Effective Date: June 7, 2021
Last Updated: May 16, 2024

 

OVERVIEW

Welcome to Echelon (“Website” or “Site”), which is owned and operated by Echelon USA Inc (“we,” “us,” or “our”). Echelon offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of the following terms and conditions, our Privacy Policies and other terms and conditions and policies which you may find throughout our Website in connection with certain functionality, features or promotions as well as customer service, all of which are deemed a part of and included within these terms and conditions (collectively, “Terms and Conditions”). These Terms and Conditions set forth the legally binding terms and conditions for your use of this Website and the related services, features, content, or any purchases you make via the Website (collectively “use”).

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service,” “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service. Please also review Echelon’s Privacy Policy (www.drinkechelon.com/policies/privacy-policy), which also governs your use of our Site and Services. Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page.

We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes. If we make material changes to how we treat the information collected from our users, we will additionally notify you through a notice on our Website home page. Users which have provided contact information will receive email notice of material changes to our Terms and Conditions. You must affirmatively manifest your consent to these Updated Terms within 7 days after receiving notice of Updated Terms as described above; if you fail to manifest your consent within this time your Account will be immediately suspended pending further communication.

The date these Terms and Conditions were last revised is identified at the top of the page. You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting our Website and these Terms and Conditions to check for any changes.

Our store is hosted on Shopify Inc. Shopify provides us with the online e-commerce platform that allows us to sell our products and services to you.

SECTION 1 - ONLINE STORE TERMS

In these Terms, “you” refers to Adult Users of the Services and purchasers of accounts. If you are a resident of the United States, an “Adult” is a person of legal age who can enter into a contract in the state in which the user resides. If you are a resident of the European Economic Area, an “Adult” is a person over the age of 16. By using the Services, you represent and warrant that you are an Adult, and that you will be responsible for ensuring that any child or student authorized by you to use and access the Services does so in accordance with these Terms. 

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

SECTION 2 - GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site. 

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.           

Additionally, this Website may enable you to order and receive products, information and services from businesses that are not owned or operated by us. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services or information, opinion or advice ordered or received from such businesses are solely between you and such businesses. We do not endorse, warrant, or guarantee such products, information, or services, and are not liable for the accuracy, completeness, or usefulness of such information or the quality of availability of such products or services. We will not be a party to or in any way responsible for monitoring any transaction between you and third-party providers of such products, services, or information, or for ensuring the confidentiality of your transactions.

SECTION 5 - PRODUCTS OR SERVICES

Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy (www.drinkechelon.com/pages/faq).

We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

We may require you to register with Echelon in order to use certain Site features or Services, such as to purchase products. When you register, we may decline to grant you, and you may not use, a username or email address that another person or entity already owns or uses, that might be construed as impersonating another person, that might violate another's intellectual property or other rights, that we may deem offensive or objectionable, or that we reject for any other reason in our sole discretion.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

You are responsible for maintaining the confidentiality of your account details (including Your password and account data that you may use to access the Website) and restricting access to your computer, and you agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You agree to accept full responsibility for all activities that occur under and/or within your account or password. You agree to immediately notify Echelon of any unauthorized use of your password or user name or any other breach of your account's security, and to ensure that you "log off" and exit from your account at the end of each Website visit. Echelon will not be liable for any loss or damage that you or anyone else may incur from another's use of your account, or arising from your failure to comply with any of the foregoing obligations. We reserve the right to refuse service and/or terminate accounts without prior notice if these Terms are violated or if we decide, in our sole discretion, that it would be in the best interest of Echelon or its community to do so.

SECTION 7 - OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 8 - LINKING TO AND FROM OUR SERVICES

Certain content, products and services available via our Service may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

If you choose to link to our Services, you must adhere to the following requirements: (i) the link to the Services must not damage, disparage, present false information about or tarnish the goodwill associated with any of our Trademarks, products, services and/or intellectual property; (ii) the link to the Services must not create the false appearance that your websites and/or organization is sponsored by, endorsed by, affiliated with, or associated with us; (iii) with the sole exception of authorized Library Accounts, no one may “frame” the Services or create a browser environment around any of the Content; and (iv) you may not link to the Services from a website that is unlawful, abusive, indecent, or obscene; that promotes violence or illegal acts; that contains expressions of racism; that is libelous, defamatory, scandalous, or inflammatory; or that we otherwise deem inappropriate in our sole discretion. We reserve the right to prohibit linking to the Services for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.

SECTION 9 -  SITE CONTENT

Echelon owns and/or controls the rights to all of the Website’s content. Content means all images, text, graphics, user interfaces, designs, photographs, trademarks, logos, sounds, music, artwork, computer code including the design, "look and feel," trade dress, structure, selection, coordination, and arrangement thereof, including, without limitation, (i) materials and other items relating to us and our products and services, (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including ours (collectively, “Trademarks”); and (iii) other forms of intellectual property. all of which is protected by trademark, copyright and related laws.

Subject to your strict compliance with these Terms and Additional Terms, Echelon grants you a limited license to access and use the Website for your own personal and non-commercial use. You may access, view, download, and print Content for your personal, non-commercial use only, provided that you do not modify or make commercial use of Content, and retain all copyright, trademark, or other proprietary designations contained in Content. The License does not give you any ownership of, or any other intellectual property interest in, any Content or the Services, and you cannot otherwise use the Content or the Services without our express prior written permission. All rights not expressly granted to you are reserved by us and/or our licensors. Except as these Terms expressly provide, you may not copy, reproduce, upload, republish, encode, transmit or distribute any part of the Site or Content in any way or form to any other computer, server, web site or other medium for publication or distribution or for any commercial purpose without Echelon's express prior written consent.

SECTION 10 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

Under certain circumstances, we might ask Adult Users for feedback or ideas as to their experiences with our Services. If you choose to provide us with feedback, you acknowledge and agree (i) that you have no expectation of review, compensation, or consideration of any type for any such feedback or ideas, and (ii) we will be free to use and exploit such feedback or ideas in our discretion and without compensation or obligation to you.

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may allow the posting, submission, or distribution of content created by users (“User-Generated Content”) on or through the Services. All rights to User-Generated Content, including all intellectual property rights, shall remain the exclusive property of the user. By posting, submitting, or distributing User-Generated Content on or through the Services, you grant us a limited, non-exclusive license to use, copy, distribute, display, transmit, and publish such User-Generated Content for the purposes specified in these Terms, and any Additional Terms, in all formats, on or through any medium now known or hereafter developed, and with any technology or devices now known or hereafter devised. You consent to our publication of User-Generated Content generated through your account. For example, we may display User-Generated Content submitted in response to prompted questions from the Services or publish any testimonials you send to us along with your name and other information you submit.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party. 

Echelon’s Website, products, and services are all directed to people who are at least 18 years or older. As specified, we do not collect information from any resident of the US under the age of 13 or any resident of the European Economic Area under the age of 16, and if we discover we have collected any such information it will be immediately deleted. If you are California resident under the age of 18, you have the right to request deletion of content that you post on our website. Please contact us at HQ@drinkechelon.com to request deletion of your posted content. Note that we cannot guarantee your content will be completely removed, for example if a third party has reposted your content, and that we are not obligated to remove anonymized content.

SECTION 11 - PERSONAL INFORMATION

Your submission of personal information through the store is governed by our Privacy Policy. Please see our Privacy Policy for further information, available at https://www.drinkechelon.com/policies/privacy-policy.

SECTION 12 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 13 - PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 14 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.

We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.

You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.

You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall Echelon, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 15 - INDEMNIFICATION

You agree to indemnify, defend and hold harmless Echelon and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party. 

SECTION 16 - SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 17 - TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 18 - GOVERNING LAW

These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law principles.

SECTION 19 – DISPUTE RESOLUTION

If any controversy, allegation, or claim arises out of or relates to the Services or these Terms (collectively, “Dispute”), you and we agree to the following resolution process with respect to the Dispute. To most efficiently resolve any Dispute, you and we agree to first discuss the Dispute informally for at least thirty (30) days. To do so, the party who wants to raise the Dispute must first send to the other party a notice that must include (1) a description of the Dispute and (2) a proposed resolution (together, the “Dispute Notice”). If you want to raise a Dispute, you must send your Dispute Notice by certified mail to us at: 

Conkle, Kremer & Engel

Attn: Mark Riedel

3130 Wilshire Boulevard

Suite 500

Santa Monica, California 90403

If we would like to subsequently discuss your Dispute Notice with you, we will contact you by using contact information included with your Dispute Notice. If we want to raise a Dispute, we will send our Dispute Notice to you at the email address we have on file for you. If we do not have a valid email address on file for you, we will send our Dispute Notice to you through a means that complies with the service of process rules in the state of New York. You and Echelon must wait a minimum of thirty (30) days of receipt of the Dispute Notice before taking any additional legal action. 

You and Echelon agree that any Dispute shall be governed by and resolved in the New York County Supreme Court in accordance with the laws of the State of New York. In the event of a Dispute, the Parties agree that the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.

You and Echelon agree that any Disputes will be litigated only on an individual basis and will not be consolidated with any other proceedings that involve any claim or controversy of any other party.

SECTION 20 - CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time at this page.

We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes. If you are a registered user or otherwise provide Echelon with contact information, you will receive email notice of material changes to our Terms and Conditions.

SECTION 21 – INFRINGEMENT POLICY AND REPORTING PROCEDURE

Echelon respects others’ intellectual property rights. If you are a copyright owner or an agent thereof and believe that any User Content or other content on our Website infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”). Our designated agent to receive notices of copyright infringement is Mark Riedel at Conkle, Kremer & Engel, PLC, who may be reached by email at m.riedel@conklelaw.com, or by postal mail at 3130 Wilshire Boulevard, Suite 500, Santa Monica, California 90403.

If you believe that your material has been posted on, or distributed via, the Services in a way that constitutes copyright infringement, please provide the following information to Mark Riedel as required by the DMCA:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “complaining party”);
• Identification of the copyright work(s) claimed to have been infringed;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material;
• Information reasonably sufficient to permit us to contact the complaining party;
• A statement that the complaining party (name, address, telephone number, and email address) has 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;
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receipt of a notice complying with the DMCA, we will act expeditiously to remove or disable access to any material claimed to be infringing. We will take reasonable steps promptly to notify the user that we have removed or disabled access to such material.

SECTION 22: SMS/MMS MOBILE MESSAGE MARKETING PROGRAM 

Arjolo, Inc. (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

1. User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
2. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that ECHELON and its service providers will have no liability for failing to honor such requests.  You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of health and wellness goods. Messages may include checkout reminders.
4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at hq@drinkechelon.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
7. Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and

- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in New York, New York before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Arjolo Inc's principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. 

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.  

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents.  For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code.  You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us.  Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

SECTION 23 - ENTIRE AGREEMENT

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 24 - CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at HQ@drinkechelon.com.

 

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SUBSCRIPTION AGREEMENT

This Subscription Agreement (this “Agreement”) is between Echelon USA, Inc., a Delaware corporation with its principal place of business at [ADDRESS] (the “Company,” “we,” “us,” “our”), and the individual who purchases the subscription (“you,” “your,” or “Subscriber”). 

By clicking “Subscribe”, you agree and accept the terms of this Agreement, including the automatic renewal terms in Section 5, and you authorize recurring charges to your payment method unless and until you cancel in accordance with Section 9. 

PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION, WHICH WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS IN THE EVENT OF A DISPUTE, INCLUDING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION, UNLESS YOU OPT OUT PROPERLY IN ACCORDANCE WITH THE TERMS HEREOF.

1. Services. The Company agrees to provide you with the products and services as described at checkout, including any associated physical goods, digital access, or benefits listed for your chosen subscription (the “Subscription”). 

2. Eligibility. You must be at least 18 years of age (or the age of majority in your jurisdiction) and reside in the United States. The products and services provided are for personal, non-commercial use. 

3. Pricing; Taxes; Shipping. The price for your Subscription (the “Subscription Fee”) is [PRICE] and is clearly disclosed at checkout. Unless otherwise stated, prices are per month and in U.S. dollars. Applicable taxes, fees, and shipping and handling charges (if any) will be disclosed prior to purchase and charged in addition to the Subscription Fee. Promotional pricing or codes apply only as stated and may be subject to additional terms presented at the time of offer. 

4. Automatic Renewal. 

1. 90-Day Bundle Subscription. AFTER YOUR INITIAL PURCHASE, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW EACH MONTH UNLESS YOU CANCEL AS PROVIDED IN SECTION 9. By purchasing, you authorize the Company, or its third party payment processor, to charge your payment method on a recurring monthly basis until you cancel. IF YOUR CHOSEN SUBSCRIPTION IS THE “90-DAY BUNDLE SUBSCRIPTION”, YOUR SUBSCRIPTION HAS A MINIMUM TERM OF NINETY (90) DAYS (THE “MINIMUM COMMITMENT”), BEGINNING ON THE START DATE SHOWN IN YOUR ORDER CONFIRMATION. YOU MAY SUBMIT A CANCELLATION REQUEST AT ANY TIME; HOWEVER, CANCELLATION DURING THE MINIMUM COMMITMENT WILL NOT BE EFFECTIVE UNTIL THE END OF THE MINIMUM COMMITMENT TERM (SEE SECTION 9). UNLESS YOU CANCEL BEFORE THE MINIMUM COMMITMENT END DATE, THE SUBSCRIPTION CONVERTS TO THE MONTHLY SUBSCRIPTION ON THE FIRST DAY AFTER THE MINIMUM COMMITMENT END DATE.

2. Monthly Subscription. AFTER YOUR INITIAL PURCHASE, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW EACH MONTH UNLESS YOU CANCEL AS PROVIDED IN SECTION 9. By purchasing, you authorize the Company, or its third party payment processor, to charge your payment method on a recurring monthly basis until you cancel. If your chosen Subscription is the “Monthly Subscription”, your Subscription does not have a minimum term. YOU MAY SUBMIT A CANCELLATION REQUEST AT ANY TIME. 

5. Billing. The billing for the Subscription recurs on the calendar day of your initial purchase (or the last day of a month if the initial purchase occurred on a day not present in a later month).

6. Free Trials or Intro Offers (If Offered). If we offer a free trial or introductory offer (“Trial”), the Trial length and the amount to be charged after the Trial ends will be clearly and conspicuously disclosed at sign-up. Unless you cancel before the trial ends, the subscription converts to the Monthly Subscription on the first day after the Trial. For any trial lasting more than seven (7) days, we will send you a reminder notice 3-7 days before the Trial ends. 

7. Confirmation of Subscription. Immediately after sign-up, we will send you a written confirmation email that includes (a) the automatic renewal terms; (b) the monthly price and billing date; (c) the Minimum Commitment end date, if applicable; (d) how to cancel the Subscription; and (e) a direct link or button to cancel online. 

8. Payment Authorization. You authorize us, and our third party payment processor, to store your payment method and charge it monthly for the Subscription Fee and appliable taxes and fees until you cancel. If a charge is declined, we may retry, seek an alternative payment method, or suspend or terminate the Subscription. You remain responsible for unpaid amounts accrued prior to cancellation.

9. Cancellation. IF YOU SIGNED UP OR SUBSCRIBED ONLINE, YOU MAY CANCEL ONLINE IMMEDIATELY AT ANY TIME VIA: [METHOD OF CANCELLATION ONLINE]. YOU MAY ALSO CANCEL BY EMAILING hq@drinkechelon.com, CALLING [TOLL-FREE NUMBER], OR MAILING THE CANCELLATION TO [MAILING ADDRESS]. YOUR CANCELLATION WILL TAKE EFFECT AT THE END OF YOUR CURRENT BILLING MONTH, UNLESS YOUR SUBSCRIPTION IS THE 90-DAY BUNDLE SUBSCRIPTION, IN WHICH CASE IT WILL TAKE EFFECT AT THE END OF THE MINIMUM COMMITMENT. We will confirm cancellation by email with the effective date. 

10. Notices and Reminders. 

1. Minimum Commitment Reminders. We will send a reminder thirty (30) days before the end of the Minimum Commitment and another 3-7 days before it ends, with a direct link to cancel. 

2. Material Changes and Price Increases. We will provide advance written notice at least thirty (30) days prior to any material change or any price increase takes effect, stating the new price and terms and how to cancel. Certain jurisdictions require your affirmative consent to price increases; where required, we will obtain it before charging the new amount. 

11. Changes to Subscription; Discontinuation. We may modify the products and services provided with the Subscription to improve the products or services or to add additional offerings or features. If a change materially reduces the products and services offered with the Subscription for the remainder of a billing period you have paid for, we will provide a pro-rata credit or option to cancel with a refund, as required by appliable law. 

12. Shipping; Risk of Loss (Physical Goods). Title and risk of loss pass upon delivery by the carrier. Delivery dates are estimates. Provide a safe delivery location as we are not responsible for theft after delivery confirmation.

13. Prohibited Uses. You may not resell or commercially exploit the products or services offered with the Subscription or attempt to circumvent quantity limits or interfere with our systems or other users. 

14. Privacy. Our Privacy Notice explains how we collect and use your personal information. By subscribing, you consent to our data practices as described in the Privacy Notice.

15. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, ALL PRODUCTS AND SERVICES PROVIDED WITH THE SUBSCRIPTION ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

16. Limitation of Liability. To the extent permitted by law, our total liability arising out of or relating to this Agreement or the Subscription will not exceed the Subscription Fees paid to use during the three (3) months before the event giving rise to the claim. We are not liable for consequential, incidental, special, punitive, or exemplary damages. 

17. Dispute Resolution; Mandatory Arbitration. Please review this provision carefully. This provision provides that any dispute arising out of this Agreement may be resolved by binding arbitration instead of a trial in court or a class action. Unless you opt out in the manner described below, this provision will eliminate your right to go to court (except for a small claims court having jurisdiction), the right to bring class or collective actions, and the right to have a jury decide a dispute. 

1. To the extent permitted by applicable law and except as otherwise expressly provided by this Section, each party to this Agreement (including any our affiliates, successors, assigns, and any of the entities’ employees, officers, directors, third-party service providers and agents, and their successors, assigns and affiliates, and with us, the “Arbitration Parties”) elects to resolve any past, present, or future dispute or claim arising from or relating in any way to this Agreement or the relationships that result from any of the Agreement that cannot be resolved directly between you and an Arbitration Party by binding arbitration under the Consumer Arbitration Rules (the “Consumer Rules") of the American Arbitration Association ("AAA"), rather than in court. Except as otherwise expressly provided in this Section, this Mandatory Arbitration broadly covers any claims based in contract, statute, tort, fraud, consumer rights, misrepresentation, equity or any other legal theory; initial claims, counterclaims, cross-claims and third-party claims; federal, state and local claims, and claims which arose before the date of this Agreement. THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS MANDATORY ARBITRATION PROVISION, EXCEPT THROUGH SMALL CLAIMS COURT PURSUANT TO THE CONSUMER RULES. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.

2. CLASS ACTION WAIVER: The Arbitration Parties and you each agree that any arbitration will be conducted only on an individual basis and not as a class, consolidated or representative action. To the fullest extent permitted by law: (i) no arbitration will be joined or consolidated with any other; (ii) there is no right or authority for any dispute to be arbitrated on a class-action or private attorney general basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. No arbitrator shall have the authority to issue any relief that applies to any person or entity other than Arbitration Parties and/or you individually.

3. The Federal Arbitration Act ("FAA") and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited, but an arbitrator can award an individual the same damages and relief as a court in an individual case and must apply and follow the terms of this Agreement as a court would. The arbitrator shall apply applicable statutes of limitations and honor privilege rules. Any judgment on the award rendered by the arbitrator will be final and may be entered in any court of competent jurisdiction.

4. Either an Arbitration Party or you can initiate arbitration through AAA, an alternative dispute resolution provider, or by filing a motion to compel arbitration of claims filed in court. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim (i.e., the party seeking money damages or other relief from a court or an arbitrator) is responsible for starting the arbitration proceeding. If AAA cannot serve, a court with jurisdiction shall select the arbitrator, who will apply the AAA rules and procedures specified in this Section. Any arbitration will be governed by the then-current Consumer Rules, and its Procedures for the Resolution of Disputes through Document Submission ("Document Submission Procedures"). The Consumer Rules are available at the AAA website: www.adr.org. The Document Submission Procedures are included in the Consumer Rules. Any arbitration filing fees will be governed by the Consumer Rules. If it is determined by the arbitrator that you cannot afford such fees, an Arbitration Party will pay all arbitration fees and expenses. The arbitration will be conducted solely based on written submissions. The arbitration will not require any personal appearance by the parties or witnesses unless the arbitrator determines that a telephonic or in-person conference or hearing is necessary based on the request of one or more of the parties. Disputes or controversies about the validity, enforceability, coverage or scope of this Section or any part thereof are for a court and not an arbitrator to decide; however, disputes or controversies about the Agreement as a whole are for an arbitrator and not a court to decide.

5. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Even if all parties have opted to litigate a claim in court, a party may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Section. Pursuant to the Consumer Rules, any party may proceed with their individual claims in small claims court if that option is available in the applicable jurisdiction and the amount in controversy falls within the small claims court's jurisdictional limits; but if that action is transferred, removed or appealed to a different court, arbitration can be elected.

6. If any portion of this Section is inconsistent with the Consumer Rules or other provisions of this Agreement, this Section shall govern. No portion of this Section may be amended absent a written agreement signed by all parties. If any portion of this Section is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this Section, except that: (i) If the Class Action Waiver is limited, voided or found unenforceable, then this Section (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated; and (ii) If a claim is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or elsewhere in this Section prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have a preclusive effect in an arbitration between the parties to this Section.

7. RIGHT TO OPT OUT: If you do not want this Mandatory Arbitration Section to apply, you must send a signed notice within 30 calendar days after you sign the Agreement. You must send the notice in writing to [ADDRESS], Attention: Arbitration Opt Out or by email to hq@drinkechelon.com. You must provide your name, address, and subscription or number and state that you "opt out" of the Mandatory Arbitration Section. No other methods can be used to opt out of this Mandatory Arbitration Provision. If the notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the notice on your behalf. Opting out will not affect the other provisions of this Agreement. If you opt out, it will apply only to this Agreement.

18. Governing Law. Unless otherwise prohibited by appliable law, this Agreement is governed by the laws of the State of Delaware, without regard to conflict of laws principles. If any provision is unenforceable, the remaining provisions remain in effect. 

19. Communications; Electronic Signature Acknowledgement. By subscribing, you consent to receive all notices electronically. You agree that (a) you viewed and read this entire Agreement before signing it, (b) you signed this Agreement with one or more electronic signatures, (c) you intend to enter into this Agreement and your electronic signature has the same effect as your written ink signature, (d) you received a copy of this Agreement after it was signed, and (e) the authoritative copy of this Agreement shall reside in a document management system held by us in the ordinary course of business.  

20. Contact Us. If you have questions or wish to cancel the Subscription, you may contact us by emailing hq@drinkechelon.com, calling [TOLL-FREE NUMBER], or mailing to [MAILING ADDRESS].

By the signatures of their duly authorized representatives below, Echelon USA, Inc. and Subscriber, intending to be legally bound, agree to all the provisions of this Agreement.