Terms of Use
Effective January 2023
The Ellery Group, LLC (including BarbaraBernier.com) is a Florida limited liability company (hereinafter "we", "our", "us"), that operates the website located at the URL www.BarbaraBernier.com (together with any other website, newsletters or apps branded as The Ellery Group or BarbaraBernier.com, (hereinafter the "Website")). These Terms of Use constitute an agreement between us and you, (hereinafter “you” or the “Visitor”), governing your access and use of the Website. Please read these Terms of Use carefully before using the Website. These Terms of Use are also incorporated by reference into our Privacy Policy.
Acceptance of these Terms of Use
WHEN YOU ACCESS OR USE THE WEBSITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF USE, WHETHER OR NOT YOU ARE A REGISTERED USER. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MUST IMMEDIATELY STOP ACCESSING THE WEBSITE AND DISCONTINUE USING THE SERVICES PROVIDED BY THE ELLERY GROUP AND OR BARBARABERNIER.COM.
You access to and use of the Website is subject to your continued compliance with these Terms of Use and all applicable laws. Your right to access and use the Website will terminate immediately, without any further action by The Ellery Group and BarbaraBernier.com if you breach these Terms of Use.
We reserve the right to modify or update these Terms of Use at any time for any reason, with or without prior notice to you, and any such changes to these Terms of Use will supersede and replace any previous Terms of Use effective immediately upon posting to this page. It is your responsibility to periodically review these Terms of Use as posted here for any changes. Your continued use of the Website after the posting of changes to these Terms of Use will constitute your acceptance of these changes. For the avoidance of doubt, you should discontinue using the Website if you do not agree with any changes to these Terms of Use.
License to Use the Website
We are pleased to grant you a non-exclusive, revocable, limited license to use the Website solely for your personal and non-commercial use. You may only use the Website in the manner in which the Content (as defined below) you access is intended and in compliance with these Terms of Use and with any and all applicable federal, state, local and international laws, rules and regulations. You may not modify, copy, distribute, transmit, display, perform, reproduce, license, commercially exploit, create derivative works from, transfer or sell any Content, software, products or services contained with the Website. You may not use the Website or any of its Content to further any commercial purpose, including any advertising or advertising revenue generation active on your website or in any other form or medium.
By using this Website, you represent that you are not a person barred from using the Website under the laws, rules and regulations of the United States, your place of residence or any other applicable jurisdiction. No other rights, assignments, licenses or legal relationship of any nature, including, but not limited to, agency, partnership, joint-venture, employer-employee, franchisor-franchisee or otherwise, either express or implied, are created through your use of the Website unless expressly reserved in these Terms of Use.
Children's Online Privacy Protection Act Notification
You may only use this Website only if you are 13 years of age or older. To register for an Account, subscribe to receive Content or other marketing or promotional material from us (in any form and via any media) (a "Subscription"), you must be 18 years of age or over. If you are under 18 years of age or not of ‘legal age’ to form a binding contract in your place of residence, you must have your parent or legal guardian's permission to use the Website. To view information on our policy regarding the privacy of children under the age of 13, please see our Privacy Policy.
Registration/Accounts
You may create an account by providing us with your name and e-mail address (an "Account" and users who have created an Account, "Registered Users"). In creating an Account, you may not misrepresent your identity or affiliation with any person or organization and you may never use another person's Account for any purpose whatsoever. If you have previously had your access to or use of the Website terminated by us, you may not access or use the Website under any circumstances. You should never share your Account information with third parties or allow third parties to use your Account. Please keep your password confidential. You are responsible for all of the activity on your Account, including the use of your Account by other people who you may or may not authorize to use your Account. If you allow others to access your Account in violation of these Terms of Use, you agree to be responsible for ensuring that they comply with these Terms of Use. Please notify us immediately of any breach of security or unauthorized use of your Account by sending us an e-mail to BLB@BarbaraBernier.com with "Unauthorized Use" in the subject line.
Access to Subscriptions
Visitors and Users may access the services in the following ways:
The Newsletter - various portions and features of this service may be distributed free of charge to users. We reserve the right at any time, from time to time, in our sole discretion, to alter or remove these offerings of free content.
Intellectual Property Rights
The Website and its content, features and functionality, including, without limitation, information, software, text, graphics, logos, button icons, images, audio clips, video clips, data compilations and the design, section and arrangement thereof are the exclusive property of The Ellery Group, LLC, our licensors or other content suppliers, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent.
No right, title or interest in or to the Website or any Content is transferred to you and all rights not expressly granted are reserved. Any use of the Website that is not expressly permitted by the Terms of Use, may be a breach of these Terms of Use and may violate copyright, trademark and other laws.
In addition to the intellectual property rights mentioned above, for purposes of these Terms of Use, "Content" is defined as all information such as the "look and feel" of the Website, data files, graphics, text, photographs, drawings, logos images, sounds, music and video and audio files on the Website.
The Ellery Group tries to ensure that the Content is accurate and complete. Your use of the Website is at your own risk. We do not warrant that the functional aspects of the Website or the Content will be error free or that the Website, the Content or the server that makes it available are free of viruses or other harmful components. The Ellery Group make no warranties about the Content or about the results to be obtained from using the Website. You bear the entire risk of the completeness, accuracy or usefulness of any Content found on this Website. We reserve the right to withdraw, temporarily or permanently, any Content from the Website at any time for any reason and such removal may be immediate and without notice. As an express condition to your use of and access to the Website, you acknowledge, agree and confirm that The Ellery Group and or BarbaraBernier.com is not liable to you or any third party for any such withdrawal.
Our Content is selected by our editors and is editorial content. We do not accept or take advertising, except where we specifically indicate as such. We do not accept payment from third parties for products or Content to appear on the Website. From time to time some of the Content may be sponsored or third-party content ("Sponsored Content") and as such Sponsored Content will be clearly marked as such. When you subscribe to receive Content, you agree to receive Sponsored Content. If you prefer not to receive such Sponsored Content you should Unsubscribe by clicking the "Unsubscribe" link located in the Account Management section on the Website or send us an e-mail at BLB@BarbaraBernier.com with "Unsubscribe" in the subject line. If you Unsubscribe, you will not receive any Content, whether it is Sponsored Content or The Ellery Group Content. To the extent that we post third party Content, it reflects the personal opinions and views of the third-party authors and does not necessarily reflect the opinions and views of The Ellery Group - and we accept no responsibility for any such third-party opinions and views.
Restrictions
You may not under any circumstances:
Copy or print any of the Content, whether licensed by us or otherwise, unless and to the extent it is for your own personal, non-commercial use and you must retain all trademark, copyright and other proprietary notices contained in and on any other Content;
Reproduce, download, modify, translate, add to, distribute, transmit, publish, perform, display, disclose, archive, upload, broadcast or sell, sublicense, index or exploit any part of the Website or the content thereon in any medium, either directly or through the use of any device, software, internet site, web-based service or any other means, without our prior express written permission;
Remove, alter, bypass, avoid, interfere with or circumvent any copyright, trademark or other proprietary notices marked on the Content or any digital rights management mechanism, device or other content protection measures either directly or through other means;
Mirror, frame, screen scrape or deep link to any aspect of the Website or access any Content through technology or means other than those provided or authorized by us;
Access the Website via any automated system, including limitation, by "robots," "spiders," "offline readers," etc., or take any action that imposes, or may impose (as determined in our sole discretion), an unreasonable or disproportionately large load on our infrastructure;
Knowingly or recklessly upload an invalid date or introduce viruses, worms, Trojan horses or other malware or software agents, whether harmful or not, to the Website, or tamper with, impair, damage, attack, exploit or penetrate the BarbaraBernier.com and/or The Ellery Group system or network, or otherwise attempt to interfere with or compromise the system integrity or security of same or any connected networks, or take action to impact the proper operation of the Website and any person's or entity's use of enjoyment thereof;
Bypass the measures we may use to prevent or restrict access to or use of the Website, including by hacking into secured or non-public areas of the Website, circumventing any geo-blocking mechanisms or otherwise;
Use the Website to collect any personally identifiable information, including Account names and e-mail address, or use the Website for any commercial solicitation purposes, without our prior express written permission; or
Attempt to reverse engineer any aspect of the Website or attempt to derive the source code (including the tools, methods, processes and infrastructure) that enables or underlies the Website, create any derivative works or materials of any kind using the Content, whether or not you intend to give away the derivative materials free of charge, or otherwise build a business utilizing any aspect of the Website.
User Generated Material
If and to the extent that we elect to accept user generated material, you may have the opportunity to publish, transmit, submit, or otherwise post reviews, ratings, comments, feedback or other materials on the Website ("User Generated Material") that may be accessible and viewable by the public. Our goal is to make the Website enjoyable for all of our visitors, so we ask that you comply with the following rules:
User Generated Material must not:
Contain any material which is false, defamatory, libelous, obscene, defamatory, libelous, obscene, harassing, threatening, discriminatory, bigoted, hateful, violent, vulgar, profane, pornographic or otherwise offensive, inappropriate, damaging, disruptive or harmful;
Violate our or any other person's legal rights (including the rights of publicity and privacy), contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or otherwise promote, advocate or assist any illegal activity or unlawful act;
Create or threaten harm to any person or loss or damage to any property;
Infringe any patent, trademark, trade secret, copyright, contract or other intellectual property or other proprietary rights of The Ellery Group and or BarbaraBernier.com or any other person;
Seek to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
Misrepresent your identity or affiliation with any person or organization, including The Ellery Group and/or BarbaraBernier.com;
Seek to collect other users' e-mail addresses and/or their usernames or passwords for their Accounts or other services by electronic or other means for any purpose, including to send unsolicited e-mail or other electronic communications;
Seek to transmit chain letters, bulk or junk e-mail, whether automated or not, to interfere with, disrupt or create an undue burden on The Ellery Group and/or BarbaraBernier.com or the networks or services connected to the Website or install or attempt to install or promote spyware, malware or other computer code on our computers or equipment or the computers of third parties; or
Involve commercial activities such as contests, sweepstakes and/or other sales promotions, barter, advertising or offers of sale or purchase of goods and services.
We do not claim ownership to User Generated Material. However, by posting User Generated Material, you irrevocably grant us and our assigns, agents, licensees and other users a worldwide, non-exclusive, perpetual, royalty-free license to use, reproduce, share, transmit, print, publish, publicly display, exhibit, distribute, copy, modify, sublicense, translate, create derivative works of, publicly perform and otherwise exploit your User Generated Material, in whole or in part, for any purpose, including for promotional purposes, in all media formats now known or hereafter created, without further notice to you, and with or without attribution to you. We will own all right, title and interest in any compilation, collective work or other derivative work created by using or incorporating your User Generated Material (but not your original User Generated Material). You waive any moral rights you may have in your User Generated Material. With respect to the User Generated Material posted by you, you represent that (i) you created and own the rights to the content or you have the owner's express permission to post such content, and (ii) the content does not infringe any other person's or entity's rights (including, without limitation, copyrights, trademarks or privacy rights) or violate any applicable laws, rules or regulations, these Terms of Use or any of our other posted policies. You agree to pay all royalties, fees and other monies owing to any person or entity by reason of the User Generated Material that you post on the Website.
If and to the extent that we elect to accept User Generated Material, we have the right, but not the obligation, to monitor, review, screen, post, remove, reject, modify and store all User Generated Material posted on the Website, at any time and for any reason, without notice, including to ensure that all such User Generated Material complies with these Terms of Use. We do not endorse any User Generated Material and the User Generated Material posted does not reflect our opinions, views or advice. You are solely responsible for your User Generated Material and the consequences of posting and publishing it and you agree that we are acting solely as a passive conduit for your online distribution and publication of or User Generated Material. We take no responsibility and assume no liability for any User Generated Material that you or any other user or third-party posts or sends on or through the Website, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party.
We reserve the right, but have no obligation, to monitor or to take any action regarding disputes between you and any other user and shall have no liability for your interactions or any disputes with other users or for any user's action or inaction. You are solely responsible for your conduct on the Website and tour interactions with other users.
Notwithstanding our rules with regard to User Generated Material, you may be exposed to content on the Website that is inaccurate, objectionable, or inappropriate for children or otherwise unsuited to your purpose or in violation of our Terms of Use. We take no responsibility and expressly disclaim any liability related in any way to your exposure to User Generated Material on the Website, whether or not it violates our Terms of Service.
If and to the extent that we elect to accept user generated material, please carefully choose the information you post on the Website and that you give to other users. You are discouraged from publicly posting your full name, telephone number, street address, e-mail address or other information that identifies you or allows strangers to find you or to steal your identity. You assume all risks associated with dealing with other users with whom you come in contact through the Website, and to the extent that the law permits, you release us from any claims or liability related to any User Generated Material posted on the Website and from any claims related to the conduct of other users.
Privacy
We respect your privacy. By accessing or using the Website you consent to the collection and use of your information, including personally identifiable information in accordance with our Privacy Policy. For more information, please read our Privacy Policy which is incorporated into these Terms of Use by reference.
CONSENT TO ELECTRONIC COMMUNICATION
You consent to receive communications from us, whether required by law or otherwise, either by e-mail if you have provided us with your e-mail address or by notice posted on the Website as determined by us in our sole discretion. You agree that any requirement that a notice, disclosure, agreement or other communication be sent to you by us in writing is satisfied by such electronic communication. We are not responsible for any automatic filtering you or your internet provider may apply to communications we sent to an e-mail address that you provide to us.
Modification or Suspension of the Website and the Right to Terminate your use of the Website
We reserve the right to change, suspend or discontinue any aspect of the Website at any time and from time to time, in our sole discretion and without notice or liability, including by adding or eliminating certain features or discontinuing the Website entirely. Any description of features on the Website shall not be considered to be a representation by The Ellery Group and/or BarbaraBernier.com that such features will always be included on the Website. From time to time, we may restrict access to some or all of the Website, including for Registered Users. We also reserve the right to terminate or suspend your Account or restrict your use of or access to the Website, without notice or liability, for any reason or no reason. Accordingly, for any reason, and without notice, all or part of the Website may become unavailable to you at any time and for any period.
If we suspend or discontinue any aspect of the Website or terminate your Account, we are not responsible for providing you with any information or content. We may also delete your other preferences and interests to the extent stored within and in connection to your Account. You have no recourse with regard to any information that we delete regardless of any value you may ascribe to such information. We expressly disclaim any value you may attribute to any of your information stored on out servers.
Linked Destinations and Advertising
The Website may contain links to other websites, including, but not limited to, advertisements and other content posted by us or by third-parties ("Linked Sites"). You may also navigate to the Website from links, often provided by us, deployed by third parties in their social media, advertisements and other marketing activities (the locations where these links are placed are also considered Linked Sites). Access to or from Linked Sites is made available by The Ellery Group and/or BarbaraBernier.com only as a convenience. Such Linked Sites are not owned, operated or controlled by us and if you visit Linked Sites, you do so entirely at your own risk and subject to the terms of use and privacy policies of such Linked Sites. Please be careful to read the terms of use and privacy policies of any Linked Sites before you provide any personal or other information to, or engage in any activity on, such Linked Sites. Any terms, conditions, warranties or representations included in the Linked Sites are solely between you and the relevant providers of the Linked Sites. You cannot rely on our Terms of Use or Privacy Policy to govern your use of another website or destination. We do not endorse, and The Ellery Group and/or BarbaraBernier.com expressly disclaims responsibility and liability for, Linked Sites, including with respect to the content, products and services provided by the Linked Sates. Any interactions you have with Linked Sites are between you and the Linked Sites and you agree that The Ellery Group and/or BarbaraBernier.com is not liable for any damage or loss you may suffer as a result of any interactions with any such Linked Sites or any claims that you may have against any such Linked Sites.
Notice and Procedure for Claims of Copyright or Intellectual Property Infringement
If you believe that any content appearing on the Website, including content created and/or displayed by The Ellery Group and/or BarbaraBernier.com or other material provided through a link, infringes your copyright, you should notify us in accordance with the procedure set forth below. We will process each notice of alleged infringement that we receive and will take appropriate action in accordance with applicable intellectual property laws. A notification of claimed copyright infringement should be e-mailed to our copyright agent at: BLB@BarbaraBernier.com with "DMCA Takedown Request" in the subject line.
To be effective, the notification must be in writing and contain the following information:
"an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive copyright interest;
"a description of the copyrighted work that you claim has been infringed;
"how we can contact you, such as your address, telephone number and e-mail address;
"a statement by you that you have in good faith belief that the disputed use is not authorized by the copyright owner, its agent or by law; and
"a statement by you that the above information in your notice is accurate and under penalty of perjury that you are authorized to act on behalf of the copyright owner or the owner of an exclusive right in the material.
Warranty Disclaimer
The information, products and services included in or available through the Website are continually upgraded and updated. While we will use commercially reasonable efforts to verify the accuracy of any information it places on the Website, The Ellery Group and/or BarbaraBernier.com does not warrant or represent that such information, products and/or services are reliable, accurate, complete, uninterrupted, error free, secure or free of defects, viruses or bugs. ACCORDINGLY, THE WEBSITE IS PROVIDED "AS IS" AND"AS AVAILABLE" WITH NO REPRESENTATION OR WARRANTY OF ANY KIND AND YOUR USE OF THE WEBSITE IS ENTIRELY AT YOUR OWN RISK. THE ELLERY GROUP, LLC AND/OR BARBARABERNIER.COM EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE WEBSITE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY PURPOSE,FIRNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, TITLE, COMPATIBILITY, SECURTY AND ACCURACY, AND ALL WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IN STATES AND JURISDICTIONS IN WHICH THE EXCLUSION OF WARRANTY IS PROHIBITED, SUCH EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED.
THE ELLERY GROUP, LLC AND/OR BARBARABERNIER.COM DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY INFORMATION, PRODUCT OR SERVICE PROVIDED, ADVERTISED OR PREFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY LINKED SITE AND BARBARABERNIER.COM AND THE ELLERY GROUP WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY LINKED SITE. WE EXPRESSLY DISCLAIM ALL LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED BY ANY SOCIAL MEDIA SERVICESIN VIOLATION OF THE PRIVACY SETTING THAT YOU HAVE SET IN SUCH SOCIAL MEDIA ACCOUNTS. You acknowledge and agree that any reliance on the information and other materials included on the Website shall be at your sole risk and responsibility. The Ellery Group and/or BarbaraBernier.com reserves the right, in its sole and absolute discretion, to correct any errors or omissions in any part of the Website and to make changes to the services, materials, products, programs and features included therein at any time with or without notice.
Medical, Nutrition and Fitness Information
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALL MEDICAL , NUTRITION AND FITNESS INFORMATION PROVIDED ON THE WEBSITE, INCLUDING TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY THE ELLERY GROUP, LLC AND/OR BARBARABERNIER.COM OR BY OTHER USERS OR THIRD PARTIES, IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (i) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (ii) A VISIT, CALL OR CONSULTATION WITH YOR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (iii) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. INFORMATION AND STATEMENTS REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. SHOULD YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OR ANY CONTENT PRESENTED OR VIA THE WEBSITE AND YOU SHOULD NOT USE THE WEBSITE OR ANY CONTENT AVAILABLE THROUGH OR VIA THE WEBSITE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF ANY CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOTCONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND THE ELLERY GROUP AND OR BARBARABERNIER.COM AFFILIATES OR ANY THIRD PARTY.
THE WEBSITE MAY PERIODICALLY PROVIDE INFORMATION CONCERNING FITNESS AND ATHLETIC ACTIVITIES, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH ACTIVITIES CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES,EVEN IF CAUSED IN WHOLE OR PART BY OUR ACTION, INACTION OR NEGLIGENCE OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. THE ELLERY GROUP AND/OR BARBARABERNIER.COM STRONGLY RECOMMENDS THAT YOU CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER BEFORE BEGINNING ANY NEW FITNESS PROGRAM OR ENGAGING IN ANY NEW ATHLETIC ACTIVITIES.
Indemnity and Release
You agree to indemnify and hold harmless The Ellery Group and/or BarbaraBernier.com and its affiliates, licensors, licensees, successors and assigns and each of their respective directors, officers, employees, agents, service providers an partners ("Indemnified Parties"), from and against any demands, losses, liabilities, claims or expenses (including reasonable attorney's fees) made against The Ellery Group and/or BarbaraBernier.com by any third party due to or arising out of or in connection with any breach by you of these Terms of Use, your violation of any third party right and your use of and access to the Website or any element or component thereof.
Without limiting anything set out above, you hereby release each of the Indemnified Parties from all damages, liabilities, claims, actions, demands and costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of an in any way connected with these terms of Use, the Privacy Policy and or any use by you of the Website.
California residents, you expressly waive CA Civil Code Section 1542, which states:"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Limitations on Liability
THE PROVIDERS WHOSE PRODUCTS AND SERVICES ARE AVAILABLE ON THE WEBSITE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF THE ELLERY GROUP AND/OR BARBARABERNIER.COM. WE ARE NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH PROVIDERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE OR OTHER DAMAGE OR EXPENSES RESULTING DIRECTLY OR INDIRECTLY, FROM SUCH PRODUCTS AND/OR SERVICES.
EXCEPT FOR A BREACH OF THESE TERMS OF USE BY YOU (SUCH AS, FOR EXAMPLE, A COMMERCIAL USE OF THE WEBSTE IN VIOLATION OF THESE TERMS OF USE), A VIOLATION OF INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS OR WITH RESPECT TO PRODUCTS OR SERVICES THAT WE PROVIDE TO A SPECIFIC CONSUMER FOR A FEE SHALL BE GOVERNED BY ITS OWN CONTRACTUAL TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,IN NO EVENT SHALL THE ELLERY GROUP AND/OR BARBARABERNIER.COM AND/OR ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY DAMAGES WHATSOEVER, INLCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, GOODWILL OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE WEBSITE, THE DELAY OR INABILITY TO USE THE WEBSITE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES AND/OR FUNCTIONABLITY OF THE WEBSITE, OR FOR ANY CONTENT, PRODUCTS OR SERVICES OBTAINED OR PURCHASED THROUGH THE WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE ELLERY GROUP AND/OR BARBARABERNIER.COM AND/OR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN STATES AND JURISDICTIONS IN WHICH LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARE PROHIBITED, SUCH LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE. EXCEPT FOR A BREACH OF THESE TERMS OF USE BY YOU (SUCH AS, FOR EXAMPLE, A COMMERCIAL USE OF THE WEBSITE IN VIOLATION OF THESE TERMS OF USE), VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS OR WITH RESEPCT TO PRODUCTS OR SERVICES THAT WE PROVIDE A SPECIFIC CONSUMER FOR A FEE WHICH SHALL BE GOVERNED BY ITS OWN CONTRACTUAL TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL YOUR OR OUR TOTAL LIABILITY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO THE USE OF THE WEBSITE OR $50 (Fifty Dollars) (WHICHEVER IS LESS).
UNDER NO CIRCUMSTANCES WILL THE ELLERY GROUP AND/OR BARBARABERNIER.COM AND/OR ANY OF ITS AFFILIATES, LICENSORS, LICENSEES, SUCCESSORS OR ASSIGNS BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE WEBSITE, YOUR DATA OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. WE RESERVE THE RIGHT AT ALL TIMES TO DISCLOSE ANY INFORMTION WE DEEM NECESSARY TO COMPLY WITH ANY APPLICABLE LAW, RULE, REGULATION, LEGAL PROCESS OR GOVERNMENTAL REQUEST. YOU WAIVE AND HOLD HARMLESS THE ELLERY GROUP AND/OR BARBARABERNIER.COM AND ASSIGNS FROM ANY CLAIMS RESULTING FROM ANY ACTION RELATING TO YOUR ACCOUNT OR TAKEN AS A RESULT OF SUCH DISCLOSURE. THE ELLERY GROUP AND/OR BARBARABERNIER.COM MAKES NO REPRESENTATION THAT THE WEBSITE IS APPROPRIATE OR AVAILABLE FOR USE AT LOCATIONS OUTSIDE THE UNITED STATES. ACCESS TO THE WEBSITE FROM TERRITORIES WHERE SUCH SERVICES ARE ILLEGAL IS STRICTLY PROHIBITED. IF YOU ACCESS THE WEBSITE FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ARE SOLEY RESPNSIBLE FOR COMPLIANCE WITH LOCAL AND OTHER APPLICABLE LAWS.
Law and Jurisdiction
These Terms of Use and any dispute that may arise between you and BarbaraBernier.com and The Ellery Group shall be governed by and construed in accordance with the Federal Arbitration Act, applicable federal law and the laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida any other jurisdiction). DISPUTES ARISING FROM THERE TERMS OF USEYOU’RE YOUR USE OF THE WEBSITE SHALL BE RESOLVED BY BINDING ARBITRATION AS PROVIDED BELOW. BY AGREEING TO BINDING ARBITRATION, YOU ARE HEREBY WAIVING THE RIGHT TO BRING DISPUTES TO A COURT, INCLUDING THE RIGHT TO TRIAL BY JURY. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. WE ALSO BOTH AGREE THAT YOU OR WE MAY BRING SUIT IN COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS. ANY CAUSE OR ACTION YOU MAY HAVE WITH RESPECT TO YOUR USE OF THE WEBSITE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.
Binding Arbitration and Class Action Waiver
In the event of any dispute between you and us regarding these Terms of Use, the Privacy Policy, the Website and/or any products or services purchased from the Website, you and The Ellery Group and/or BarbaraBernier.com agree first to send the other party a notice of dispute, which is a written statement setting forth the name, address and contact information of the party giving notice, the facts giving rise to the dispute and the relief requested. You must send any notice of dispute by e-mail to: BLB@BarbaraBernier.com. We will send any notice of dispute to you at the contact information we have for you. You and The Ellery Group and/or BarbaraBernier.com will attempt to resolve any dispute through informal negotiation within 30 days from the date the notice of dispute is sent. If we are unable to resolve a dispute by negotiation, you agree that disputes must be resolved thorough binding arbitration rather than by a court, provided that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms of Use. There is no judge or jury in arbitration and court review of an arbitration award is limited. It is important that you understand that the arbitrator's decision will be binding and may be entered as a judgment in any court of competent jurisdiction. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at: BLB@BarbaraBernier.com with "Arbitration Request" in the subject line.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules, including the AAA's Supplementary Procedures for Consumer Related Disputes. The AAA's rules are available at ww.adt.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by AAA's rules. We will reimburse those fees - at our sole discretion - for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person where you live or at another mutually agreed upon location.
You agree to arbitrate with The Ellery Group and/or BarbaraBernier.com only in your individual capacity and not as a representative or member of a class or in any consolidated or representative proceeding. As such, your claims may not be joined with any other claims an there shall be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. For certain claims, like violations of these Terms of Use or breaches of intellectual property covenants, we reserve the right to seek injunctive relief in a court of competent jurisdiction. All arbitrations shall be initiated in Orlando, Florida.
Waiver and Severability
No waiver by The Ellery Group and/or BarbaraBernier.com of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition and any failure of The Ellery Group and/or BarbaraBernier.com to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision. If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the maximum extent such that the remaining provisions of these Terms of Use will continue in full force and effect.
Assignment
These Terms of Use any rights and licenses granted hereunder may not be transferred or assigned by you. We may assign our rights under these Terms of Use without restriction.
Entire Agreement
These Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and The Ellery Group and/or BarbaraBernier.com with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral with respect to the Website.
If you have questions regarding the Terms of Use, please consult an attorney. It is our goal to provide you with a first-class user experience, so if you have any questions or comments about these Terms of Use, please feel free to contact us by e-mail at BLB@BarbaraBernier.com.