Terms of Use

Binding Contractual Terms

By downloading from or using the Mend + Defend website (the “Website”), including all Content (as defined below) available through the Website, or by accessing any associated content such as email feeds or other related services provided by Elemend (collectively the “Service”), the person or entity downloading from or using the Service (“You”) signify (a) that You have read and understood these Terms of Use (which include the Privacy Policy); and (b) that these Terms of Use have the same force and effect as a signed agreement. The Service is provided by Elemend Health LLC, a company registered in Minnesota (“Elemend” or “We”). Elemend has a principal place of business at 10400 Viking Drive, Suite 240, Eden Prairie, MN 55344 USA.

You affirm that You are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, warranties, and indemnification set forth in these Terms of Use, and to abide by and comply with these Terms of Use.

ATTENTION: PLEASE READ THESE TERMS OF USE AND OUR PRIVACY POLICY, WHICH IS PART OF THESE TERMS OF USE, CAREFULLY BEFORE USING THE SERVICE. DOWNLOADING FROM OR ACCESSING ANY PART OF THE SERVICE INDICATES THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF USE AND PRIVACY POLICY IN FULL. IF YOU DO NOT ACCEPT THESE TERMS OF USE AND PRIVACY POLICY, DO NOT USE THE SERVICE AND DO NOT USE AND DELETE ANY DOWNLOADED APPLICATIONS AND MATERIALS IMMEDIATELY.

We reserve the right to modify or discontinue the Service (or any portion of the Service), temporarily or permanently, with or without notice to You, and are not obligated to support or update the Service. YOU AGREE THAT ELEMEND WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY IN THE EVENT THAT WE EXERCISE OUR RIGHT TO MODIFY OR DISCONTINUE THE SERVICE (OR ANY PORTION OF THE SERVICE). Unless explicitly stated otherwise, any new features that augment or enhance the current Service will be subject to these Terms of Use.

We may change these Terms of Use at any time. Please review the Terms of Use each time You visit the Service. BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE MOST RECENT VERSION OF THE TERMS OF USE. If We materially change these Terms of Use, We will let you know by showing them to You again when You access the Service and sending an email notifying you of the changes to the email address We have on file for You.

These Terms of Use include a disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by You in Sections 1, 4, 5, 9, 13, 14, and 15. Please review those sections (and all of the other terms) carefully.

Not Healthcare Advice

Content on the Service is for informational purposes only. It is not intended as a substitute for the advice, diagnosis, or treatment provided by your own physician or health care provider and may not take your individual health situation into account. You should not use the information on the Service as a means of diagnosing a health problem or disease, or as a means of determining treatment. The Service does not provide medical services or medical advice. In the event of a medical emergency, call 911 and/or immediately contact a doctor. Each person is different, and the way you react to a particular product may be significantly different from the way other people react to such product. You should also consult your healthcare professional regarding any interactions between any medication you are currently taking and nutritional supplements.

Privacy Policy

Our Privacy Policy describes the information Elemend collects when You and others use the Service. It also describes how Elemend uses and shares any personal information You share with it. Our Privacy Policy is part of these Terms of Use. By agreeing to these Terms of Use, You are also consenting to our collection, use, and sharing of Your personal information in accordance with our Privacy Policy. Please Click Here to review our Privacy Policy.

Links to and From the service

The Service may contain links to third-party websites and online services (such as social media sites) that are not owned or controlled by Elemend. Elemend has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or online services, and You access and use these websites or online services solely at Your own risk. These links are provided for Your reference and convenience only, and do not necessarily imply any endorsement, sponsorship or recommendation of the material on these third-party websites or online services or any association with their operators. In addition, Elemend will not and cannot control or edit the content of any third-party website or online service. BY USING THE SERVICE, YOU EXPRESSLY RELEASE ELEMEND, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, LICENSORS, LICENSEES, AND SUPPLIERS (COLLECTIVELY “THE ELEMEND PARTIES”) FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE OR ONLINE SERVICE AND FROM ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH ANY THIRD PARTY. Accordingly, We encourage You to be aware when You leave the Service and to read the terms and conditions of use for each other website or online service that You visit.

Except as You have otherwise agreed with Elemend in writing, You may link to the Website from Your website, subject to the following: (1) You may not frame the Website or any portion of the Website; (2) You will not override or hinder the functionality of an end-user’s web browser’s “back” function; (3) the link must be identified using a plain text rendering of the Mend + Defend name and not any Mend + Defend logo; (4) You may not use any Elemend logos in any way; (5) You may not use the link in any way that suggests that Elemend is associated with or endorses You or Your website; (6) the link may not appear on any website that a reasonable person may consider obscene, defamatory, harassing, offensive or malicious, and may not be presented in any way that disparages Elemend or damages its rights, reputation, or goodwill; and (7) We may terminate Your right to link to the Website at any time for any reason or no reason.

User Submissions

The Service may permit the submission of text, graphics, photos, videos, material, information, comments, feedback, notes, messages, ideas, concepts, know-how, techniques, or other communications submitted by You and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. For instance, users can post reviews of Elemend products. You understand that whether or not such User Submissions are published or posted, Elemend (1) does not guarantee any confidentiality with respect to any User Submissions, (2) does not pay any compensation for User Submissions, and (3) is under no obligation to respond to or post any User Submissions.

You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. Elemend does not claim ownership of any of Your User Submissions. However, by submitting the User Submissions to Elemend, You hereby grant Elemend and its successors, assigns, and affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sublicenseable (through multiple tiers) and transferable license to use, reproduce, distribute, prepare derivative works of, display, publish, broadcast, perform, make, use, import, offer to sell, sell, and otherwise transfer and exploit all copyrights, inventions, and other intellectual property rights in the User Submissions in connection with the Service and Elemend’s (and its successors’, assigns’, and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any form and media formats and through any media channels. You also hereby grant each user of the Service a worldwide, non-exclusive, royalty-free license to access Your User Submissions through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Service and under these Terms of Use.

In connection with User Submissions, You represent and warrant that You will not: (1) transmit, submit, or post material that is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to transmit, submit, or post the material and to grant Elemend all of the license rights granted herein; (2) publish falsehoods or misrepresentations that could damage Elemend or any third party; (3) transmit, submit, or post material that involves gambling, gaming, sweepstakes, and/or any other activity with an entry fee and a prize, or (4) transmit, submit, or post material that is otherwise inappropriate. In addition, You agree to pay for all royalties, fees, and other payments owed to any party by reason of Your transmitting, posting or submitting User Submissions. ELEMEND does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and the Elemend parties expressly disclaim any and all liability in connection with User Submissions. Elemend does not permit copyright infringing activities, infringement of rights of publicity, or infringement of other intellectual property rights on its Service, and Elemend will remove all Content (including User Submissions) if properly notified that such Content or User Submission infringes on another’s rights (see Sections 10 and 11 below). Elemend will not necessarily monitor User Submissions. However, Elemend reserves the right to monitor, alter, edit, or remove Content (including User Submissions) and block users without prior notice and for any reason. Elemend also reserves sole discretion to decide whether any Content (including a User Submission) is appropriate and complies with these Terms of Use.

You understand that when using the Service, You will be exposed to User Submissions from a variety of sources, and that Elemend is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that You may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST THE ELEMEND PARTIES WITH RESPECT THERETO, AND AGREE TO INDEMNIFY AND HOLD THE ELEMEND PARTIES HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SERVICE.

Users Who Violate Terms of Use

Elemend may, at its sole discretion, disable access or partially disable access to the Service for any users who violate these Terms of Use, including, but not limited to, the accounts of (1) users who submit User Submissions that infringe copyrights, trademarks, rights of publicity, or other intellectual property rights, especially if they do so repeatedly, (2) users who provide false or inaccurate information; (3) users who breach these Terms of Use including any warranties; and (5) users who misuse or challenge Elemend’s rights in the Content.

Restrictions on Use of the Service

In Your use of the Service, You will not:

  • use the Service for any purpose other than for using the features We intentionally make available to You;
  • copy, download or distribute any part of the Service in any form or medium without the prior written authorization of Elemend;
  • alter, modify or make derivative works from any part of the Service without the prior written authorization of Elemend;
  • resell or attempt to license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, all or any part of the rights granted to you under these Terms of Use, the Service or any Content, in whole or in part;
  • modify, copy, distribute, download, scrape or transmit in any form or by any means any Content from the Service other than Your content which You legally post on, through or in connection with the Service;
  • provide false personal information;
  • use web crawlers, web robots, web scutters, ants, automatic indexers, bots, worms, and other such devices in connection with the Service; provided, however, that general purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Service are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent;
  • post, transmit or submit any confidential (including social security or alternate national identity numbers, non-public phone numbers or non-public email addresses), false, misleading, unlawful, infringing, threatening, abusive, harassing, libelous, defamatory, discriminatory, obscene, offensive, inflammatory, scandalous, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate the law;
  • upload, download, post, email or otherwise transmit any material that may infringe copyright, patent, trademark, trade secret, or other intellectual property or proprietary rights of any party;
  • use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use of the Service;
  • obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Service;
  • facilitate gambling, gaming, raffles, lotteries, sweepstakes, and/or any other activity featuring the award of a prize;
  • impersonate or misrepresent any person or entity or Your affiliation with someone else;
  • collect personally-identifiable information of other users;
  • harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications;
  • solicit other users to join, become members of, or contribute money to any online service or other organization;
  • post or transmit any worms, viruses, Trojans, or other harmful, disruptive, or destructive files, code, or programs to the Service; or
  • upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

Elemend will fully cooperate with any law enforcement authorities or court order requesting or directing Elemend to disclose the identity of anyone violating these Terms of Use.

Elemend believes in children’s online safety and does not wish to receive information regarding children under 18 years old. If You are under 18 years of age, then please do not attempt to submit any information to or use the Service.

Intellectual Property

Everything You see, hear, or otherwise experience on the Service, including but not limited to the graphics, videos, audio recordings, text, software, photographs, scripts, software screens, design elements, artwork, templates, layout designs, interactive features and the like, the concepts and ideas underlying the Service, and all statistical, analytical, and other data captured by or through the Service (collectively, “Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Elemend, subject to copyright and other intellectual property rights under United States and international laws and conventions. Elemend owns the copyright in the selection, coordination, arrangement and enhancement of the Content. Any unauthorized use of any materials on the Service or use of the Marks may violate copyright, trademark, and other laws. ELEMEND, ELEMEND HEALTH, the ELEMEND logo, MEND + DEFEND and the MEND + DEFEND logo are trademarks of Elemend.

For Your personal use, You may view, copy, and print pages from the Service. Otherwise, the Service may not be copied, downloaded, modified, reproduced, distributed, published, performed, streamed, transmitted, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Elemend reserves all rights not expressly granted in and to the Service, the Content, and the Marks. You agree not to use, copy, download, or distribute any of the Content other than as expressly permitted herein, including any use, copying, downloading, making derivative works from, or distribution of User Submissions of third parties obtained through the Service for any commercial purposes. You may not incorporate the Content into, or stream or transmit the Content via any hardware or software application or make it available via frames or in-line links unless expressly permitted by Elemend in writing. You may not create, recreate, advertise or distribute an index of a significant portion of the Content unless authorized in writing by Elemend. You may not build a business using the Content, whether or not for profit. If You copy, screenshot, download, or print pages of the Content for personal use, You must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein, nor may You scrape or use any extraction methods to obtain any Content or data from the Service.

Advertisement Release

Elemend takes no responsibility for advertisements or any third-party material posted on or transmitted through the Service (“Advertisers”). Any dealings You have with Advertisers found while using the Service are between You and the Advertiser, and You agree that Elemend is not liable for any loss or claim that You may have against an Advertiser.

YOU AGREE THAT YOU BEAR ALL RISK AND YOU AGREE TO RELEASE THE ELEMEND PARTIES FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, NOW AND IN THE FUTURE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICE AND YOUR TRANSACTIONS WITH ADVERTISERS OR OTHER THIRD PARTIES. YOU FURTHER WAIVE ANY AND ALL RIGHTS AND BENEFITS OTHERWISE CONFERRED BY ANY STATUTORY OR NON-STATUTORY LAW OF ANY JURISDICTION THAT WOULD PURPORT TO LIMIT THE SCOPE OF A RELEASE OR WAIVER. YOU WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS WHICH YOU HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA OR ANY SIMILAR PROVISION OF THE STATUTORY OR NON-STATUTORY LAW OF ANY OTHER JURISDICTION (INCLUDING WITHOUT LIMITATION THE STATES OF MISSOURI, DELAWARE AND PENNSYLVANIA) TO THE FULL EXTENT THAT YOU MAY LAWFULLY WAIVE ALL SUCH RIGHTS AND BENEFITS.

Notice and Procedure for Making Claims of Intellectual Property Infringement

If You are an intellectual property owner or an agent thereof and believe that either (1) any Content or User Submissions on the Service or (2) any material or activity contained on an online location to which Elemend has referred or linked users, infringes upon Your intellectual property rights, You may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):

  • a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works on the Service;
  • identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);
  • information reasonably sufficient to permit us to contact You, such as an address, telephone number, and, if available, an 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 the law; and
  • a statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Notification pursuant to the DMCA should be submitted to:

Global Digital Marketing Manager
Elemend™ Health LLC
10400 Viking Drive, Suite 240, Eden Prairie, MN 55344 USA
952-983-4000
DMCAAgent@ElemendHealth.com

You acknowledge that if You fail to comply with all of the requirements of this section, Your DMCA notice may not be valid. Emails or notices sent to Elemend without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.

Trademarks and Celebrity Material

Elemend responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.

Please be aware that celebrities, and sometimes others, may have a “right of publicity,” which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although You may be a fan, You risk infringing celebrity rights if You use a celebrity name or likeness on the Service and You do not have the celebrity’s permission.

If You are a trademark owner or a celebrity and You believe Your rights have been infringed on the Service, please submit a notification of infringement to our agent listed in Section 10 above.

To submit a notification, You must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.

When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office. Please also provide the location on the Service where You believe the infringement is occurring.

Warranties

You warrant and represent to Elemend as set out below:

  • The information provided to Elemend in any profile, email, postings, telephone call or through other means including all personal details, contact details, and all other data provided to Elemend is true in all respects, up-to-date and not misleading in any way.
  • You will keep the information referred to in paragraph (a) up to date.
  • You will not access the Service under false identity or pretext and will not use it to falsify Your or any other person’s identity (however, this will not prevent You from using a nickname by which You are known provided the name is used lawfully and in good faith).
  • You will use the Service lawfully and in good faith.

Disclaimers

YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE ELEMEND PARTIES GIVE NO WARRANTY AND MAKE NO REPRESENTATION IN RELATION TO THE SERVICE OR THE CONTENT. THE ELEMEND PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW AND YOU WAIVE ANY REPRESENTATION OR WARRANTY ON THE PART OF THE ELEMEND PARTIES RELATING TO THE SERVICE OR THE CONTENT, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE SERVICE, ANY SOFTWARE LICENSED OR PROVIDED TO YOU BY THE ELEMEND PARTIES AND ANY AGREEMENT WITH A THIRD PARTY, THAT MAY BE IMPLIED BY THESE TERMS OF USE, BY CUSTOM, OR BY LAW OR OTHERWISE AND WHICH IS NOT EXPRESSLY SET OUT HEREIN, INCLUDING ANY IMPLIED WARRANTIES OF AVAILABILITY OF THE SERVICE, NON-DISRUPTION, SECURITY, ACCURACY, THE USE OF REASONABLE CARE AND SKILL, QUALITY, MERCHANTABILITY, TITLE OR ENTITLEMENT, FITNESS FOR A PARTICULAR PURPOSE, ABILITY TO ACHIEVE A PARTICULAR RESULT OR FUNCTIONALITY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, THE ELEMEND PARTIES DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE SERVICE OR ON ANY WEBSITES OR APPS LINKED TO THE SERVICE IS ACCURATE, COMPLETE OR CURRENT; THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR; THAT THE QUALITY, SAFETY OR LEGALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE OR AGREEMENTS YOU ENTER WITH THIRD PARTIES OR ADVERTISERS WILL MEET YOUR EXPECTATIONS; THAT THE SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY ELEMEND; OR THAT SERVICE ERRORS WILL BE CORRECTED. THE ELEMEND PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION), RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (3) UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR INFORMATION STORED THEREIN, (4) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) BUGS, VIRUSES, TROJAN HORSES, DESTRUCTIVE COMPUTER CODES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.

Indemnity

YOU ACKNOWLEDGE THAT THE ELEMEND PARTIES HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY, OR LEGALITY OF GOODS OR SERVICES PROVIDED BY THIRD PARTIES OR ADVERTISERS, THE TRUTH OR ACCURACY OF ANY THIRD PARTIES’ OR ADVERTISERS’ CONTENT OR LISTINGS, OR THE ABILITY OF A THIRD PARTY OR ADVERTISER TO PERFORM, OR ACTUALLY COMPLETE A TRANSACTION OR SERVICE. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE ELEMEND PARTIES FROM AND AGAINST ANY CLAIM, LOSS, OBLIGATION, DEMAND, DAMAGE, COST, LIABILITY, EXPENSE, AND ATTORNEY’S FEES ARISING TO ANY OF THE ELEMEND PARTIES AS A RESULT OF ANY CLAIM, DEMAND OR PROCEEDINGS BROUGHT OR THREATENED AGAINST THE ELEMEND PARTIES IN CONNECTION WITH (1) YOUR USE OF, ACCESS TO, OR MISUSE OF THE SERVICE; (2) YOUR BREACH OF ANY OF THESE TERMS OF USE; (3) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; (4) ANY CLAIM THAT ANY OF YOUR USER SUBMISSIONS CAUSED DAMAGE TO AN INDEMNIFIED PARTY OR A THIRD PARTY; OR (5) ANY TRANSACTION YOU CONDUCT AS A RESULT OF CONTACT FACILITATED BY THE SERVICE.

IF THE ELEMEND PARTIES DO TAKE ANY LEGAL ACTION AGAINST YOU AS A RESULT OF YOUR VIOLATION OF THESE TERMS OF USE, THE ELEMEND PARTIES WILL BE ENTITLED TO RECOVER FROM YOU, AND YOU AGREE TO PAY, ALL REASONABLE ATTORNEYS’ FEES AND COSTS OF SUCH ACTION, IN ADDITION TO ANY OTHER RELIEF GRANTED TO THE ELEMEND PARTIES.

Limitations or Liability

IN NO EVENT SHALL THE ELEMEND PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM THE SERVICE OR THIRD-PARTY PRODUCTS OR SERVICES, UNDER THESE TERMS OF USE OR IN CONNECTION WITH THEIR PERFORMANCE OR BREACH, OR IN CONNECTION WITH ANY WARRANTIES HEREUNDER, OR IN CONNECTION WITH THE SERVICE, INCLUDING FOR THEIR NEGLIGENCE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS OR SAVINGS OR ANTICIPATED PROFITS OR SAVINGS, LOSS OF DATA, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, GOODWILL OR BUSINESS, EVEN IF THE ELEMEND PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

THE ELEMEND PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM: (1) ANY SUSPENSION OR DISRUPTION OF THE SERVICE, INCLUDING WHERE SUCH SUSPENSION OR DISRUPTION RESULTS FROM THE ELEMEND PARTIES’ NEGLIGENCE, (2) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (3) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (4) UNAUTHORIZED ACCESS TO OR USE OF ELEMEND’S SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (5) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, INCLUDING BY REASON OF INADEQUATE INTERNET CONNECTION TO THE DEVICE OPERATING THE SERVICE; (6) INADEQUATE OR FAULTY HARDWARE OPERATING THE SERVICE; (7) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, (8) USER SUBMISSIONS, THIRD-PARTY WEBSITES OR APPS; (9) DISCLOSURE OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF YOUR INFORMATION OR CONTENT, (10) STATEMENTS OR CONDUCT OF ANY USERS, ADVERTISERS OR OTHER THIRD PARTIES THROUGH THE SERVICE; (11) ANY BREACH OF THESE TERMS OF USE BY ELEMEND OR THE FAILURE OF ELEMEND TO PROVIDE ANY SERVICE UNDER THESE TERMS OF USE, (12) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, YOUR BUSINESS TRANSACTIONS OR OTHER INTERACTIONS WITH ANY ADVERTISERS, WHEREIN SUCH CONTENT OR ADVERTISEMENT IS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ELEMEND IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

THE ELEMEND PARTIES WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITY OR LOSS THAT YOU OR ANY OTHER PERSON MAY INCUR, OR FOR ANY OTHER UNDESIRABLE CONSEQUENCES, RESULTING FROM YOUR BREACH OF YOUR WARRANTIES OR OTHER OBLIGATIONS UNDER THESE TERMS OF USE.

THE ELEMEND PARTIES’ MAXIMUM AGGREGATE LIABILITY FOR ANY SINGLE EVENT (OR A SERIES OF RELATED EVENTS) GIVING RISE TO A CLAIM IN CONNECTION WITH THESE TERMS OF USE OR IN RELATION TO THE SERVICE, EITHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION OR NEGLIGENCE WILL BE LIMITED TO $50.00.

BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “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.”

Any claims relating to use of the Service must be bought within one (1) year from the date the cause of action arose. Claims brought after such period are VOID. The Service is controlled and offered by Elemend from its facilities in the United States of America. Those who access or use the Service do so at their own volition and are responsible for compliance with local and all other applicable laws, restrictions, and regulations.

A party will not be in breach of these Terms of Use, nor liable for any failure or delay in performance of any of its obligations under these Terms of Use where such failure or delay arises from or is attributable to acts, events, omissions or accidents beyond its reasonable control including an act of God, fire, flood, earthquake, windstorm or other natural disaster, explosion or accidental damage, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion or riots, shortage of raw materials or supplies, industrial action or strike, power outages, or electronic or communication network breakdowns (“Force Majeure Events”). In the event of a Force Majeure Event affecting the provision of the Service by Elemend, Elemend will use reasonable efforts to notify users through the Service or through its website or by email communication.

Assignment

The Terms of Use, and any rights and licenses granted hereunder, may be transferred or assigned by You only with Elemend’s prior written consent, but may be assigned by Elemend without restriction and without notice to You.

Subpoena Fees

If Elemend has to provide information in response to a subpoena related to Your use of the Service, then We may charge You for our costs. These costs may include attorney and employee time spent retrieving records, preparing documents, and participating in a deposition.

Export Control

Software and the transmission of applicable technical data, if any, in connection with the Service may be subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States and the country in which You reside.

General

These Terms of Use constitute the entire agreement between the parties (“Parties”) and supersede all other agreements, statements, and other arrangements between the Parties in relation to the subject matter hereof. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. Each party acknowledges that it has not relied on or been induced to enter these Terms of Use by a representation other than those expressly set out in these Terms of Use.

Elemend and You do not intend to confer, and these Terms of Use will not be construed as conferring, any right, remedy, obligation or liability of any kind on any person other than Elemend, You, and their successors and assigns. No modification, alteration or waiver of any of the provisions of these Terms of Use will be effective unless in writing and signed on behalf of each of the Parties. No waiver of any of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Elemend’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

You agree that the Service shall be deemed solely based in Minnesota, United States of America and the Service shall be deemed a passive Service that does not give rise to personal jurisdiction over the Elemend Parties in jurisdictions other than Minnesota. These Terms of Use are governed by United States and Minnesota law, without regard to conflict of law provisions, and the Parties submit to the exclusive jurisdiction of the courts of Hennepin County, Minnesota in relation to any dispute between them arising out of the subject matter of these Terms of Use.