Terms of Use
Effective Date: June 28, 2024
Living Essentials, LLC and its affiliates, subsidiaries, and agents (collectively, “LE”, “us” or “we”) welcome you to its website (“Site”). These Site Terms of Use (“Agreement” or “Terms of Use”) constitute a legally binding agreement between LE and you, whether personally or on behalf of an entity you represent (You” or “you”) so please read them carefully.
BY ACCESSING OR USING THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THESE TERMS OF USE AND LE’S PRIVACY STATEMENT IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THIS SITE OR PURCHASE ANY LE PRODUCTS THROUGH ANY DISTRIBUTOR OR OTHER THIRD-PARTY BUSINESS AFFILIATE OF LE FOR WHICH CONTACT INFORMATION IS PROVIDED THROUGH THIS SITE.
I. USE OF SITE
This Site is only for residents of Canada (excluding Quebec) who are 19 years of age and older. The products described on this Site are intended only for the Canadian market. It is a condition of Your use of this Site that you use it for lawful and appropriate purposes, and that any information You provide to LE, any distributor or other third-party business affiliate of LE will be correct, current, and complete. If LE believes You have not complied with any of the Terms of Use, LE has the right to refuse You access to this Site or any of its resources and to terminate or suspend Your access to the Site or any of its resources at any time.
Information made available through this Site is not intended to replace information contained on any product labeling or as a substitute for the advice provided by Your own health care provider. You must not rely on information provided on this website as medical advice. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SUITABILITY OF ANY PRODUCTS OR SERVICES FOR YOU. PLEASE CONSULT WITH YOUR QUALIFIED HEALTH CARE PROFESSIONAL IF YOU HAVE A MEDICAL EMERGENCY OR QUESTIONS ABOUT A MEDICAL CONDITION.
II. PROHIBITED USE OF THE SITE
You may only use this Site for purposes expressly permitted by this Agreement. As a condition of Your use of LE’s Site, You warrant to LE that You will not use the Site for any purpose that is unlawful or prohibited by this Agreement. For example, You may not (and may not authorize any party to) (i) co-brand this Site, (ii) frame this Site, or (iii) use the Site (or any information contained herein) for any commercial purpose without the prior written permission of an authorized representative of LE. For purposes of this Agreement, “co-branding” means to display a name, logo, or trademark, in such a manner as is reasonably likely to give a user the impression that such party has the right to display, publish, or distribute this site or content accessible within this site. In addition, You may not use LE’s Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials, content, or information through any means not intentionally made available or provided for through the Site.
You also agree that You will not, in connection with Your use of this Site, do anything that (i) is unlawful; (ii) is harmful, threatening, abusive, harassing, defamatory, profane or otherwise inappropriate; (iii) includes providing false or inaccurate information; (iv) including providing personal or identifying information about another person without that person’s explicit consent; (v) impersonates any person or entity or falsely states or otherwise misrepresents an affiliation with a person or entity; (vi) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; or (vii) involves software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Further, you may not permit or encourage any other person to do any of the foregoing in this section or use the Site in a way that would constitute an infringement of the rights of LE and its licensors or a breach of these Terms of Use if it were done by you.
III. INTELLECTUAL PROPERTY
Trademarks, service marks, logos, copyrighted works and other intellectual property rights (including the collection and arrangement of content) appearing in this Site are the property of Living Essentials, LLC or the party that provided the trademarks, services marks, logos, copyrighted works and other intellectual property rights to LE for its permissive use. All rights are reserved by all such rightsholders. LE does not grant You any express or implied right to any patents, trademarks, copyrights, trade secret information or other intellectual property rights. In accordance with the Limited Liability section of this Agreement, as part of the use of this Site, to the extent permitted by applicable law, You agree not to bring any claim against LE, its affiliates, owners, members, subsidiaries, officers, directors, employees, agents, sponsors, third party content providers, licensors, licensees or the like for any claim of intellectual property infringement.
Where applicable, by uploading or making available through this Site any content (including User-Submitted Content), You waive all moral rights and grant (or warrant that the owner of such content expressly grants) to us, a worldwide, perpetual, royalty-free, irrevocable, sublicensable and non-exclusive license and right to: (i) use, copy, adapt, transmit, communicate, publicly display, perform, and/or distribute such content; and (ii) create compilations and/or derivative works from such content; provided, however, that use and disclosure of any personal information will be subject to the terms of this Site’s Privacy Statement.
IV. HYPERLINKING/LINKED SITES
This Site provides links to other websites managed by, or contact information for, third parties—including, but not limited to, Hilary’s Salesmaster—by allowing You to leave this Site to access third-party material (each a “Linked Site”). Certain areas of the Site may allow you to interact or conduct transactions with such Linked Sites or their owners, representatives, or affiliated businesses, and, in certain situations, you may be transferred to a Linked Site through a link but it may appear that you are still on this Site. LE is not related to, nor does it have discretion to alter, update, or control the content on a Linked Site or the actions of any distributor or other entity with respect to any information you provide to them or they obtain from you or otherwise. LE has not reviewed Linked Sites and is not responsible for the content of those sites or the actions of the associated third parties. The fact that LE has provided a link to a website, or an email address or phone number to a distributor or other third party, is not an endorsement, authorization, sponsorship, or affiliation with respect to such website, its owners, or its providers or other third party. You acknowledge and agree that you access any Linked Sites and contact any third party at Your own risk. LE makes no representations or warranties about the content, completeness or accuracy of these Linked Sites. You should be aware that Linked Sites may contain rules and regulations, privacy provisions, confidentiality provisions, transmission of personal data provisions, and other provisions that differ from the provisions provided on this Site. LE is not responsible for such provisions and expressly disclaims all liability related to such provisions. Please check the policies of these Linked Sites before you use or submit any data on these Linked Sites.
V. DESIGNATED TERRITORY; SANCTIONS & EXPORT POLICY
The Site is only intended for customers and retailers interested in 5-hour ENERGY® products in Canada (excluding Quebec) (the “Designated Territory”). However, the Site may be accessible from outside the Designated Territory. Any such access does not imply that the Site’s products or services will be made available in other areas. If you access and use the Site outside of the Designated Territory, you are responsible for complying with all applicable laws and regulations.
VI. DISCLAIMER OF WARRANTY
You expressly agree that use of the Site is at Your sole risk. Neither LE nor its affiliates, any of their officers, owners, members, directors, employees, agents, third-party content providers, sponsors, or licensors (collectively, “Providers”), or the like, warrant that this Site will be uninterrupted or error-free; nor do they make any warranty as to the results that may be obtained from the use of this Site or as to the accuracy, completeness, reliability, or security of the materials. THIS SITE AND THE INFORMATION, CONTENT, AND MATERIALS ON THIS SITE ARE PROVIDED ON AN “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. LE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING AS TO THE OPERATION OF THE SITE, OR TO THE CONTENT, INFORMATION, OR THE MATERIALS ON THIS SITE. LE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WITH RESPECT TO ANY OF THE MATERIALS, CONTENT, OR INFORMATION ON THIS SITE OR YOUR USE OF THIS SITE GENERALLY, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
You, and on behalf of Your agents, attorneys, employees, predecessors-in-interest, successors-in-interest, partners, associates, members, officers, directors, affiliates, subsidiaries, associations, shareholders, trusts, trustees, heirs, executors, assigns, and transferees, hereby fully release, discharge, waive, and absolutely forgive LE, and each of its respective agents, attorneys, employees, predecessors-in-interest, successors-in-interest, partners, associates, members, officers, directors, affiliates, subsidiaries, associations, shareholders, trusts, trustees, heirs, executors, assigns, and transferees, from any and all lawsuits, demands, controversies, disputes, actions, causes of action, rights to accountings, fees, invoices, billings, proceedings, obligations, debts, liabilities, costs, disbursements, expenses, attorneys’ fees, damages and other claims of whatever character, nature and kind, in law or in equity, past, present or future, known or unknown, joint or several, suspected or unsuspected, arising from or relating to Your use of the Site and/or any works obtained therefrom (collectively, “Claim”). To the extent permitted by applicable law, You covenant not to sue with respect to any Claim subject to the foregoing release, discharge or waiver.
You understand that LE cannot and does not guarantee or warrant that data available on the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for accuracy of data input and output, and for maintaining a means external to this Site for any reconstruction of any lost data. LE does not assume any responsibility or risk for Your use of the Internet.
VII. LIMITATION OF LIABILITIES
LE, ITS SUBSIDIARIES, AFFILIATES, OWNERS, MEMBERS, LICENSORS, SERVICE PROVIDERS, ATTORNEYS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOST DATA, REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF LE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION APPLIES TO CLAIMS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), LIABILITY, OR ANY OTHER LEGAL THEORY. SOME JURISDICTIONS DO NOT ALLOW LIMITING LIABILITY FOR CERTAIN DAMAGES. IN SUCH JURISDICTIONS, LE ’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF LE AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID TO LE FOR THE APPLICABLE GOODS OR SERVICE OUT OF WHICH LIABILITY AROSE.
VIII. INDEMNIFICATION
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS LE, ITS AFFILIATES, OWNERS, SUBSIDIARIES, MEMBERS, AGENTS, EMPLOYEES, SPONSORS, AND LICENSORS (THE “LE INDEMNIFIED PARTIES”) FROM AND AGAINST ALL CLAIMS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF, OR RELATED IN ANY WAY, TO YOUR USER-SUBMITTED CONTENT (AS DEFINED IN SEC. IX), USE OF THE SITE, VIOLATION OF THIS AGREEMENT, VIOLATION OF ANY LAW OR REGULATION, OR VIOLATION OF ANY PROPRIETARY OR PRIVACY RIGHT. THIS INCLUDES, BUT IS NOT LIMITED TO, DEFENSE AND INDEMNIFICATION OF LE FOR ANY UNLAWFUL OR UNPERMITTED UPLOADING OF ANY INFORMATION BY A USER. THIS INDEMNIFICATION SHALL SURVIVE ANY TERMINATION OR SUSPENSION OF YOUR USE OF THIS SITE.
IX. USER-SUBMITTED CONTENT
You may be able to post reviews, comments, photos, videos, other content, and submit suggestions, ideas, questions, or other material or information (collectively, “User-Submitted Content”) to the Site, Linked Sites or other third-party recipients. All User-Submitted Content whether publicly posted or privately transmitted, is the sole responsibility of the person from which such user content originated. This means that You, and not LE, are entirely responsible for all User-Submitted Content that You upload, post, e-mail, or otherwise transmit.
By submitting any User-Submitted Content, you represent and warrant that your actions are lawful in all respects and that you will comply with all lawful terms, conditions, and policies of this Site, the Linked Sites and/or third-party recipients.
X. TERM AND TERMINATION
LE reserves the right to terminate Your access to any part or the entire Site at any time without notice for any reason whatsoever. Subject to the Site’s Privacy Statement, LE also reserves the right, at all times, to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in its sole discretion. LE reserves the right to seek all remedies available at law and in equity for any violation of this Agreement. Sections VI–XVIII shall survive the termination of this Agreement.
XI. NO AGENCY OR THIRD-PARTY BENEFICIARY
You agree that no agency, partnership, joint venture, employee-employer, or franchiser- franchisee relationship exists between You and LE as a result of this Agreement or Your use of the Site. You acknowledge that You do not have authority or power to bind LE. In no event shall LE be liable for any representation, act, or omission made by You. The parties further agree that nothing in this Agreement is intended, or shall be construed, as creating any rights in third parties, except with respect to the LE Indemnified Parties.
XII. CONTROLLING LAW, JURISDICTION
This Agreement is governed by and shall be construed in accordance with the laws of the province of Ontario, Canada, without reference to its conflicts of laws provisions. You specifically consent to personal jurisdiction in Ontario in connection with any dispute between You and LE arising out of this Agreement, use of this Site, or pertaining to the subject matter hereof. You agree the exclusive venue for any dispute between the LE and You arising out of this Agreement or Your use of this Site will be in the provincial and federal courts in Toronto, Ontario, Canada.
LE makes no representation that the materials are appropriate or available for use outside the Designated Territory, and this Site is for residents of the Designated Territory only. This Site is not intended for use by, or to provide any information to, users outside of the Designated Territory. LE reserves the right to require proof of residence from any user accessing the Site and requesting information. You agree to comply with all laws and regulations applicable to Your use of this Site.
XIII. ENTIRE AGREEMENT, SEVERABILITY, AND WAIVER
This Agreement constitutes the entire agreement between LE and You with respect to this Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between You and LE with respect to this Site. If for any reason a court of competent jurisdiction finds any provision of this Agreement or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. Any failure by LE to enforce any provision of this Agreement shall not constitute a waiver of any rights under such provision or any other provision of this Agreement.
XIV. MODIFICATIONS TO AGREEMENT
LE may revise this Agreement at any time and You agree to be bound by the revised Agreement. Any such modifications will become effective upon the date they are first posted to this Site. It is Your responsibility to return to this Agreement from time to time to review the most current terms of Use.
XV. VIOLATION OF TERMS OF USE
Any use of this Site in violation of the foregoing violates these Terms of Use and may result, among other actions, in termination or suspension of Your rights to use the Site. Any decision as to whether User-Submitted Content violates these Terms of Use or other policies applicable to this Site will be made in LE ’s sole discretion.
XVI. SECURITY
You are prohibited from using any services or facilities provided in connection with this Site to compromise security or tamper with system resources or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If You become involved in any violation of system security, LE reserves the right, in accordance with our Privacy Statement, to release Your details to system administrators at other sites to assist them in resolving security incidents. LE reserves the right to investigate suspected violations of this Agreement.
In accordance with our Privacy Statement, LE reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing LE to disclose the identity of anyone posting, publishing or otherwise making available any materials that are believed to violate this Agreement. BY ACCEPTING THIS AGREEMENT, YOU WAIVE AND HOLD HARMLESS THE LE INDEMNIFIED PARTIES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY LE OR ANY LE INDEMNIFIED PARTY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY LE, ANY LE INDEMNIFIED PARTY, AND/OR LAW ENFORCEMENT AUTHORITIES.
XVII. MISCELLANEOUS
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.