BROWNIEDIVE.COM WEBSITE TERMS & CONDITIONS
BROWNIES THIRD LUNG™, owns and operates BrownieDive.com, hereafter Website. BY ACCESSING OR OTHERWISE USING THE WEBSITE YOU AGREE TO ANY AND ALL PARTS OF THESE TERMS & CONDITIONS. Any person or entity who interacts with the Website (BrownieDive.com) through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, is considered to be using the Website. If at any time you do not accept all of these Terms & Conditions, you must immediately stop using the Website. Certain areas within the Website may be governed by additional terms (“Additional Terms”). By using those areas of the Website, you agree to the Additional Terms. The Additional Terms are incorporated into these Terms & Conditions, and any reference to these Terms & Conditions includes the Additional Terms.
All content included on the Website, such as text, graphics, logos, images, audio clips, video, data, music, software, application updates and other material (collectively “Content”) is owned or licensed property of BrownieDive.com or its suppliers or licensors and is protected by copyright, trademark, patent or other proprietary rights. The collection, arrangement and assembly of all Content on the Website is the exclusive property of BrownieDive.com and protected by U.S. and international copyright laws. BrownieDive.com and its suppliers and licensors expressly reserve all intellectual property rights in all Content.
LICENSE & ACCESS
BrownieDive.com grants you a limited license to access and make personal use of the Website and the Content for NONCOMMERCIAL PURPOSES ONLY and only to the extent such use does not violate these Terms & Conditions including, without limitation, the prohibitions listed in the “UNLAWFUL OR PROHIBITED USES” section of these Terms & Conditions. You may download, print and copy Content for personal, noncommercial purposes only, provided you do not modify or alter the Content in any way, delete or change any copyright or trademark notice, or violate these Terms & Conditions in any way. Accessing, downloading, printing, posting, storing or otherwise using the Website or any of the Content for any commercial purpose, whether on behalf of yourself or on behalf of any third party, constitutes a material breach of these Terms & Conditions. The Website is intended for use by individuals 18 years of age or older. If you are under 18, you may use this Website only with involvement of a parent or guardian. If you are under 18, and you continue to use this website without parental involvement (no consent) you are in breach of these Terms & Conditions, and we will contact your parents to let them know what you have been up to. No, we are not kidding. Respect your parents.
UNLAWFUL OR PROHIBITED USES
The Website may only be used for lawful purposes in accordance with the terms of the license granted in these Terms & Conditions. As a condition of your use of this Website, you warrant to BrownieDive.com that you will not use the Website for any purpose that is unlawful or prohibited by these Terms & Conditions. Whether on behalf of yourself or on behalf of any third party or entity, YOU MAY NOT:
- make any commercial use of the Website or its Content, including making any collection or use of any product listings, descriptions, prices or images;
- download, copy or transmit any Content for the benefit of any other merchant;
- use or attempt to use any engine, software, tool, agent, data or other device or mechanism (including browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Website other than the search engine and search agents provided by BrownieDive.com or generally publicly available browsers;
- frame, mirror or use framing techniques on any part of the Website without BrownieDive.com’s express prior written consent;
- make any use of data extraction, scraping, mining or other data gathering tools, or create a database by systematically downloading or storing Website content, or otherwise scrape, collect, store or use any Content, product listings, descriptions, prices or images, except pursuant to the limited license granted by these Terms & Conditions;
- use any meta tags or any other hidden text utilizing BrownieDive.com’s name or marks;
- misrepresent the identity of a user, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Website, or express or imply that we endorse any statement you make;
- use a buying agent to conduct transactions on the Website;
- conduct fraudulent activities on the Website;
- violate or attempt to violate the security of the Website, including, without limitation: (i) accessing data not intended for you or logging onto a server or an account that you are not authorized to access; (ii) trying to change the behavior of the Website; (iii) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures; (iv) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting malware to the Website, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”; (v) forging any header or any part of the header information in any email or posting; or (vi) forging communications on behalf of the Website (impersonating the BrownieDive.com Website) or to the Website (impersonating another user);
- send unsolicited or unauthorized email on behalf of BrownieDive.com, including promotions and/or advertising of products or services;
- tamper with the Website or use or attempt to use any device, software, routine or data that interferes or attempts to interfere with the working or functionality of the Website or any activity being conducted on the Website;
- use the Website to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity;
- harvest or collect personally identifiable information about other users of the Website;
- restrict or inhibit any other person from using the Website (including, without limitation, by hacking or defacing any portion of the Website);
- use the Website to advertise or offer to sell or buy any goods or services without BrownieDive.com’s express prior written consent;
- reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any portion of, use of or access to the Website;
- modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Website; or
- remove any copyright, trademark or other proprietary rights notice from the Website or materials originating from the Website.
You may be required to register with BrownieDive.com in order to access certain services or areas of the Website. With respect to any such registration, we may refuse to grant to you the user name you request. Your user name and password are for your personal use only. If you use the Website, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available to BrownieDive.com including those set forth in these Terms & Conditions, BrownieDive.com reserves the right, in its sole discretion, to terminate your account, refuse service to you or cancel orders.
MODIFICATION & TERMINATION
BrownieDive.com may at any time: (i) modify or discontinue any part of the Website; (ii) charge, modify or waive fees required to use the Website; or (iii) offer opportunities to some or all Website users. BrownieDive.com reserves the right to make changes to these Terms & Conditions at any time, and such changes will be effective immediately upon being posted on the Website. Each time you use the Website, you should review the current Terms & Conditions. You can determine when these Terms & Conditions were last revised by referring to the “LAST UPDATED” legend at the top of these Terms & Conditions. Your continued use of the Website will indicate your acceptance of the current Terms & Conditions; however, any change to these Terms & Conditions after your last usage of the Website will not be applied retroactively. BrownieDive.com reserves the right, without notice and at its sole discretion, to terminate your account or your use of the Website and to block or prevent future access to and use of the Website (i) if you violate any of these Terms & Conditions, (ii) for any other reason or (iii) for no reason. Upon any such termination, your right to use the Website will immediately cease. You agree that we shall not be liable to you or any third party for any termination of your access to the Website. Upon termination, all provisions of these Terms & Conditions which are by their nature intended to survive termination, all representations and warranties, all limitations of liability and all indemnities shall survive such termination.
USER REVIEWS, COMMENTS & SUBMISSIONS
BrownieDive.com welcomes your reviews, comments and other communications, photos, videos or any other content that you submit through or to the Website, or any content or information you publish through any social media and allow BrownieDive.com to feature, such as your name, social media handle, accompanying text and any images from your social media accounts (e.g. Facebook™, Twitter™, Instagram™, Pinterest™, LinkedIn™, Google+™) (collectively, “User Content”) as long as the User Content submitted by you complies with these Terms & Conditions. User Content will not include any photographs or images you submit as part of a Transaction (as defined below). You agree that any User Content: will be accurate; will not violate or facilitate the violation of any law or regulation; will not violate any right of a third party, including copyright, trademark, privacy or publicity rights; will not cause injury to any person or entity; and will not contain, or provide links to, obscene, profane or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam” or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive or degrading. You are solely responsible for the User Content you submit, and BrownieDive.com assumes no liability for any User Content submitted by you. You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, in our sole discretion: (i) monitor User Content; (ii) alter, remove or refuse to post or allow to be posted any User Content; and/or (iii) disclose any User Content, and the circumstances surrounding its transmission, to any third party. For any User Content you submit, you grant to BrownieDive.com a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute such User Content and to incorporate the User Content into any form, medium, or technology, now known or hereafter developed, throughout the world, all without compensation to you. For this reason, do not send us any User Content that you do not wish to license to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. In addition, you grant to BrownieDive.com the right to include the name provided along with the User Content submitted by you; provided, however, BrownieDive.com shall have no obligation to include such name with such User Content. We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this section. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
Content is also provided by third party visitors to the Website. Please note that Website visitors may post content that is inaccurate, misleading or deceptive. BrownieDive.com neither endorses nor is responsible for any opinion, advice, information or statements made by third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and may not reflect the opinions of BrownieDive.com.
If you wish to purchase any product or service made available through the Website (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any transaction. By submitting such information, you grant to BrownieDive.com the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
All descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on the Website are subject to change at any time without notice. Certain weights, measures and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Website does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the receipt, possession, use and sale of any item purchased from this Website. By placing an order, you represent that the products ordered will be used only in a lawful manner. All DVDs and similar products sold are for private, non-public, home use (where no admission fee is charged) and may not be duplicated. BrownieDive.com reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Website, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
BrownieDive.com or our agents may call or text by telephone regarding your account or your Transactions. You agree that we may place such calls or texts using an automatic dialing/announcing device. You agree that we may make such calls or texts to a mobile telephone or other similar device. You agree that we may, for training purposes or to evaluate the quality of our service, listen to and record phone conversations you have with us.
LIMITATIONS ON QUANTITY
BrownieDive.com does not offer additional discounts on large orders of a single item or on large orders of many individual items. In addition, we reserve the right to limit quantities on orders placed by the same account, on orders placed by the same credit card, and on orders that use the same billing or shipping address. We will notify you if such limits are applied. BrownieDive.com reserves the right to prohibit purchases of any merchandise to resellers. Resellers are defined as a company or an individual that purchases goods with the intention of selling them rather than using them.
AVAILABILITY, ERRORS & INACCURACIES
If an item is out of stock, BrownieDive.com may, in its sole discretion and at no extra cost to you, substitute another item for the out-of-stock item if BrownieDive.com, in its sole discretion, determines that the identical brand and product is available in a form that is of equal or greater value, for example, larger quantity, packaged with a trial sample, or with updated product packaging.
BrownieDive.com’s acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. BrownieDive.com makes a conscientious effort to describe and display its products and services accurately on the Website. Despite these efforts, a small number of items on the Website may be mispriced, described inaccurately or unavailable, and we may experience delays in updating information on the Website and in our advertising on other Websites. As a result, we cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability and services. BrownieDive.com reserves the right to change or update information and to correct errors, inaccuracies or omissions at any time without prior notice. We apologize for any inconvenience. As part of our shipping procedures, we verify the availability and the price before an item is shipped. If an item’s correct price is lower than our stated price, we will charge the lower amount and ship you the item. If an item’s correct price is higher than our stated price, if the item is no longer available or if we determine that there were inaccuracies in our product information, we will cancel your order and notify you of such cancellation via email. The Pricing Policy is incorporated into these Terms & Conditions in its entirety.
RISK OF LOSS
Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Website passes to the purchaser upon delivery to the carrier.
If you are not fully satisfied with your purchase, you may return it in accordance with the Return Policy. The Return Policy is incorporated into these Terms & Conditions in its entirety.
Third-Party Financial Information
We provide links and access to third-party websites or services that contain information that is provided as a service to those interested in the information. BrownieDive.com neither regularly monitors nor assumes responsibility for the content of third parties’ statements or websites. Accordingly, BrownieDive.com does not endorse or adopt these websites or any information contained therein. BrownieDive.com makes no representations or warranties whatsoever regarding their accuracy or completeness.
DMCA notice—notice & procedure for making claims of copyright infringement
BrownieDive.com’s policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Copyright-infringing materials found on the Website can be identified and removed via our process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide BrownieDive.com’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying BrownieDive.com that your copyrighted material has been infringed. BrownieDive.com does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, BrownieDive.com will respond by either taking down the allegedly infringing content or blocking access to it. BrownieDive.com may contact the notice provider to request additional information. Under the DMCA, BrownieDive.com is required to take reasonable steps to notify the user who posted the allegedly infringing content (“Alleged Infringer”). The Alleged Infringer is allowed under the law to send BrownieDive.com a counter-notification. Notices and counter-notices are legal notices distinct from regular Website activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.
A DMCA notice must:
- Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the picture that appears at [list location where material is located].”);
- Identify the Content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on the Website. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
- Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number and email (if available);
- If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
- Include the following statement: “I have 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”;
- Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”;
- Be signed; and
- Be sent to our DMCA designated agent at the following address: 3005 NW 25th Avenue, Pompano Beach, FL 33069, USA
LINKS TO THIRD-PARTIES’ WEBSITES
The Website may contain links and interactive functionality interacting with the websites of third parties, including social Websites and product manufacturers’ Websites. BrownieDive.com is not responsible for and has no liability for the functionality, actions, inactions, privacy settings, privacy policies, terms or content of any such Website. Before enabling any sharing functions of the Website to communicate with any such Website or otherwise visiting any such Website, BrownieDive.com strongly recommends that you review and understand the terms and conditions, privacy policies, settings and information-sharing functions of each such third-party Website. The links and interactive functionality for third-party Websites on the Website do not constitute an endorsement by BrownieDive.com of such third-party Websites. Other Websites may link to the Website with or without our authorization, and we may block any links to or from the Website. Your use of third-party websites and resources is at your own risk.
DISCLAIMERS OF WARRANTIES
BrownieDive.com cannot and does not represent or warrant that the Website or its server will be error-free, uninterrupted, free from unauthorized access (including third-party hackers or denial of service attacks) or otherwise meet your requirements.
The Website and all information, content, materials, products, services and user content included on or otherwise made available to you through the Website (collectively, the “Website contents”) are provided by BrownieDive.com on an “as is,” “as available” basis, without representations or warranties of any kind. BrownieDive.com makes no representations or warranties of any kind, express or implied, as to the operation of the Website, the accuracy or completeness of the Website contents, or that emails sent from BrownieDive.com are free of malware or other harmful components. You expressly agree that your use of the Website is at your sole risk. To the full extent permitted by law, BrownieDive.com disclaims any and all representations and warranties with respect to the Website and the Website contents, whether express or implied, including, without limitation, warranties of title, merchantability, and fitness for a particular purpose or use.
Certain providers of products may separately provide limited representations and/or warranties regarding their products. This disclaimer does not apply to such product warranties.
BrownieDive.com does not represent or warrant that the nutrition, ingredient, allergen and other product information on our Website is accurate or complete since this information is provided by the product manufacturers or suppliers and on occasion manufacturers may modify their products and update their labels. We recommend that you do not rely solely on the information presented on our Website and that you consult the product’s label or contact the manufacturer directly if you have a specific dietary concern or question about a product.
On the Website, we may display names, marks, products, advertisements or services of third parties, pop-up texts or links to third-party Websites. If you decide to link to any such third-party Websites, you do so entirely at your own risk.
The Website is controlled and operated by BrownieDive.com from the United States and is not intended to subject BrownieDive.com to the laws or jurisdiction of any state, country or territory other than that of the United States. BrownieDive.com does not represent or warrant that the Website or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Website, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the Website’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
LIMITATION OF LIABILITY
Under no circumstances shall BrownieDive.com or its employees, directors, officers or agents be liable for any direct or indirect losses or damages arising out of or in connection with your use of or inability to use the Website. This is a comprehensive limitation of liability that applies to all losses and damages of any kind (whether general, special, consequential, incidental, exemplary or otherwise, including, without limitation, loss of data, income or profits), whether in contract or tort, even if BrownieDive.com has been advised of or should have known of the possibility of such damages. If you are dissatisfied with the Website, any content on the Website or these terms & conditions, your sole and exclusive remedy is to discontinue using the Website. You acknowledge, by your use of the Website, that your use of the Website is at your sole risk. Applicable law may not allow the limitation of liability set forth above, so this limitation of liability may not apply to you, and you may have rights additional to those contained herein. The foregoing paragraph shall not apply to residents of new jersey. With respect to residents of new jersey, BrownieDive.com or its employees, directors, officers, or agents shall not be liable for any losses or damages arising out of or in connection with your use of or inability to use the Website, or any materials therein unless such damages or injuries are the result of BrownieDive.com’s negligent, fraudulent or reckless acts or intentional misconduct.
Each provision of these terms & conditions that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks under the agreement between you and BrownieDive.com. This allocation is an essential element of the basis of the bargain between you and BrownieDive.com. The limitations in this section will apply even if any limited remedy fails of its essential purpose(s).
INDEMNIFICATION & DEFENSE
As a condition of the use of the Website, you agree to defend, indemnify and hold harmless BrownieDive.com and its respective employees, directors, officers, agents, vendors and suppliers from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (each, a “Claim”) arising out of or otherwise relating to Claims alleging facts that if true would constitute a breach by you of these Terms & Conditions, or any User Content submitted by you, , or any User Content submitted by you.
NOTICES & ELECTRONIC COMMUNICATIONS
Except as explicitly stated otherwise, any notices you send to BrownieDive.com shall be sent by mail to BrownieDive.com.com, ADDRESS. In the case of notices BrownieDive.com sends to you, you consent to receive notices and other communications by BrownieDive.com posting notices on the Website, sending you an email at the email address listed in your profile in your account or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures and other communications that BrownieDive.com provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing. Notice shall be deemed given (i) 24 hours after the notice is posted on the Website or an electronic message is sent, unless the sending party is notified that the message did not reach the recipient, or (ii) in the case of mailing, 3 days after the date of mailing. You agree that a printed version of these Terms & Conditions and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms & Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
APPLICABLE LAW; DISPUTES
You agree that all matters relating to your access to or use of the Website and all matters arising out of or related to these terms & conditions, including all disputes, will be governed by the laws of the State of Florida, United States of America, without regard to Florida’s choice of law principles. You furthermore agree that the exclusive forum and venue for any legal action arising out of or related to these terms & conditions shall be the United States Court Southern District of Florida, and you submit to the personal jurisdiction of that court. If subject matter jurisdiction (including diversity jurisdiction) does not exist in the United States Court District of Florida, then the exclusive forum and venue for any such action shall be the courts of the State of Florida located in Broward County, and you submit to the personal jurisdiction of that court. The making of claims or resolution of disputes pursuant to this agreement shall be in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You agree that to the extent permitted by applicable law: (1) any and all disputes, claims and causes of action arising out of or connected with the Website and/or these terms & conditions will be resolved individually in the forum designated in this section, without resort to any form of class action; and, except for new jersey residents and where otherwise prohibited by law, (2) any and all claims, judgments and awards will be limited to actual third-party, out-of-pocket costs incurred (if any), but in no event will attorneys’ fees be awarded or recoverable.
These Terms & Conditions, including policies and information linked from or incorporated herein, constitute the entire agreement between you and BrownieDive.com with respect to the Website and supersede all prior or contemporaneous communications, agreements and proposals with respect to the Website. No provision of these Terms & Conditions shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of or delay in exercising any right or remedy under these Terms & Conditions shall operate as a waiver or estoppel of any right, remedy or condition. If any provision of these Terms & Conditions is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer or sub-license any of your rights or obligations under these Terms & Conditions without our express prior written consent. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.
If you have any concerns about BrownieDive.com or your use of the Website, please contact us with a detailed description, and we will try to resolve it.