FlowerFarm General Terms and Conditions
Effective Date: December 13, 2016
THESE FLOWERFARM, INC. (“FLOWERFARM”) TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT IMPACTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES. IF YOU LIVE IN THE UNITED STATES, PLEASE READ IT CAREFULLY.
Table of Contents
LICENSING; APPLICABLE LAWS AND TAXES
CANCELLATIONS OR CHANGES TO AN ORDER
NO CREDITS FOR DELAYS DUE TO FORCE MAJEURE CONDITIONS
DAMAGED OR INCORRECT PRODUCT RECEIVED
ACCOUNTS AND PASSWORDS
BINDING ARBITRATION / CLASS WAIVER
LIMITATION OF LIABILITY
All purchases that are made through the www.flowerfarm.com website (“Website”) are governed by
these General Terms and Conditions (“Terms”). By placing your order to purchase products from FlowerFarm, you accept and agree to be bound by these Terms.
Prices are listed inclusive of shipping but exclude taxes. Pricing is based upon product availability subject to correction or change at any time without notice. FlowerFarm reserves the right to accept or reject any order. All products are subject to availability.
3. LICENSING; APPLICABLE LAW; AND TAXES:
Various federal, state and local laws may govern the sale, resale and use of FlowerFarm products.
You are responsible for obtaining and maintaining all necessary compliance and/or licenses as required by applicable federal, state or local laws, rules or regulations. FlowerFarm is not responsible or liable for informing you of any required licenses for selling, reselling or using the products provided by FlowerFarm. You are responsible for payment of all applicable taxes, or for providing a valid sales tax exemption certificate in the manner required by applicable laws, rules or regulations.
EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY FLOWERFARM. FLOWERFARM DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. FLOWERFARM ALSO DISCLAIMS ANY
LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION.
5. CANCELLATIONS OR CHANGES TO AN ORDER:
All orders are final at the time the order is placed. In the event you wish to cancel or change an order, you must notify FlowerFarm within twelve (12) hours after placing your order. FlowerFarm will make every effort to accommodate a cancellation or change request made within twelve (12) hours after the time your order is placed to the extent the order has not been processed, but cannot guarantee that such request will be honored.
6. NO CREDITS FOR DELAYS DUE TO FORCE MAJEURE CONDITIONS:
FlowerFarm shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event,
including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls,
insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain
permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, grower delays at the farm level,
delays due to product held by the USDA/Customs for inspection, or any other circumstance or cause beyond the reasonable control of FlowerFarm in the conduct of its business.
7. DAMAGED OR INCORRECT PRODUCT RECEIVED:
In the event you receive product that is not what you specifically ordered or it is damaged when received, you must contact FlowerFarm immediately by making a credit request online under Refunds and Replacements go to Contact Us and assert your claims for credit and provide the information requested by FlowerFarm.
ALL SUCH CLAIM REQUESTS MUST BE MADE WITHIN 24 HOURS OF RECEIPT OF THE SHIPMENT THAT IS THE SUBJECT OF YOUR CLAIM IN ORDER TO BE CONSIDERED FOR A CREDIT.
ANY CLAIMS FILED AFTER 24 HOURS OF RECEIPT OF YOUR SHIPMENT WILL NOT BE ACCEPTED.
(a)Damaged Product:If you received damaged product, you must include the following information in your credit request: the order number, bar code on the box label, amount of stems damaged, and photos of the damage.
8. AUTHORIZED USERS:
(b) Incorrect Product Received: If the product received is not what was ordered, you must include the following information in your credit request: a copy of the box label clearly showing the invoice number and contents of the box.
(c) Credits for Damage or Incorrect Product: If the claim is for credit for damaged and/or incorrect product, before a credit is allowed, FlowerFarm may require that (i) the box and product that is subject of the claim, be returned with the bar code on the box label, and/or (ii) specific photos are submitted along with the claim. Therefore, in addition to the providing the information specified in subsections (a) and/or (b) above within the specified timeframe, FlowerFarm reserves the right to require that you provide additional pictures and/or allow the box and product that is subject of the claim, to be picked up for inspection, as arranged by FlowerFarm. If all of the required information is timely provided and your claim is validated by FlowerFarm, a Customer Service Representative will issue a refund of the amount you paid for the incorrect or damaged product.
(d) Replacement Product: In the event that you also want the product that is subject of a claim to be replaced, FlowerFarm may arrange to do so and charge you the current market price for such replacement product.
You affirm that you are 13 years of age or older. Indeed, in order to make a purchase through the Website, you must be 18 and have a valid credit card or other acceptable electronic payment method. Subject to these Terms, you may not use the Website if you are unable to form a legal binding agreement with FlowerFarm.
9. ACCOUNTS AND PASSWORDS:
You may establish an account to use or access certain features of the Website. During the account registration process, you will be asked to select a unique password.
You are solely responsible for protecting the security and confidentiality of your password, as applicable, and are accountable for any activity undertaken
through your FlowerFarm account. By logging into the Website, you represent and warrant that: (a) you are the customer who registered for the Website; and (b)
that you are using the Website only for permitted purposes. You will immediately notify FlowerFarm by providing notice to FlowerFarm at firstname.lastname@example.org
of any unauthorized
use of the password or account or any other breach of security. You agree to exit from your account at the end of each session.
If you create an account, you represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person;
(ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; and (iii)
you will not select or utilize a user name that FlowerFarm in its sole discretion deems offensive.
11. BINDING ARBITRATION / CLASS WAIVER:
You and FlowerFarm agree that all disputes, controversies and claims (each a “Claim
”), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION (“AAA
”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY “RULES AND PROCEDURES
”). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.
Payment of arbitration costs will be governed by the AAA's fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case FlowerFarm will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. FlowerFarm also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys' fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys' fees and expenses.
The arbitration may be conducted in Chicago, Illinois or, upon the plaintiff's request, in the city closest to plaintiff's location where AAA maintains an office, unless the parties agree otherwise in writing. The arbitrator's award shall be final and binding on all parties subject to these Terms and may be entered as a judgment in any court of competent jurisdiction.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org
Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (i) a violation of your or FlowerFarm's intellectual property rights in any manner; (ii) any Claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and (iii) any Claim for equitable relief; then both parties agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the “Miscellaneous” section below, and both parties consent to exclusive jurisdiction and venue in such courts. 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.
To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise.
YOU AND FLOWERFARM AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
By using any of the Website, you agree to indemnify and hold FlowerFarm, its subsidiaries, affiliates, officers, agents and other partners and employees harmless from any loss, liability, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your improper use of such Website; or (b) your violation of these Terms.
13. LIMITATION OF LIABILITY:
FLOWERFARM EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE. FLOWERFARM’S MAXIMUM AGGREGATE LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
Both you and FlowerFarm acknowledge and agree that no partnership is formed, and neither you nor FlowerFarm has the power or the authority to obligate or bind the other. These Terms will be governed by and construed in accordance with the laws of the State of Illinois without regard to: (i) such State's conflicts-of-laws principles; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. If any provision of these Terms is determined to be unlawful, void or unenforceable by a tribunal of competent jurisdiction, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. If FlowerFarm fails to act with respect to your breach or anyone else's breach on any occasion, FlowerFarm is not waiving its right to act with respect to future or similar breaches. These Terms constitute a binding agreement between you and FlowerFarm, and are accepted by you as a condition for your purchase of product from FlowerFarm. These Terms constitute the entire agreement between you and FlowerFarm regarding your purchase of product from FlowerFarm.