ELEMENT ELECTRONICS TERMS OF SERVICE
Terms of Service
Please read this Agreement carefully. If you do not agree with these Terms of Service, do not use such Product or Service and return the applicable Product in accordance with the Element Return Policy included on our Website for Products sold on our Website or the policies of the Element seller where you purchased the Product.
Other Policies and Agreements
Your purchase and use of Products on our Website or otherwise is subject to any terms or policies posted on this Website from time to time including, without limitation, the Element Limited Warranty available here, and the Element Shipping and Return Policy for Direct Sales available here. Your use of certain apps and other software provided by third parties on the Products may be subject to third party terms and conditions made available on such apps or software services.
Third Party Apps and Services
Element Smart TVs provide access to various third party apps and services such as Netflix, Samba, Sling, Newsie, and Roku (the “Third Party Services”). You must have high-speed internet access to use the Third Party Services. You are responsible for obtaining such access through your internet service provider and paying for all applicable internet service fees. You are also responsible for any equipment that is needed to connect your Smart TV to the internet. Individual Services and Third Party Services may have different internet connection speed or bandwidth requirements. Your Smart TV and Third Party Service experience is subject to these requirements. Element may update or replace Services and Third Party Services from time to time in its sole discretion. Updates may be required to use certain features. Failure to accept updates may affect your Smart TV, Service, and Third Party Service experience. Element is not responsible for examining or evaluating the content or accuracy of the Third Party Services or of any included or linked third party materials. Element does not endorse any of the Third Party Services or third party materials. Element does not assume any responsibility for and will not have any liability for the Third Party Services or any third party materials. You acknowledge that by using any of the Third Party Services, you may encounter content that may be deemed offensive, indecent, inappropriate, or objectionable, and such content may or may not be initially identified as being explicit. Element shall have no liability to you for content that may be found to be offensive, indecent, inappropriate or objectionable.
Updates to Services and Third Party Services. Element may update the Services, Products, Element
Software (as defined below), or Third Party Services from time to time to enhance your experience with Element Smart TVs. Agreements for Services, Element Software, and Third Party Services are subject to change. Make sure to review any updated agreements and policies for the Services, Products, Element Software, and Third Party Services frequently.
Changes to Services and Third Party Services. Element or the third parties providing the Third Party Services may at any time (a) delete content from an application, (b) prevent access to the Services or Third Party Services, or (c) change content categories, products, or service offerings for any reason at any time, without notice. Element may also, without notice, establish additional or different limits on use or access to certain Services. You agree that Element will have no liability for such changes. Element or the providers of Third Party Services may require additional fees for the use or content of such services. Element makes no representations or warranties as to the accuracy, availability or completeness of any information or content from Element as to the Services or from the third party providers of the Third Party Services as to the Third Party Services, respectively. You acknowledge that Element does not review, control or endorse any content, products or services provided as part of the Third Party Services.
Applicable Law/Export Control
You may not use or otherwise export or re-export the Element Software or Products except as authorized by United States law and the laws of the jurisdiction in which the Element Software or Products were obtained. You will comply with all applicable law when using the Element Software and Products.
Products are covered by the Element Limited Warranty which is included with each Product and also available on our Website. Except as provided in the Element Limited Warranty, Element and its subsidiaries, affiliates, providers, and licensors provide the Products, Services, Third Party Software, and Element Software “as is” and “as available” without warranty. Element does not warrant that the Products, Services, Third Party Software, or Element Software will be error free. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ELEMENT AND ELEMENTS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS, SERVICES, ELEMENT SOFTWARE, AND THIRD PARTY SOFTWARE INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ELEMENT AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PRODUCTS, SERVICES, THIRD PARTY SERVICES, THIRD PARTY SOFTWARE, OR ELEMENT SOFTWARE; (ii) THE COST OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PRODUCTS, SERVICES, THIRD PARTY SERVICES, THIRD PARTY SOFTWARE, OR ELEMENT SOFTWARE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES OR (v) ANY OTHER MATTER RELATING TO THE PRODUCTS, SERVICES, OR ELEMENT SOFTWARE. IN NO EVENT WILL THE MAXIMUM LIABILITY TO YOU OF ELEMENT, ITS AFFILIATES AND SUBSIDIARIES EXCEED THE AMOUNT YOU PAID TO US FOR THE SUBJECT PRODUCTS OR $100, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY APPLIES EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. THIS PROVISION WILL NOT AFFECT YOUR RIGHTS UNDER THE APPLICABLE ELEMENT LIMITED WARRANTY.
You agree that: (1) Any claim, dispute, or controversy (whether in contract, tort, or otherwise) arising out of, relating to, or connected in any way with the Products, Services, or Element Software will be resolved exclusively by final and binding arbitration conducted pursuant to the American Arbitration Association (“AAA”) Procedures for Consumer-Related Disputes in conjunction with the AAA Commercial Arbitration Rules (if and as applicable depending on the amount in controversy); (2) This arbitration agreement is made pursuant to a transaction governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) The arbitration will be held at the AAA regional office nearest you; (4) The arbitrator‘s decision will be controlled by the terms and conditions of this Agreement; (5) The arbitrator will apply South Carolina law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law; (6) There will be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your individual claims and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) The arbitrator will not have the power to award punitive damages against any party; (8) In the event that the administrative fees and deposits you are required to pay under the AAA rules exceed $125, and you are unable to pay the additional fees and deposits, Element retains the right to forward them to the AAA on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Element retains the right to pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (9) If any part of this arbitration provision is deemed to be invalid or otherwise unenforceable or illegal, the balance of this arbitration provision will remain in full force and effect and will be construed in accordance with its terms as if the invalid or illegal provision were not contained herein.
ANY DISPUTE, WHETHER IN ARBITRATION, IN COURT, OR OTHERWISE, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. ELEMENT AND YOU AGREE THAT NO PARTY WILL HAVE THE RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED AS A CLASS ACTION, A PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING.
You understand that, in the absence of this provision, you would have had a right to litigate disputes through a court, including the right to litigate claims on a class-wide or class action basis, and that you have expressly and knowingly waived those rights and agreed to resolve any disputes through binding arbitration in accordance with the provisions of this paragraph. This binding arbitration provision and class action waiver does not apply outside of the United States.
If you do not desire to be bound by this dispute resolution and class action waiver: (1) you must notify Element in writing within 60 days of the date that you purchased the Product; (2) your written notification must be mailed to Element at the address on our Website; and (3) your written notification must include (a) your name, (b) your address, (c) the date you purchased the Product, and (d) a clear statement that you wish to opt out of the binding arbitration agreement and class action waiver.
In addition, you may pursue a claim in small claims court in your county of residence (if in the United States) or in Richland County, South Carolina. In such case the provisions of this dispute resolution section will not apply.
This Agreement and the resolution of any dispute related to this Agreement or the Products, Services, Third Party Services, Third Party Software, or Element Software will be governed by and construed in accordance with the laws of South Carolina, without giving effect to any principles of conflicts of law. Failure by Element to insist upon strict enforcement of any provision of this Agreement will not be construed as a waiver of any provision or right. Subject to the above arbitration provision and class action waiver, any legal action or proceeding between Element and you related to this Agreement will be brought exclusively in a federal or state court of competent jurisdiction sitting in the State of South Carolina, County of Richland. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this Website or this Agreement, the Products, Services, Third Party Services, Third Party Software, or Element Software must be filed within one (1) year after such claim or cause of action arose or be forever barred. If any of these terms will be deemed invalid, void, or for any reason unenforceable, that term will be deemed severable and will not affect the validity and enforceability of any remaining term. You may have greater rights than those provided in this Agreement, or some provisions may be prohibited, by virtue of state or federal consumer protection laws. In such a case, to such extent, the subject provisions shall not apply to you.
The Element logo and other logos, product and service names are trademarks and service marks owned by or licensed to Element or its affiliates (the “Marks”). Without the prior written permission of Element, or its appropriate affiliates, you agree not to display or use in any manner, the Marks.
All other trademarks are the property of their respective owners.