□

Terms of Use

Please read these Terms of Use (“Terms”) carefully before creating an account or otherwise using the Berninfountains.com website (the “Site”) and related services. These Terms constitute an agreement between you and YRDLLC. (“Bernini” or “we” or “us”). By creating an Account , ordering any goods or services from the Site, or otherwise using the Site, you agree to be bound by these Terms and our Privacy Policy. If you do not agree to any of these Terms, then please do not access or use the Site.

Notice Regarding Dispute Resolution: These Terms contain provisions governing how claims you and Bernini have against each other are resolved (see Arbitration Section below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with the Arbitration Section below.



Description of Site Offerings

The Site offers you information about our products and the ability to order them online. All submissions, orders, and purchases are subject to these Terms as well as our separate Terms of Sale, Return Policy, and Warranty Terms, all of which are subject to change from time to time. Please review the current version of these various terms and policies before submitting content to us or ordering products from us.

Additional Terms

Certain services offered by through the Site, such as loyalty programs, gift cards, sweepstakes and other similar offers, will be subject to additional terms. Those terms will be presented in conjunction with the particular program or offer and will be binding on those who participate in those programs or offers. These Terms will apply equally. Without limitation, the additional terms include our Terms of Sale, Return Policy, and Limited Warranty, which are subject to change from time to time and should be reviewed by you each time you submit content or place an order.

Users and Accounts

To use certain features of the site, such as submitting content or making purchases, you may be required to create an account. If you create an account, you agree you will: (a) create only one account; (b) provide honest, accurate, current and complete information regarding yourself; (c) keep your information updated and accurate; (d) keep your account password private and not share it with others; and (d) notify Bernini if you discover or suspect that your account has been hacked or its security breached.

You agree to take responsibility for all activities on or under any account registered to you and you accept all risks for any unauthorized use of your account. You are responsible for providing the equipment and services that you need to access and use the Site. We do not guarantee that the Site will be accessible on any particular equipment or device or with any particular software or service plan.

We reserve the right, without notice and in our sole discretion at any time, to terminate your right to access and use the Site or any component of the Site, and to block or prevent future access to and use of the Site and to delete your account and any related information. Any obligation or liability incurred prior to termination of your access to the Site will survive such termination.


Limited Use

Except as expressly provided in these Terms, you may not copy, distribute, publish, transmit, modify, transmit, publicly display or perform, create derivative works of, or otherwise exploit any part of the Site. You may not save or archive a significant portion of the material appearing in or on the Site. All rights not expressly granted herein are reserved by Bernini.

Privacy

Our Privacy Policy describes the data that we gather about or from users of the Site and how we process, use and share that data. Be sure to read it to understand these matters.

Responsible Use of Site

You may use the Site for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Site:

(a) for any purpose that is unlawful or prohibited by these Terms;

(b) to cause harm or damage to any person or entity;

(c) to interfere with the proper operation of the Site;

(d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by Bernini in its sole discretion) or viruses or other malware which may harm the operation of the Site or anyone else’s computer;

(e) to create an account for the purpose of making a competitive assessment of our services or incorporating any information or other content from the Site into any service you offer to third parties;

(f) to engage in bad online citizenship, such as spam our users, distribute spyware or viruses, collect personal information without disclosing and abiding by your own posted privacy, or attempt to reverse engineer or hack into our systems;

(g) to access or scrape the Site by any automated means unless you are a search engine crawling the Site for the sole purpose of creating a publicly accessible search index; bog down the Site by uploading or downloading an unreasonably large amount of material at one time; or bypass any technical protections, storage limits or throttling that we institute; or

(h) to reverse engineer, decompile, disassemble, create derivative works of, remove the copyright designation from, copy, sublicense or distribute any content, application or software code associated with the Site.

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS BERNINI AND ITS PARENTS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, BUSINESS ASSOCIATES, AND SUPPLIERS FROM AND AGAINST ANY ACTUAL OR THREATENED CLAIMS, ACTIONS OR DEMANDS, LIABILITIES AND SETTLEMENTS (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES) RESULTING (OR ALLEGED TO RESULT) FROM YOUR USE OF THE SITE IN ANY MANNER THAT VIOLATES OR IS ALLEGED TO VIOLATE APPLICABLE LAW OR THESE TERMS.


Content Submission Terms

You are solely responsible for all content you may submit (“User Content”). You warrant and represent that your User Content does not contain any material or content that is unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another's rights including but not limited to rights of copyright, celebrity, publicity, privacy and intellectual property, or otherwise in violation of any federal, state or local law, rule or regulation.  

We have no obligation, but reserve the right, to monitor, flag, delete, or refuse to reproduce any User Content we believe may be in violation of these Terms, and to cancel any order(s) based on such User Content. Under no circumstances will Bernini be liable in any way for any loss of any User Content. The Site is not intended as a storage depository for User Content. You are responsible for retaining copies of your User Content.

You retain ownership of all User Content you submit, and you grant us and our designees the non-exclusive right to use such on the Site and elsewhere in our discretion.


Provision or Suspension/Withdrawal of the Site

You understand and agree that: (a) the Site may change from time to time without notice to you. Any new feature that augments, enhances or modifies the current Site is subject to these Terms; (b) we may decline to provide access to the Site or stop (permanently or temporarily) providing the Site (or any feature, program or content within the Site) to you or other users at our sole discretion, without notice or liability to you; and (c) if we disable access to the Site or your account, you may be prevented from accessing the Site, your account details, or any information you have previously submitted.

Social Media Access

If you choose the option to access or log-in to the Site through a third party social media service that you belong to, such as Facebook, Twitter, YouTube, and/or Instagram, you grant us permission to access and use the information that you post or store on the applicable social media service, in accordance with the privacy policy of that service and the privacy settings that are applicable to your account. For more information on how we use the information we collect about you from these social media services, please review our Privacy Policy. For more details on how you can manage the information provided to us by these social media services, please review the privacy settings applicable to your account with the applicable social media service.

Mobile Access

If you use a mobile device to access the Site, the following additional terms and conditions (“Mobile Terms”) you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Site; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise.

United States Only

The Site owned and operated by us in the United States. You are responsible for compliance with any local laws if you access or use the Site anywhere else.   All prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States.

Indemnity, Disclaimers and Limits of Liability

Indemnity

You agree to indemnify, defend, and hold harmless Bernini, its affiliated companies (collectively “Bernini”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to your breach of these Terms or our other policies referenced in these Terms, including but not limited to your submission of any content that infringes the rights of third parties. Bernini reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and if Bernini assumes defense and control, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Site, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any indemnified matter.

Disclaimers

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COVERED ENTITIES MAKE NO WARRANTY OF ANY KIND ABOUT THE SITE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON INFRINGEMENT. THE COVERED ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE SITE. THE SITE IS PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE COVERED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THOSE MENTIONED ABOVE.

THE COVERED ENTITIES ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY A THIRD PARTY OR BY YOU OR ANYTHING ACCESSED VIA ANY LINKS TO THIRD PARTY WEBSITES, SERVICES, OR SOFTWARE. THE COVERED ENTITIES UNDERTAKE NO OBLIGATION TO ENFORCE THEIR POLICIES OR RIGHTS AGAINST ANY THIRD PARTY. YOU BEAR ALL RISKS ASSOCIATED WITH USING THIRD PARTY LINKS, WEBSITES, ETC. THE COVERED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF ANY USER OF THE SITE.

Limitations on Liability

The covered entities shall not be liable for (A) consequential, incidental, indirect, special, statutory damages or penalties, or punitive damages (including without limitation lost profits, business interruption or loss of business information), even if they have been advised of the possibility of these types of damages, or (B) loss of or damage to reputation arising in connection with, out of, or as a result of (i) these Terms or the Site, and (ii) any acts or omissions of any of the covered entities in connection with these terms or the Site. The only remedy available to you under these terms AND in connection with the Site is reimbursement of the access fees you have paid for the use the site.


Legal Disputes

In the event that you have a dispute with one or more other users, you hereby release the covered entities from any and all claims, demands, damages (actual and consequential), losses and liabilities of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to these disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.”

Exceptions to Disclaimers and Exclusions of Damages

If you live in a jurisdiction that does not allow disclaimer of warranties or exclusion of damages, the foregoing disclaimers and exclusions may not apply to you. For New Jersey residents, the limitations set forth above are inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.

Timing of Claims

You must bring any claim you have against Bernini relating to these Terms or the Site within two years from the date of accrual of the applicable claim.


Arbitration Agreement

Initial Dispute Resolution

We are available by email at to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

Terms of Service and Binding Arbitration Agreement

If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to the preceding paragraph, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered by JAMS on a non-confidential basis in accordance with the provisions of its then-effective rules, including its streamlined procedures, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.  The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive and disclaim the application of any state Arbitration Act.

The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/rules-streamlined-arbitration/, or by calling JAMS directly at 1-800-352-5267. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Bernini will pay the additional cost. A request for payment of fees should be submitted to JAMS along with your form for initiating the arbitration, and Bernini will make arrangements to pay all necessary fees directly to JAMS. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.

The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

Class Action Waiver

The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception – Small Claims Court Claims

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

30 Day Right to Opt Out

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding three paragraphs by sending written notice of your decision to opt-out by fax to (619)-449-5049 or mail to the following address:

YRDLLC
9545 Pathway Street
Santee, CA 92071
United States

The notice must be sent within thirty (30) days of registering to use the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, Bernini will not be bound by them.

Exclusive Venue for Litigation

Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Santee, CA (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Santee, CA for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Santee, CA for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Santee, CA over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Site, and (b) any acts or omissions of any of the Covered Entities in connection with these Terms or the Site.


Copyright and Trademark

Unless otherwise noted, all materials published in or through the Site are protected as the copyrights, trade dress, trademarks and/or other intellectual property of Bernini its licensors. You may not remove or alter any copyright, trademark or other proprietary right notice in the Site. All rights not expressly granted are reserved

Bernini is strongly committed to respecting intellectual property and other rights. As set forth in the following paragraphs, we have a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act in the United States, and terminating accounts of repeat infringers in appropriate circumstances. To report a problem other than copyright or trademark infringement, please email customercare@berninifountains.com. We may, in our sole discretion, limit, suspend, or terminate and user’s access or account, delay or remove Content, and take technical and legal steps to keep users from using the Site, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users).

Digital Millennium Copyright Act (“DMCA”) Policy

Bernini will respond to proper notifications of claimed copyright infringement with respect to material posted by users, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right, whether or not there is repeat infringement.

If you believe your copyright has been infringed, you should submit notice to:

YRDLLC
9545 Pathway Street
Santee, CA 92071
United States

Any such notice should include the following:

  1. Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:

  1. Your physical or electronic signature.
  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  3. A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
  4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of Maryland, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.

If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.

Links

Links provided within the Site will allow you to connect to other websites and services that are not under Bernini control. We do not endorse and are not responsible for the content of such websites and/or services. You access such websites and use such services at your own risk.


Errors and Inaccuracies

The Site may contain errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability and other information. If any information in the Site is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order) without prior notice and issue a refund for amounts paid.

Submissions

Bernini does not seek or accept unsolicited ideas. By submitting any material to us through any of the Site, you expressly grant to Bernini and its affiliates a royalty-free, non-exclusive, fully transferable, assignable and sublicensable right and license to use, reproduce, modify, display, transmit, adapt, publish, translate, create derivative works from and distribute such material, throughout the world and in perpetuity, in all media now known or hereafter devised and for all lawful business purposes of Bernini and its affiliates (including, without limitation, advertising, promotional and marketing purposes). You also acknowledge and agree that if and to the extent the material submitted by you identifies you by name, likeness, voice or otherwise (“your identification”), the foregoing license granted by you will automatically be deemed to cover and extend to our use of your identification in connection with our use of the material submitted by you. In addition, you warrant that all so-called “moral rights” have been waived.

Notice to California Residents

Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Site is YRDLLC, 9545 Pathway Street, Santee, CA 92071 USA.   To file a complaint regarding the Site or to receive further information regarding use of the Site, send a letter to the above address or contact Bernini via e-mail at customercare@berninifountains.com (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.

Changes/Updates

We will notify you of changes to these Terms by posting the amended terms on the Site at least thirty (30) days before the effective date of the changes. If you have provided us with your email address, we will also notify you of material changes to these Terms by sending an email at least thirty (30) days before the effective date of the changes to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to the new Terms, you should stop using the Site, and if you are a registered user, you may cancel your account with us within the thirty (30) day period by contacting us at customercare@berninifountains.com and you will not be bound by the new Terms. Otherwise, the new terms will take effect after thirty (30) days. BERNINI employees do not have the right to modify these Terms orally or otherwise. If any employee of Bernini offers to modify the provisions of these Terms except using the process described above, he or she is not acting as an agent for Bernini or speaking on our behalf.

Miscellaneous

Applicable Law

These Terms constitute a contract made solely over the Internet and you agree that the laws of the State of Texas, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and Bernini relating to use of any aspect of the Site.

Entire Agreement

These Terms of Service and the terms and conditions incorporated in these Terms of Service by reference are the entire agreement between you and Bernini.

Severability

Except as provided in the provisions above, if any provision of these Terms is unenforceable, the validity and enforceability of the remaining provisions will not be affected.

No Third Party Beneficiaries

These Terms of Service are between you and Bernini. There are no third party beneficiaries.

Waiver

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.


Contact Bernini

If you have questions regarding any of these Terms, you can call us at (619) 449-2392, email us at customercare@berninifountains.com, or write to us at:
Bernini Fountains
9545 Pathway Street
Santee, CA 92071
United States