Terms of Use

January 2023

  1. Applicability of these Terms of Use

1.1   Welcome to the website of Birdie Dink, LLC (“Birdie Dink” or “we”). These terms (“Terms of Use”) govern your access to and use of https://www.BirdieDink.com, including any content, functionality and services offered on or through https://www.BirdieDink.com (the “Website”), whether as a guest or registered user.

1.2   Please read the Terms of Use carefully before using the Website. By using the Website, you accept and agree to be bound by these Terms of Use and our Privacy Policy, found at Privacy Policy which are incorporated in these Terms of Use by reference. All purchases and transactions for the sale of goods formed through the Website are governed by our Terms of Sale, which follow these Terms of Use. If you do not agree to these Terms of Use, you should not use the Website.

1.3   This Website is offered and available to users who are 18 years of age or older.  By using this Website, you represent and warrant that you are of legal age to form a binding contract with Birdie Dink and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not use the Website.

 

  1. Changes to the Terms of Use and Website

2.1   We may update these Terms of Use from time to time. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter.  However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Website.

2.2   Your continued use of the Website following the posting of revised Terms of Use means that you have read and agree to the changes. You should check this page from time to time so you are aware of any changes, as they are binding on you.

2.3   We may withdraw or update the content on this Website in our sole discretion without notice or liability to you. The content on the Website is not necessarily complete or up-to-date.

 

  1. Account Security

3.1   You will ensure that all information you provide on the Website is correct, current and complete. You agree that all information you provide to register with this Website, including through the use of any interactive features on the Website, is governed by our Privacy Policy and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

3.2   You will treat your user name, password and any other information you provide as part of your registration process as confidential. You acknowledge that your account is personal to you and therefore will provide any other person with access to this Website or portions of it using your user name, password or other security information. You will notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.

3.3   We have the right to disable your account or any portion of it at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

 

  1. Intellectual Property Rights

4.1   As between you and Birdie Dink, all right, title and interest in and to the Website and its contents, features and functionality (including products, information, software, text, displays, images, video and audio, and the design, selection and arrangement of those items), and all intellectual property rights in the Website, are retained by Birdie Dink.

4.2   You may use the Website for your personal, non-commercial use only. No right, title or interest in or to the Website is transferred to you, and all rights not expressly granted are reserved by Birdie Dink. You will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:

  1. a) Your computer may temporarily store copies of such materials incidental to your accessing and viewing those materials.
  2. b) You may store files that are automatically cached by your Web browser for display enhancement purposes.
  3. c) You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  4. d) If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
  5. e) If we provide social media features with certain content, you may take such actions as are enabled by such features.

4.3   You will not:

  1. a) Modify copies of any materials from this Website.
  2. b) Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
  3. c) Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this Website.
  4. d) Access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

4.4   If you wish to make any use of material on the Website other than that set out in this Section 4, please address your request to: ace@BirdieDink.com.

4.5   If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

4.6   The Birdie Dink name, Birdie Dink logo and all related names, logos, product and service names, designs and slogans are trademarks of Birdie Dink or our licensors. You must not use such marks without the prior written permission of Birdie Dink. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.

 

  1. Prohibited Uses of the Website

5.1   You agree not to use the Website:

  1. a) In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  2. b) For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  3. c) To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms of Use.
  4. d) To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter” or “spam” or any other similar solicitation.
  5. e) To impersonate or attempt to impersonate Birdie Dink, a Birdie Dink employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
  6. f) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Birdie Dink or users of the Website or expose them to liability.

5.2   Additionally, you agree not to:

  1. a) Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
  2. b) Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  3. c) Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
  4. d) Use any device, software or routine that interferes with the proper working of the Website.
  5. e) Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  6. f) Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
  7. g) Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  8. h) Otherwise attempt to interfere with the proper working of the Website.

 

  1. User Contributions

6.1   The Website may contain message boards, chat rooms, personal web pages or profiles, forums and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.

6.2   All User Contributions must comply with the Content Standards set out below in Section 7.

6.3   Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you hereby grant and agree to grant to us and our service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.

6.4   You represent and warrant that:

  1. a) You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our service providers, and each of their and our respective licensees, successors and assigns.
  2. b) All of your User Contributions do and will comply with these Terms of Use.

6.5   You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Birdie Dink, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.  We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Website.

  1. Content Standards

7.1   These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, you must ensure that User Contributions do not:

  1. a) Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  2. b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  3. c) Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
  4. d) Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy.
  5. e) Be likely to deceive any person.
  6. f) Promote any illegal activity, or advocate, promote or assist any unlawful act.
  7. g) Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
  8. h) Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  9. i)  Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
  10. j)  Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

 

  1. Birdie Dink’s Rights

8.1   We have the right to:

  1. a) Remove or refuse to post any User Contributions in our sole discretion.
  2. b) Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public or could create liability for Birdie Dink.
  3. c) Take appropriate legal action, including referral to law enforcement for any illegal or unauthorized use of the Website.
  4. d) Terminate or suspend your access to all or part of the Website for any reason including any violation of these Terms of Use.
  5. e) Cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.

8.2   Notwithstanding the above, we do not undertake to review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or omission regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section 8.

 

  1. Reliance on Information Posted

9.1   The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

9.2   This Website may include content provided by third parties, including materials provided by other users. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Birdie Dink, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Birdie Dink. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

  1. Linking to the Website and Social Media Features

10.1 You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.

10.2 This Website may provide certain social media features that enable you to:

  1. a) Link from your own or certain third-party websites to certain content on this Website.
  2. b) Send e-mails or other communications with certain content, or links to certain content, on this Website.
  3. c) Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.

10.3 You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

  1. a) Establish a link from any website that is not owned by you.
  2. b) Cause the Website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
  3. c) Link to any part of the Website other than the homepage.
  4. d) Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

10.4 The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.

10.5 You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

10.6 We may disable all or any social media features and any links at any time without notice in our discretion.

 

  1. Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

  1. Geographic Restrictions

The owner of the Website is based in the state of California in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

  1. Disclaimer of Warranties and Limitation of Liability

13.1 YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE.  TO THE EXTENT PERMITTED BY LAW, BIRDIE DINK DISCLAIMS ALL WARRANTIES, GUARANTEES AND REPRESENTATIONS WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR PARTICULAR PURPOSE IN RESPECT OF THE WEBSITE.

13.2 EXCEPT TO THE EXTENT OUR LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER LAW, IN NO EVENT WILL BIRDIE DINK OR ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

 

  1. Governing Law and Jurisdiction

14.1 All matters relating to the Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), will be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.

14.2 Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Website will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case in the county of Santa Clara, California. However, we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your state or country of residence or any other relevant state or country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

  1. Waiver and Severability

15.1 No waiver of by Birdie Dink of any term in these Terms of Use will be deemed a further or continuing waiver of such term or condition or a waiver of any other term, and any failure of Birdie Dink to assert a right or provision under these Terms of Use will not constitute a waiver of such right or provision.

15.2 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 will be limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

  1. Entire Agreement

The Terms of Use, our Privacy Policy, and Terms of Sale constitute the sole and entire agreement between you and Birdie Dink 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.

  1. Your Comments and Concerns

This website is operated by Birdie Dink, LLC at 2501 Isabelle Ave, San Mateo, CA 94403.

All other feedback, comments, requests for technical support and other communications relating to the Website should be directed to: ace@BirdieDink.com

Thank you for visiting the Website.

BIRDIE DINK TERMS OF SALE

  1. Applicability and Contract

1.1 These terms of sale (“Terms”) are the terms which govern the purchase of the products by you from Birdie Dink, LLC (“Birdie Dink”) via Birdie Dink’s website http://www.BirdieDink.com (“Products”). These Terms comprise the entire agreement between you and Birdie Dink in connection with the Products. and supersede any other understandings, agreements, representations and warranties and communications.

1.2 By placing an order you are offering to purchase the relevant Product on and subject to these Terms. When you place an order, you will receive an acknowledgement e-mail confirming receipt of your order: this email will only be an acknowledgement and will not constitute acceptance of your order. A contract between you and Birdie Dink will not be formed until Birdie Dink sends you confirmation by e-mail that the Products which you ordered have been dispatched to you. Only those Products listed in the confirmation e-mail sent at the time of dispatch will be included in the contract formed under these Terms.

1.3 All Products ordered by you must only be purchased for your internal and personal purposes, and not for any other purpose (such as commercial use).

  1. Delivery

2.1 The Products will be delivered within a reasonable time after the receipt of your order, subject to availability of the ordered Products and these Terms.

2.2 Birdie Dink will deliver the Products to the address as indicated by you during the checkout process (the “Delivery Address”) using Birdie Dink’s standard methods for packaging and shipping such Products.

2.3 Birdie Dink may, in its sole discretion ship your Products separately to you, depending on availability of the Products.

2.4 The quantity of the Products as recorded by Birdie Dink on dispatch is conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary.

2.5 Birdie Dink is not responsible for any non-delivery of Products unless you give written notice to Birdie Dink of the non-delivery within two weeks of the date when the Products would in the ordinary course of events have been received.

  1. Cancelling an Order and Returning Products

3.1 If you are not satisfied with your Product, you may return the relevant Product within 30 days of the original purchase date.

3.2 All return Products must be in new and unused condition (except to the extent the Product was defective when received), in original packaging, and must be returned to Birdie Dink within 30 days of the original purchase date of the Product. You should pack the Products securely so that they are not damaged during shipping – Birdie Dink is not responsible for lost or damaged Products in transit. After Birdie Dink has received your returned Product, if the Product is returned because it is defective or because the wrong Product was sent to you, Birdie Dink will, at its option and sole discretion, refund you the price of the Product via the original payment method or such other method agreed between the parties or send you a replacement Product. If the Product is returned for any other reason, provided you have complied with all return-requirements set out in this paragraph, Birdie Dink will refund you the price of the Product via the original payment method.

3.3 Birdie Dink may reject any order or cancel any purchase of Products at any time in the following cases, subject to any applicable refund: (i) the Products are not available/not in stock; (ii) the data you provide to Birdie Dink in connection with your purchase is incorrect or cannot be checked; (iii) your order is marked as suspicious or otherwise suggestive of fraud or illegality by Birdie Dink’s security systems; (iv) Birdie Dink has reason to believe that your purchase is intended for a further commercial activity; (v) there has been an error in the indicated price of the Products; or (vi) Birdie Dink cannot deliver the Products to the address you have provided.

  1. Title and Risk of Loss. Title and risk of loss passes to you upon delivery of the Products at the Delivery Address. This means you will be responsible for any subsequent damage, loss or destruction to the Products delivered to you.
  1. Information about our Products.

5.1 Birdie Dink tries to make sure all descriptions of the Products and listed prices are accurate and correct. However, mistakes do happen and Birdie Dink will try to resolve any errors in information as soon as reasonably possible and if Birdie Dink thinks that such an error has affected your order Birdie Dink will make all reasonable efforts to notify you via the contact information provided by you and give you the option of reconfirming your order at the correct price or description (as applicable) or cancelling it. If Birdie Dink is unable to contact you Birdie Dink will treat the order as cancelled. If you cancel and you have already paid for the Products, you will receive a refund.

5.2 You acknowledge and agree that (i) the colors of Products as shown on the website will depend on many factors, including your display settings and the device you are using to view Birdie Dink’s website; (ii) the actual sizes and shapes of the goods may differ from how they appear on your screen; and (iii) pictures and images on the Website are for illustration purposes only. Birdie Dink reserves the right to adjust prices, Products and special offers at our discretion.

  1. Price and Payment Terms

6.1 You agree to purchase the Products from Birdie Dink at the prices specified on Birdie Dink’s website on the date you place your relevant order, including any shipping prices (“Prices”).

6.2 Unless otherwise specifically specified by Birdie Dink, the published Prices applicable to the Products are inclusive of shipping prices. All published Prices applicable to the Products are also exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by you. You will be responsible for all such charges, costs and taxes but you will not be responsible for any taxes imposed on, or with respect to, Birdie Dink’s income, revenues, gross receipts, personnel or real or personal property or other assets.

6.3 When placing an order for Products you are responsible for ensuring that all details you provide to Birdie Dink are true and accurate, that you are an authorized user of the credit or debit card or such other authorized payment account used to place your order and that there are sufficient funds to cover the cost of the Products.

6.4 Birdie Dink may offer discount or promo codes from time to time; such codes may only be applied to purchases made through the account in respect of which the discount code was offered and registered. Only one code can be used per order and use of such codes are subject to any other terms and conditions specified by Birdie Dink when those codes are made available to you. A promotion code can’t be used after an order has been placed.

6.5 After receiving your order Birdie Dink carries out a standard pre-authorization check on your payment card to ensure there are sufficient funds to fulfill the transaction. Products will not be dispatched until this pre-authorization check has been completed. Your card will be debited once the order has been accepted.

  1. Limited Warranty.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, BIRDIE DINK MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

  1. Limitation of Liability

8.1 IN NO EVENT WILL BIRDIE DINK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR IN CONNECTINO WITH ANY BREACH OF THESE TERMS OR ANY ACT OR OMISSION BY BIRDIE DINK OR ITS PERSONNEL, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

8.2 YOUR EXPRESS RIGHT TO RECEIVE A REFUND OR REPLACEMENT PRODUCT UNDER SECTION 3 ABOVE CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY IN RELATION TO ANY DEFECTIVE OR WRONG PRODUCTS SENT TO YOU OR ANY PRODUCTS THAT HAVE BEEN INACCURATELY DESCRIBED OR PRICED ON BIRDIE DINK’S WEBSITE.

8.3 IN NO EVENT WILL BIRDIE DINK’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH TO TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF ANY AMOUNTS PAID TO BIRDIE DINK BY YOU FOR THE RELEVANT PRODUCTS SOLD UNDER THESE TERMS.

8.4 The limitation of liability set forth in above will not apply to death or bodily injury directly resulting from Birdie Dink’s acts or omissions.

  1. Waiver.

Delay in Birdie Dink’s exercising or failure to exercise any right or remedy under these Terms will not constitute a waiver of Birdie Dink’s rights and remedies under these Terms.

  1. Force Majeure.

Birdie Dink will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Birdie Dink including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

  1. Governing Law.

All matters arising out of or relating to these Terms is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.

  1. Submission to Jurisdiction.

Any legal suit, action or proceeding arising out of or relating to these Terms will be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the county of Santa Clara, in the state of California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

  1. Modification.

Birdie Dink may revise and update these Terms from time to time in its sole discretion. All changes are effective immediately when Birdie Dink posts them, and apply to all purchases of Products thereafter. You should check these Terms every time you make a purchase of Products so you are aware of any changes you. No other changes to these Terms will be binding or enforceable unless agreed in writing between each party’s authorized representative.

  1. Severability.

If any term or provision of these Terms is held to be invalid, illegal or unenforceable in any jurisdiction, the invalidity, illegality or unenforceability will not affect any other term or invalidate or render unenforceable such term in any other jurisdiction.

  1. Privacy.

Personal information, such as your contact details, that you provide during the order process will be kept and used by us in accordance with our Privacy Policy.