This Terms of Service (“TOS”) is a legally binding agreement made by and between BODYARMOR Nutrition, LLC (“Company” and “the Company”) and you, personally and, if applicable, on behalf of any entity for whom you are using this website (collectively, “You” and “Your”). This TOS governs your use of the drinkbodyarmor.com website (“Website”) and the services offered by the Company on the website (“Services”), so please review it thoroughly.
A. USE OF WEBSITE
- Eligibility: Use of this website is void where prohibited. By using
drinkbodyarmor.com, you represent and warrant that: (i) all registration information you submit, if any, is truthful and accurate; (ii) you will maintain the accuracy of such information; (iii) your use of drinkbodyarmor.com does not violate any applicable law or regulation; and (iv) you are either more than 18 years of age, an emancipated minor or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this TOS. You affirm that you are over the age of 13, as drinkbodyarmor.com is not intended for children under 13. IF YOU ARE UNDER 13, DO NOT USE THIS WEBSITE.
- License and Restrictions: Content on the website is provided to you “as is” for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purpose whatsoever without our prior written consent, except for the limited, revocable, nonsublicenseable license to reproduce and display the content (excluding any software code) solely for your personal use in connection with viewing the website. The company will retain ownership of our intellectual property rights and you will not obtain any rights therein by virtue of this TOS or otherwise, except as expressly set forth in this TOS. You will have no right to use, copy, display, perform, create derivative works from, distribute, transmit or sublicense materials or content available on the Web Site, except as expressly set forth in this TOS.
- Prohibited Conduct: In your use of the Website, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any party; (ii) disrupt or interfere with the security or use of the Website or any websites linked to the Website; (iii) interfere with or damage the Website, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (iv) impersonate another person or entity, misrepresent your affiliation with a person or entity, including (without limitation) us, or use a false identity; (v) attempt to obtain unauthorized access to the Website; (vi) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (vii) collect, manually or through an automatic process, information about other users or the Website without their or our express written consent; (viii) submit false or misleading information to us; (ix) violate any law, rule, or regulation; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Website; or (xi) assist or encourage any third party in engaging in any activity prohibited by this TOS.
B. USER CONTENT
The company may now or in the future permit the submission of text, files, images, photos, videos, sounds, musical works, works of authorship, or any other materials by you (hereinafter referred to as “User Content”) and the hosting, sharing and/or publishing of such User Content.
- License: By posting, storing, or transmitting any content on or to the Website, you hereby grant Company a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable, right and license to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit and sublicense such content in any form, in all media now known or hereinafter created, anywhere in the world. You hereby irrevocably waive any claims based on moral rights or similar theories, if any.
- Objectionable Content: Company does not have the ability to control the nature of the user-generated content offered through the Website. You are solely responsible for your interactions with other users of the Website and any content that you post. We will not be liable for any damage or harm resulting from any content or your interactions with other users of the Website. Company reserves the right, but has no obligation, to monitor interactions between you and other users of the Website and take any other action to restrict access to or the availability of any material that we or another user of the Website may consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable (including, without limitation, because it violates this TOS).
- Comments: All comments, feedback, suggestions, ideas, and other submissions that you disclose, submit or offer to Company in connection with your use of the Website (collectively, “Comments”) will become the exclusive property of the Company. Such disclosure, submission or offer of any Comments shall constitute an assignment to Company of all worldwide rights, titles and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Comments and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory. You will, at our cost, execute any documents to effect, record, or perfect such assignment. Thus, Company will own exclusively all such right, title and interest and shall not be limited in any way in the use, commercial or otherwise, of any Comments. You should not submit any Comments to Company if you do not wish to assign such rights to Company. Company are and will be under no obligation: (i) to maintain any Comments in confidence; (ii) to pay to you or any third party any compensation for any Comments; or (iii) to respond to any Comments. You are and shall remain solely responsible for the content of any Comments you make.
- Accuracy: Company attempts to ensure that the information on the Website is complete and accurate; however, this information may contain typographical errors, outdated or misdirected website links as well as other errors or inaccuracies. Company assumes no responsibility for such errors and omissions, and reserves the right to: (i) revoke any offer stated on the Website; (ii) correct any errors, inaccuracies or omissions; and (iii) make changes at any time without notice to content, promotions, product descriptions or specifications, or other information on the Website.
- Security: Company employs measures designed to ensure the security of the Website, but make no guarantees in this regard.
OUR INTELLECTUAL PROPERTY RIGHTS
- Copyright: All materials on the Website, including without limitation, logos, design, text, graphics, other files, and the selection and arrangement thereof are either owned by Company or are the property of our vendors, licensors or other partners. You may not use such materials without permission. © 2012 BODYARMOR Nutrition, LLC ALL RIGHTS RESERVED.
- Trademarks: BODYARMOR® SuperDrink™ is a trade name registered and owned by the Company. BODYARMOR® SuperDrink™, the related design marks, word marks and other trademarks on the Website are owned by the Company. Page headers, custom graphics, button icons and scripts are trademarks or trade dress owned by Company. You may not use any of these trademarks, trade dress, word marks or trade names without the express written consent of the Company.
- The Intellectual Property Rights of Others
(a) In connection with User Content, you further agree that you will not:
(i) submit material that is copyrighted, protected by trade secret, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to post the material and to grant to us all of the license rights granted under this TOS;
(ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material that is unlawful, obscene defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate or impersonates another person.
(b) We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content.
(c) We do not permit copyright infringing activities and/or infringement of intellectual property rights on the website, and we will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights.
We reserve the right to remove User Content without prior notice. We may terminate user privileges of any user that repeatedly infringes the copyright rights of others upon receipt of proper notification to us by the copyright owner or the copyright owner’s legal agent. We further reserve the right to decide whether User Content is appropriate and complies with this TOS for violations other than copyright infringement and violations of intellectual property law including, without limitation, pornography, and/or obscene or defamatory material. We may remove such User Content and/or terminate a user’s access for uploading such material in violation of this TOS, without prior notice and at its sole discretion.
(d) If you believe that your content has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent the following information:
DMCA Notice of Alleged Infringement (“Notice”)
- Identify the copyrighted work that you claim has been infringed, or if multiple works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the website.
- Provide your mailing address, telephone number and, if available, email address.
- Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good-faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to our Designated Copyright Agent:
Jeffrey. R. Cohen
Millen, White, Zelano & Branigan
2200 Clarendon Blvd. Suite 1400
Arlington, VA 22201
While the Company consider all such notices seriously, you may be liable for damages
(including costs and attorneys’ fees) if you materially misrepresent that content or activity is
infringing. Accordingly, if you are uncertain whether material infringes your copyrights
(including whether use of copyrighted material may constitute fair use) you may wish to seek
the advice of an attorney.
- Linking and Framing: You may not deep link to portions of the Website, or frame, inline link, or similarly display any of Company property, including, without limitation, the Website. You may not use any Company logos or other trademarks as part of a link without express written consent of the Company.
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
- Domestic Use/Export Restriction: Company controls the Website from our Company offices within the United States of America. Company makes no representation that the Website or its content (including, without limitation, any products or services available on or through the Website) are appropriate or available or intended for use in other locations. Users who access the Website from outside the United States of America do so on their own initiative and must bear all responsibility for compliance with local laws, if applicable. Further, the United States export control laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded in violation of United States law.
- Force Majeure: Company will not be liable for failing to perform under this TOS because of any event beyond the reasonable control of the Company, including, without limitation, a labor disturbance, an Internet outage or disruption of service, a communications outage, failure by a service provider to perform, fire, terrorism, natural disaster or war.
- Arbitration: All disputes arising out of, or relating to, this TOS (including its formation, performance or alleged breach) or your use of the Website will be exclusively resolved under confidential binding arbitration held in Los Angeles, California before and in accordance with the Rules of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this TOS will be joined to an arbitration involving any other party subject to this TOS, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, Company will have the right to seek injunctive or other equitable relief in state or federal court located in Los Angeles, California to enforce this TOS or prevent an infringement of a third party’s rights. In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.
- WAIVER OF CLASS ACTION RIGHTS: BY ENTERING INTO THIS TOS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS TOS MUST BE ASSERTED INDIVIDUALLY.
- Limitation of Actions: You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Website, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
- Changes to the Website: Company may, in the sole discretion of the Company, change, modify, suspend, make improvements to or discontinue any aspect of the Website, temporarily or permanently, at any time without notice to you, and Company will not be liable for doing so.
- Access to the Website: Company will have the right to terminate your access to the Website if Company reasonably believes you have breached any of the terms and conditions of this TOS. Following termination, you will not be permitted to use the Website. If your access to the Website is terminated, Company reserves the right to exercise whatever means Company may deem necessary to prevent unauthorized access to the Website, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider. This TOS will survive indefinitely unless and until Company chooses to terminate it.
- Integration: This TOS contains the entire understanding between you and Company regarding the use of the Website, and supersedes all prior and contemporaneous agreements and understandings between you and the Company relating thereto.
- Assignment: This TOS, and any rights or licenses granted hereunder, may not be transferred or assigned by you, but are freely assignable by us without restriction.
ADDITIONAL DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
I. DISCLAIMER OF WARRANTIES: WE PROVIDE THE WEBSITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE SERVICES, ITS USE, ANY INFORMATION ON IT: (i) WILL BE UNINTERRUPTED OR SECURE, (ii) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (vi) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU CHOOSE USE. WE MAKE NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
II. DISCLAIMER OF FORWARD-LOOKING STATEMENTS: THIS WEBSITE MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT THE COMPANY’S CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENT. THE FORWARD-LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE THE CONTROL OF THE COMPANY.
III. HEALTH RELATED INFORMATION: COMPANY PROVIDES INFORMATION ON THE WEBSITE FOR INFORMATIONAL PURPOSES ONLY. THIS INFORMATION IS NOT MEANT OR IMPLIED TO BE A SUBSTITUTE FOR THE ADVICE OF A DOCTOR, CERTIFIED NUTRITIONIST OR OTHER HEALTH CARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FOR DIAGNOSING OR TREATING ANY MEDICAL CONDITION. YOU SHOULD CAREFULLY READ ALL PRODUCT INFORMATION PRIOR TO USE.
IV. PRODUCTS: ALL PRODUCTS ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS, IF ANY, PROVIDED IN THE PRODUCT PACKAGING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION OR USE, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
V. EXCLUSION OF DAMAGES: COMPANY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEBSITE OR PRODUCTS, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
VI. LIMITATION OF LIABILITY: IN NO EVENT WILL THE COMPANY AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOS (INCLUDING, WITHOUT LIMITATION, CLAIMS RELATING TO THE WEBSITE, OR THE PRODUCTS) EXCEED THE GREATER OF $100 OR THE AMOUNT THAT YOU PAID FOR THE PRODUCTS.
Miscellaneous: This TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without regard for conflict of law principles. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this TOS. You are an independent contractor, and NO agency, partnership, joint venture, employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.