Terms & Conditions
Last updated June 18, 2021
AGREEMENT TO TERMS
These Terms of Use constitute a legally binding agreement between you, whether personally or on behalf of an entity (“you,” “your,” etc.) and Fat Lip Brands (“FLB,” “we,” “us,” “our,” etc.), concerning your access to and use of the https://discovercreek.com websites as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto by us (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agreed to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
The Site is expressly limited to persons age 21 years or older who are consumers of tobacco and/or other nicotine products. By using the Site, you certify that you meet those criteria and understand that we will formally verify your age before you can purchase any products from us or be placed on our marketing contact lists.
We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation. You access the Site on your own initiative and are solely responsible for compliance with any applicable local laws.
INTELLECTUAL PROPERTY RIGHTS
The Site and all of the Content on it, except where otherwise specified, are our property (or that of our affiliates), including all source code, databases, functionality, software, website designs, audio, video, text, photographs, graphics, and any other images or other materials we place in or on the Site (collectively, the “Content”), and the trademarks, service marks, logos, trade dress, and other protectable intellectual property contained therein (the “Marks”). The Content and the Marks are provided on the Site “AS IS” for your information only. You shall not copy, reproduce, aggregate, republish, upload, post, publicly display, encode, translate, transmit, distribute, sell, license, or otherwise exploit any part of the Site, the Content, or the Marks for any commercial or other purpose whatsoever.
This Site uses Google Maps to let you find locations where our products can be purchased. This feature is provided by Google subject to Google’s Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html and Google Privacy Policy at https://www.google.com/policies/privacy/.
USER REPRESENTATIONS
By using the Site, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity to, and you agree to, comply with these Terms of Use; (4) you are 21+ years of age; (5) you will not access the Site through automated or non-human means, whether through a bot, script, or otherwise; (6) you will not use the Site for any illegal or unauthorized purpose; and (7) your use of the Site will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse you any and all current or future use of the Site (or any portion thereof).
USER REGISTRATION
You may be required to register with the Site. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select for any reason, in our sole discretion, including if we determine that such username is inappropriate, obscene, or otherwise objectionable. Only you may use your account, and you are personally responsible for all acts and omissions in connection with your use of the Site and/or your account.
PRODUCTS
We try to display the colors, features, specifications, details, and other characteristics of the products available on the Site as accurately as possible. However, those characterizations are for illustrative purposes only and we do not guarantee that they will be accurate, complete, reliable, current, or error-free. As such, any products you may purchase may vary slightly from those characterizations. Further, your device may not accurately reflect the characteristics that we display. All products are subject to availability, and we cannot guarantee that items will be in stock. We reserve the right to discontinue any products at any time for any reason. Prices for all products are subject to change.
PURCHASES AND PAYMENT
We accept the following forms of payment:
– Visa
– Mastercard
– American Express
– Discover
You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. All payments shall be in U.S. dollars.
You agree to pay all charges at the prices then in effect, along with any applicable taxes and shipping fees. You authorize us to charge your chosen payment provider for any such amounts upon placing your order. Note that applicable taxes may include sales or use tax and tobacco excise tax, the imposition and rates of which may vary based on the laws in effect in the applicable jurisdiction at the time of shipment. If your order is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. We reserve the right to correct any errors in pricing, even if we have already requested or received payment.
We reserve the right to request additional information related to any order and to refuse any order placed through the Site for any reason. We may limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that appear to be placed by dealers, resellers, or distributors. We will determine all of these in our sole discretion.
RETURN POLICY
If you have an issue with a product that you have purchased from us, please contact our Customer Support team.
PROHIBITED ACTIVITIES
You may not access or use the Site for any purpose other than that for which we make the Site available, including in connection with any commercial endeavors beyond transacting business with us. Further, as a user of the Site, you agree not to:
- Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory.
- Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for any reason, including for the purposes of sending unsolicited email or creating user accounts by automated means or under false pretenses.
- Use a buying agent or purchasing agent to make purchases on the Site.
- Use the Site to advertise or offer to sell goods and services.
- Circumvent, disable, or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein.
- Engage in unauthorized framing of or linking to the Site.
- Trick, defraud, or mislead us and/or other users in any way, including in any attempt to learn sensitive account information such as user passwords.
- Make improper use of our support services or submit false reports of abuse or misconduct.
- Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
- Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
- Attempt to impersonate another user or person or use the username of another user.
- Use any information obtained from the Site to harass, abuse, or harm another person.
- Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise.
- Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
- Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site.
- Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing you any portion of the Site, our products, or our services.
- Delete the copyright or other proprietary rights notice from any Content.
- Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
- Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or any other material whatsoever, including excessive use of capital letters and spamming (continuous posting of repetitive text) that is intended to or could interfere with any aspect of the Site’s security, operation, or user experience.
- Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
- Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or use or launch any unauthorized script or other software.
- As we may determine, in our sole opinion, disparage, tarnish, or otherwise harm us, our products, and/or the Site.
- Use the Site in a manner inconsistent with any applicable laws or regulations, or with these Terms of Use. You agree that you will not access this Site from any place where the Site or its content may be illegal, and that you are solely responsible for complying with all appliable local laws.
- Access the Site through any means other than the interface we provide for that purpose.
REVIEWS AND OTHER FEEDBACK
We may provide areas on the Site to leave reviews, ratings, or other feedback (“Reviews”). All Reviews must comply with the following: (1) you must have firsthand experience with the product being reviewed; (2) your reviews shall not be offensive, contain profanity, abusive, racist, or hate language, or contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability; (3) your reviews shall not contain references to illegal activity; (4) if you are affiliated with a competitor, you must clearly disclose that affiliation; (5) you shall not make any conclusions as to the legality of anyone’s conduct, whether ours or that of another user; (6) you shall not post any false or misleading statements; and (7) you shall not organize a campaign encouraging others to post reviews, whether positive or negative.
We may accept, reject, or remove reviews in our sole discretion. We have absolutely no obligation to screen or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates. We do not assume liability for any review or for any claims, liabilities, or losses resulting from any review. By posting a review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable, and sublicensable right and license to reproduce, modify, translate, transmit by any means, display, perform, and/or distribute all content contained in your review, including all text and images. Further, you represent and warrant to us that you have all right, title, and interest in all such content and provide the foregoing license without prejudice to the rights of any third party, including intellectual property rights.
In addition to Reviews, all terms in this section also apply to all of your communications with our Customer Support team and anyone else working for, by, or through us or on our behalf.
LINKS TO OTHER WEBSITES
The Site may contain links to other websites. These links do not indicate, and shall not be deemed to indicate, any affiliation between us and the owners, operators, or content of any such third-party website, or our endorsement of them in any way. We have no relationship, responsibility, or liability in, for, or related to third party websites, their content or their policies, and your access of such sites is purely at your own risk.
SITE MANAGEMENT
We reserve the right, but not the obligation, in our sole discretion, without notice, and without liability to you or anyone else, to: (i) change, modify, suspend, cancel, discontinue, or remove any aspect of the Site in any way, at any time, and for any reason, including to correct any errors, inaccuracies, or omissions and to change or update the information on the Site; (ii) monitor the Site for violations of these Terms of Use; (iii) take appropriate legal action for violation of the law or these Terms of Use, including reporting such users to law enforcement authorities; (iv) refuse or restrict access to the Site; (v) remove any Content or other files, information, or data from the Site, including from its systems and metadata; and (vi) otherwise manage the Site in a manner designed to protect our rights and property and facilitate the proper functioning of the Site. We cannot guarantee the Site will be available at all times.
You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site, or due to any modification thereto, including price and product offering changes. Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
PRIVACY POLICY
We care about data privacy and security. Please review our Privacy Policy: https://swisher.com/privacy-policy/. By using the Site, you acknowledge that you have read and understand our Privacy Policy.
TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account, including under your name, any alteration or variation of your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including, without limitation, pursuing civil, criminal, and injunctive relief.
GOVERNING LAW AND DISPUTE RESOLUTION
Any dispute or claim between you, on the one hand, and us, our parents, subsidiaries, affiliates, agents, employees, and assigns, on the other hand (“Claims”) will be resolved exclusively by binding arbitration, rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited. Further, you and FLB waive any right to bring a class or representative action or to participate as a member of a class. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).
Claims include, without limitation, (a) Claims related to or arising out of your account on the Site; (b) Claims related to or arising out of any aspect of any relationship between you and FLB; and (d) Claims relating to the construction, scope, applicability, or enforceability of this arbitration clause. Claim has the broadest possible meaning and includes disputes based on contract, tort, consumer rights, fraud or other intentional torts, statutes, regulations, common law, or equity. Notwithstanding the foregoing, “Claim” does not include an action to enjoin infringement or other misuse of intellectual property rights, which you or FLB may file in court.
You and FLB agree that each of us will notify the other in writing of any Claim and will attempt in good faith to resolve the dispute before beginning an arbitration proceeding. Notice to FLB shall be sent to Fat Lip Brands c/o Swisher International, Inc., Attn: VP Consumer Marketing, 459 E. 16th St., Jacksonville, FL 32206. If you and FLB cannot resolve the dispute between yourselves within 30 days of you or FLB providing written notice, either party may initiate an arbitration.
You and FLB agree that the arbitration will be administered by JAMS. The JAMS arbitration rules can be obtained at www.jamsadr.com or 1-800-352-5267. The arbitration will be decided by a single arbitrator selected in accordance with JAMS rules. The arbitrator will take reasonable steps to protect proprietary and confidential information. At your or FLB’s request, the arbitrator will issue a reasoned written decision explaining the basis for the award.
You and FLB agree that no class action, private attorney general, or other representative claims may be pursued in arbitration. Unless you and FLB agree, Claims of two or more people cannot be joined or consolidated in the same arbitration.
You and FLB agree that our transactions involve interstate commerce and that these Terms and Conditions and any arbitration proceedings are governed by the Federal Arbitration Act. Any Claim or other dispute between the parties will be governed by these Terms and Conditions and the laws of the state of Florida and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
DISCLAIMER
THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ASPECT OF THE SITE, INCLUDING BUT NOT LIMITED TO (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY ADVERTISING OR OTHER LINK, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATVIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
INDEMNIFICATION
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, directors, employees, agents, and other representatives from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party, including but not limited to those due to or arising out of: (1) use of the Site; (2) breach of these Terms of Use; (3) any breach of your representations and warranties set forth in these Terms of Use; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; and (5) any harmful act toward us or any other user of the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it. If we have agreed to permit you to assume the defense of any claim, you shall not settle or otherwise resolve that claim in any way that causes us or any of the indemnitees hereunder to incur any liability or other prejudice, unless we have expressly authorized you to do so in writing.
USER DATA
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we may perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, completing online forms, and making Reviews, are among the things that constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and/or via the Site, satisfy any legal requirement that such communication be in writing. You further agree that we are not required to provide you any notice of any electronic communication, including those made through or linked to the Site. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
MISCELLANEOUS
These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by anything beyond our reasonable control, including but not limited to, severe weather, an official or de facto state of war, Act of God, riots, strikes, hostile or criminal activity, labor difficulties, acts of terrorism, epidemics, pandemics (including, but not limited to (a) COVID-19 (a/k/a coronavirus) and/or (b) any communicable disease or threat thereof as such terms are defined in the 2019 Florida Statutes, Title XXIX, Chapter 381.003(1)), any act or order of public authority, any local, state, federal, national, or international law, governmental order or regulation, or any event that makes performance impossible, impracticable, or constitutes frustration of purpose. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severed from these Terms of Use, and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment, or agency relationship created between you and us via these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
CONTACT US
In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at:
Fat Lip Brands
459 E 16th St.
Jacksonville, FL 32206
United States
Phone: 800-843-3731
help@swisher.com