Last Updated: June 16, 2019
These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
Floral Underground reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Floral Underground account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
We continually test new features, functionalities, services, user interfaces and products that we are considering incorporating into our Sites or Products. We reserve the right to include or exclude you from these tests without notice.
3. Registration, Account and Communication Preferences
To access and use certain areas or features of the Sites, you will need to register for a Floral Underground account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Sites on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Floral Underground account, you also consent to receive electronic communications from Floral Underground (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. Terms of Sale
4.1. Continuous Subscriptions; Cancellation Policy
Floral Arrangement Box Subscriptions. We offer different subscription plans for our Floral Arrangement Box Subscriptions. The number of boxes you receive and the amount you are charged may vary from week to week depending on the preferences you select. For example, we may provide you with greater flexibility to choose the number of boxes you receive each week. If your Subscription changes, the applicable weekly Subscription price may also change. Changes to your Subscription, or other choices you may make (such as the number of boxes you receive), may also result in changes to any applicable shipping and handling charges and delivery times. If we change the prices or other charges associated with our various Subscription plans, we will provide you with notice of such changes, such as by email or a notice posted on our Sites. For more information about our Subscriptions, please visit the Subscribe page on our website. Note that we do not currently deliver floral arrangement boxes to every location, so please visit our Subscribe page to see if we deliver to your area.
Continuous Subscriptions. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) FLORAL UNDERGROUND (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A WEEKLY, BI-WEEKLY, OR MONTHLY BASIS FOR YOUR SUBSCRIPTION (BASED ON YOUR PLAN) (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR FLORAL SUBSCRIPTION CONTINUES, (B) THE AMOUNT YOU ARE CHARGED AND THE NUMBER OF BOXES YOU RECEIVE EACH WEEK MAY VARY DEPENDING ON THE PREFERENCES YOU SELECT, AND (C) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS.
Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING CUSTOMER SUPPORT. ANY ORDER IDENTIFIED BY E-MAIL AS “ORDER PROCESSED” OR “SHIPPED”, HAS BEEN PROCESSED AND CANNOT BE CANCELLED. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY ORDER PROCESSED PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION.
In the event you cancel your Subscription, please note that we may still send you promotional communications about Floral Underground, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4.2. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Order. If you want to change or update your payment method information, you can do so at any time by logging into your account. If a payment is not successfully settled and you do not edit your payment method information or cancel your Floral Subscription or account, you remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated.
You acknowledge that the amount billed may vary due to promotional offers, preferences you select, changes you make to your Floral Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
4.3. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with our various subscription plans, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of floral ingredients, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies set forth in Sections 4.1, as applicable.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific floral ingredients or entire floral recipes) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us from the contact page of our website, as applicable.
Floral Underground is required by the State of Michigan to collect sales tax on on all products and therefore include Michigan sales tax in the price of all purchases.
4.5. Shipping and Handling
All orders will be delivered to your home, office, or place of business. Shipping and Handling is always free, unless otherwise negotiated between you and Floral Underground.
All Products purchased from us are made pursuant to a shipment contract. This means that when you purchase a Product that is fulfilled by one of our third party fulfillment partners title to and the risk of loss of such Product passes to you upon the fulfillment partner’s delivery of such Product to the third party courier, and when you purchase a Product that is fulfilled by us title to and the risk of loss of such Product passes to you upon the third party courier’s delivery of such Product to you.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. You should always inspect your delivery to confirm that the products arrive fresh and undamaged. Though we do not require that someone is available to accept and sign for the delivery, variables such as outside temperature may affect the product.
4.7. No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
4.8. Returns, Replacements, Refunds, and Credits
If you are dissatisfied with an arrangement or floral ingredient for any reason, please contact us at email@example.com within seven (7) days of the date you received the box. Depending on the circumstances, we may, in our sole discretion, replace the floral or box ingredient at our expense, provide you a full or partial refund of the purchase price for that box or item, or provide you with Credits for that box or item that will automatically be applied to future deliveries under your Subscription.
We may require the return or photographic documentation of any box or item that you are dissatisfied with before we provide you a refund, replacement, or Credit.
Refunds for Pre-Paid Subscriptions will only be granted within seven (7) days of the date of purchase. There are no refunds for Pre-Paid Subscriptions after seven (7) days, though your Pre-Paid Subscription is fully transferable. If a refund is granted, it is the sole responsibility of the purchaser to cover third-party processing fees.
In certain circumstances, such as if we want to thank you for your patience with a delayed delivery or to address another customer service issue, we may provide you customer experience credits of promotional value that will be automatically applied to your next eligible Order under your Subscription, as applicable (“Credits”). Credits may only be redeemed for the type of Product for which they were issued (e.g., floral arrangement box deliveries under your Subscription), are promotional in nature, are not transferable, and are not redeemable for cash or other property.
Credits only remain available if you maintain both a valid Floral Underground account and an active Subscription. That means that if you cancel your Subscription, any outstanding Credits associated with your cancelled subscription will immediately expire. You may only redeem Credits after they are applied to your Floral Underground account. If for some reason you believe that there is a discrepancy regarding your Credit balance, please contact us at firstname.lastname@example.org for Subscription-related Credit inquiries. All decisions regarding your Credit balance will be determined in our sole discretion and are final.
5. License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Floral Underground logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Floral Underground or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Floral Underground or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Floral Underground or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Floral Underground or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Floral Underground logo or other proprietary graphic of Floral Underground to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Floral Underground trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Floral Underground makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control and we provide these links to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
7. Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Floral Underground, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Floral Underground. Floral Underground shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Floral Underground, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Floral Underground Parties”), from and against all actual or alleged Floral Underground Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Sites, Content or Products by you or any third party you authorize to access or use such Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify Floral Underground of any third party Claims, cooperate with the Floral Underground Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Floral Underground Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Floral Underground.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE USE OF THE PRODUCTS YOU RECEIVE FROM US. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, OR USING SUCH PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. FLORAL UNDERGROUND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
11. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE FLORAL UNDERGROUND PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY FLORAL UNDERGROUND PARTY, OR FROM EVENTS BEYOND THE FLORAL UNDERGROUND PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE FLORAL UNDERGROUND PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE FLORAL UNDERGROUND PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM FLORAL UNDERGROUND EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF FLORAL ARRANGEMENT BOXES, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE FLORAL UNDERGROUND PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE FLORAL UNDERGROUND PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH FLORAL UNDERGROUND PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE LIMITATIONS SET FORTH IN THIS SECTION 16 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
12. Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time.
18. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH FLORAL UNDERGROUND AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Floral Underground agree (a) to waive your and Floral Underground’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Floral Underground’s respective rights to a jury trial. Instead, you and Floral Underground agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
18.2. No Class Arbitrations, Class Actions or Representative Actions
You and Floral Underground agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Floral Underground and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Floral Underground agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Floral Underground agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
18.3. Federal Arbitration Act
You and Floral Underground agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
18.4. Notice; Informal Dispute Resolution
You and Floral Underground agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Floral Underground shall be sent by certified mail or courier to Floral Underground Attn: Derek Woodruff, 615 W. 9th Street, Traverse City, Michigan 49684. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Floral Underground account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Floral Underground cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Floral Underground may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 10 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND FLORAL UNDERGROUND AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR FLORAL UNDERGROUND WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND FLORAL UNDERGROUND WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Floral Underground agree that (a) any arbitration will occur in the State of Michigan, County of Grand Traverse, City of Traverse City, and (b) that the state or federal courts of the State of Michigan and the United States, respectively, sitting in the State of Michigan, County of Grand Traverse, City of Traverse City, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
18.6. Authority of Arbitrator
As limited by the FAA, and these Terms, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
18.8. Opt-Out Right
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: Floral Underground Attn: Derek Woodruff, 615 W. 9th Street, Traverse City, Michigan 49684. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
19. Governing Law and Venue
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of Michigan, without regard to conflict of law rules or principles (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Michigan and the United States, respectively, sitting in the State of Michigan, County of Grand Traverse, City of Traverse City.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
These Terms constitute the entire agreement between you and Floral Underground relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Floral Underground. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Floral Underground’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.