TERMS & CONDITIONS OF USE
Welcome to the NOS Energy Drink website, located at https://drinknos.com (the "Site") and operated by Energy Beverages LLC ("Energy Beverages").
THIS IS A LEGAL AGREEMENT ("AGREEMENT") BETWEEN YOU, THE END USER (ON BEHALF OF YOURSELF, OR YOUR COMPANY OR ORGANIZATION), AND ENERGY BEVERAGES. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING TO USE THE SITE AND CREATING YOUR ACCOUNT. BY CONTINUING TO USE THE SITE, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THIS WEBSITE. YOUR USE OF THE SITE MEANS THAT YOU AGREE TO THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER. PLEASE READ THE MISCELLANEOUS SECTION BELOW FOR ADDITIONAL INFORMATION.
The Site is controlled or operated (or both) by us from the United States and, to the fullest extent permitted by applicable law is not intended to subject us to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
Intellectual Property. The content, organization, graphics, design, compilation, and other matters related to the Site are protected under applicable U.S. and international copyright, trademark and intellectual property laws. "Energy Beverages" and our logos and other marks are either trademarks or registered trademarks of Energy Beverages ("Trademarks"). We exclusively own all worldwide right, title and interest in and to all the Trademarks, documentation, software, contents, graphics, designs, data, computer codes, ideas, know-how, "look and feel," compilations, magnetic translations, digital conversions and other materials included within the Site and related to the Site, and all modifications and derivative works thereof, and all intellectual property rights related thereto (the "Intellectual Property"). The posting of information or materials on the Site by us does not constitute a waiver of any rights in any Intellectual Property or such information and materials. You shall not challenge, contest or otherwise impair Energy Beverages’ ownership of the Site and the content therein or the validity or enforceability of Energy Beverages’ rights in the Intellectual Property. We reserve the right in our sole discretion to edit or delete any information or other content appearing on the Site at any time without notice. Nothing contained in this Agreement shall be construed by implication, estoppel or otherwise as granting to the user an ownership interest in the Intellectual Property or any copyright, trademark, patent or other intellectual property right of Energy Beverages or any third party. Subject to the terms and conditions of this Agreement, Energy Beverages grants you a limited, royalty-free, non-exclusive, revocable, terminable, personal license to use the Intellectual Property solely for your own personal, noncommercial use. None of the material on our Site may be downloaded, distributed, reproduced, republished, posted, transmitted or copied in any form or by any means, without the prior written permission of Energy Beverages, which permission may be withheld in our sole and absolute discretion.
No Solicitation. While we love to hear from our fans, it is Energy Beverages’ policy not to accept unsolicited submissions of ideas or other creative material. This is to avoid any misunderstandings if Energy Beverages’ products or marketing that we develop independently seem similar to ideas submitted to us. We must therefore request that you do not send to us any original creative materials such as ideas for new or improved products, advertising campaigns, or product names, etc. Any communication or material you do transmit to the Site by electronic mail or otherwise will be treated as non-confidential and non-proprietary. Anything you transmit or post may be used by Energy Beverages or its parents, subsidiaries, and other affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, Energy Beverages is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever, including, but not limited to, developing, and marketing products using such information.
Copyright Policy. Without limiting the foregoing, if you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, please provide us with the following information: a description of the copyrighted work that you claim has been infringed and where the material that you claim is infringing is located on the Site; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a signed statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Energy Beverages’ Copyright Agent for notice of claims of copyright infringement can be reached as follows: Energy Beverages DMCA Agent, Attn: Knobbe Martens, 2040 Main Street 14th Floor, Irvine, CA 92614 USA.
Accuracy of Information. While we use reasonable efforts to include accurate and up to date information in the Site, we make no and disclaim all warranties or representations as to the accuracy, correctness, reliability or otherwise with respect to such information, and assume no liability or responsibility for any omissions or errors (including, without limitation, typographical errors and technical errors) in the information contained on the Site.
Energy Beverages Community. You must be at least 18 years old and obtain a user name and password for participation in the Community. Each user has a unique user account on the Site and on our internal network. Your user account allows you to view the information that you are authorized to access. Therefore, it is important that you protect your user account and password. You understand and agree that you are responsible for maintaining the confidentiality of your password and other account information.
Our Rights To Your Content. Any Content (as defined in the next sentence) you submit, upload, publish, display or post (hereinafter, "post") to the Site (including through the use of social media aggregators) will be treated as non-confidential and non-proprietary by Energy Beverages. You are solely responsible for any content, communications, discussions, chats, postings, transmissions, news, messages, photos, videos, comments, blogs, profiles or other information or materials (collectively, "Content") that you post to the Site and on your social media accounts, which the Site may aggregate, which could be viewable by other visitors or users of the Site. By posting Content on the Site or your social media accounts and using a hashtag in the post identifying Energy Beverages, you grant to Energy Beverages, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, distribute, publish, and/or broadcast, in whole or in part, in any medium and in any manner on this Site or otherwise, such information and Content and that Energy Beverages has the right to prepare derivative works of, or incorporate into other works, such information and Content, and to grant and authorize sublicenses of the foregoing. You understand and agree that Energy Beverages may review and delete any Content that in the sole judgment of Energy Beverages violates this Agreement or which may be offensive, illegal or violate the rights, harm, or threaten the safety of Energy Beverages or any user of the Site.
Posting On The Site. You represent and warrant that: (i) you own any Content posted by you on the Site or otherwise submitted to us in connection with the Site, and have the right to grant the applicable license set forth herein, and (ii) posting and publishing any such Content does not infringe, misappropriate or otherwise violate any third-party intellectual property, publicity, privacy, statutory, legal, contractual, personal or other rights. You shall not post any Content that is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise give rise to liability, or violates any law or obligation of confidentiality. We may screen or monitor posted Content for legal or other purposes, though we have no obligation to do so. We may disclose Content and the circumstances surrounding their transmission to anyone for any reason or purpose. We assume no and disclaim all responsibility or liability arising from the Content or for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger or inaccuracy of any such information. Do not post personally identifiable information in areas other than within your profile. We reserve the right, in our sole discretion, to reject, refuse to post or remove any Content, profile or posting (including email) by you, or to restrict, suspend, or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice, and without liability. Your participation in any offline Energy Beverages event is at your sole risk.
Rules of Conduct. In connection with the Site, you must not:
- Post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
- Use the Site for any purpose that is fraudulent or otherwise tortious or unlawful.
- Harvest or collect information about users of the Site.
- Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available, including by hacking or defacing any portion of the Site; or violate any requirement, procedure or policy of such servers or networks.
- Restrict or inhibit any other person from using the Site.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein, without our express prior written consent.
- Reverse engineer, decompile or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the Site.
- Frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service, without our express prior written consent.
- Systematically download and store Site Content.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site Content, or reproduce or circumvent the navigational structure or presentation of the Site, without our express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, we grant to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. We reserve the right to revoke such permission either generally or in specific cases, at any time and without notice.
You will not use our Site for any purposes that is unlawful or prohibited by the terms of this Agreement. You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Site.
Publicity and Privacy. You hereby acknowledge and agree that any Content you post on to, or is aggregated through, the Site could be viewable by visitors, other users of the Site and the public and that you have no expectation of confidentiality or non-disclosure with regard to your Content. We cannot guarantee security of information on the Site, all use thereof is at your own risk. We are not responsible for the accuracy of any Content contained on our Site. Please choose carefully the information and Content you post on the Site, your social media channels where the post hashtags Energy Beverages and that you provide to others. Your Energy Beverages and social media account profile may include personally identifiable items, including last names, email addresses, telephone numbers, and street addresses.
Securities Laws. This Site may contain statements, estimates or projections that constitute "forward looking statements" as defined under U.S. Federal Securities laws. Generally, the words "believe, expect, intend, estimate, anticipate, project, will" and similar expressions identify forward looking statements, which generally are not historical in nature. Forward looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from Monster Beverage Corporation’s (“MBC”) historical experience and MBC’s present expectations or projections. These risks include, but are not limited to, MBC’s ability to finance expansion plans, share repurchase programs and general operating activities; changes in the non-alcoholic beverage business environment, including actions of competitors and changes in consumer preferences; regulatory and legal changes; interest rate and currency fluctuations; changes in economic and political conditions; MBC’s ability to penetrate and develop new markets, the effectiveness of MBC’s advertising, marketing and promotional programs; litigation uncertainties; adverse weather conditions; inability to achieve volume growth through product and packaging initiatives; changes in the cost and availability of raw materials and the ability to maintain favorable supply arrangements and relationships and procure timely and/or adequate production of all or any products; the marketing efforts of distributors of MBC’s products, most of which distribute products which are competitive to MBC; unilateral decisions by stores or other customers to discontinue carrying all or any of MBC’s products that they are carrying at any time; changes in product category consumption; possible recalls of MBC’s products; and other risks discussed in the Monster Beverage Corporation’s filings with the Securities & Exchange Commission ("SEC"), including the Monster Beverage Corporation’s annual report on Form 10K, which filings are available from the SEC. The aforegoing list of important factors is not exhaustive. You should not place undue reliance on forward looking statements, which speak only as of the date they are made. We undertake no obligation to publicly update or revise any forward looking statements and expressly disclaim any duty to do so.
International User. If you use the Site from outside of the United States, your connection will be through and to servers located in the United States, your orders placed through the Site will be fully processed in and shipped from the United States and all information you provide will be processed and maintained in our web servers and internal systems located within the United States. By using the Site, you understand and acknowledge the export of personal information to the United States and its storage and use as specified above when you provide such information to us.
Remedies. We may restrict, suspend, or terminate your access to all or any part of the Site, with or without notice for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Termination shall be without prejudice to any other right or remedy to which we or our affiliates may be entitled under this Agreement or at law.
ENERGY BEVERAGES IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY INFORMATION POSTED BY ANY THIRD PARTY ON THE SITE, INCLUDING BUT NOT LIMITED TO INFORMATION APPEARING ON ANY COMMUNITY AND/OR AGGREGATION PAGES, ANY LINKED SITES OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENERGY BEVERAGES SHALL NOT BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, ANY VIRUSES AFFECTING THIS SITE, THE USE OR INABILITY TO USE THIS SITE, INCLUDING THE COMMUNITY, THE RESULTS GENERATED FROM THE USE OF THIS SITE, INCLUDING THE COMMUNITY, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS, HOWEVER CHARACTERIZED, AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ENERGY BEVERAGES’ AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT YOU PAID, IF ANY, TO ENERGY BEVERAGES IN THE SIX (6) MONTHS PRIOR TO THE EVENTS GIVING RISE TO YOUR CLAIM.
Applicable law may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages. Solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
Indemnity. Except to the extent prohibited under applicable law, you will indemnify and hold us, our subsidiaries, parents, affiliates, officers, directors, shareholders, legal representatives, agents, and other partners and employees, harmless from loss, liability, costs, damages or expenses from any and all claims, actions and suits, whether groundless or otherwise, and from and against any and all claims, liabilities, judgments, losses, damages, costs, charges, attorney’s fees, and other expenses of every nature and character by reason of (i) your use of the Site; (ii) your breach or alleged breach of this Agreement and/or any breach or alleged breach of your representations and warranties set forth in this Agreement; (iii) your participation in any offline Energy Beverages event; and (iv) any acts or omissions by you or on your behalf with respect to any Content posted on or aggregated to the Site by you and/or any third party. Filtering. Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information regarding parental controls is available from https://www.consumer.ftc.gov/articles/0029-parental-controls. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that we do not endorse any of the products or services listed on such site(s).
Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, USA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAW. SUBJECT TO THE ARBITRATION PROVISION BELOW, ANY LEGAL ACTIONS RELATED TO THIS AGREEMENT AND/OR THE SITE, OR YOUR USE THEREOF, SHALL BE BROUGHT AND CONDUCTED IN THE FEDERAL OR STATE COURTS, AS APPLICABLE, IN ORANGE COUNTY, CALIFORNIA, AND YOU HEREBY CONSENT TO SUCH EXCLUSIVE JURISDICTION AND AUTHORIZE AND ACCEPT SERVICE OF PROCESS SUFFICIENT FOR PERSONAL JURISDICTION. IN THE SPIRIT OF EXPEDITIOUS AND EFFICIENT RESOLUTION OF ANY DISPUTES, AND TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH OR TERMINATION HEREOF SHALL BE SETTLED BY BINDING ARBITRATION CONDUCTED BY JAMS IN ACCORDANCE WITH JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES (THE "RULES"). THE ARBITRATION SHALL BE HEARD BY ONE ARBITRATOR TO BE SELECTED IN ACCORDANCE WITH THE RULES, IN ORANGE COUNTY, CALIFORNIA, AND CONDUCTED IN THE ENGLISH LANGUAGE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ANY CLAIMS BROUGHT BY YOU OR ENERGY BEVERAGES MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND WITHOUT THE INCLUSION OF ANY OTHER THIRD PARTIES, BE IT AS INDIVIDUALS, AS PART OF A COLLECTIVE ACTION, OR AS PART OF A REPRESENTATIVE CLASS; THE ARBITRATOR SHALL HAVE NO AUTHORITY OR JURISDICTION TO CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, SHALL NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND SHALL NOT AWARD CLASS-WIDE RELIEF. JUDGMENT UPON ANY AWARD RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. WITHIN SEVEN (7) CALENDAR DAYS AFTER APPOINTMENT, THE ARBITRATOR SHALL SET THE HEARING DATE, WHICH SHALL BE WITHIN NINETY (90) CALENDAR DAYS AFTER THE FILING DATE OF THE DEMAND FOR ARBITRATION UNLESS A LATER DATE IS REQUIRED FOR GOOD CAUSE SHOWN AND SHALL ORDER A MUTUAL EXCHANGE OF WHAT HE/SHE DETERMINES TO BE RELEVANT DOCUMENTS AND THE DATES THEREAFTER FOR THE TAKING OF UP TO A MAXIMUM OF FIVE (5) DEPOSITIONS BY EACH PARTY TO LAST NO MORE THAN TWO (2) BUSINESS DAYS IN AGGREGATE FOR EACH PARTY. ALL PARTIES WAIVE THE RIGHT, IF ANY, TO OBTAIN ANY AWARD FOR EXEMPLARY OR PUNITIVE DAMAGES OR ANY OTHER AMOUNT FOR THE PURPOSE OR IMPOSING A PENALTY FROM THE OTHER IN ANY ARBITRATION OR JUDICIAL PROCEEDING OR OTHER ADJUDICATION ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT, OR ANY BREACH HEREOF, INCLUDING ANY CLAIM THAT SAID AGREEMENT, OR ANY PART HEREOF, IS INVALID, ILLEGAL OR OTHERWISE VOIDABLE OR VOID. IN ADDITION TO ALL OTHER RELIEF, THE ARBITRATOR SHALL HAVE THE POWER TO AWARD REASONABLE ATTORNEYS’ FEES TO THE PREVAILING PARTY. THE ARBITRATOR SHALL MAKE HIS OR HER AWARD NO LATER THAN SEVEN (7) CALENDAR DAYS AFTER THE CLOSE OF EVIDENCE OR THE SUBMISSION OF FINAL BRIEFS, WHICHEVER OCCURS LATER.
If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor the right to enforce such provision. This Agreement does not, and shall not be construed to create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and us relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. Without limitation, 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. We will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
If you have any questions regarding this Agreement, please contact us:
Energy Beverages, LLC
Attn: Legal Department
2390 Anselmo Drive
Corona, CA 92879 USA
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
EFFECTIVE DATE: March 2021