Terms Of Service
NITRO Beverage Co.
Welcome to NITRO. (“NITRO” or “we” or “our” or “us”) website at www.drinknitro.com (the “Site”). These Terms and Conditions of Service (this “Agreement”) apply to those who visit and use the Site (“you” or “your” or “user”) and to all services provided by NITRO in connection with the Site (such services together with the Site, the “Services”).
BEFORE VIEWING OR BROWSING THE SITE OR USING THE SERVICES, PLEASE READ THIS AGREEMENT CAREFULLY, AS IT (AMONG OTHER THINGS) LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
BY CREATING AN ACCOUNT AND/OR COMPLETING A PURCHASE WITH US YOU AGREE TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS HEREIN. YOUR ACCEPTANCE OF THIS AGREEMENT CREATES A LEGALLY BINDING CONTRACT BETWEEN YOU AND NITRO. IF YOU DO NOT AGREE WITH ANY ASPECT OF THIS AGREEMENT, THEN DO NOT CREATE AN ACCOUNT WITH US OR MAKE ANY PURCHASE.
2. INDIVIDUAL FEATURES AND SERVICES.
We may make modifications, deletions, and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (a) thirty (30) days after we provide notice of the Changes, whether such notice is provided via the Site or through the Services user interface, is sent to the e-mail address associated with your account, or otherwise; or (b) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
4. ACCOUNTS; PRODUCT SALES.
4.1. For some of our Services, including purchasing products we offer for sale (“Products”), you may need to or be able to register an account with us via our Site. To use the Site and/or register, you must represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Site, and also provide certain identifying and shipping information including your address and billing information, and a valid email address and password to create your login profile.
4.3. As a registered user of NITRO, you agree to receive emails promoting any special offer(s), including third-party offers. We may from time to time send you our newsletter and similar communications. You may opt out from receiving special promotions or our newsletter by opting to unsubscribe as may be provided in the applicable e-mail correspondence. You cannot opt out of certain e-mails regarding transactions you enter into with us.
4.4. Certain Products or Services may be available exclusively online through the Site. These Products or Services may have limited quantities and may be subject to greater restrictions regarding any availability, return, or exchange. We reserve the right, but are not obligated, to limit the sales of our Products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products or Services that we offer. All descriptions of Products or Product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any Product at any time. Any offer for any Product or Service made on this Site is void where prohibited.
4.5. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
5. BILLING AND PAYMENTS.
5.1. The price of the Services and/or Products is payable in full before delivery. All sales and any other fees are in US dollars. If you wish to cancel or modify a purchase, you may email us at hello@drinkNITRO.com; however, any amounts charged to or paid by you prior to such modification or cancellation request will not be refunded, and communication may not impact any order for which you have already been charged, depending on the state of the order. It is your responsibility to keep your payment method up-to-date, as well as to cancel your account as described in the Site’s password-protected account management area should you wish to do so.
5.2. We may change the price of a Product, introduce new Products, or remove Products from time to time, and may communicate any price or Product changes to you in advance. By continuing to use the Site, Services, or purchase options after the effective date of a price change, you indicate your acceptance of such change. Please make sure you read any notifications of price changes carefully.
6. SHIPPING AND RISK OF LOSS; TAXES.
Unless otherwise indicated at the time of your purchase, shipping and handling fees are included with your order. Shipping dates and/or arrival times are only estimates. You must notify NITRO within thirty (30) days of the date of your purchase if you believe all or part of your order is missing or damaged. Replacement of Products and credits to your account for shipped Products claimed as not received are subject to our investigation, which may include postal service notification. We will adjust your account at our discretion. Repeated claims of undelivered Products may result in the cancellation of your account or future orders. You may be charged, and are solely responsible for, applicable local and state sales tax, if applicable.
7. RETURNS AND EXCHANGES.
As the Products are perishable food items, Products may not be returned or exchanged. If you have concerns or problems with the Products you receive, please contact us by email at hello@drinkNITRO.com or via the contact area on the Site and we will attempt to resolve the issue. NITRO will not issue any refunds for the Products or Services except at its sole discretion.
8. INTERNATIONAL ACCESS.
The Site may be accessed from countries other than the United States. However, the Products and Services may be only available for sale within the continental United States and U.S. territories. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations. We make no representation that any part of the Services is appropriate or available for use in other locations. Users may not download, use, export, or re-export any content posted on or through the Services or any software or products utilized or available in connection with the Services in violation of any applicable laws or regulations, including, without limitation, United States export laws, regulations, and controls.
9. OWNERSHIP; PROPRIETARY RIGHTS.
The Services are owned and operated by NITRO. The content, visual interfaces, information, graphics, design, compilation, computer code, Products, software, Services, Site, and all other elements of the Services that are provided by NITRO (NITRO Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All NITRO Materials are the proprietary property of NITRO or its subsidiaries or affiliated companies and/or third-party licensors. All trademark, service mark, and trade name rights are proprietary to NITRO or its affiliates and/or third-party licensors. Except as expressly authorized by NITRO, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, infringe upon, or otherwise make unauthorized use of the NITRO Materials.
10. ERRORS, INACCURACIES, AND OMISSIONS.
Occasionally there may be information on the Site that contains errors, inaccuracies, or omissions that may relate to Product descriptions, pricing, promotions, offers, and availability. This Site may also contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We have made every effort to display as accurately as possible the colors and images of our Products that appear on the Site. We cannot guarantee that your computer monitor's display of any color will be accurate. The NITRO Materials should never be relied upon as the sole basis for making any decisions to purchase products or services from NITRO. We and our third-party providers, vendors, agents, associates, or partners will not be liable for any purchase decisions made based on the NITRO Materials. Any reliance on the NITRO Materials is at your own risk, and you assume any and all risks associated with your purchase decisions. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order), but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our site.
11. THIRD-PARTY SITES.
This Agreement applies to our Services. The Services may include advertisements or other links that allow you to access websites or other online services that are owned and operated by third parties. We and our third-party providers, affiliates, agents, and licensors may be active investors in businesses related to or mentioned on this Site and may or may not have open investment positions in those businesses. You assume any and all risk associated with your purchase decisions irrespective of whether we or our third-party providers, affiliates, agents, or licensors hold positions in products mentioned on the Site. You acknowledge and agree that NITRO is not responsible and shall have no liability for the content of such third-party sites and services, products or services made available through them, or your use of or interaction with them. If provided, you should review the terms and conditions of any linked websites or resources carefully.
12. THIRD-PARTY SERVICES.
The Services may include features or functionality that interoperate with online services operated by third parties (such services, “Third-Party Services”), pursuant to agreements between NITRO and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which NITRO does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms, and rules applicable to Third-Party APIs) may be modified, suspended, or terminated at any time. NITRO shall have no liability with respect to any such modification, suspension, or termination. You are responsible for ensuring that your use of the Services in connection with any Third-Party Service complies with all agreements, policies, terms, and rules applicable to such Third-Party Services.
13. PROHIBITED USES.
13.1. As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. Access to the NITRO Materials or the Services from locations where their contents are illegal is strictly prohibited. You are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, payments, or privacy.
13.2. Any use of any of the NITRO Materials other than for private, non-commercial use is strictly prohibited.
13.3. You may not use the Services generally and the Site specifically in any manner that in our sole discretion could damage, disable, overburden, or impair them or interfere with any other party’s use of the Services. You may not intentionally interfere with or damage the operation of the Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of any content accessible through the Services, or features that enforce limitations on the use of the Services. You may not attempt to gain unauthorized access to the Services, or any part of them, other accounts, computer systems or networks connected to the Services, or any part of them, through hacking, password mining, or any other means, or interfere or attempt to interfere with the proper working of the Services or any activities conducted on or in connection with the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services. You agree neither to modify the Services in any manner or form, nor to use modified versions of the Services, including (without limitation) for the purpose of obtaining unauthorized access to the Services. Any resale or commercial use of the Site or Services or the NITRO Materials is prohibited, as is the distribution, public performance, or public display of any Site Materials, the sending any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation, the collecting or storing any personal information from other users of the Site, and any use of our Site, the Services, or the NITRO Materials other than for their intended purpose.
13.4. The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, crawler, or other automated means to access the Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Services.
13.5. You may not utilize framing techniques to enclose any trademark, logo, or other NITRO Materials without our prior, express, written consent. You may not use any meta tags or any other “hidden text” utilizing NITRO’s name or trademarks without our prior, express, written consent.
13.6. You may not deep-link to the Services and shall upon notice from NITRO promptly remove any links that NITRO finds objectionable in its sole discretion. You may not use any NITRO logos, graphics, or trademarks as part of the link without our prior, express, written consent.
13.7. You may not send junk or unsolicited mail to other users of the Services, including, but not limited to unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
13.8. Any use of our Site, the Services or the Site Materials other than as specifically authorized in this Agreement, without our prior written permission, is strictly prohibited and will terminate any license or rights granted herein. Such unauthorized use may also violate applicable laws including, but not limited to, copyright and trademark laws and applicable communications regulations and statutes. We have the right to terminate the accounts of users who we believe in good faith to be violating any laws whatsoever. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.
15. USER COMMUNICATIONS.
Under this Agreement, you consent to receive communications from NITRO electronically. We may communicate with you by email or by posting notices on the Site. 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. Our Site may also allow users to create, upload, and share information in connection with the Services. The Site may allow you or other users to post, link, store, or otherwise make available a wide variety of information, text and/or other materials to others (“User Content”). You are solely responsible for your use of User Content and use it at your own risk. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce your User Content. By using any User Content, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through our service any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, harassing, threatening, invasive of privacy or publicity rights, deceptive, fraudulent, or otherwise objectionable (as determined in our reasonable discretion);
- User Content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or that would any local, state, national, or international law; User Content that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; or that provides private information of any third party including addresses, phone numbers, email addresses, Social Security numbers, and similar information;
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using and benefiting from our Services, including, without limitation, User Content that contains or installs any viruses, worms, malware, Trojan horses, or other harmful or destructive content;
- User Content that is spam, is machine- or randomly-generated, or contains unethical or unwanted commercial content, or that furthers unlawful acts (such as phishing) or misleads recipients as to the source of the material (such as spoofing);
- User Content that does not comply strictly with any carrier agreements and terms associated with your mobile device; and
- User Content that attempts to disrupt the Site or Services.
We may from time to time provide interactive services on our Site, including, without limitation: user-maintained help website, chat rooms, and bulletin boards. Where we do provide any interactive service, we will attempt to provide clear information to you about the kind of service offered, if it is moderated and what form of moderation is used (including whether it is human or technical). We will do our best to assess any possible risks for users from third parties when they use any interactive service provided on our Site, and we will decide in each case whether it is appropriate to use moderation of the relevant service (including what kind of moderation to use) in the light of those risks. However, we are under no obligation to oversee, monitor, or moderate any interactive service we provide on our Site, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.
- SMS/MMS Mobile Message Marketing Program
User Opt In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at hello@drinkNITRO.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on our behalf (each, a “party”) to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Mobile Messaging Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in New York, New York before one arbitrator rather than in court, except that you may assert claims in small claims court if your claims qualify. Accordingly, the parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and the arbitrator must follow the terms of these Mobile Messaging Agreement terms as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent. The arbitration will be conducted by the AAA under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879.
Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which NITRO’s principal place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs to which these Mobile Messaging Agreement terms apply.
Miscellaneous: You warrant and represent to us that you have all necessary rights, power, and authority to agree to these Mobile Messaging Agreement terms and perform your obligations hereunder, and nothing contained in this Mobile Messaging Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Mobile Messaging Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Mobile Messaging Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Mobile Messaging Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Mobile Messaging Agreement from time to time. Any updates to this Mobile Messaging Agreement shall be communicated to you. You acknowledge your responsibility to review this Mobile Messaging Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Mobile Messaging Agreement, as modified.
17. OWNERSHIP OF FEEDBACK, TESTIMONIALS, USER CONTENT; USER WARRANTY AND INDEMNIFICATION.
17.1. You are under no obligation to provide any reviews, comments, suggestions, ideas, enhancement requests, feedback, and recommendations (“Feedback”) to us. You hereby agree that NITRO alone (and its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to any Feedback you provided to NITRO in any media regarding NITRO Materials, and accordingly hereby assign such to NITRO without any requirement for compensation or accounting therefor. You hereby waive any and all of your rights of droit moral and similar rights with respect to any Feedback.
17.2. From time-to-time, NITRO may permit end-users to submit reviews and testimonials regarding certain of the Products, as well as biographical information associated with such end-users (collectively “Testimonials”). By submitting a Testimonial, you irrevocably grant to NITRO the right to use the Testimonial, or any portion thereof, in any and all forms of marketing and promotional material, whether now known or hereinafter developed for any and all uses. You certify to NITRO that everything you state in the Testimonial is true and an expression of your personal belief. You acknowledge and agree that: (a) at no time did NITRO provide you with any consultation, advice, or guidance with respect to the substance of the Testimonial; (b) you are not an employee, officer, or director of NITRO; (c) you are not an immediate family member of an employee, officer or director of NITRO; and (d) you are not living in the same household with an employee, officer, or director of NITRO. You understand and agree that the Testimonial, in whole or in part, may be edited and/or dramatized and that any part of the Testimonial may be used without compensation to you. You agree that no ad or other material incorporating or making reference to the Testimonial need be submitted to you for approval. NITRO shall be without liability to you whatsoever for any distortion or illusionary effect resulting from its publication of the Testimonial. You expressly release NITRO from any and all claims that you have or may have for breach of right of publicity, invasion of privacy, defamation, copyright infringement, or any other claim or cause of action arising out of or in connection with any production, distribution, duplication, broadcast, exhibition, publication, ad, or promotion utilizing or incorporating the Testimonial, or any other use of the Testimonial whatsoever. You acknowledge and agree that NITRO shall not be liable for any causes of action or claims related to your decision to provide the Testimonial to NITRO.
17.3. You also hereby grant NITRO a nonexclusive, royalty-free, full-paid, perpetual, irrevocable, world-wide, assignable, licensable, and transferrable license to use and otherwise exploit any User Content or information other than Feedback provided by you or any other party relating to the NITRO Materials on or in any and all media (now known or hereafter developed) as NITRO deems necessary to its business. This license survives termination of this Agreement. We reserve the right, and have absolute discretion, to remove, screen, or edit any Feedback or User Content posted or stored on the Site at any time and for any reason without notice. You are solely responsible for creating backup copies of and replacing any User Content you post or store on our service, at your sole cost and expense.
17.4. You represent and warrant that: (a) you will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations, and/or agreements from any employee or third party that are necessary for us to collect, use, and share User Content in accordance with this Agreement and (b) no User Content, when used to provide Services hereunder, infringes upon or violates any other party’s intellectual property rights, privacy, publicity or other proprietary rights.
17.5. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS NITRO AND, IF RELEVANT, ITS VENDORS, AGENTS, ASSOCIATES, AND/OR PARTNERS AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL PROCEEDING TO THE EXTENT ARISING FROM OR ANY ACT OR OMISSION OF OR BY YOU IN RELATION TO PRODUCTS, USER CONTENT, OR YOUR BREACH OF THIS AGREEMENT. Your indemnification obligations under this Section are contingent upon: (a) NITRO providing you with prompt written notice of such claim (except that your indemnification obligations shall not be limited except to the extent they would be prejudiced by a delay); (b) NITRO providing reasonable cooperation to you, at your expense, in the defense and settlement of such claim; and (c) you having sole authority to defend or settle such claim, provided, however, you shall obtain NITROs written consent prior to entering any settlement which admits guilt or culpability on the part of NITRO or requires NITRO to take any action (such consent not to be unreasonably withheld).
18. AVAILABILITY OF SERVICES.
NITRO may make changes to or discontinue any of the media, contests, content, products, or services available within the Services at any time, for any reason, and without notice. NITRO makes no commitment to update the media, contests, content, products, or services on the Services.
Except as explicitly stated otherwise, legal notices shall be served by a user on NITRO’s national registered agent, or by NITRO to the email address you provide to NITRO during the account registration process. Notice shall be deemed given 24 hours after a notice is sent by email, unless the sending party is notified that the email address is invalid. You agree that any notices, agreements, disclosures, or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. Alternatively, in our sole discretion, we may give you legal notice by mail to the mailing address provided during the registration or purchase process via the Services. In such case, notice shall be deemed given three (3) days after the date of mailing.
20. VIOLATIONS; TERMINATION.
20.1. You agree that NITRO, in its sole discretion and for any or no reason, may terminate any NITRO user, member, or customer account (or any part thereof) or your use of the Services, at any time. NITRO may also in its sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice.
20.2. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, account holders who are deemed to be repeat infringers. We may also at our sole discretion limit access to our service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. Additionally, we reserve the right to limit access to our Services and/or terminate accounts of any users, for reasons of our own discretion that we are not obligated to reveal, at any time.
20.3. You agree that any termination of your access to the Services or any account you may have with us or portion thereof may be effected without prior notice, and you agree that NITRO shall not be liable to you or any third-party for any such termination. NITRO does not permit copyright infringing activities on the Services, and reserves the right to terminate access to the Services, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities.
20.4. NITRO also reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of NITRO, its users, and the public. NITRO also reserves the right to remove content alleged to be infringing another’s intellectual property rights without prior notice, at our sole discretion.
20.5. These remedies are in addition to any other remedies NITRO may have at law or in equity. You agree that NITRO shall not be liable to you or any third-party for any such termination. All provisions which, by their nature, are intended to survive termination, including those with respect to payment obligations accruing prior to such termination will survive any termination of this Agreement.
21. ALLERGIES; DISCLAIMERS; NO WARRANTIES.
21.1. The Products, Product descriptions, and other material made available by and through NITRO may include allergens. You should always check the ingredients in every Product to avoid potential allergic reactions. If you experience an allergic reaction or other adverse health event, promptly contact your health professionals.
21.2. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING IF THE PRODUCTS ARE SUITABLE FOR USE OR CONSUMPTION. WE ARE NOT ABLE TO PROVIDE ANY ASSURANCES REGARDING ALLERGIES OR INTERACTIONS WITH ANY MEDICATIONS. THE SERVICES AND ANY MEDIA, SOFTWARE, PRODUCTS, APPLICATIONS, MATERIALS, AND/OR THIRD-PARTY CONTENT, MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NITRO, AND ITS VENDORS, AGENTS, ASSOCIATES, AND/OR PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NITRO, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCTS, SERVICES, OR THE SERVER THAT MAKES THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
21.3. NITRO, AND ITS VENDORS, AGENTS, ASSOCIATES, AND/OR PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS OR SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT NITRO NOR ITS VENDORS, AGENTS, ASSOCIATES, AND/OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL, OR OTHER DATA THROUGH THE USE OF THE SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE WHATSOEVER THAT RESULTS FROM SUCH MATERIAL OR DATA. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
22. INDEMNIFICATION; HOLD HARMLESS.
You agree to indemnify and hold NITRO, and its vendors, agents, associates, and/or partners, harmless from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Products or Services, violation of this Agreement, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. NITRO reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
23. LIMITATION OF LIABILITY AND DAMAGES.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE SHALL NITRO OR ITS VENDORS, AGENTS, ASSOCIATES, AND/OR PARTNERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE NITRO MATERIALS ON THE SERVICES, THE PRODUCTS OR SERVICES THEMSELVES, OR ANY OTHER INTERACTIONS WITH NITRO, EVEN IF NITRO OR A NITRO AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, NITRO’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL NITRO’S OR ITS VENDORS, AGENTS, ASSOCIATES, AND/OR PARTNERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO NITRO IN THE MONTH IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN NITRO AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICES. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NITRO AND YOU.
24. DISPUTE RESOLUTION.
The parties will negotiate in good faith to resolve expeditiously on a mutually acceptable negotiated basis between appropriate management personnel for each party any dispute between them that may arise. The parties may, by mutual consent, retain a mediator to aid in their attempt to informally negotiate resolution of any dispute, although any opinion expressed by a mediator will be strictly advisory and will not be binding on the parties, nor will any opinion, statement or proposed resolution expressed by the mediator or the parties be admissible in any proceeding. Costs of the mediation will be borne equally by the parties, except that each party will be responsible for its own expenses. Should any dispute not be resolved pursuant to this paragraph of this Agreement, the parties agree to submit to the exclusive jurisdiction of the courts located in New York City, New York to resolve any dispute arising out of this Agreement or your access to or use of the Site or the Services, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
25. CLASS ACTION WAIVER.
THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
26.1. Minors. The Site and Services are not directed to minors under the age of eighteen (18). Consistent with applicable law, we do not knowingly collect personal information from minors under the age of eighteen (18) without the consent of their parents or guardians. If we learn that we have inadvertently obtained information in violation of applicable laws prohibiting the collection of information from minors under the age of eighteen (18) without such consent, upon proper notice, authority, and necessary confirmation of such, we will promptly delete it.
26.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflicts of law. EACH OF YOU AND NITRO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, EACH OF YOU AND NITRO HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF YOU AND NITRO ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR EACH OF THEM, RESPECTIVELY, TO ENTER INTO THIS AGREEMENT.
26.3. Force Majeure; Waiver. NITRO is not liable or responsible, nor shall be deemed to have defaulted under or breached this Agreement, for any failure to perform or delay in performing its obligations under this Agreement due to an event of force majeure. An event of force majeure is any event or circumstance beyond NITRO's reasonable control, such as war, hostilities, act of God, earthquake, flood, fire, or other natural disaster, strike or labor conditions, material shortage, epidemic, disease, government action, or failure of utilities, transportation facilities, or communication or electronic systems. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
26.4. Severability. 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.
26.5. Assignment. This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by NITRO without restriction.
26.6. Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
26.7. Entire Agreement. This Agreement, including the recitals hereto, as may be revised or supplemented via Guidelines or amendments in our discretion, is the entire agreement between us and you relating to the subject matter herein.
26.8. Claims. YOU AND NITRO AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU AGAINST NITRO ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
26.9. Copyright Complaints. If you believe that anything on our Site infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to receive notification of claimed infringement: CEO
E-Mail Address of Designated Agent: hello@drinkNITRO.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages including, but not limited to, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
26.10. Disclosures / Contact Information. The Site is operated by NITRO email: hello@drinkNITRO.com. If you are a California resident, you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
26.10. Trademark Information
The content of our Site and namely but not exclusively the texts, marks, logos, slogans, diagrams, photographs, videos, sounds, music, layout, designs, know-how, technologies, products, and processes are the exclusive property of and owned by NITRO Beverage Co. or its affiliated companies, licensors or content providers, and accordingly are protected by copyright, trademarks, patents and all other intellectual or industrial property rights which exist under applicable law. Nothing contained on our Site shall be interpreted or construed as granting you a license or a right to use any such content of our Site.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.