Last updated October 23, 2019
These General Terms of Service (“Terms”) are entered into by and between you and Forte M&D Inc. dba Flower Market (“Flower Market,” “we,” “us,” or “our”). The Terms govern the relationship between Flower Market and you, our site visitor (“you” or “your”), with respect to your use of the Internet site located at www.flowermarket.delivery (the “Site”) and/or your purchase of any of our Internet Services from the Site (the “Services”). By visiting, using the Site, or for accessing the Services, including without limitation to (i) accessing, using and/or downloading Information, (ii) sending messages, information, data, text, software or images, or other Information to the site or (iii) otherwise using, accessing or purchasing any Services, you agree to accept and abide by these Terms regardless of how you access or use the Site and/or the Service, whether via personal computers, mobile devices or otherwise. In consideration of your use of and access to the Site and/or the Services (and the promises and obligations herein, and intending to be legally bound), you and Flower Market. hereby agree as follows: Your access to and use of the Site and/or the Services is subject to these Terms, as well as any modifications issued by Flower Market to these Terms, and all applicable laws and regulations. BY USING THE SITE, AND/OR THE SERVICES, YOU AGREE TO AND WILL BE DEEMED TO BE BOUND BY THESE TERMS. If you do not want to be bound by these Terms, do not use the Site and/or the Services. Among other things Flower Market provides information concerning various products and services and the opportunity to obtain additional information concerning those products and services or to purchase them. The information available on or through use of the Site or the Services, including but not limited to data, text, articles, content, software, images, graphics, photographs, audio and video clips, links and references and other materials (collectively, the “Information”) is provided for informational purposes only. The Information is not intended to be a substitute for professional medical advice, diagnosis, cure or treatment. Flower Market does not recommend or endorse any specific physicians, products, tests, procedures, opinions or other information that may be mentioned on the Site and/or the Services.
Always seek the advice of a qualified medical professional with any questions you may have regarding your condition. Do not disregard professional medical advice or delay in seeking it because of Information on the Site and/or the Services. Reliance on any Information is solely at your own risk.
2. ABOUT US
Flower Market is a non-storefront cannabis delivery retail licensed under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) creates the general framework for the regulation of commercial medicinal and adult-use cannabis in California. The text of MAUCRSA is available on the California Legislative Information website.
In January 2019, the Office of Administrative Law (OAL) officially approved state regulations for cannabis businesses across the supply chain. These new regulations immediately took effect, meaning the previous emergency regulations are no longer in effect. Licensees are required to comply with all rules and regulations pertaining to their license type, as well as follow all other applicable state laws. While we make every effort to provide you with information concerning products, we are under no obligation to update the Information or Content to reflect circumstances that may occur after its initial publication date. Also, we neither endorse nor are responsible for the accuracy or reliability of any information, content, quality of goods or services offered.
3. CHANGE OF TERMS
Flower Market shall have the right at any time and without prior notice, at its sole discretion, to revise these Terms or to impose new terms and conditions with respect to access to or use of the Site and/or the Services. Such revisions and additions shall be effective immediately upon notice thereof, which may be given by any means, including but not limited to, posting the revised or additional terms and conditions on the site. You are responsible for reviewing the Terms periodically for any modification to these Terms that may affect your rights or obligations hereunder. You agree that you shall be deemed to be apprised of and bound by any modification by Flower Market to these Terms. ANY ACCESS OR USE OF THE SITE AND/OR THE SERVICES BY YOU AFTER NOTICE OF REVISIONS OR ADDITIONS TO THESE TERMS SHALL CONSTITUTE AND BE DEEMED TO BE YOUR AGREEMENT TO SUCH REVISIONS OR ADDITIONS. No modification to these Terms by any party other than by Flower Market shall be valid or enforceable against Flower Market unless expressly agreed to by Flower Market in a writing signed by a duly authorized officer of Flower Market.
4.1 These Terms are effective until terminated by Flower Market. Flower Market may terminate these Terms without notice and at any time. In the event of termination, you are no longer authorized to access the Site and/or the Services and the restrictions imposed on you with respect to the Content, the Materials, the disclaimers, indemnities, limitations of liabilities, and the Binding Arbitration Clause (Sections19.2) set forth in these Terms shall survive termination. Flower Market shall also have the right without notice and at any time to terminate the Site and/or the Services or any portion thereof, or any products or services offered through Flower Market, the Site and/or the Services, or to terminate any individual’s right to access or use the Site and/or the Services or any portion thereof.
4.2 You may terminate your account at any time by sending an e-mail to email@example.com with the subject line, “Terminate Account.” Your account will terminate upon the date the correspondence is received by Flower Market Subject to Section 4.1, you may reapply for a user account at a later date.
5. ABILITY TO CONTRACT
You affirm that you are at least eighteen (18) years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
6.1 Compliance with Federal Law. Marijuana is included on Schedule 1 under the United States Controlled Substances Act. Under the federal laws of the United States of America, manufacturing, distributing, dispensing or possession of marijuana is illegal, and individuals are subject to arrest and/or prosecution for doing so. You acknowledge that it is your responsibility to ensure compliance with these laws. The Company disclaims any and all liability relating to the use of its website and applications in violation of any federal laws, rules and/or regulations.
6.2 Compliance with State Law. You expressly acknowledge that the Site is for those residing in states with laws regulating the use of medical or recreational cannabis and that the laws surrounding recreational and medical use are established pursuant to their respective State laws. You expressly acknowledge and assume full responsibility for cooperating with the laws of the state and municipality where you reside. Further, the Company disclaims any and all liability relating to the use of its website and applications in violation of any state laws, rules and/or regulations.
The text, images, photographs, graphics, logos, illustrations, descriptions, data, and other material provided on the Site and/or the Services, as well as the selection, assembly and arrangement thereof, are referred to collectively as the “Content.” The Content may contain errors, omissions, or typographical errors or may be out of date. Flower Market may change, delete, or update any Content at any time and without prior notice. The Content is provided for informational purposes only and is not binding on Flower Market in any way except to the extent it is specifically indicated to be so. Unless otherwise noted, all Content is protected by copyright, trademark, common law and other proprietary rights that are owned by Flower Market or by third parties that have licensed their use to Flower Market. You may view and use the Content only for your personal information and for no other purpose. You must retain all trademark, copyright and other proprietary notices on downloaded or printed Information, and any such downloads or copies are subject to the Terms and shall remain the property of Flower Market and/or its licensors and/or suppliers. Except as provided in the foregoing, Flower Market does not grant to you or any person any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any of the Content on or transmitted through the Site and/or the Services, including without limitation by transferring, downloading or otherwise copying any Content onto any disk drive or other storage medium. Any use of the Content, except as specifically permitted in these Terms or as otherwise expressly permitted in the Content or in writing signed by Flower Market, is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Site and/or any Services or Information. Nothing contained on the Site and/or the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Flower Market and/or its licensors’, suppliers’ or third party owners of trademarks or copyrights without the express written permission of Flower Market, our licensors or suppliers, or the third party owner of any such trademark and/or copyright. Use of Content is strictly prohibited unless authorized in writing by Flower Market and requests for permission should be directed to firstname.lastname@example.org. The Site and the Information is the property of Flower Market and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. All other company and product names and logos are trademarks or registered trademarks of their respective owners.
8. CREATING AN ACCOUNT
8.2 Under some circumstances, as part of the process of creating an account, you will be asked to select a username and password. We may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is disrespectful, vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You will be responsible for the confidentiality and use of your password and for all activities that are conducted through your account. You agree not to transfer or resell your use of or access to the Site and\or the Services to any third party, that it is a violation of these Terms to sell or divert in any way the medication received to any other person and\or entity, and you hereby represent and warrant that you will not engage in any such activities; otherwise, Flower Market may immediately terminate your access and use of the Site and\or the Services in the event it suspects you are violating this provision. If you have reason to believe that your account with us is no longer secure, you must immediately notify us by emailing us at email@example.com.
8.3 Under some circumstances, you may have the option of registering and\or signing into the Site and\or related services using your existing Facebook account or by creating a new Facebook account and linking it to your Flower Market account. Only one Facebook account can be used to register or sign in. If you do this, the authentication of your logon details is handled by Facebook and we only collect information about your Facebook account that you expressly agree to share with us at the time you give permission for your Flower Market account to be linked to your Facebook account. We may collect your personal information or data from third parties if you give permission to those third parties to share your information with us.
9. THIRD PARTY LINKS
10. USER CONTENT
10.1 You will be provided with opportunities to interact with the Site including, but not limited to, features such as user reviews of the Dispensaries. You represent and warrant that you are the owner of such User Content and\or otherwise have the right to provide all information, comments, reviews, ratings and\or other materials and\or content that you submit, post and\or otherwise transmit to the Site and related services (collectively, “User Content”).
10.2 You grant Flower Market an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sub-licensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute and\or otherwise use your User Content on the and in all media now known or hereinafter devised (collectively, the “Uses”), without notification to and\or approval by you. You further grant Flower Market a license to use your username and\or other user profile information including, but not limited to, your ratings history and how long you have been a member of Flower Market, to attribute User Content to you, if we choose to do so, again without notification to and\or approval by you.
10.3 User Content transmitted to certain parts of the Site may be posted in public areas on our Site, including without limitation in a compilation format, and publicly visible and accessible. Flower Market and its officers, directors, employees, parents, subsidiaries, affiliates, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for, the action of any and all third parties with respect to User Content.
11. COMMUNICATION AND MESSAGES
11.1 By providing your email address while placing an order, creating an account, or any other action, you agree that Flower Market or it’s partner dispensaries, may contact you by email for marketing, advertisement, transactional, operational, or informational purposes. You may unsubscribe to such communications by visiting the “Preferences” page on Flower Market, within your account settings, and unsubscribing, or by clicking the “unsubscribe” link in the footer of any email correspondence sent through the Flower Market platform. 11.2 By voluntarily providing your cell phone number to Flower Market or its partner dispensaries, you agree that they may contact you by telephone, text messages (SMS), or multimedia messages (MMS) at that phone number, and you hereby consent to receiving such communications for advertisements, marketing, transactional, operational, or informational purposes. You understand that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving such messages at any time. To revoke your consent to receiving such messages, please follow the unsubscribe procedures described below. Users placing orders through Flower Market, its associated websites, or its partner dispensaries may receive messages about each order. To unsubscribe from order-related text messages, simply reply to the message by texting “STOP” to the number sending the message, using the phone number that is receiving the message. To resubscribe, text “START” to the same number. Additionally, you may receive marketing or advertisement-related text messages after subscribing to receive such messages (e.g, by signing up on a tablet at a dispensary or after being subscribed by a dispensary to which you have given previous consent to receive such messages). You may unsubscribe from all such texts by texting “STOP” to the number sending the message, using the phone number that is receiving the message. To resubscribe, text “START” to the same number. Please note that unsubscribing from such marketing or advertisement-related texts will not prevent you from receiving texts from Flower Market, the dispensary, or your delivery person regarding your order or its delivery unless you also text “STOP” to the number sending the order-related messages and even in such event, you may still receive individual texts from your delivery person to enable successful delivery of your order. If you unsubscribe from receiving text messages through the processes described above, you may continue to receive text messages for a short period while Flower Market processes your request(s). If you change or deactivate the phone number you provided to Flower Market, you must update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you. Standard data and message rates may apply for SMS and MMS messages, whether you send or receive such messages. Please contact your mobile phone carrier for details.
12. CODE OF CONDUCT
You agree not to:
12.1 Engage in spamming or phishing attacks;
12.2 Transmit (a) any content or information that is unlawful, fraudulent, deceptive, threatening, abusive, vulgar, derogatory, sexist, racist, hateful, harassing, libelous, defamatory, obscene, indecent, pornographic, sexually explicit, blasphemous, harmful, invasive of the privacy rights of others, or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication
12.3 Restrict or inhibit any other visitor from using the Site and\or the Services, including, without limitation, by means of “hacking” or defacing any portion of the Site and\or the Services;
12.4 Express or imply that any statements you make are endorsed by us, without our prior written consent;
12.5 Upload any Materials that contains any virus, worm or other files, scripts or programs designed to damage or allow unauthorized access to the Services, the Site;
12.6 Remove any copyright, trademark or other proprietary rights notices contained in or on the Information, the Site and\or the Services;
12.7 Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Site the Services or Information;
12.8 Use the Site, Information and\or Services in any manner that is unlawful, including accessing the Site, the Services and\or Information from any location where such access may be illegal or otherwise prohibited. You must only use an access point or data account (AP) which you are authorized to use;
12.9 “Frame” or “mirror” any part of the Site without our prior written authorization;
12.10 Use any spider, site search/retrieval application, robot or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site and the Services or their contents;
12.11 Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Materials; and\or
12.12 Harvest or collect information about the Site’s visitors or members without their express consent.
13. COPYRIGHT INFRINGEMENT CLAIMS
Pursuant to the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”), Flower Market has designated to the U.S. Copyright Office an agent to receive notifications of claimed copyright infringement relating to the Site and/or the Services (the “Designated Agent”). All such notifications relating to the Site and/or the Services must be submitted in a manner consistent with the DMCA to the following Designated Agent in writing as follows:
(1) Your physical or electronic signature;
(2) Identification of the copyrighted work or works claimed to have been infringed;
(3) Identification of the material that is claimed to be infringing that copyrighted work, and URLs or similar information sufficient to permit us to locate that material on our Site and/or the Services;
(4) Information to permit Flower Market’s agent to contact you: your address, telephone number and email address;
(5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner, or are authorized to act on behalf of the owner of the copyright that is allegedly infringed.
Agent Designated to Receive Notification of Claimed Infringement:
DMCA Designated Agent
1533 NW West Hills
Bend, OR 97701
14. LIMITATION ON USE OF THE SITE
14.1 We have no obligation to monitor the Site or the Services or any postings or other materials (such as Ratings) that you or other third parties transmit or post on the Site and\or the Services (collectively, the “Materials”). You acknowledge and agree that we have the right (but not the obligation) to monitor the Site the Services and the Materials you transmit or post; to alter or remove any such Materials; to disclose such Materials and the circumstances surrounding their transmission to any third party in order to operate the Site and\or the Services properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests. The information and opinions posted in the Materials on the Site are not necessarily those of Flower Market or its affiliates, and Flower Market makes no representations or warranties regarding such posted Materials. We neither endorse nor are responsible for messages or statements, or for any opinion, advice, information or other utterance made or displayed on the Site or the Services, or forums by third parties, whether such third parties are visitors to the Site, members of the site, or others. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, Materials or for any results obtained from the use of such information. Under no circumstances will we or our suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained from the Materials through the Site and\or the Services. You agree that, if there is a dispute between users of this Site and\or the Services, or between a user and any third party, including the Dispensaries, Flower Market.is under no obligation to become involved, and you agree to release Flower Market and its affiliates from any claims, demands and damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such dispute and\or the Site and\or the Services.
14.2 You represent and warrant to Flower Market that (a) the Materials do not and will not infringe any rights of any third party(ies), and that the Materials do not and will not libel, defame, or invade the rights (including, without limitation, the right of privacy or publicity) of any third party(ies); (b) all obligations relating to the Materials have been satisfied, including, without limitation, those with and relating to artists and personnel, licenses, and laboratory and other contracts; (c) you have the right to enter into these Terms and to grant the rights granted or agreed to be granted hereunder; and (d) you have made all necessary payments (and no additional payments are required to be made) to any and all guilds, unions, performing rights societies, bodies and\or groups representing actors, writers, directors, composers, musicians, artists, and other persons who participated in the production of the Materials.
14.3 By posting or submitting content on or to the Site and\or the Services (regardless of the form or medium with respect to such content, whether text, videos, photographs, audio or otherwise), you are giving Flower Market, and its affiliates, agents and third party contractors the right to display or publish such content on our Site and\or the Services and its affiliated publications (either in the form submitted or in the form of a derivative or adapted work), to store such content, and to distribute such content and use such content for promotional and marketing purposes. Without limiting the generality of the foregoing, with respect to any video submissions to us made by you from time to time, you understand and agree that (unless you and we agree otherwise) we may, or may permit users to, based solely on functionality provided and enabled by our Site and\or the Services, compile, re-edit, adapt or modify your video submission, or create derivative works therefrom, either on a stand-alone basis or in combination with other video submissions, as we may determine and at our sole discretion in any medium now known or hereafter developed, and (unless you and we agree otherwise) you shall have no rights with respect thereto and we or our licensees shall be free to display and publish the same (as so compiled, re-edited, adapted, modified or derived) for any period.
14.4 You grant a non-exclusive license to Flower Market with regard to the Materials he/she has submitted for the term of his/her copyright, and that the Materials be used by Flower Market as it may determine and at its sole discretion in any medium now known or hereafter developed. Flower Market reserves the royalty-free right to sub-license, reproduce, disclose, transmit, publish, broadcast and distribute electronically any such Material for purposes including but not limited to education, publicity and promotion.
The Site may allow you to rate the Dispensaries (“Ratings”). Ratings are considered Materials and are governed by these Terms including, but not limited to, your agreement regarding the standards of conduct set forth in Section 11-11.12. Ratings do not reflect the views of the Site or Flower Market. We strive to maintain a high level of integrity with our Ratings and other Materials. All Ratings must be legitimate. Any Rating that we determine, in our sole discretion, to be disingenuous in any way, and\or could otherwise diminish the integrity of the Ratings, the Materials, the Site, may be removed without notice.
16.1 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (A) THE SITE (INCLUDING ALL INFORMATION), AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; AND (B) Flower Market AND ITS AFFILIATES, AGENTS, SERVICE PROVIDERS, EMPLOYEES, OFFICERS, DIRECTORS, CONSULTANTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “Flower Market’S REPRESENTATIVES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE INFORMATION AND THE SITE IS CURRENT And\or UP-TO-DATE. Flower Market AND Flower Market’S REPRESENTATIVES DO NOT WARRANT THAT THE INFORMATION, THE SITE OR THE SERVICES, NOR YOUR USE OF THE FOREGOING, WILL BE COMPLETE, ACCURATE, CURRENT, RELIABLE, UNINTERRUPTED, ERROR-FREE OR SECURE, NOR THAT DEFECTS WILL BE CORRECTED, NOR THAT THE SITE, THE SERVICES, OR THE SERVER(S) ON WHICH THE SITE, And\or THE SERVICES ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE And\or SERVICES And\or INFORMATION AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF Flower Market OR ANY OF Flower Market’S REPRESENTATIVES, WHETHER MADE ON OR IN CONNECTION WITH THE SITE OR THE SERVICES OR INFORMATION SHALL CREATE ANY WARRANTY.
16.2 Some states and provinces do not allow the disclaimer of implied warranties of merchantability and fitness for a particular purpose, so the above disclaimers or exclusions may not apply to you. In the event that applicable law imposes implied warranties on Site, orthe Services or Information notwithstanding the foregoing, such implied warranties shall not have a duration greater than one year from the relevant purchase or access date; shall terminate automatically at the end of such period; and shall be disclaimed and excluded to the fullest extent permitted by law. You may also have other rights under applicable law which vary from state to state.
16.3 The Site and the Services are controlled and operated from its facilities in the United States. Flower Market makes no representations that the Site or the Services are appropriate or available for use in other locations. Those who access or use the Site or the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
16.4 Flower Market. AND Flower Market’S REPRESENTATIVES ARE UNDER NO OBLIGATION TO VERIFY THE IDENTITY OF USERS OF THE SITE OR THE SERVICES And\or INFORMATION. Flower Market AND Flower Market’S REPRESENTATIVES DO NOT CONTROL THE MATERIALS POSTED OR SUBMITTED TO THE SITE, And\or THE SERVICES BY PERSONS OTHER THAN THEMSELVES AND DO NOT MONITOR, SCREEN, POLICE OR EDIT THOSE MATERIALS FOR COMPLIANCE WITH APPLICABLE LAWS OR THESE TERMS AND CONDITIONS. YOU MAY FIND SOME OF THE MATERIALS POSTED BY OTHER USERS TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU SHOULD USE CAUTION AND COMMON SENSE WHEN USING THE SITE And\or THE SERVICES.
16.5 THROUGH YOUR USE OF THE SITE, THE SERVICES And\or INFORMATION, YOU MAY HAVE THE OPPORTUNITY TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH THIRD PARTIES. ALL SUCH TRANSACTIONS ARE AT YOUR OWN RISK. Flower Market AND Flower Market’S REPRESENTATIVES ARE NOT PARTIES TO ANY SUCH TRANSACTIONS AND DISCLAIM ANY AND ALL LIABILITY REGARDING ALL SUCH TRANSACTIONS.
17. LIMITATION OF LIABILITY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER Flower Market NOR ANY OF Flower Market’S REPRESENTATIVES, NOR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, INFORMATION, SERVICES And\or ANY LINKED SITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THE SITE, THE INFORMATION, SERVICES, OR ANY LINKED SITE IS TO STOP USING THE SITE, INFORMAITON, SERVICE, OR LINKED SITE, AS APPLICABLE. Flower Market’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, INFORMATION And\or SERVICES, SHALL BE THE TOTAL AMOUNT PAID BY YOU FOR USE OF THE SITE, INFORMATION And\or SERVICES, IF APPLICABLE. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You agree to fully indemnify, defend and hold Flower Market any of Flower Market’s Representatives, and their directors, officers, employees, consultants and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of these Terms, (b) any allegation that any Materials you transmit to the Site infringe or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other rights of any third party, and\or (c) your activities in connection with the Site.
19. FORCE MAJEURE
None of Flower Market or Flower Market’s Representatives are or will be liable for any losses caused directly or indirectly as a result of causes or events beyond the control of Flower Market including natural disasters, acts of God, war, terrorism actions, DNNEC attacks, or decrees of governmental bodies, exchange of market rulings, failure of the Internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of the obligations of Flower Market and Flower Market’s Representatives with respect to the effected elements under these Terms will be suspended for the duration of such Force Majeure Event.
20. DISPUTE RESOLUTION
20.1 Informal Dispute Resolution. If you have any issues or problems concerning the Site and\or the Services, we encourage you to notify us immediately at firstname.lastname@example.org so that we can attempt to resolve your issue. Most issues or problems can be resolved quickly and amicably. However, in the event that that you or Flower Market or Flower Market’s Representatives are unable to come to an amicable resolution within 15 days of your submission, you or Flower Market or Flower Market’s Representatives may bring a formal proceeding.
20.2 Formal Dispute Resolution: Binding Arbitration. You agree that any and all disputes will be submitted to and finally determined by arbitration as set forth in Sections 19.3-19.9 below. In such case, you would incur additional expense in connection with such arbitration. The decision of the arbitrator will be final and binding and neither Flower Market and its Representatives nor you will have the right to appeal such decision, whether in a court or in another arbitration proceeding. You understand that, by agreeing to arbitrate disputes as provided in these Terms, you, Flower Market, and Flower Market’s Representatives are waiving any and all statutory and other rights that we may have to a trial by jury in connection with any such dispute, claim or controversy. You may decline this agreement to arbitrate by e-mailing us at email@example.com within 30 days of first accepting these Terms. Notwithstanding the provisions of this section and Sections 19.3-19.6; 19.8-19.9 and subject to Section 21, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of the party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you, Flower Market and Flower Market’s Representatives are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless you, Flower Market, and\or Flower Market’s Representatives agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
20.3 Arbitration Procedures. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitration will be conducted by one impartial arbitrator (who may be a former judge, practicing attorney or person who is not an attorney), selected by mutual agreement or, if you and Flower Market cannot agree, the arbitrator will be selected in accordance with the AAA Rules.
20.4 Arbitration Process and Applicable Law. Unless you and Flower Market otherwise agree, the arbitration will be conducted in Bend, California by one arbitrator. If your claim does not exceed $25,000, then the arbitration will be conducted solely on the basis of documents you and Flower Market submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. The arbitrator will not award punitive damages to either party and you and Flower Market will each be deemed to have waived any right to such damages. The arbitrator will, in rending his or her decision, apply the substantive law of the State of California (excluding its choice of law rules that would require the application of the laws of another jurisdiction). The award of the arbitrator will be rendered within the time frame specified in the AAA Rules. It will include a written explanation of his or her decision and specify the basis for any damages, which may include the costs and expenses of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above (Section 16) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The written decision of the arbitrator will be final, binding and non-appealable and may be enforced in any court of competent jurisdiction.
20.5 Arbitration Fees. Except for the limitations on fees as set forth in Section 19.4 above, your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. If your claim for damages is less than $75,000, however, Flower Market will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
20.6 Confidentiality. The arbitration proceeding will be confidential. The existence of any matter submitted to arbitration, and the award, will be kept in confidence by you, Flower Market, and the arbitrator, except as required in connection with the enforcement of such award or as otherwise required by applicable law.
20.7 Exceptions to Agreement to Arbitrate. Either you or Flower Market may assert claims, if they qualify, in small claims court in Portland, California or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Site and\or the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
20.8 No Class Actions. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
20.9 Venue for Other Types of Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Flower Market agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Deschutes county, California. Both you and Flower Market consent to venue and personal jurisdiction there.
21. ELECTRONIC DOCUMENTS
We may, in our sole discretion, seek your consent to these Terms and certain other agreements on the Site and\or the Services by means of an electronic signature by acknowledging that your use of the Site and\or the Services, or creation of an account on the Site and\or other services, constitutes acceptance of these “Terms”. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms or accessing the Site and\or the Services or using any of the Information or Content after you have had an opportunity to review these Terms, you acknowledge and agree: (i) that you and, where applicable, the Customer and\or Primary Caregiver on whose behalf we grant you access to the Site and\or the Services intend to form a legally binding contract between you and Flower Market; (ii) that you have read and agree to the terms and conditions of these Terms; (iii) that you agree and intend that these Terms to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to these Terms, you acknowledge that you have received a copy of these Terms by your viewing a web page containing a hyperlink to the web page where these Terms are displayed or otherwise; and (v) that if you are executing these Terms on behalf of others, you hereby certify that you are an authorized representative authorized by law.
22. FEES & REFUNDS
Any fees the Company may charge you for the Application or Service are due immediately and are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our Application or Service either planned, accidental or intentional, or any reason whatsoever. The Company reserves the right to determine final prevailing pricing. Please note the pricing information published on the website may not reflect the prevailing pricing. The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer. The Company may change the fees for our Service or Application, as we deem necessary for our business. We encourage you to check back at our website periodically if you wish to learn more regarding how we charge for the Service of Application.
Electronic checks which are returned due to insufficient funds will be reran and charged $25 for every failed attempt, up to three attempts. Failure to resolve outstanding debts will result in accounts being transferred to a collections agency.
Should you have any questions, comments or complaints regarding these Terms, the Site or the Services, please contact us at: firstname.lastname@example.org