Terms of service
The following Terms and Conditions (“Agreement”) apply to https://drinkaltua.com (the “Site”). The Site is the property of Elevated Liquids Hemp LLC (the “Company,” “us,” “our,” “we” and/or “Altua”), and its affiliates. The Company operates the Site, an online e-commerce platform connecting lawfully compliant Users (the “Services”). Certain features of the Site or Services may be subject to additional guidelines, terms, or rules, which will be posted on the Site or Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms and Conditions, and use of the Site constitutes your agreement thereto. References to “you”, “your” and “User” refer to you, a user of our Site and/or Services.
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU DO NOT HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH COMPANY, ENTITY, OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THIS AGREEMENT.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT
BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
1. DISCLAIMERS.
1.1 PRODUCTS: THE PRODUCTS AVAILABLE FOR SALE ON THE SITE ARE HEMP-DERIVED CANNABINOID PRODUCTS THAT COMPLY WITH THE FEDERAL LEGAL LIMIT CONTAINING LESS THAN ZERO AND THREE-TENTHS (0.3%) DELTA-9 TETRAHYDROCANNABINOL (THC), (2) DO NOT CLAIM TO DIAGNOSE, TREAT, MITIGATE, CURE, OR PREVENT ANY DISEASE, AND (3) HAVE NOT BEEN EVALUATED OR APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION (FDA) FOR SAFETY, EFFICACY, EFFECTIVENESS, OR QUALITY. User expressly acknowledges that the products available for sale on the Site not been approved by the FDA and such fact shall not constitute a breach of any term, provision, or obligation herein, and User hereby expressly waives and relinquishes any rights with respect to, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, such fact.
1.2 Use. The Site and the Service is controlled and operated by the Company. The
Company makes no representation that any of the materials or the Service to which you have been given access are available or appropriate for use in Your location. Your use of or access to the Service should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction.
2. ACCESS TO AND USE OF THE SITE AND/OR THE SERVICE.
2.1 Eligibility. YOU MUST BE 21 YEARS OF AGE OR OLDER TO USE THE SITE OF THE SERVICE.
2.2 Member Account, Password and Security. You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Site or Services. The Company will not be liable for any loss or damage arising from your failure to comply with this paragraph.
3. SITE.
3.1 License. Subject to the terms of this Agreement, Company grants you a non-
assignable, non-transferable, non-licensable, non-sublicensable, non-exclusive license to use the Site and Services for your personal and, only where expressly permitted, internal business use. The intellectual property rights in the Site and Services, including any technology and software underlying the Site and Services, are owned by the Company or the Company’s licensors. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by the Company or its licensors, except for the licenses and rights expressly granted in this Agreement. The Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that the Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
3.2 Service Content. You acknowledge and agree that the Site or Services may
contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. You agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Site, Services or Service Content, in whole or in part. Any use of the Site, Services or Service Content other than as specifically authorized herein is strictly prohibited.
3.3 User Content. You are solely responsible for all information, data, text, messages, and other materials (“content”) that you make available to the Company, including by uploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Site or Services or by emailing or otherwise making available to other users of the Site or Services (collectively, “User Content”). You represent and warrant that you own all right, title and interest in and to such User Content, including all copyrights and rights of publicity contained therein. You hereby grant the Company and its affiliated companies, successors, and assigns a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Site or Services and the promotion, advertising or marketing of the foregoing in any form, medium or technology now known or later developed. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.
You hereby authorize Company and its third-party service providers to derive statistical and usage data relating to your use of the Service (“Usage Data”). We may use Usage Data for any purpose in accordance with applicable law and our Privacy Policy.
You acknowledge and agree that the Company may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of the Company, its users, or the public. You understand that the technical processing and transmission of the Services, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
4. COMMUNICATIONS.
4.1 Email Communication. You agree that we may send you emails concerning our
products and services, as well as those of third parties, and you may send emails to our designated email addresses (the “Email Communication”). You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
4.2 Feedback. If you provide the Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to the Company all rights in the Feedback and agree that we shall have the right to use such Feedback and related information in any manner it deems appropriate. We will treat any Feedback you provide to us as non-confidential and non- proprietary. You agree that you will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
5. CONDITIONS OF ACCESS AND USE.
The following sets forth Company’s acceptable use policy (collectively, the “Acceptable Use Policy”):
5.1 Technological Restrictions. You agree not to use the Site or Services to: (a)
upload, transmit, or distribute any content that (i) infringes any intellectual property or other proprietary rights of any party, (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships, (iii) contains computer viruses, worms, or any software intended to damage or alter a computer system or data, (iv) poses or creates a privacy or security risk to any person, (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, discriminatory, or otherwise objectionable, or (vi) in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Site or Services, or which may expose the Company or its users to any harm or liability of any type; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather, or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies, or procedures of such networks; (e) attempt to or impersonate another user or us or gain unauthorized access to the Site or Services, other computer systems, or networks connected to or used together with the Site or Services, through password mining or other means; (f)
harass or interfere with another user’s use and enjoyment of the Site or Services; (g)
introduce software or automated agents or scripts to the Site or Services so as generate automated searches, requests, and queries, or to strip, scrape, or mine data from the Site or Services; (h) violate any applicable local, state, national, or international law, or any regulations having the force of law; (i) solicit personal information from anyone under the age of 18; (j) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized; (k) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; (l) obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Site or Services; or (m) circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content available on or through the Site or Services,
including through the use of virtual private networks.
5.2 Monitoring, Suspension, and Termination. We reserve the right (but have no obligation) to review any Email Communication (including any image files or other attachments), investigate, and/or take appropriate action against you in our sole discretion (including terminating your access to the Site and/or Service and/or reporting you to law enforcement authorities) if we in our sole discretion suspect that you have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
5.3 Payment Processing. Notwithstanding any amounts owed to the Company hereunder, THE COMPANY DOES NOT PROCESS PAYMENT FOR ANY SERVICES. To facilitate payment for the Service via bank account, credit card, or debit card, we use third-party payment processors (collectively, “Payment Processors”). These payment processing services are provided by the Payment Processors and are subject to the applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively, the “Payment Processor Agreements”). By agreeing to this Agreement, users that use the payment functions of the Service also agree to be bound by the applicable Payment Processor Agreement for the payment function the user is using, as the same may be modified by the applicable Payment Processor from time to time. You hereby authorize the applicable Payment Processor to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Service. Please contact the applicable Payment Processor for more information. Company assumes no liability or responsibility for any payments you make through the Service.
5.4 Refunds and Cancellations. Payments made by you hereunder are final and non-refundable, unless otherwise determined by the Company in the case of damaged or defective Products or shipping issues can be brought forth to the Company by emailing support@drinkaltua.com.
6. INDEMNITY.
To the extent permitted under applicable law, you agree to indemnify and hold the Company (and its subsidiaries, affiliates, officers, employees, and agents) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (i) your use or misuse of the Site or Services; (ii) your use or misuse of Linked Sites; (iii) your violation of this Agreement; and/or (iv) your violation of applicable laws or regulations. We reserve 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. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
7. LIMITATION ON LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF
WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE ARISING FROM OR RELATING TO (A) THIS AGREEMENT, (B) YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, (C) 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 SERVICE, (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SITE OR SERVICES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND SERVICES.
IF ANY PORTION OF THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” IS DETERMINED, IN A FINAL AND BINDING ORDER OF A COURT OR ARBITRATOR (AS APPLICABLE) HAVING JURISDICTION OVER THE MATTER, TO BE INVALID UNDER APPLICABLE LAWS FOR ANY REASON, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
8. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement by Us, your right to access and use the Site and Services will terminate immediately. We will not have any liability whatsoever to you or any third party for any termination of this Agreement. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Site or Services, may be referred to appropriate law enforcement authorities. The Company may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any
provision of this Agreement may be affected without prior notice, and acknowledge and agree that the Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services.
9. ARBITRATION AGREEMENT AND FORUM SELECTION CLAUSE.
9.1 Agreement to Arbitrate. This Section 9 is referred to in this Agreement as the
“Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and the Company, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Site, the Services, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. All arbitration proceedings shall utilize the American Arbitration Association (“AAA”) and shall be subject to AAA rules. Arbitration hearings shall be in person only and located in Onondaga County, State of New York and all parties consent to personal jurisdiction in such locale.
9.2 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. The remainder of this Agreement will continue to apply.
13. GENERAL.
13.1 No Support or Maintenance. You acknowledge and agree that we will have no
obligation to provide you with any support or maintenance in connection with the Site or
Services.
13.2 Changes to This Agreement. We may amend this Agreement at any time in our
sole discretion and your continued use of the site shall constitute agreement with such amended terms.
13.3 Copyright/Trademark Information. The Company reserves all rights with respect to the Company Trademarks. You acknowledge and agree that You are not permitted to use any marks displayed on our site without prior written consent from the owner(s) of such marks.
13.4 Miscellaneous. This Agreement constitutes the entire agreement between you
and us regarding the use of the Site and Services. This Agreement will be governed by the laws of the State of New York without regard to its conflict of law provisions. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision, nor shall any single or partial exercise by the Company of any right or power hereunder preclude further exercise of that or any other right hereunder. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between you and the Company. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The Company may assign or transfer this Agreement, in whole or in part, without restriction. The terms of this Agreement shall be binding upon assignees. 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 Site or Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Notices to you may be made via either email or regular mail. The Site or Services may also provide notices to you of changes to this Agreement or other matters by displaying notices or links to notices generally on the Site or Services. The Company will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire,
sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond the Company’s reasonable control.
