Welcome to the burn website, located at http://www.burn.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 CLICKING ON THE “YES, I ACCEPT” BUTTON, 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 CLICK ON THE “YES, I ACCEPT” BUTTON AND DISCONTINUE YOUR REGISTRATION. YOUR USE OF THE SITE MEANS THAT YOU AGREE TO THE TERMS OF THIS AGREEMENT.
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’s ownership of the Site and the content therein or the validity or enforceability of Energy Beverages’s 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.
Copyright Policy.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. 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’s Copyright Agent for notice of claims of copyright infringement can be reached as follows: Energy Beverages, Attn: Legal Department, 2390 Anselmo Drive, Corona, CA 92879.
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. By accepting this Agreement, you authorize us to respond to a request for a new password via email. The new password will be delivered to the email of record in your system profile maintained in your Account Information.
Our Rights To Your Content.Any communication or material you transmit or post will be treated as non-confidential and non-proprietary by Energy Beverages. You are solely responsible for any content, discussions, chats, postings, transmissions, news, messages, photos, videos, comments, blogs or profiles (collectively, “Content”) that you publish or display (hereinafter, “post”) on the Site or any material or information that you transmit to other users of the Site. By posting Content on any public area of the Site, you automatically grant, as well as represent and warrant that you have the right to 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 on or in connection with the Site does not violate any third-party intellectual property, publicity, privacy or contract rights. You shall not submit any Content which 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 submitted Content for legal or other purposes, though we have no obligation to do so. 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 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.
Privacy.You hereby acknowledge and agree that you have no expectation of privacy with regard to any Content you submit, transmit, or post on to or through the Site. Since we cannot guarantee security of information on the Site, all use thereof is at your own risk and without recourse against us. We will not be responsible for the accuracy of any Content contained on our Site. Please choose carefully the information and Content you post on the Site and that you provide to others. Your Energy Beverages 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 Energy Beverages’s historical experience and Energy Beverages’s present expectations or projections. These risks include, but are not limited to, Energy Beverages’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; Energy Beverages*’s ability to penetrate and develop new markets, the effectiveness of Energy Beverages’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 Energy Beverages’s products, most of which distribute products which are competitive to Energy Beverages; unilateral decisions by stores or other customers to discontinue carrying all or any of Energy Beverages’s products that they are carrying at any time; changes in product category consumption; possible recalls of Energy Beverages’s products; and other risks discussed in the Energy Beverages LLC’s filings with the Securities & Exchange Commission (“SEC”), including the Energy Beverages LLC’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 Users.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 authorize the export of personal information to the United States and its storage and use as specified above when you provide such information to us.
Merchandise and Purchases.Through the e-Store section of the Site (“e-Store”), we offer a variety of merchandise for sale. We cannot guarantee the availability of a particular product at any particular time. We reserve the right to change our merchandise offerings on the Site, without notice, at any time. We also reserve the right to change contents, features and offerings, and adjust accessibility, of the Site from time to time in our sole and absolute discretion. When you visit the Site or the e-Store or send us emails, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Site or the e-Store. 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.
Safe and Secure Online Transactions.Shopping at the e-Store is safe. We wouldn’t have it any other way, nor would we sell our products online without safe, secure and confidential credit card transactions. Our Secure Sockets Layer (“SSL”) software is industry standard and among the best software available today for secure commerce transactions. It encrypts all of your personal information, including credit card number, name, and address, so that it cannot be read as the information travels over the Internet. We are concerned about the safety and security of our customers. As such, we have put into practice a number of protections to ensure that your transactions with us process safe and secure and your information is secure and confidential. We will never email or call a customer to ask that they disclose or verify personal information such as credit card number, address, password or such. Such information should only be submitted when ordering products online, contacting us directly, or updating account information online.
Product Descriptions.We and our affiliates attempt to be as accurate as possible when describing products. We do not warrant that product descriptions or other content of the e-Store is accurate, complete, reliable, current, or error-free. If a product offered by the e-Store itself is not as described, please contact customer service at firstname.lastname@example.org or at the address listed at the end of this Agreement.
Pricing and Delivery.Except where noted otherwise, the list price displayed for products in the e-Store represents the full price for the product itself excluding shipping and tax. The list price is a comparative price estimate and may or may not represent the prevailing price in every area on any particular day. With respect to products sold by the e-Store, we cannot confirm the shipping charges for any item until you order; however, we do not charge your credit card until after your order has entered the shipping process. Despite our best efforts, a small number of the items in our catalog may be priced incorrectly. If we discover that an item is priced incorrectly, we will do one of the following: (a) if an item´s correct price is lower than our stated price, we will charge the lower amount and ship you the item; or (b) if an item´s correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Please note that this policy applies only to products sold and shipped by the e-Store. All items purchased from the e-Store 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. We reserve the right to limit quantities of any product/s that may be purchased from the e-Store in our sole discretion and to decline to ship any product/s to any person outside the continental United States.
Payment.Except to the extent we permit purchases with promotional or discount codes prior to the purchase of any products on our Site, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, and (iv) the date of expiration. By submitting that information to us, you hereby agree that you authorize us to charge your card at our convenience, but within thirty (30) days of credit card authorization. Purchase transactions are subject to our return policies as they may be in effect from time to time; otherwise, all charges from sales are nonrefundable, and all merchandise purchases are final. You hereby represent, warrant and agree that you will not use any credit card or other form of payment unless you have all necessary and legally required authorization to do so. We shall not be liable in the event your children or others acting with or without your permission use your credit card to make purchases on the Site (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will undertake reasonable measures within our control to help prevent future unauthorized use of your card.
YOU REPRESENT AND WARRANT THAT (I) THE CREDIT CARD INFORMATION SUPPLIED TO US IS TRUE, CORRECT AND COMPLETE, (II) PAYMENTS MADE YOU WILL BE HONORED BY YOUR CREDIT CARD COMPANY, AND (III) YOU SHALL PAY FOR ALL CHARGES INCURRED THROUGH USE OF YOUR LOGIN CREDENTIAL.
Returns and Refunds.Due to the nature of our products, we do not accept returns for products ordered through the e-Store on the Site. If you have any questions, please contact customer service at email@example.com or 1-866-322-4466. We will only process refunds with respect to products purchased from our e-Store. Refunds are only authorized on incorrect shipments where the error is on our part or on the part of the carrier. The product cannot have been purchased at a grocery store, club store, distributor, or any other location. Any issues or concerns with such products must reported to where the product was purchased.
Remedies.You hereby acknowledge that if we, in our sole discretion, determine you to be in breach of this Agreement, we may restrict, suspend, or terminate your access to all or any part of the Site or terminate your membership with the Community, with or without notice. 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.
Disclaimer.THE SITE AND ALL CONTENT, MATERIALS AND PRODUCTS CONTAINED IN THE SITE, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ARE DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OUT OF COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE. IN ADDITION, Energy Beverages DISCLAIMS (A) ANY ENDORSEMENT OF OR LIABILITY FOR CONTENT AND HYPERLINKS; (B) INACCURACY, INCOMPLETENESS OR TIMELINESS OF THE SITE; (C) THE TRANSMISSION OF VIRUSES OR THE OCCURRENCE OF DATA CORRUPTION; AND (D) DAMAGES AS A RESULT OF THE TRANSMISSION, USE OR INABILITY TO USE THE SITE OR CIRCUMSTANCES OVER WHICH THE ORGANIZATION HAS NO CONTROL. YOU UNDERSTAND AND AGREE THAT THE OPERATION OF THE SITE MAY INVOLVE BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Energy Beverages SHALL HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF THE SITE OR USE OF ANY INFORMATION ACCESSED THROUGH THE SITE OR PRODUCTS PURCHASED THROUGH THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Energy Beverages THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE OF ANY KIND.
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 PAGES, ANY LINKED SITES OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES.
Limitation of Liability.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. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, Energy Beverages’S 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.
Indemnity.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 of this Agreement and/or any 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 the Site by you and/or any third party (including but not limited to on the Community pages).
No Solicitation. While we love to hear from our fans, it is the policy of Energy Beverages LLC (“MEC”) not to accept unsolicited submissions of ideas or other creative material. This is to avoid any misunderstandings if MEC’s 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 MEC or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, MEC 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.
Miscellaneous.This Agreement shall be governed by and construed in accordance with the laws of the State of California, 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 Orange County, California, and each user hereby consents to such jurisdiction and authorizes and accepts service of process sufficient for personal jurisdiction in any action against him as contemplated by this section. 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/Endispute (“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. 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.
If you have any questions regarding this Agreement, please contact us:
Energy Beverages LLC
Attn: Consumer Relations
2390 Anselmo Drive
Corona, CA 92879
SELECTING “YES, I ACCEPT” WILL BE THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON A WRITTEN CONTRACT, AND EQUALLY BINDING. YOU MUST AGREE TO THESE TERMS AND CONDITIONS IN ORDER TO USE THIS SITE AND/OR CREATE AN ACCOUNT.
EFFECTIVE DATE: January 5, 2012