Terms of Use

Effective Date: April 16, 2020

Please read the following Terms of Use (“Terms”) carefully, which is an agreement between you and MCG, LLC d/b/a Emerald Fields LLC (“Emerald Fields”). These Terms apply to our online services (e.g., website, software, or mobile app), our loyalty program, communications we send (e.g., text and e-mail), and any other product or service that posts a link to these Terms (“Services”), regardless of how you use or access it.  By visiting or otherwise using our Services in any manner, you agree to the then posted Terms, to be bound by them, and that you have read and understood them.  Emerald Fields Services are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Emerald Fields Services constitutes your agreement to all such terms, conditions, and notices.  These Terms may be supplemented by “Additional Terms” applicable to certain specific Services, such as our loyalty and text programs. You also acknowledge, agree and consent to our data practices as described in our Privacy Policy.

These Terms require you agree to arbitrate disputes and waive jury trial and class actions, and limit our liability and detailed below.

 

Modification of these Terms of Use

Emerald Fields reserves the right to change the terms, conditions, and notices under which the Emerald Fields Services are offered.

Links to Third Party Sites

The Emerald Fields Services may contain links to other web sites (“Linked Sites”). The Linked Sites are not under the control of Emerald Fields and Emerald Fields is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Emerald Fields is not responsible for webcasting or any other form of transmission received from any Linked Site. Emerald Fields is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Emerald Fields of the site or any association with its operators.

No Unlawful or Prohibited Use

As a condition of your use of the Emerald Fields Services, you warrant to Emerald Fields that you will not use the Emerald Fields Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Emerald Fields Services in any manner which could damage, disable, overburden, or impair the Emerald Fields Services or interfere with any other party’s use and enjoyment of the Emerald Fields Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Emerald Fields Services.

Use of Communication Services

The Emerald Fields Services may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:

  • Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
  • Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
  • Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
  • Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.
  • Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
  • Conduct or forward surveys, contests, pyramid schemes or chain letters.
  • Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
  • Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
  • Restrict or inhibit any other user from using and enjoying the Communication Services.
  • Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
  • Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
  • Violate any applicable laws or regulations.

Emerald Fields has no obligation to monitor the Communication Services. However, Emerald Fields reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Emerald Fields reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.

Emerald Fields reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Emerald Fields’s sole discretion.

Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Emerald Fields does not control or endorse the content, messages or information found in any Communication Service and, therefore, Emerald Fields specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Emerald Fields spokespersons, and their views do not necessarily reflect those of Emerald Fields.

Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.

MATERIALS PROVIDED TO US OR POSTED AT ANY SERVICES.

Emerald Fields does not claim ownership of the materials you provide to Emerald Fields (including feedback and suggestions) or post, upload, input or submit to any Emerald Fields Services or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Emerald Fields, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.

No compensation will be paid with respect to the use of your Submission, as provided herein. Emerald Fields is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Emerald Fields’s sole discretion.

By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

Liability Disclaimer

THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE EMERALD FIELDS SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. EMERALD FIELDS AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE EMERALD FIELDS SERVICES AT ANY TIME. ADVICE RECEIVED VIA THE EMERALD FIELDS SERVICES SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.

EMERALD FIELDS AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE EMERALD FIELDS SERVICES FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EMERALD FIELDS AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EMERALD FIELDS AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE EMERALD FIELDS SERVICES, WITH THE DELAY OR INABILITY TO USE THE EMERALD FIELDS SERVICES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE EMERALD FIELDS SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE EMERALD FIELDS SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF EMERALD FIELDS OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE EMERALD FIELDS SERVICES, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE EMERALD FIELDS SERVICES.

SERVICE CONTACT: info@emeraldfields.com

Termination/Access Restriction

Emerald Fields reserves the right, in its sole discretion, to terminate your access to the Emerald Fields Services and the related services or any portion thereof at any time, without notice.  To the maximum extent permitted by law, this agreement is governed by the laws of the State of Colorado and you hereby consent to the exclusive jurisdiction and venue of courts in El Paso County in all disputes arising out of or relating to the use of the Emerald Fields Services. Use of the Emerald Fields Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Emerald Fields as a result of this agreement or use of the Emerald Fields Services. Emerald Fields’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Emerald Fields’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Emerald Fields Services or information provided to or gathered by Emerald Fields with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Emerald Fields with respect to the Emerald Fields Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Emerald Fields with respect to the Emerald Fields Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.

Copyright and Trademark Notices

All contents of the Emerald Fields Services are: Copyright – Emerald Fields and/or its suppliers. All rights reserved.

Trademarks

The names of actual companies and products mentioned herein may be the trademarks of their respective owners.

Any rights not expressly granted herein are reserved.

Notices and Procedure for Making Claims of Copyright Infringement

Emerald Fields asks our users to respect the intellectual property rights of others.  It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below.  In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, Emerald Fields has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers.  Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Emerald Field’s Designated Agent as set forth below. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:

 (i)       a legend or subject line that says: “DMCA Copyright Infringement Notice”;

(ii)       a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

(iii)      a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the full URL of the page(s) on the Service on which the material appears);

(iv)      your full name, address, telephone number, and email address;

(v)       a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

(vi)      a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

(vii)     your electronic or physical signature.

Emerald Fields will only respond to DMCA Notices that it receives by mail or email at the addresses below:

By Mail:  115 N. Tejon, Ste. 110 Colorado Springs, CO 80903

By Email: info@emeraldfields.com

It is often difficult to determine if your copyright has been infringed.  Emerald Fields may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Emerald Fields may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA. Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. We may send the information that you provide in your notice to the person who provided the allegedly infringing work.

Arbitration and Dispute Terms

  1. Arbitration of Claims. All actions or proceedings arising in connection with, touching upon or relating to any controversy, allegation, or claim arising out of or relating to the Services or any of our other products or services (e.g., in-store), these Terms, any Additional Terms or the scope of the provisions of this section (collectively, “Dispute”), shall be submitted to the American Arbitration Association (“AAA”) for final and binding arbitration. Arbitration shall be conducted pursuant to the Consumer Arbitration Rules then prevailing at the AAA if the dispute is with an individual consumer and pursuant to the Commercial Arbitration Rules then prevailing at the AAA for all other disputes. If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute.  If the Dispute has a claimed value of more than $250,000, or if Emerald Fields elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA. We may have the right to pay the AAA fees if required for arbitration to be enforceable.]

The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers.  The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based.  Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Denver, Colorado or, if sought by Emerald Fields, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the superior court in Denver, Colorado  or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.

 

  1. Class Action Waiver. As permitted by applicable law, both you and Emerald Fields waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the prevailing AAA Arbitration Rules to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this section is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.

 

  1. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.

 

  1. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claims of general dispute (excluding disputes where intellectual property rights are concerned) in small claims court, subject to section (B) above.

 

  1. The provisions of this section shall supersede any inconsistent provisions of any prior agreement between the parties. This section shall remain in full force and effect notwithstanding any termination of your use of the Services or these Terms.

 

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