Effective Date: January 2, 2013
By accessing and using the DirtShark Web Site, you agree to these Terms. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE THE DIRTSHARK WEB SITE. We’ll be sad because we want you to use the DirtShark Web Site, but it is for our protection.
Table of Contents
Certain areas of the DirtShark Web Site require that you register with the web site. For example, to participate in user forums or to submit User Content (defined below) for our consideration to appear on the main posting area of the DirtShark Web Site, you will need to register with the web site. The decision to provide registration information is purely optional; however, if you elect not to provide such information, you will not be able to access the DirtShark Web Site. When you provide information to the DirtShark Web Site, you agree to provide only true, accurate, current, and complete information.
By registering on The DirtShark Web Site, you agree to accept responsibility for all activities that occur under your account or password, if any, and you agree you will not sell, transfer, or assign your membership or any membership rights. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the DirtShark Web Site using your name in whole or in part. Monster Energyreserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability.
2.Ownership of The DirtShark Web Site Materials
Materials. We like the DirtShark Web Site and want to protect it. The DirtShark Web Site (including past, present and future versions) and all materials that are included in or are otherwise a part of the DirtShark Web Site, including, without limitation: graphics; layout; text; content; instructions; images; audio; videos; designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the DirtShark Web Site; the compilation, assembly and arrangement of the materials of the DirtShark Web Site; and all other materials related to the DirtShark Web Site (collectively, the “Materials”)are owned, controlled, or licensed by Monster Energy, its subsidiaries or affiliates and are protected from unauthorized use, copying, and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations, and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by Monster Energy, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under these Terms are hereby reserved for Monster Energy and/or its affiliates or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way Monster Energy’s rights to exploit fully any or all of the Materials. You agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Materials, or take any action in derogation of Monster Energy’s rights therein, or in breach of, any terms and conditions contained in these Terms. You acknowledge and agree that you will not acquire or claim any rights in the Materials, or aid or abet anyone else in doing so.
Copyright/Trademarks. The entire contents of the DirtShark Web Site (including the Materials) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Monster Energy owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the DirtShark Web Site. Third-party content providers own the copyright in content that is original to them. Trademarks and service marks on the DirtShark Web Site are the trademarks and service marks of Monster Energy or affiliated companies. Without Monster Energy’s prior written permission, you shall not display, reproduce, or use, in any manner any such marks; nevertheless, all goodwill associated with any use by you thereof will inure exclusively to Monster Energy or its respective owners. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of Monster Energy, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the DirtShark Web Site.
3.Your License to Use Materials on The DirtShark Web Site
Prohibited Activities. You also agree that you will not:(a) use any robot, spider, rover, scraper, or any other data-mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard Internet browser or search engine); (b) fail to follow the instructions provided on the DirtShark Web Site in a “robots.txt” file or similar mechanism (to the extent that you provide standard search engine services to the public); nor will you (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these Terms without the prior written consent of Monster Energy.
4.Information You Submit
User Content. The DirtShark Web Site may provide you and others with the opportunity to upload content for our consideration for display on the main-post area, comment on such content, participation in user forums, and other communication functionality that Monster Energy may, in its sole discretion, include on the DirtShark Web Site (collectively, “Interactive Features”) and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Monster Energy or the DirtShark Web Site, including, without limitation, photographs, writings, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions, or personally identifiable information (collectively, “User Content”).
License to Monster Energy for User Content. You grant to Monster Energy the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache, or otherwise exploit in any manner, all or any portion of your User Content for any purpose in all formats; on or through any media, software, formula, or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that Monster Energy is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the DirtShark Web Site or Monster Energy, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and or services using such User Content; or creating informational articles based on or advertising our products and services, and without compensation of any kind. You further perpetually and irrevocably grant Monster Energy the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or compensation to you. You also grant to Monster Energy the right to sub-license and authorize others to exercise any of the rights granted to Monster Energy under these Terms; and each such third party will be entitled to benefit from the rights and licenses granted to Monster Energy under these Terms. You further authorize Monster Energy to publish your User Content in a searchable format that may be accessed by users of the DirtShark Web Site and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
Monster Energy’s Obligations Regarding User Content. You agree that Monster Energy has no obligation to, pre-screen, monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees’ licensed rights to your User Content. You further acknowledge and agree that Monster Energy may, but has no obligation to, review, monitor, display, accept, or exploit any User Content. Monster Energy may, in its sole discretion, delete, edit, distribute, move, block access, re-format, edit, alter, distort, remove, or decline to exploit User Content without notice or liability. User Content posted may not be maintained on the DirtShark Web Site by us for any period of time, we may delete it at our discretion, and you have no right to access or control any User Content that you provide. You agree and understand that Monster Energy is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
Your Obligations Regarding User Content. You agree that you must evaluate, and bear all risks associated with, the use of any of User Content, including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Content.You bear legal responsibility for others’ exposure to any offensive indecent or objectionable content in User Content.
Feedback Submissions Prohibited. Monster Energy does not accept unsolicited submissions or feedback for web sites, ideas, products or services. It is our intent to avoid the possibility of future misunderstandings when projects developed by or on behalf of Monster Energy (whether internally or by third parties) might seem to others to be similar to their own creative ideas or materials. Therefore, please do not make any such unsolicited submissions to Monster Energy through the DirtShark Web Site, including through Interactive Features. However, if you decide to make any such unsolicited submission, you hereby grant to Monster Energy the right and license as if it were User Content as specifically set forth above.
As a user of the DirtShark Web Site, you agree that these usage rules (“Rules”) are here to help you understand the conduct that is expected of individuals who use the DirtShark Web Site and participate in Interactive Features. Your use of the DirtShark Web Site and participation in the Interactive Features are subject to all the Terms, including these Rules. We reserve the right, in our sole discretion, to monitor and screen all User Content submitted to the DirtShark Web Site and we may disregard any User Content for any reason including, without limitation, if the User Content, in our sole discretion, violates these Rules or the Terms, or if we otherwise find the User Content objectionable. Please follow these Rules as you upload any User Content:
User Content must be yours. All User Content must be original with you, not copied from someone else’s work, and you must have all rights in the User Content; OR, all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content have given you permission to upload and distribute the User Content on the DirtShark Web Site and elsewhere.
No pictures or images of anyone but you, your friends and family. If you choose to upload photos to the DirtShark Web Site, link to embedded videos, or include other images of real people, make sure they are of you or of you and someone you know – but only with their express permission to submit it, and if that person is a minor in the jurisdiction in which they live, with the express permission of his/her parent or legal guardian. If you are submitting a picture of someone else’s pet, you must have permission of the pet owner to do so.
Please act appropriately. Express yourself with non-offensive individual self-expression. Be respectful of others opinions and comments so we can continue to build the DirtShark Web Site for everyone to enjoy. If you think your User Content might offend someone or be embarrassing to someone chances are it probably will, and it doesn’t belong on the DirtShark Web Site. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, religion, gender, sexual preference, or physical or mental disability, or that are defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit. If you discover content that violates these Terms, you may report such abuse by contacting us at .
Don`t upload third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
Does your User Content contain music? Your User Content may not contain any music unless the work and performance is original with you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
Do not use the Interactive Features for commercial purposes. Your User Content may not advertise or promote a product or service, other than a Monster Energy product or service. You may not use your User Content to raise money for anyone, any organization (including charitable organizations), any business or for a pyramid or other multi-tiered marketing scheme.
Do not upload User Content that is inappropriate or illegal. Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don’t upload or post it. If you do upload or post User Content that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
No violence or cruelty to animals. Your User Content may not promote violence or cruelty to animals or describe how to perform a violent or cruel act.
Be honest and do not misrepresent yourself or your User Content. Do not impersonate any other person, user or company or upload or post User Content that you know is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
Others are watching. We hope that you will use the Interactive Features to exchange information and content and have discussions with other members. However, please remember that the Interactive Features are a public forum, and User Content that you post on the Interactive Features will be accessible and viewable by other users. Do not post personal information (e.g., first and last name, password, phone number, address, e-mail address or other personally identifiable information or contact information).
Don`t share other people`s personal information. Your User Content may not reveal another person’s address, phone number, e-mail address, credit card number, or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature.
Don`t damage the DirtShark Web Site’s or anyone`s computers. User Content may not upload viruses, Trojan horses, spyware or any other technologies that could impact the operation of the DirtShark Web Site or any computer system.
We reserve the right to request at any time proof of the permissions referred to above in the sections starting “User Content must be yours” and “No pictures or images of anyone but you and your friends and family” and “Does your User Content contain music?” in a form acceptable to us. Failure to provide such proof may, if requested, lead to the User Content in question being removed from the DirtShark Web Site.
DMCA. You may not use The DirtShark Web Site for any purpose or in any manner that infringes the rights of any third party. In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”) (text at [a href="http://www.copyright.gov/"]http://www.copyright.gov), Monster Energy has a designated agent for receiving notices of copyright infringement and we follow the notice and take down procedures of the DMCA. We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
Procedure. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Monster Energy’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Here is the contact information for our DMCA agent:
Name: Greg Hall, Legal Counsel
Mailing address: Monster Energy Company, 550 Monica Circle, Suite 201
Corona, CA 92880
E-mail address: firstname.lastname@example.org
It is often difficult to determine if your intellectual property rights have been violated. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
7. Your Warranties
You represent and warrant that: (i) you have the legal right and capacity to enter into these Terms in your jurisdiction where you reside and to comply with these Terms; (ii) all information you provide to Monster Energyis true, accurate, complete and current; and (iii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these Terms. You also agree that you will be responsible for obtaining and maintaining all modem, telecommunications equipment, computer hardware, wireless devices and other equipment needed for access to and use of the DirtShark Web Site and you will be responsible for all charges related thereto.
8.User Interactions and Disputes
You are solely responsible for your interaction with other users of the DirtShark Web Site, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
The DirtShark Web Site may contain or offer sweepstakes, contests or other promotions, which may be governed by a separate set of rules that describe the sweepstakes, contest or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes, contest or promotion.
10.Third-Party Links and Content
11. Linking Policy
Monster Energy grants you the revocable permission to link to the DirtShark Web Site; provided, however, that your web site, or any third party web sites that link to the DirtShark Web Site: (a) may only link to the DirtShark Web Site’s home page unless Monster Energy has provided prior, written consent to link to other pages; (b) must not frame or create a browser or border environment around any of the content on Monster Energy or otherwise mirror any part of the DirtShark Web Site; (c) must not imply that Monster Energy or the DirtShark Web Site are endorsing or sponsoring it or its products, unless Monster Energy has given its prior written consent; (d) must not present false information about, or disparage, tarnish, or otherwise, in Monster Energy’s sole opinion, harm Monster Energy or its products or services; (e) must not use any Monster Energy trademarks without the prior written permission from Monster Energy; (f) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Monster Energy’s sole opinion); and (g) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to Monster Energy, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Monster Energy reserves the right to prohibit linking to the DirtShark Web Site for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
Mobile Features. The DirtShark Web Site may offer features and services that are available to you via your mobile phone. These features and services may, include, without limitation, the ability to upload content to the DirtShark Web Site, receive messages from us, download applications to your mobile phone or access the DirtShark Web Site’s features (collectively, the “Mobile Features”). Standard messaging, data and other fees may be charged by your carrier to participate in Mobile Features. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues.
Terms of Mobile Features. You agree that the Mobile Features for which you are registered may send communications to your mobile device. Further, we may collect information related to your use of the Mobile Features. If you have registered for Mobile Features, you agree to notify Monster Energy of any changes to your mobile number and update your account on the DirtShark Web Site to reflect this change.
13.Items Available For Download
Any items that we make available for download or use from the DirtShark Web Site and/or our servers (the “Downloadable Items”) are the copyrighted work of Monster Energy or its licensors or suppliers. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the DirtShark Web Site, you consent to the download of software to your computer and accept these Terms and any Additional Terms related to such application.
14.Disclaimer of Warranties
THE DIRTSHARK WEB SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, MONSTER ENERGY AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “MONSTER ENERGY PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND, EXPRESS OR IMPLIED, AS TO: (A) THE DIRTSHARK WEB SITE; (B) THE MATERIALS ON OR PROVIDED THROUGH THE DIRTSHARK WEB SITE; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE DIRTSHARK WEB SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE DIRTSHARK WEB SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM MONSTER ENERGY OR VIA THE DIRTSHARK WEB SITE. IN ADDITION, THE MONSTER ENERGY PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE MONSTER ENERGY PARTIES DO NOT REPRESENT OR WARRANT THAT THE DIRTSHARK WEB SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE DIRTSHARK WEB SITE OR THE SERVER THAT MAKES THE DIRTSHARK WEB SITE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE MONSTER ENERGY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE DIRTSHARK WEB SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE MONSTER ENERGY PARTIES DO NOT WARRANT THAT YOUR USE OF THE DIRTSHARK WEB SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE MONSTER ENERGY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
BY ACCESSING OR USING THE DIRTSHARK WEB SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE DIRTSHARK WEB SITE.
15.Disclaimers/Limitation of Liability
LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE MONSTER ENERGY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE DIRTSHARK WEB SITE; (B) THE MATERIALS; (C) THE DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE DIRTSHARK WEB SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE MONSTER ENERGY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE DIRTSHARK WEB SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE DIRTSHARK WEB SITE’S TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE MONSTER ENERGY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE DIRTSHARK WEB SITE). IN NO EVENT WILL THE MONSTER ENERGY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES, COUNTRIES, PROVINCES AND TERRITORIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE MONSTER ENERGY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00 USD).
YOUR ACCESS TO AND USE OF THE DIRTSHARK WEB SITE IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE DIRTSHARK WEB SITE OR ANY OF THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE DIRTSHARK WEB SITE AND THE MATERIALS.
WAIVER OF UNKNOWN CLAIMS. BY ACCESSING THE DIRTSHARK WEB SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend (if requested by Monster Energy), indemnify and hold harmless the Monster Energy Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the DirtShark Web Site or activities in connection with the DirtShark Web Site; (c) your breach or anticipatory breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer or other device used to access the DirtShark Web Site, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Monster Energy Parties’ use of your information. You will cooperate as fully required by the Monster Energy Parties in the defense of any claim. Notwithstanding the foregoing, the Monster Energy Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The Monster Energy Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Monster Energy Parties.
17.Termination and Modifications
Termination. Monster Energy reserves the right to terminate your access to and use of the DirtShark Web Site at any time, in its sole discretion, without notice and liability, including, without limitation, if Monster Energy believes your conduct fails to conform with these Terms. Monster Energy also reserves the right to investigate suspected violations of these Terms, including, without limitation, any violation arising from any e-mails you send to the DirtShark Web Site or Monster Energy. Any violation, or potential violation, of these Terms may be referred to law enforcement authorities.
Modifications. Monster Energy reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any Materials available on the DirtShark Web Site, without limitation, in whole or in part, including the cessation of all activities associated with the DirtShark Web Site, with or without notice. You agree that Monster Energy will not be liable to you or to any third party for any modification, suspension or discontinuance of the DirtShark Web Site or any part thereof.
What happens upon Termination? Upon termination of your access to the DirtShark Web Site, or upon demand from Monster Energy, all rights granted to you under these Terms will cease immediately, and you agree that you will: (a) immediately discontinue use of the DirtShark Web Site, including links to the DirtShark Web Site; and (b) destroy all Materials obtained from Monster Energy and all related documentation.
18.Location of Sites and Territorial Restrictions
Location of The DirtShark Web Site. The information provided on the DirtShark Web Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Monster Energy to any registration requirement within such jurisdiction or country. Monster Energy controls and operates the DirtShark Web Site from offices located in the United States and makes no representations or warranties that the information, products or services contained on the DirtShark Web Site are appropriate for use or access in other locations. Anyone using or accessing the DirtShark Web Site from other locations does so on his or her own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the DirtShark Web Site and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
Software. Software related to or made available by the DirtShark Web Site may be subject to United States export controls. Thus, no software from the DirtShark Web Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software related to the DirtShark Web Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
19.Governing Law, Jurisdiction and No Class Actions
We hope we never get into any disputes with you but just in case, here are some things that would apply:
GOVERNING LAW/JURISDICTION. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS-OF-LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS (OR THE BREACH OR TERMINATION HEREOF) WILL BE SETTLED BY BINDING ARBITRATION CONDUCTED BY JAMS/ENDISPUTE (“JAMS”) IN ACCORDANCE WITH JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES (THE “ARBITRATION RULES”). THE ARBITRATION WILL BE HEARD BY ONE ARBITRATOR TO BE SELECTED IN ACCORDANCE WITH THE ARBITRATION 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 WILL SET THE HEARING DATE, WHICH WILL 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 WILL 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 OF IMPOSING A PENALTY FROM THE OTHER IN ANY ARBITRATION OR JUDICIAL PROCEEDING OR OTHER ADJUDICATION ARISING OUT OF OR WITH RESPECT TO THESE TERMS OR ANY BREACH HEREOF, INCLUDING ANY CLAIM THAT SAID TERMS, OR ANY PART HEREOF, IS INVALID, ILLEGAL, OR OTHERWISE VOIDABLE OR VOID. IN ADDITION TO ALL OTHER RELIEF, THE ARBITRATOR WILL HAVE THE POWER TO AWARD REASONABLE ATTORNEYS’ FEES TO THE PREVAILING PARTY THE ARBITRATOR WILL MAKE HIS OR HER AWARD NO LATER THAN SEVEN (7) CALENDAR DAYS AFATER THE CLOSE OF EVIDENCE O RTHE SUBMISSION OF FINAL BRIEFS, WHICHEVER OCCURS LATER.
20.Updates to Terms
Monster Energy reserves the right to modify or add to these Terms or any Additional Terms from time to time (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them so that they are accessible via a link on the home page of the DirtShark Web Site, and that your use of the DirtShark Web Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms before using the DirtShark Web Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the DirtShark Web Site from that point forward.
The failure of Monster Energy to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Monster Energy’s rights with respect to such breach or any subsequent breaches. No waiver by Monster Energy of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Monster Energy. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. Monster Energy may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without Monster Energy’s prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against Monster Energy by virtue of having drafted them.
THANKS FOR TAKING THE TIME TO READ ALL THAT LEGAL LANGUAGE. NOW GO ENJOY THE DIRTSHARK WEB SITE!