READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
SECTION 15 OF THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU LIVE IN THE UNITED STATES, THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US. READ IT CAREFULLY.
This Agreement is between you and The Daily Flower Co.(“The Daily Flower Co., we, our” or “us”), and it governs your access to and use of the Service. For purposes of this Agreement, “you” and “your” means you as the user of the Service. If you use the Service on behalf of a company, organization, or other entity, then “you” includes you and that entity, and you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement and that you agree to this Agreement on the entity’s behalf.
If you do not agree to any part of this Agreement, you are not permitted to use or access the Service, purchase goods through the Service, or enter into any transactions on the Service with The Daily Flower Co.
1. AMENDMENTS AND CHANGES
The Daily Flower Co. may amend this Agreement at any time in its sole discretion by posting the amended Agreement on the Site. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. By continuing to use the Service after any such publication, you are agreeing to be bound by the then current version of this Agreement. For your convenience, the date of the last revision is included at the top of this page. If we make changes to the Agreement that are material, we may use reasonable efforts to attempt to notify you, including by email or placing a prominent notice on the first page of the Site. However, it is your sole responsibility to review this Agreement from time to time to view any such changes. 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, and not renew any subscription service you may be using. The Daily Flower Co may make changes to the Service at any time. You further understand that The Daily Flower Co. 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.
2. PRIVACY STATEMENT
Our privacy practices in operating the Service are described in our Privacy Statement located at https://thedailyflowerco/about-us/privacy (“Privacy Statement”). By using the Service, you represent that you have read and consent to our Privacy Statement. If at any point you do not agree to any portion of the Privacy Statement, you must immediately stop using the Service and not renew your subscription service, if any.
3. DATA AND INTELLECTUAL PROPERTY OWNERSHIP
As between you and The Daily Flower Co, The Daily Flower Co owns, has licensed, or otherwise has rights, title and interest in and to the images and other materials on the Service and the software for the Service. You agree that you have no right, title or interest in or to the Service and any such content, including, without limitation, any other attributes associated with any Account or stored on the Service, except that you retain ownership of Your Content (as defined below) subject to the license grant set forth herein.
All software (including source code), logos, icons, the Service’s “look and feel,” text, graphics, images, video clips, sound clips, content, notices, data, page layout, and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein shall be owned solely and exclusively by The Daily Flower Co and/or its licensors and are protected by United States and international copyright, trade secret or other intellectual property laws and treaties. The Daily Flower Co and its licensors reserve all rights in connection with the Service and its content, including, without limitation, the exclusive right to create derivative works therefrom.
Our name, “The Daily Flower Co” and “Thedailyflower,” our logos, and all of our other marks, names, logos, product and service names, designs and slogans are trademarks or service marks of The Daily Flower Co or its affiliates or licensors and protected by United States and foreign trademark laws. Other names, logos, product and service names, designs and slogans that appear on the Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Daily Flower Co. Any images of persons or personalities contained on the Service are not an indication or endorsement of The Daily Flower Co or any particular product or our service unless otherwise indicated.
4. LIMITED LICENSE AND GENERAL RULES
Subject to your compliance with the terms and conditions of this Agreement, The Daily Flower Co grants you a personal, nonexclusive, non-sublicensable, revocable (as stated in this Agreement), non transferable license to use the Service for your personal and noncommercial use only, and to download a single copy of the App onto your own mobile device. You may not use the Service for any other purpose, including any way that breaches the Privacy Statement or any other terms applicable to the Service. Neither the Service nor any portion of The Daily Flower Co’ services may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of The Daily Flower Co. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of The Daily Flower Co or any other party. The license granted in this Section 4 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 4 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.
4.2 LICENSE LIMITATIONS.
The license granted to you in Section 4.1 above is subject to the limitations as set forth in this Section 4 (collectively, the “License Limitations”). Any use of the Service in violation of these License Limitations or this Agreement will be regarded as an infringement of The Daily Flower Co rights. The above-granted license in Section 4.1 does not grant you the right to, and you hereby agree that you will not, under any circumstances:
- download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Service, without The Daily Flower Co’ express prior written consent;
- duplicate, decompile, reverse engineer, disassemble or decode the Service (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, trade names, slogans, logos, images, service marks or other proprietary notations displayed on or through Service;
- frame or utilize any framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of The Daily Flower Co without our express consent;
- purchase search terms or use any meta tags or other “hidden text” utilizing The Daily Flower Co’ name or trademarks without our express consent;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Service, accounts registered to other users, or the computer systems or networks connected to the Service;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Service;
- use any robot, spider, crawlers or other automatic devices, processes, software or queries that intercept, “mine,” scrape or otherwise access the Service to monitor, extract, copy or collect information from or through the Service, or any manual process to do the same;
- introduce any viruses, Trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful;
- use the Service to ask users for their personal information;
- use the Service for illegal, harassing, unethical, or disruptive purposes;
- use the Service in any way that would affect us adversely or reflect negatively on us, the Service, our goodwill, our employees or moderators, our name or reputation, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Service, or from advertising, linking or becoming a supplier to us in connection with the Service;
- violate any applicable law or regulation in connection with your use of the Service; or
- use the Service in any way not expressly permitted by the Agreement.
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 eighteen (18) years of age. Children under the age of 18 are not allowed to use the Service. You further represent that you are not an individual specifically prohibited by The Daily Flower Co from using any part of the Service.
To access certain portions of the Service, 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) have previously been removed by The Daily Flower Co or banned from using The Daily Flower Co services (including this Service), (3) already have an Account with us, (4) are located in a country embargoed by the United States or (5) are on the U.S. Treasury Department’s list of Specially Designated Nationals. 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.
Your Account is for your use only. You agree not to lease, assign, sell, transfer, rent, share or provide access, directly or indirectly to, your Account or password with anyone else. You are responsible for all actions taken via your Account.
5.3 ACCOUNT INFORMATION.
You can access, edit and update your Account information at any time through the My Account section of the Service. You agree that you will supply truthful, accurate and complete information to The Daily Flower Co, and that you will update such information promptly in the event that it changes. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, The Daily Flower Co reserves the right to terminate the Agreement, your Account, and/or your use of the Service.
You may not transfer, share or make available your Account information to others. Any distribution by you of Account information may result in suspension, termination or cancellation of your access to the Service.
5.4 ACCOUNT SECURITY.
You are entirely responsible for maintaining the confidentiality of your Account, username, and password, and for all activities which occur through the use of your Account, including purchases, whether or not authorized by you. You agree to (1) immediately notify The Daily Flower Co of any unauthorized access to or use of your Account, username or password, or any other breach of security, and (2) ensure that you secure your Account and computer from third-party access, including by exiting from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. The Daily Flower Co will not be liable for any loss or damage arising from your failure to comply with this Section 5.4. You may be issued a new password or be required to change your password from time to time.
You agree that all information you provide to register with the Service or otherwise, including, but not limited to through the use of any interactive features on the Service, is governed by our Privacy Statement, and you consent to all actions we take with respect to your information consistent with our Privacy Statement.
5.5 NO OWNERSHIP RIGHTS IN ACCOUNT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT STORED OR HOSTED ON THE DAILY FLOWER CO’ SERVERS, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO SUCH ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF THE DAILY FLOWER CO..
6. THIRD-PARTY WEBSITES OR RESOURCES
7. GIFT MESSAGE AND YOUR 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 The Daily Flower Co 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, 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 The Daily Flower Co as part of The Daily Flower Co offering its services through the Service. The Daily Flower Co 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 breaches. 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 the terms above. You acknowledge and agree that any gift message you provide to The Daily Flower Co may be shared with the recipient of the related product.
Portions of the Service may allow you to post, upload, publish, submit or transmit content to be made available through the Service, including gift messages, comments on our blogs, photos shared with The Daily Flower co. -owned tags, and The Daily Flower Co -owned social handles (e.g., @TheDailyflowerco) (collectively, “Your Content”). By so posting or submitting Your Content, including on any publicly accessible blog, comments or community forum we may make available (collectively “Forums”), you represent and warrant (a) that you own or otherwise control all of the rights to Your Content, including without limitation, all copyrights; (b) that Your Content is accurate; and (c) that use of Your Content does not violate this Agreement and will not cause injury to any person or entity. We take no responsibility and assume no liability for any content or materials submitted or posted through the Service, including in the Forums, by you or any third party. The Daily Flower Co from time to time may seek your permission to use certain of Your Content on the Site, on The Daily Flower Co’ social media sites and/or in The Daily Flower Co’ marketing materials. The Daily Flower Co may use third party content aggregators for such purpose, and in giving The Daily Flower Co permission to you Your Content, you are also giving the third party aggregator permission to use Your Content for the stated purpose. WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SERVICE.
As a condition of your use of the Service, you hereby grant to The Daily Flower Co a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create a derivative work from Your Content, including to post Your Content on and the Site and The Daily Flower Co social media pages and in The Daily Flower Co’s marketing materials, as provided above.
8. DMCA NOTICE
It is the policy of The Daily Flower Co to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”).
Anyone who believes that his or her work has been reproduced in the Service in a manner which constitutes copyright infringement may submit a notification to The Daily Flower Co copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
- identification of the copyrighted work that is claimed to be infringed;
- identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
- information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address;
- a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
- a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
- a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to: The Daily Flower Co, ATTN: Legal, 4094 Glencoe Ave., Marina Del Rey, CA 90292; or by email to email@example.com. The Bouqs will respond expeditiously to claims of copyright infringement using the Service that are reported to The Bouqs’ copyright agent in the notification explained above.
It is The Bouqs’ policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who infringe copyrights or intellectual property rights of others.
9. FEES AND PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, PayPal, 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 (1) 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 (2) authorize The Daily Flower Co. to charge your credit card or other payment method for the Full Purchase Amount. Our Service may allow you purchase products and designate them to be delivered at a future date. In such instance, you acknowledge and agree that The Daily Flower Co may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of delivery of the applicable products. 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, or through PayPal 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 PayPal or any other payment processor (including Authorize.net, Braintree or Paypal) are solely your responsibility.
If you purchase a subscription for repeated deliveries or other ongoing services (a “Service Subscription”), you hereby authorize The Daily Flower Co and its service providers 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 Service Subscription, until the end of the Service Subscription period, or indefinitely if you decide to purchase an open-ended Service Subscription. In cases where your credit card expires, is canceled, is over the limit, or is otherwise declined for any reason, we will not continue to deliver bouquets or renew your Service Subscription, though we may, but are not obligated to, contact you to notify you of the issue.
When you purchase a Service Subscription, you will be able designate the frequency of deliveries for specific products, as well as the pre-paid period of the overall subscription (e.g., three (3) month subscription for one delivery per month, one (1) year subscription for four (4) deliveries each month during that year, etc.).
At the expiration of the pre-paid period of your Service Subscription, your Service Subscription will automatically renew at the frequency referenced on your subscription page (or if not designated, then monthly) and you will be charged applicable subscription and delivery fees until you cancel your subscription or we terminate it. You may cancel your subscription at any time by emailing firstname.lastname@example.org or using the manage subscription feature on your account settings (currently located at website).
We reserve the right to adjust pricing for any subscription in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes to your Service Subscription will take effect on the next renewal date.
The Daily Flower Co may provide a discount for referrals, as well as a discount for subscription plans and/or prepaid purchase plans. These promotions may be altered by information published on our Service, and if any information is conflicting, the terms most beneficial to The Daily Flower Co 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 prepaid purchases will be forfeited if the subscription or prepaid orders are canceled 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 prepaid 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 that 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.
9.4 RETURN AND REFUND POLICY.
Except as provided below, there are no refunds or returns for the goods purchased on the Service. All sales are final. You may receive a replacement bouquet or arrangement only if (1) the wrong item was delivered, the bouquet arrives in substandard condition, or the bouquet was never delivered and (2) you complete a customer service request form and submitted at email@example.com (or its successor webpage) within three (3) calendar days of the delivery date. In the event the bouquet or arrangement arrived in substandard condition, you must also attach a photograph of the bouquet to the customer service request form. Credits issued for replacement bouquets cannot be transferred or redeemed for cash.
In the event the bouquet or arrangement is delivered on a day other than the selected delivery date, The Daily Flower Co may issue a promotional credit for the amount paid for shipping.
9.5 CHANGES TO PRODUCTS AND PRICING.
Credits issued for replacement bouquets and arrangements, for late deliveries, or for other customer service issues are considered “Promotional Credits.” You agree that Promotional Credits are not Gift Cards (as defined below) and will not be treated as Gift Cards. Promotional Credits are for one-time use and are only redeemable by the recipient of the Promotional Credit. Promotional Credits cannot be combined with other codes or promotional offers. Promotional Credits cannot be resold, used for payment outside of the Service, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, or redeemed for cash. Promotional Credits will expire one (1) year from issuance unless otherwise stated when issued.
All returns for purchases made using a Gift Card will result in credit to a Gift Card or issuance of a new Gift Card in the amount of the return.
The Daily Flower Co 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 and/or upon making the customer aware of the pricing error, as explained in further detail in Section 9.9.
9.7 ORDER ACCEPTANCE/CONFIRMATION.
Once we receive your order, we’ll provide you with an e-mail 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.
9.8 SHIPMENT OF PRODUCTS.
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 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 using one of our third-party couriers. The earliest delivery date available for an order is as indicated for the item on the Service. Shipping is not available for delivery on Sundays or Mondays, unless otherwise indicated. Online tracking may be available at our courier’s website (for example, FedEx), though we make no warranties regarding its availability because it is not under our control. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific time. No recipient signature is typically required for deliveries of our products. 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.
Product purchases (whether by Account holders or non-account holders) will be subject to a shipping fee that is clearly stated prior to completing purchase. As a thank you for your continued business, subscription and scheduled recurring deliveries may receive discounted shipping.
9.9 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 The Daily Flower Co the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
The Service is operated by The Daily Flower Co in the United States. 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.
12. 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, NONINFRINGEMENT, 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, THE DAILY FLOWER CO 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. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE DAILY FLOWER CO,, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM 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 THE DAILY FLOWER CO AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING PAYPAL OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND PAYPAL, 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 SITE 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, THE DAILY FLOWER CO AND RELATED PARTIES DISCLAIM ANY AND ALL LIABILITY WITH RESPECT TO ANY FOREIGN OBJECTS OR MATERIALS THAT 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 THE DAILY FLOWER CO OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES OR SUPPLIERS 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 THE DAILY FLOWER AND ITS RELATED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
YOU HEREBY AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE DAILY FLOWER CO 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 THE DAILY FLOWER CO ARISING OUT OF OR RELATING TO ANY (1) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY POLICY OR GUIDELINES REFERENCED HEREIN BY YOU, INCLUDING ANY UNAUTHORIZED DISCLOSURE OF PERSONAL OR CONFIDENTIAL INFORMATION, (2) ACT OF FRAUD OR DISHONESTY BY YOU IN CONNECTION WITH THE SERVICE, OR (3) UNAUTHORIZED USE OR MISUSE OF THE SERVICE.
15. BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION 15 CAREFULLY. IF YOU DO NOT REJECT IT AS SET FORTH BELOW, THIS SECTION 15 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.
- 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.
- 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 15 shall limit either party from seeking injunctive or other exigent relief from a court of law.
- Notwithstanding any other language in this Section 15, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section 15 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.
- 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.
- 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 4094 Glencoe Ave., Marina Del Rey, CA 90292, Attention: Legal.
- The arbitration administrator shall be JAMS, and the arbitration shall be conducted under the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”) that are in effect at the time the arbitration is initiated. The JAMS Rules can be accessed at http://www.jamsadr.com/rules-streamlined-arbitration/. In the event of a conflict between the terms set forth in this Section 15 of the Agreement and the JAMS Rules, the terms in this Section 15 of the Agreement will control.
- 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.
- We will pay all the fees that the administrator or arbitrator charges.
- This Section 15 of the Agreement is governed by the FAA. California 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.
- Except for claims subject to arbitration as provided for in this Section 15 (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 Los Angeles, California, 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.
- Severability. You and we agree that if any portion this Section 15 is found illegal or unenforceable (except any portion of Section 15(b)), that portion shall be severed and the remainder of Section 15 shall be given full force and effect. If Section 15(b) is found to be illegal or unenforceable, then neither you nor we will elect to arbitrate any claim falling within that portion of Section 15(b) found to be illegal or unenforceable, and such claim shall be exclusively decided by a court of competent jurisdiction consistent with Section 15(j). This arbitration provision shall survive termination of this Agreement and the termination of your Service account.
- REJECTING ARBITRATION. You may opt-out and reject this Arbitration Section 15 of the Agreement. To do so, you must send us a notice within sixty (60) days after you first open your Account or we first provided you with your right to reject this Section 15. The notice must include your name, address and account number, and must be mailed to 4094 Glencoe Ave., Marina Del Rey, CA 90292, Attention: Legal, or e-mailed to firstname.lastname@example.org. This is the only way you can reject this Section 15.
16. TERM AND TERMINATION
This Agreement is effective until terminated. You may terminate this Agreement by discontinuing your use of the Service and affirmatively cancelling all accounts, features or services to which you are subscribed. You will continue to incur and be responsible for any recurring subscription fees associated with any account, feature or service until you have affirmatively terminated each such account, feature or service in accordance with all applicable terms.
The Daily Flower Co shall have the right to terminate the Agreement, and/or temporarily or permanently suspend, withdraw or restrict your access to some or all of your Account and/or the Service, at any time, effective immediately, with or without notice, for any or no reason whatsoever. If The The Daily Flower Cos terminates or restricts your use and access of the Service, then you must immediately stop using all portions of the Service and delete the App from your mobile device. The provisions of Sections 3, 12, 13, 14, and 15 shall survive any termination of the Agreement.
17.1 FORCE MAJEURE.
The Daily Flower Co 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.
17.2 NO PARTNERSHIP.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and The Daily Flower Co as a result of this Agreement or your use of the Service.
The Daily Flower Co 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.
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.
17.5 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.
17.6 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.
17.7 EQUITABLE REMEDIES.
You hereby agree that The Daily Flower Co 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
17.8 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; provided, however that this Agreement is in addition to, and does not replace or supplant, our Privacy Statement. This Agreement may only be modified as set forth herein.
The section headings used herein are for reference only and shall not be read to have any legal effect.
17.10 GOVERNING LAW.
Except as expressly stated otherwise, this Agreement shall be 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 choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and, by accepting this Agreement, you acknowledge that Apple and Apple’s subsidiaries will have the right (and are deemed to have accepted the right) to enforce this Agreement against you as a third party thereof.
19. ACKNOWLEDGEMENT AND AGREEMENT
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE THAT MY USE OF THE SERVICE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.