Terms and Condition | Elmhurst Milk
By clicking "sign in", "create account" or "submit order" and entering or otherwise using our website or mobile application (the "Site"), you agree to and accept these terms and conditions ("Terms of Service"). Certain products and services on the Site may have additional terms that apply. If these Terms of Service are inconsistent with terms applicable to a certain product or service, those other terms will control. Recurring orders can be cancelled anytime and cannot last more than a maximum of one (1) year after initial purchase date.
THESE TERMS OF SERVICE, AS WELL AS ANY OTHER PRODUCT AND SERVICE SPECIFIC TERMS ON THE SITE, CONSTITUTE YOUR SERVICE AGREEMENT ("AGREEMENT") WITH ELMHURST MILKED DIRECT, LLC. ("ELMHURST"). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND YOUR PURCHASE OR USE OF ANY PRODUCTS OR SERVICES OFFERED ON THE SITE. BY ACCESSING AND/OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO ABIDE BY ALL OF THE TERMS OF SERVICE SET FORTH HEREIN. YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THIS AGREEMENT UNLESS YOU ARE AT LEAST 18 YEARS OLD.
When you use the Site, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on the Site, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
In order to use certain features of the Site (e.g., purchasing products and services (referred to collectively as "Products" herein) from the Site), you must register for an account with Elmhurst ("Elmhurst Account") and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Site does not violate any applicable law or regulation or the terms of this Agreement.
You are responsible for maintaining the confidentiality of your Elmhurst Account login information. You are fully responsible for all activities that are associated with your Elmhurst Account (including but not limited to any purchases, use of the Site, or correspondence from your account to Elmhurst). You agree to immediately notify Elmhurst of any unauthorized use or suspected unauthorized use of your Elmhurst Account or any other breach of security. When you provide Elmhurst with such notice, Elmhurst will suspend or otherwise secure your Elmhurst Account to prevent future unauthorized activity.
The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. Elmhurst reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Verification of information may be required prior to the acceptance of an order. Prices and availability of products on the Site are subject to change without notice. Errors will be corrected when discovered and Elmhurst reserves the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted). Certain orders constitute improper use of the Site. Elmhurst reserves the right, at its sole discretion, to refuse or cancel any order for any reason. Your Elmhurst Account may also be restricted or terminated for any reason, at Elmhurst's sole discretion.
Risk of Loss
All items purchased from Elmhurst are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
Elmhurst attempts to be as accurate as possible. However, Elmhurst does not warrant that product descriptions or other content on the Site is accurate, complete, reliable, current or error-free. If a product offered by Elmhurst is not as described, your sole remedy is to return the product.
"List Price" means the suggested retail price of a product as provided by a manufacturer, supplier or other retailers. Certain products may have a "Was Price" displayed, which is determined using recent price history of the product on shop.Elmhurst1925.com[BM2] .
Elmhurst cannot confirm the price of an item until your submit an order. If you use Autoship and save, as explained below, the price of an item will set at the time the order is processed. See our Monthly Nutmilk Delivery page for more information. [BM3] Despite our best efforts, a small number of the items on the site [BM4] may be mispriced. If the correct price of an items is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel our order and notify you of such cancellation.
Autoship & Save
Permissible Uses of Site
Subject to the terms of this Agreement, Elmhurst grants you a limited, non-transferable, non-exclusive, license to access and make personal use of the Site. This license does not include any resale or commercial use of the Site features or content, or the right to access or use the Site for any of the restricted purposes set forth below. Elmhurst may terminate this license at any time for any reason.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not use the Site to place an order on behalf of yourself or a third party for resale to that third party; (b) you shall not license, sublicense, reproduce, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, it's products or its content without the express written consent of Elmhurst; (c) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (d) you shall not access the Site in order to build a similar or competitive service, or to download, copy or collect content or account information for the benefit of another merchant; (e) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without Elmhurst’s express written consent; and (f) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information or content (including images and text descriptions) of the Site without Elmhurst's express written consent.
Elmhurst reserves the right, at any time, to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that Elmhurst will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or any part thereof.
Intellectual Property Rights
The Site contains valuable trademarks and service marks owned and used by Elmhurst and it's affiliates, including but not limited to, Elmhurst, the Elmhurst design logo, etc. (collectively, the “Marks”). Any use of the Marks without the prior written permission of Elmhurst is strictly prohibited. The arrangement and layout of the Site, including but not limited to, the images, text, graphics, buttons, screenshots, and other content or material (collectively, the "Site Content"), are the sole and exclusive property of Elmhurst and it's affiliates.
UNAUTHORIZED COPYING, REPRODUCTION, MODIFYING, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, MAKING DERIVATIVE WORKS OF OR DUPLICATING ALL OR ANY PART OF THE SITE IS PROHIBITED.
"User Content" of the Site user means any and all information and content that such user submits to Elmhurst by any means, including through social media (e.g., Facebook, YouTube, Instagram, Pinterest, Twitter), or uses with the Site (e.g., a user profile, product review, question & answer). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby affirm, represent, and warrant that (a) you own, or have the necessary licenses, rights, and/or consents to use your User Content with the Site as described herein and (b) your User Content does not violate the Acceptable Use Policy below. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Elmhurst. Because you alone are responsible for your User Content (and not Elmhurst), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Elmhurst is not obligated to backup any User Content, makes no representation that it will do so, and you agree that Elmhurst may delete User Content at any time.
Acceptable Use Policy
You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content: (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, abusive, invasive of another's privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
In addition, you agree not to commercially exploit the Site or use it to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Site, other computer systems or networks connected to or used together with the Site, through password mining or other means; or (f) harass or interfere with another user's use and enjoyment of the Site.
We reserve the right (but have no obligation under this Agreement) to review any User Content, investigate, and/or take appropriate action against you, in our sole discretion, if you violate the Acceptable Use Policy or any other provision of this Agreement, including removing or modifying your User Content, terminating your Elmhurst Account, and/or reporting you to law enforcement authorities. We may also remove or modify your User Content if it, in our sole judgment, violates the rights of, harms, or threatens the safety of any other person, or creates liability for us or any other person. In order to cooperate with legitimate governmental requests, subpoenas or court orders, or to protect our business and members, we may access and disclose any information we consider necessary or appropriate, including your Elmhurst Account username and password, IP address and traffic information, usage history, and your User Content.
Third Party Sites and Other Users
The Site may contain links to, or advertisements for, third party web sites (collectively, "Third Party Sites") (for example, social media sites such as Facebook, YouTube, Twitter, or Pinterest). Such Third Party Sites are not under the control of Elmhurst and Elmhurst is not responsible for any Third Party Sites. Elmhurst provides links to these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You agree that you use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable service provider's terms and policies, including privacy and data gathering practices govern. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any Third Party Site.
Each user of the Site is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other users of the Site are solely between you and such user. You agree that Elmhurst will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Site, we are under no obligation to become involved.
In consideration for Elmhurst granting you the right to use the site you hereby release us and forever discharge, Elmhurst officers, employees, agents, affiliates, subsidiaries, parents, joint ventures, successors and any other companies under common control with us from claims, suits, debts, dues, sums of money, accounts, liens, contracts, controversies, demands demands any and all losses, damages, rights, claims, and actions of any kind whatsoever, in law or equity, including without limitation personal injuries, death, and property damage, that are either directly or indirectly related to or arise out of any interactions with or conduct of other users of the Site or Third Party Sites.
Disclaimer of Warranties
Elmhurst intends for the information and data contained in the Site to be accurate and reliable but since the information and data have been compiled from a variety of sources, they are provided “AS IS” and "AS AVAILABLE". You expressly agree that your use of the Site and any information contained therein is at your sole risk. Accordingly, to the extent permitted by applicable law, ELMHURST EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Some jurisdictions do not allow the disclaimer of warranties so such disclaimers may not apply to you.
Limitation on Liability
IN NO EVENT SHALL ELMHURST, OUR OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUBSIDIARIES, PARENTS, JOINT VENTURES, SUCCESSORS AND ANY OTHER COMPANIES UNDER COMMON CONTROL WITH US BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR IN ANY WAY RELATED TO YOUR RELATIONSHIP WITH ELMHURST, YOUR USE OF THESITE, PRODUCTS, OR THIRD PARTY SITES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, PRODUCTS AND THIRD PARTY SITES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR IN ANY WAY RELATED TO YOUR RELATIONSHIP WITH ELMHURST OR THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID ELMHURST IN THE PRIOR TWELVE (12) MONTHS. WE AGREE THAT ANY CLAIM BETWEEN US MUST BE BROUGHT WITHIN TWO (2) YEARS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You agree to indemnify and hold Elmhurst, our officers, employees, agents, affiliates, subsidiaries, parents, joint ventures, successors and any other companies under common control with us harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Products, (b) your User Content, or (c) your violation of this Agreement. Elmhurst reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Elmhurst. Elmhurst will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
YOU AND ELMHURST AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM.ANY DISPUTE BETWEEN YOU AND ELMHURST, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, PRINCIPALS, SUCCESSORS, ASSIGNS, SUBSIDIARIES OR AFFILIATES (COLLECTIVELY FOR PURPOSES OF THIS SECTION, “ELMHURST”) ARISING FROM OR RELATING TO THIS AGREEMENT AND ITS INTERPRETATION OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT, INCLUDING DISPUTES ABOUT THE VALIDITY, SCOPE OR ENFORCEABILITY OF THIS ARBITRATION (EACH, A “COVERED DISPUTE”). OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Prior to initiating any arbitration, the initiating party will give the other party at least 60-days' advanced written notice of its intent to file for arbitration. During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration. The arbitrator will have the power to grant whatever individual relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
Elmhurst and you agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Elmhurst nor you are entitled to arbitrate any Covered Dispute as a class, representative or private attorney action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration).
Notwithstanding any provision in this agreement to the contrary, we agree that if Elmhurst makes any future material change to this dispute resolution provision, it will not apply to any individual claim(s) that you had already provided notice to Elmhurst. In the event that this arbitration agreement does not apply to a given dispute, then the parties agree to the exclusive jurisdiction of the state and federal courts in Erie County, New York to resolve such claims.
Term and Termination
Subject to this Section, this Agreement will remain in full force and effect while you use the Site. We may (a) suspend your rights to use the Site (as well as your Elmhurst Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site in violation of this Agreement or if we believe you are younger than 18. Upon termination of this Agreement, your Elmhurst Account and right to access and use the Site will terminate immediately. You understand that any termination of your Elmhurst Account may involve deletion of any User Content you may have posted. Elmhurst will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Elmhurst Account or deletion of your User Content.
The provisions of this Agreement related to our intellectual property rights, user content, acceptable use, disclaimer of warranties, indemnity, limitation and liability, and arbitration together with any other rights and obligations which by their nature are reasonably intended to survive such termination, will survive any termination of this Agreement.
Respect for Copyright Law
Elmhurst respects the intellectual property of others and asks that users of the Site do the same. Except as authorized above, you are not permitted access or use of any of Elmhurst’s and it's affiliates' Intellectual Property without our prior written consent or the consent of such third party that may own intellectual property with respect to Products displayed on the Site. In connection with the Site, Products, and any services we offer, we have adopted and reasonably implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of the Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that your work has been copied in a way that constitutes copyright infringement and wish to have the allegedly infringing material removed from the Site, the following information in the form of a written notification (pursuant to 17 U.S.C. Â§ 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. Â§ 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorneys' fees incurred by us in connection with the written notification and allegation of copyright infringement.
You may submit your counter notification to Elmhurst's Copyright Agent by mail or email as set forth below:
Elmhurst Milked Direct, LLC
1150 Maple Rd.
Elma, NY 14059
We reserve the right to make changes to the Site, this Agreement and other service terms, including but not limited to the Terms and Conditions, and the Monthly Nutmilk Delivery program Terms & Conditions[BM7] . If any terms of this Agreement or other service terms are deeded invalid, void, or for any reason unenforceable, any such term shall be deemed severable and shall not affect the validity and enforceability of any other terms.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and the purchase of any Products on the Site. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement is governed by the laws of the State of New York without regard to conflict of law provisions. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word "including" means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Elmhurst's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.