AMENDMENTS AND CHANGES
Pompom Florists 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. Pompom Florists may make changes to the Service at any time. You further understand that Pompom Florists 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.
DATA AND INTELLECTUAL PROPERTY OWNERSHIP
As between you and Pompom Florists, Pompom Florists 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 Pompom Florists and/or its licensors and are protected by United States and international copyright, trade secret or other intellectual property laws and treaties. Pompom Florists 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, “¨Pompom Florists” and “Pompom by la Distribuidora” our logos, and all of our other marks, names, logos, product and service names, designs and slogans are trademarks or service marks of Pompom Florists 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 Pompom Florists. Any images of persons or personalities contained on the Service are not an indication or endorsement of Pompom Florists or any particular product or our service unless otherwise indicated.
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 Pompom Florists 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 Pompom Florists as part of Pompom Florists offering its services through the Service. Pompom Florists 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 Pompom Florists 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 #pompomflorists or any other Pompom´s-owned tags, and Pompom´s-owned social handles (e.g., @Pompomflorists) (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. Pompom Florists from time to time may seek your permission to use certain of Your Content on the Site, on Pompom Florists social media sites and/or in Pompom Florists marketing materials. Pompom Florists may use third party content aggregators for such purpose, and in giving Pompom Florists 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 Pompom Florists a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work from Your Content, including to post Your Content on and the Site and Pompom Florists social media pages and in Pompom Florists marketing materials, as provided above.
FEES AND PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, PayPal, Square 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 Pompom Florists 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 Pompom Florists 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 are solely your responsibility.
SUBSCRIPTIONS AND PACKAGES
If you purchase a subscription for repeated deliveries or other ongoing services (a “Service Subscription”), then you hereby authorize Pompom Florists 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 email@example.com.
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.
Pompom Florists may provide a discount for first purchases, 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 Pompom Florists 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.
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 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 via email requested to firstname.lastname@example.org (or its successor webpage) within three (3) calendar days of the delivery date. In the event the bouquet 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 is delivered on a day other than the selected delivery date, Pompom Florists may issue a promotional credit for the amount paid for shipping.
CHANGES TO PRODUCTS AND PRICING.
Credits issued for replacement bouquets, 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 redeemably 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.
CHANGES TO PRODUCTS AND PRICING.
Pompom Florists 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.
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.
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, unless otherwise indicated.. 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 reoccurring deliveries may receive discounted shipping.
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 Pompom Florists the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
We have no obligation to honor incorrect pricing on the Service or that you receive from our suppliers or any other third party. In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers or any other third party, we shall have the right to refuse or cancel any orders placed for the product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card or PayPal account charged. If your credit card or PayPal account has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
The Service is operated by Pompom Florists 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.
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 BOUQS 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.
LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, POMPOM FLORISTS 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 BOUQS 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, POMPOM FLORISTS 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 BOUQS 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 BOUQS 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 POMPOM FLORISTS 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 BOUQS 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.
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.
Pompom Florists 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.
Pompom Florists 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.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Pompom Florists as a result of this Agreement or your use of the Service.
Pompom Florists 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.
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.
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.
You hereby agree that Pompom Florists 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
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.
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.
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.