PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
AMENDMENTS AND CHANGES
Flower Scents of Beaverton may amend this Agreement at any time by posting the amended Agreement on the Site and by notifying you of such amended Agreement through the email address you have provided us as a contact email (“Contact Email”), and you agree that you will be bound by any changes to this Agreement. For your convenience, the date of last revision is included at the top of this page. We may also seek your consent to be bound by an amended Agreement when you use the Service and you also agree that we may also seek your consent to be bound by the updated Agreement through the Contact Email and that if we do not receive any response to such request, we may terminate your rights to use the Service seven days after sending such request. If at any point you do not agree to any portion of the then-current version of this Agreement, you must immediately stop using the Service, cease any ordering. Flower Scents of Beaverton may make changes to the Service at any time. You further understand that Flower Scents of Beaverton may discontinue or restrict your use of the Service for any reason or no reason with or without notice. If you do not agree to any part of the Agreement, you should discontinue your use of the Service.
COPYRIGHTS AND TRADEMARKS
The images and other materials on the Service and the software for the Service belong to or are licensed to Flower Scents of Beaverton. The materials are protected by United States and foreign copyright laws. Additionally, you agree not to use our trade dress, or copy the look and feel of the Service 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 Service, without receiving our prior written permission. If you use the images, materials or trademarks on the Service 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 Service. Title to the materials remains with us or with the authors of the materials contained on the Service. All rights not expressly granted are reserved.
LIMITED LICENSE AND GENERAL RULES
Subject to your compliance with the terms and conditions of this Agreement, Flower Scents of Beaverton grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Service. Neither the Service, nor any portion of the Flower Scents of Beaverton’s services, may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of Flower Scents of Beaverton. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of Flower Scents of Beaverton 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. You agree to comply with all applicable laws at all times when using the Service and using related services and that you will not attempt to harm or overload the computer systems used to operate the Service or the computer systems of other users of the Service such as by example only, causing any viruses or harmful code to be introduced to such computer systems. You will not spam, advertise to our attempt to contact other users of the Service through your use of our Service or related services.
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 Service.
To access certain portions of the Flower Scents of Beaverton services, you may be required to create an account through the Service (an “Account”). You agree that you shall not create an Account or use the Service if you (1) are under the age of 18, (2) if you have previously been removed by Flower Scents of Beaverton or banned from using Flower Scents of Beaverton’s services, or (3) already have an Account with us. You agree to only provide accurate and truthful information when setting up an Account and not to access Accounts or information about Accounts other than your own.
3. ACCOUNT SECURITY.
You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify Flower Scents of Beaverton immediately if you believe that your Account username and/or password have been compromised.
4. ACCOUNT SUSPENSION.
Flower Scents of Beaverton reserves the right to permanently suspend or terminate your Account and your access to the Service or seek appropriate injunctive or monetary relief if we reasonably suspect that you have violated any part of the Agreement or engaged in illegal behavior as part of using the Service or we reasonably believe that your continued access to your Account will cause harm to us or any others
LINKS TO OTHER WEBSITES
The Service may contain links to websites operated by other parties. We provide 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 Flower Scents of Beaverton, and we are not responsible for the content available on the other sites. Such links do not imply our endorsement of information or material on any other site and Flower Scents of Beaverton disclaims all liability with regard to your access to and use of such linked websites.
GIFT MESSAGE AND CONTENT GENERALLY
In the event you order a gift message (whether text, images, video or otherwise) to be delivered with your purchase, you agree that Flower Scents of Beaverton 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. You agree not to include any defamatory, obscene, infringing illegal or offensive content in your gift messages or content that would violate the privacy or intellectual property rights of others when published, distributed or displayed by Flower Scents of Beaverton as part of Flower Scents of Beaverton offering its services through the Service. Flower Scents of Beaverton 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. We reserve the right to discontinue or not display or distribute any gift message if we reasonably believe that such display or distribution would violate applicable law. It is the policy of Flower Scents of Beaverton to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to our “Copyright Page” to review our DMCA procedures.
FEES AND PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, FirstData, 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 (1) discontinue or limit the available quantity of any product or aspect of the Service, (2) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; and (3) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Service, you (a) agree to pay the price for such products set forth in the Service, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize Flower Scents of Beaverton 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, through FirstData or other means that we may make available. Orders will not be processed until payment has been received in full, and any holds on your account by FirstData or any other payment processor are solely your responsibility.
If you purchase a subscription for repeated deliveries, then you hereby authorize Flower Scents of Beaverton to bill your credit card for the amounts and at the intervals described on our Service (or at approximately those intervals, to accommodate for holidays and other irregularities), until you terminate your subscription, 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 renew your subscription, though we may, but are not obligated to, contact you to notify you of the issue.
Flower Scents of Beaverton provides a discount for referrals, as well as a discount for subscription plans and/or pre-paid purchase plans. These promotions may be altered by information published on our Service, and if any information is conflicting, the terms most beneficial to Flower Scents of Beaverton shall prevail and take effect. We 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 our sole discretion. Discounts, Promotions, and Store Credits of any kind may not be combined unless at our sole discretion. Subject to the specific terms of any offer, discounts offered for subscriptions and/or pre-paid purchases will be forfeited if the subscription or pre-paid orders are cancelled before completed, and in such case we reserve the right to reverse any discounts provided and retroactively charge you the full retail price for any orders fulfilled as part of such subscription or pre-paid purchases. In these cases, we may offset the amount of the voided discounts from any refunds that you may be entitled to.
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, we 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. We reserve 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.
3. RETURN AND REFUND POLICY.
There are no refunds or returns for the goods purchased on the Service. All sales are final.
4. CHANGES TO PRODUCTS AND PRICING.
Flower Scents of Beaverton may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold or services offered through the Service. The inclusion of any products or services through the Service at a particular time does not imply or warrant that these products will be available at any other time. We reserve the right to change prices for products displayed on the Service, or the Service, 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 Service.
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 our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline your order for any reason. If we cancel an order after you have already been billed, then we will refund the billed amount.
6. SHIPMENT OF PRODUCTS.
Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. Unless as a result of events outside of our direct control, orders of goods purchased by you through the Service will be delivered within the time period specified for the delivery method you have selected. All orders are shipped by our smiling staff. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific time. The courier may leave the package at the address whether the recipient or another person is available or not. 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.
7. NO DELIVERY TO CHILDREN.
In furtherance of our policy of not collecting personal information from children under the age of 13, users are not allowed to give Flower Scents of Beaverton the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
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 has been charged. If your credit card 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 Service is operated by Flower Scents of Beaverton in the Mid Michigan area. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
DISCLAIMER OF WARRANTIES
THE SERVICE, 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 SERVICE MAY INCLUDE INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
TO THE EXTENT PERMITTED BY LAW, FLOWER SCENTS OF BEAVERTON DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND 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.
LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLOWER SCENTS OF BEAVERTON DISCLAIMS ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF FLOWER SCENTS OF BEAVERTON HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING FIRST DATA OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND YOUR ONLINE BANK ACCOUNT, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY (SUCH AS OUR SHIPPER), INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE OR APPLICATIONS WHICH PREVENT ACCESS TO OUR SERVICE TEMPORARILY OR PERMANENTLY, OR WHICH DELAY OR PREVENT THE DELIVERY OF OUR GOODS TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLOWER SCENTS OF BEAVERTON DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT FOR ANY FOREIGN OBJECTS OR MATERIALS WHICH MAY BE INCLUDED WITH OR IN ANY GOODS PURCHASED ON OUR SERVICE, WHICH GOODS MAY BE PACKAGED AND SHIPPED BY THIRD PARTIES.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF FLOWER SCENTS OF BEAVERTON EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Flower Scents of Beaverton shall be limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and defend Flower Scents of Beaverton, officers, directors, employees, 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 Flower Scents of Beaverton arising out of or relating to (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 Service.
13. BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY; AND (4) APPEAL RIGHTS WILL BE LIMITED.
(a) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your Account, and us, our affiliates, and/or agents, if it relates to your Account, your use of the Service, or to this Agreement, except as noted hereafter.
(b) Either party may assert an individual case in small claims court or your state’s equivalent court. Any disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. Nothing in this Section shall limit either party from seeking injunctive or other exigent relief from a court of law.
(c) Notwithstanding any other language in this Section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section of the Agreement. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. Further, you and we 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.
(d) YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER ACCOUNTHOLDER OR USER OF THE SERVICE NOT ON YOUR ACCOUNT.
(e) The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be mailed to 112 West Brown Street, Beaverton, Michigan 48612.
(f) The arbitrator must apply the same law and legal principles, consistent with the Federal Arbitration Act (“FAA”), that would apply in court, but may use different procedural rules.
(g) We will pay all the fees that the administrator or arbitrator charges.
(h) This Arbitration Section of the Agreement is governed by the FAA. Michigan law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged under the provisions of the FAA.
(i) Except for claims subject to arbitration as provided for in this section (and claims proceeding in any small claims court), all other disputes arising out of or related to your Account, your use of the Service, or to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Mid Michigan, and you agree to submit to the personal jurisdiction and venue of such courts. IN SUCH INSTANCES, YOU AND WE EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
(j) Severability. You and we agree that if any portion this Section is found illegal or unenforceable (except any portion of subsection (b)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If subsection (b) is found to be illegal or unenforceable, then neither you nor we will elect to arbitrate any claim falling within that portion of subsection (b) found to be illegal or unenforceable and such claim shall be exclusively decided by a court of competent jurisdiction consistent subsection (j) of this Section.
(k) You may reject this Arbitration Section of the Agreement. To do so, you must send us a notice within 60 days after you open your Account or we first provided you with your right to reject this Section. The notice must include your name, address, and account number, and must be mailed to 112 West Brown Street, Beaverton, Michigan 48612 or emailed to firstname.lastname@example.org. This is the only way you can reject this Section.
14. TERM AND TERMINATION
This Agreement is effective until terminated. Flower Scents of Beaverton may terminate this Agreement with or without notice for any reason, or for no reason. You may terminate this agreement by discontinuing your use of the Service and notifying Flower Scents of Beaverton in writing.
Agreement Revisions. This Agreement may only be revised in writing by Flower Scents of Beaverton.
Force of Nature. Flower Scents of Beaverton shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond our 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 Flower Scents of Beaverton as a result of this Agreement or your use of the Service.
Assignment. Flower Scents of Beaverton 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 our 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 Flower Scents of Beaverton 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 Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Service.
17. ACKNOWLEDGEMENT AND AGREEMENT