Last Modified on September 21st, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
By accessing or using the websites, mobile applications or blogs/journals (collectively, the “Sites”) provided by Club Botanic, LLC or our subsidiaries or other affiliates (collectively, “Club Botanic,” “we,” “us” or “our”) that link to these Terms, you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Sites or order, receive bouquets, wreaths or other products made available through the Sites (collectively, the “Products”).
These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.
Club Botanic reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
1. AMENDMENTS AND CHANGES
2. PRIVACY STATEMENT
By using the Site, you represent that you have read and consent to our Privacy Statement that is incorporated into this Agreement by this reference. Club Botanic may revise the Privacy Statement at any time, and the new versions will be available at the above link. If at any point you do not agree to any portion of the Privacy Statement, you must immediately stop using the Site and not renew your subscription service. Without limiting the foregoing, you authorize us to share your information with third parties such as Stripe, Sidecar, Uber, Routific, PayPal, Authorize.net, and FedEx. We strongly advise you to read each of their privacy policies.
3. REGISTRATION, ACCOUNT AND COMMUNICATION PREFERENCES
In order to access and use certain areas or features of the Sites, you will need to register for a Club Botanic account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Club Botanic account, you also consent to receive electronic communications from Club Botanic (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. TERMS OF SALE
4.1. Subscriptions; Continuous Subscriptions; Cancellation Policy
Subscriptions. We offer different subscription plans for fresh flower bouquets and seasonal wreaths (each, a “Bouquet Subscription” or “Wreath Subscription”). For more information about our Bouquet and Wreath Subscriptions, please read these Terms and our FAQs. Note that we do not currently deliver to every location, so please visit our Delivery Area page to see if we deliver to your area at http://www.clubbotanic.com/delivery-area.
Continuous Subscriptions. WHEN YOU REGISTER FOR A BOUQUET AND/OR WREATH SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) CLUB BOTANIC (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A WEEKLY BASIS FOR YOUR BOUQUET AND/OR WREATH SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR BOUQUET AND/OR WREATH SUBSCRIPTION CONTINUES, AND (B) YOUR BOUQUET AND/OR WREATH SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS.
Cancellation Policy. YOU MAY CANCEL YOUR BOUQUET AND/OR WREATH SUBSCRIPTION AT ANY TIME BY EMAILING US ATHELLO@CLUBBOTANIC.COM AND FOLLOWING THE INSTRUCTIONS IN THE EMAIL WE SEND YOU IN RESPONSE TO YOUR CANCELLATION REQUEST. DEPENDING ON YOUR WEEKLY CUT-OFF DATE, WHICH IS AVAILABLE ON YOUR “MY ACCOUNT” PAGE, YOUR CANCELLATION WILL BE EFFECTIVE BETWEEN FIVE (5) AND SEVEN (7) DAYS AFTER YOU COMPLETE THE CANCELLATION PROCESS. YOU ARE RESPONSIBLE FOR ALL BOUQUET AND/OR WREATH SUBSCRIPTION CHARGES (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED BEFORE THE EFFECTIVE DATE OF YOUR CANCELLATION.
In the event you cancel your Bouquet and/or Wreath Subscription, please note that we may still send you promotional communications about Club Botanic, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
You have the ability to purchase pre-paid gift subscriptions for other people through the Sites (“Gifts”). In order to purchase a gift subscription, you are required to create an account, and during the signup process you will select a bouquet and/or wreath subscription, checking the appropriate box to indicate if this order is a gift, and the number of deliveries included in the gift order (currently, gifts are offered in 5 and 15 delivery packages). The recipient of a gift subscription will receive an email and create their own account information along with delivery frequency and preferences.
When you purchase a Gift, we will send an email to the Gift recipient that can be used to redeem the Gift. The Gift recipient will be required to create a Club Botanic account in order to access the Sites and redeem the Gift. Gifts are not refundable or redeemable for cash, unless otherwise required by applicable law. However, Gifts do not expire, and any unused balance will be placed in the Gift recipient’s Club Botanic account.
4.3. Free Trials
From time to time, we may offer free trials for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration.
ONCE YOUR FREE TRIAL ENDS, WE (OR OUR THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 4.1 AND 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
4.4. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Club Botanic account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Bouquet Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
4.5. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Bouquet Subscription, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of bouquets to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies set forth in Sections 4.1 and 4.2, as applicable.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products.
We will collect applicable sales tax on products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.7. Shipping and Handling
You agree to pay any shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third party courier. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. If a shipment is received in damaged condition, please contact us as soon as possible at email@example.com. Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. Unless as a result of events outside of our direct control, orders of floral goods purchased by you through the Site will be delivered within the time period specified for the delivery method you have selected. All orders are shipped using a third party courier. The earliest delivery date available for an order is approximately one week from the day that payment for the order is confirmed. All deliveries are scheduled in accordance with your selected account preferences, though we cannot guarantee delivery by any specific time. We strongly encourage recipients to be at the delivery location to receive the flowers as flowers that remain outside are more likely to wilt and die.
Club Botanic offers two delivery options: (1) Indirect Signature Required, and (2) No Signature Required. Indirect Signature Required means that the recipient, or someone at the location (or at an address close by) must sign for the package to be delivered. Club Botanic strongly encourages the Indirect Signature Required option to ensure safe and fresh delivery. No Signature Required means that the delivery service will leave the package at the address whether the recipient or another person is available or not. Should a customer choose the No Signature Required option, Club Botanic cannot guarantee freshness and cannot provide replacements or refunds based on flower quality or freshness. Without the signature provided, we cannot be sure that the package was delivered at the correct time and place, or that the flowers were treated as is needed to maintain quality. If you choose the No Signature Required shipping method, then neither Club Botanic nor our third party courier can be held responsible or liable for product quality or longevity. Thus, Club Botanic strongly encourages the use of Indirect Signature Required shipping.
In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your order, we will attempt to deliver your order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your Products is not feasible, we will cancel your Product delivery for the period so affected and issue you a credit or refund of the purchase price for that Product delivery.
4.9. No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
4.10. Returns and Refunds
If you are dissatisfied with a bouquet or wreath for any reason, please contact us at firstname.lastname@example.org immediately and we will either replace the bouquet or wreath at our expense or, depending on the circumstances, provide you a full or partial credit or refund of the purchase price for that order. We may require the return or photographic documentation of any bouquet or wreath with which you are dissatisfied before we provide you a credit or refund. If you do not comply with the terms of this section, you will be ineligible to receive a refund.
5. ELIGIBILITY AND ACCOUNTS
You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside, and are at least 18 years of age. Children under the age of 18 are not allowed to use the Site.
To access certain portions of the Club Botanic Services, you may be required to create an account through the Site (an “Account”). You agree that you shall not create an Account or use the Site if you (i) are under the age of 18, (ii) if you have previously been removed by Club Botanic or banned from using the Club Botanic Services, (iii) already have an Account with Club Botanic, (iv) are located in a country embargoed by the United States or (v) are on the U.S. Treasury Department’s list of Specially Designated Nationals.
5.3. Account Security.
You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify Club Botanic immediately if you believe that your Account username and/or password have been compromised.
5.4. Account Suspension.
Club Botanic reserves the right to permanently suspend or terminate your Account and
your access to the Site or seek appropriate injunctive or monetary relief if it suspects that you have violated any part of the Agreement.
5.5. Limited License; Links to Other Websites
Subject to your compliance with the terms and conditions of this Agreement, Club Botanic grants you a non-exclusive, non-sub-licensable, revocable as stated in this Agreement, non-transferable license to use the Site. Neither the Site, nor any portion of the Club Botanic’s services, may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of Club Botanic. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of Club Botanic or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.
The Site may contain links to websites operated by other parties. Club Botanic provides these links to other websites as a convenience, and use of those sites is at your own risk. The linked sites are not under the control of Club Botanic, and Club Botanic is not responsible for the content available on the other sites. Such links do not imply Club Botanic’ endorsement of information or material on any other site and Club Botanic disclaims all liability with regard to your access to and use of such linked websites.
6. Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Club Botanic is not responsible or liable in any manner for such interactions or Third Party Content.
7. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
8. USER CONTENT
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to Products purchased through the website, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
9. RIGHTS IN USER CONTENT
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Club Botanic’s Facebook page, Instagram page or Twitter feed), you hereby grant Club Botanic a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Club Botanic through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Club Botanic to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Club Botanic, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Club Botanic. Club Botanic shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
11. FEES AND PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice, to (i) discontinue or limit the available quantity of any product or aspect of the Site, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; and (iii) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Site, you (a) agree to pay the price for such products set forth in the Site, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize Club Botanic to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
Payment can be made by credit card, debit card. Orders will not be processed until payment has been received in full, and any holds on your account by or any other payment processor (including Authorize.net) are solely your responsibility.
If you purchase a subscription for repeated deliveries, then you hereby authorize Club Botanic to bill your credit card for the amounts and at the intervals described on our Site (or at approximately those intervals, to accommodate for holidays and other irregularities), until the end of the subscription period, or indefinitely if you decide to purchase an open-ended subscription. In cases where your credit card expires, is cancelled, is over the limit, or is otherwise declined for any reason, we will not continue to deliver bouquets or wreaths or renew your subscription, though we may, but are not obligated to, contact you to notify you of the issue.
Club Botanic provides a discount for referrals, as well as a discount for pre-paid plans. These promotions may be altered by information published on our Site, and if any information is conflicting, the terms most beneficial to Club Botanic shall prevail and take effect. Club Botanic may refuse to provide such discounts for any reason including, but not limited to, fraud, mistake on the part of our publication of information, actual or expected financial hardship, sale of all or part of our business, or any other reason at Club Botanic’ sole discretion. Discounts, Promotions, and Store Credits of any kind may not be combined unless at the sole discretion of Club Botanic Company. Discounts or other financial benefits given in reward for referring other users to us may be considered a taxable benefit by any revenue agency having jurisdiction over you, which you are solely responsible for, and you should consult an accountant and/or tax attorney in your jurisdiction to determine your tax liabilities incurred as a result of participating in our referral program. Should a user abuse the referral program through fraudulent activities such as referring oneself, creating multiple accounts or other such tactics which constitute theft and/or fraud, Club Botanic may notify the authorities and you may be prosecuted under statutes including 18 U.S.C. § 506 No Electronic Theft Act, 18 U.S.C. § 1029 Fraud and Related Activity in Connection with Access Devices, 18 U.S.C. § 1030 Fraud and Related Activity in Connection with Computers, or other similar laws or statutes. Club Botanic reserves the right to charge any payment method on file the full retail price of all deliveries under any account deemed to be fraudulent, and these charges may include any amounts previously discounted in a previous promotion.
If a pre-paid plan is cancelled after only 1 delivery Club Botanic may charge a $5 cancellation fee.
11.3. RETURN AND REFUND POLICY.
Except as provided for replacement bouquets and wreaths below, there are no refunds or returns for the floral goods purchased on the Site. All sales are final. You may receive a replacement bouquet or wreath only if: (1) you contact us within three (3) calendar days of the delivery date, (2) the wrong item was delivered, or if the bouquet arrives in substandard condition, or if the bouquet or wreath is delivered after the delivery date or never delivered at all, and (3) if the bouquet or wreath arrived in substandard condition, then (i) a photograph of the bouquet or wreath must be attached, (ii) you must have chosen the “Indirect Signature Required” delivery method, and (iii) someone must have been present to take delivery of the bouquet upon arrival, as indicated by the carrier. Replacement bouquets cannot be transferred for value or redeemed for cash.
11.4. CHANGES TO PRODUCTS AND PRICING.
Club Botanic may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold through the Site. The inclusion of any products through the Site at a particular time does not imply or warrant that these products will be available at any other time. Club Botanic reserves the right to change prices for products displayed on the Site, or the Site, at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new product prices to the Site.
11.5. ORDER ACCEPTANCE/CONFIRMATION.
Once we receive your order, we’ll provide you with an email order confirmation. Your receipt of an order confirmation, however, does not signify Club Botanic’ acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. Club Botanic reserves the right at any time after receiving your order to accept or decline your order for any reason. If Club Botanic cancels an order after you have already been billed, then Club Botanic will refund the billed amount.
11.7. NO DELIVERY TO CHILDREN.
In furtherance of Club Botanic’ policy of not collecting personal information from children under the age of 13, users are not allowed to give Club Botanic the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
11.8. TYPOGRAPHICAL ERRORS.
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for the product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card or PayPal account charged. If your credit card or PayPal account has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
The Site is operated by Club Botanic in the United States. Those who choose to access the Site from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
13. DISCLAIMER OF WARRANTIES
THE SITE, THE PRODUCTS OFFERED FOR SALE ON IT, AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE SITE MAY INCLUDE INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
CLUB BOTANIC DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU AGREE THAT CLUB BOTANIC SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
14. LIMITATION OF LIABILITY; RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLUB BOTANIC OR ANY OF THE OTHER CLUB BOTANIC PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM CLUB BOTANIC, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF CLUB BOTANIC AND THE OTHER CLUB BOTANIC PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM CLUB BOTANIC EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF BOUQUET/WREATH, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE CLUB BOTANIC AND THE OTHER CLUB BOTANIC PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE CLUB BOTANIC AND THE OTHER CLUB BOTANIC PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH CLUB BOTANIC PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
You agree to indemnify, hold harmless and defend Club Botanic and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Club Botanic arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of personal or confidential information or (b) use or misuse of the Site.
16. COPYRIGHTS AND TRADEMARKS
The images and other materials on the Site belong to or are licensed to Club Botanic. The materials are protected by United States and foreign copyright laws. “Club Botanic” and other marks and logos are trademarks protected by United States and foreign trademark laws. You agree not to use any of Club Botanic’s trademarks without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of the Site or its design, without our prior written consent, especially to start your own floral business. You further agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site, without receiving our prior written permission. If you use the images, materials or trademarks on the Site in a way that is not allowed by this Agreement, you are violating the Agreement and may also be violating copyright, trademark, and other laws. In that case, we automatically revoke your permission to use the Site. Title to the materials remains with us or with the authors of the materials contained on the Site. All rights not expressly granted are reserved.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Club Botanic or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Club Botanic logo or other proprietary graphic of Club Botanic to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Club Botanic trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Club Botanic makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
18. GIFT MESSAGE
If the subscription is a gift then the recipient gets a welcome email from Club Botanic that also informs him/her who purchased the gift for him/her. In the event you order a gift message (written or video) to be delivered with your purchase, you agree that Club Botanic Company is not responsible in any manner for the content of your message or the receipt or use of that message by the recipient or others, including any message that identifies you as the gift purchaser. You agree not to include any defamatory, obscene, illegal or offensive content in your gift messages or violate the privacy or intellectual property rights of others. Club Botanic will not be liable for any claims relating to or arising from such gift message or, in the case of video gift messages, use or attempted use of the third party video service, including without limitation any claims relating to invasion of privacy or security breach.
19. DISPUTE RESOLUTION AND GOVERNING LAW
This Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. Except as provided in Section 13 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and you agree to submit to the personal jurisdiction and venue of such courts. You are responsible for compliance with all local laws if and to the extent local laws are applicable.
20. MEDIATION; BINDING ARBITRATION
(a) Mediation. You and Club Botanic agree that if a dispute arises out of or relates to these Terms or the Privacy Policies, or the breach thereof, and if the dispute cannot be settled through negotiation, You and Club Botanic shall first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. Each party shall be responsible for their own fees (including their own attorneys) related to any mediation, and they shall share the costs of the mediator fees charged in connection therewith. You and Club Botanic agree that any mediation proceedings shall be held in San Francisco, California.
(b) Arbitration Procedures. If, mediation between You and Club Botanic stated in the immediately preceding paragraph (b) does not resolve any subject dispute, then You and Club Botanic agree that, except as provided in Section (d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail.
Except as otherwise set forth in Section (d) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and Club Botanic may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND CLUB BOTANIC WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(c) Location. The arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.
(d) Limitations. You and Club Botanic agree that any arbitration shall be limited to the Claim between Club Botanic and you individually. YOU AND CLUB BOTANIC AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
(e) Exceptions to Arbitration. You and Club Botanic agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Club Botanic’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
(f) Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
(g) Severability. You and Club Botanic agree that if any portion this Section is found illegal or unenforceable (except any portion of Section (d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section (d) is found to be illegal or unenforceable, then neither you nor Club Botanic will elect to arbitrate any Claim falling within that portion of Section (d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of San Francisco, State of California, United States of America, and you and Club Botanic agree to submit to the personal jurisdiction of that court.
21. TERM AND TERMINATION
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
Agreement Revisions. This Agreement may only be revised in writing by Club Botanic, or published by Club Botanic on the Site.
Force Majeure. Club Botanic shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Club Botanic, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Club Botanic’ control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Club Botanic as a result of this Agreement or your use of the Site.
Assignment. Club Botanic may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without Club Botanic’ prior written consent, and any unauthorized assignment by you shall be null and void.
Severability. If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion shall be severed, and the remainder of the Agreement shall be given full force and effect.
Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Equitable Remedies. You hereby agree that Club Botanic would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.
23. NOTICE TO CALIFORNIA USERS AND RESIDENTS.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding Club Botanic or the Site, please send an email to email@example.com. You may also contact us by writing to:
Club Botanic, Attn: California Legal Notice PO Box 31859, San Francisco, CA 94131.
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by telephone at (916) 445-1254 or (800) 952-5210, or by postal mail at:
California Department of Consumer Affairs 1625 North Market Blvd. Sacramento, CA 95834
24. ACKNOWLEDGEMENT AND AGREEMENT
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