranties, Indemnification, and Limitation of Liability
Each of the subsections below applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result, the contents of this section may not apply to you.
a. Disclaimer of Warranty
The Services are provided “as is,” without warranty of any kind.
To the maximum extent permitted by applicable law, Elemental and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, partners, and licensors (collectively, the “Elemental Entities”) disclaim all warranties, express or implied, including (but not limited to) implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.
In the event of any failure of Elemental to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) of the Services to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services.
You are solely responsible for any damage to your equipment or device, loss of use, or loss of data.
You agree to indemnify and hold harmless Elemental and the Elemental Entities from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, arising out of or related to (a) your use or misuse of the Services, (b) any violation of the rights of any other person or entity by you, or (c) your breach of any part of these Terms.
Elemental reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
c. Limitation of Liability
To the maximum extent permitted by law, Elemental and the Elemental Entities will not be liable to you for any special, indirect, incidental, punitive, reliance, consequential, or exemplary damages relating to your use of the Services, even if Elemental has been advised of the possibility of such damages.
In no event shall Elemental or the Elemental Entities’ total liability to you for all damages, losses, or causes of action arising out of or relating to these Terms exceed (1) the amounts you paid to Elemental during the twelve (12) months immediately preceding the date of your claim or (2) one hundred U.S. dollars, whichever is greater.
The limitations of liability set forth in this section will survive any termination or expiration of these Terms, and will apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
Elemental may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate these Terms or your account (if you have one), you may simply discontinue using the Services.
All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
These Terms shall be governed by the laws of the State of California, without respect to its conflict of laws or principles. Both of us agree to submit to the exclusive jurisdiction of the state and federal courts sitting in San Francisco, California.
These Terms constitute the entire agreement between you and Elemental regarding the Services.
You may contact us with any questions or concerns at:
752 S Van Ness Ave
San Francisco, CA 94110