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Terms of Use

Last Updated: January 19, 2015

WELCOME TO BLOOMNATION.COM. THE SITE IS OWNED AND OPERATED BY, BLOOMNATION, INC. (HEREAFTER “BLOOMNATION”). PLEASE READ THESE TERMS OF USE (THIS "AGREEMENT") CAREFULLY BEFORE USING BLOOMNATION.COM, ITS MOBILE APPLICATIONS AND SOCIAL MEDIA PAGES (INCLUDING FACEBOOK AND TWITTER PAGES) AND ANY SERVICES OFFERED THROUGH BLOOMNATION.COM, ITS MOBILE APPLICATIONS AND AFFILIATED SOCIAL MEDIA OR THIRD PARTY WEB PAGES OR PREMIUM CUSTOM SITES OPERATED BY USERS UTILIZING THE BLOOMNATION PLATFORM (COLLECTIVELY REFERRED TO HEREAFTER AS THE “SITE ”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF BLOOMNATION.

By using Site in any manner, including but not limited to visiting or navigating any part of BloomNation.com, all users of the Site (including, without limitation, Florists and Customers as defined below) agree to be bound by this Agreement, including those additional terms and conditions and policies referenced and/or available by hyperlink herein. This Agreement applies to all users of the Site, including without limitation users who are florists, vendors, customers, merchants, contributors of content, information and other materials or services on the Site or in connection with BloomNation. Different sections of the Agreement may affect users different depending upon their use of the Site, so please make sure to review this Agreement carefully.

If you have any questions, please refer to the contact us section.

1. BloomNation is a Venue

BloomNation provides a venue where flower sellers (“Florists”) can create listings to sell certain floral arrangements and limited related goods within a fixed-price format at the Site (subject to compliance with the Florist’s Terms and Conditions set forth below) and customers who visit or utilize the Site can learn about Florists’ listings and make purchases from Florists (“Customers”). BloomNation is not directly involved in or otherwise a party to any transactions that may take place between Florists and Customers. BloomNation has no control over the quality, safety, morality or legality of any aspect of the Florist’s listings or any claims made by Florists about the products or services they offer, the truth or accuracy of the listings created by Florists, the ability of Florists to sell the items or the ability of Customer to pay for the items. BloomNation does not conduct background checks regarding any users of the Site and our verification process for Florists is limited. BloomNation is not a broker, agent or insurer for any users of the Site, whether they be Florists or Customers. BloomNation makes no representations, warranties or guarantees regarding any content or information provided by the florists, including, without limitation, the identity, age, and nationality of any seller, buyer or user. We encourage you to communicate directly with potential transaction partners through the tools available through BloomNation. All purchases made by Customers from Florists are made at each Customer’s own risk

You acknowledge and agree that the Site is solely a venue and has no responsibility or liability for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on the Site. Your use the Site is solely at your own risk.

2. Membership Eligibility

Registration for membership at the Site is subject to the following additional terms and conditions:Age: BloomNation is available only to, and may only be used by, individuals who are 18 years of age and older, and who can form legally binding contracts under applicable law. By registering with the Site, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. We may, in our sole discretion, refuse to offer access to or use of BloomNation to any person or entity and change the eligibility criteria at any time. This foregoing is void where prohibited by law and the right to access BloomNation is revoked in such jurisdictions.

Authority: If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity you are acting on behalf of to this Agreement.

Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify BloomNation of any unauthorized use of your password or any breach of security. You also agree that we cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than BloomNation without our express written permission.

Account Information: You must keep your account information, including a valid email address, up-to-date and accurate and up to date at all times. To sell items on BloomNation you must provide and maintain valid payment information.

Account Transfer: The access rights granted to you under this Agreement are non-transferable without our express written permission. You may not assign or otherwise transfer this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, without our prior written consent, which may be withheld in our reasonable discretion. Any attempted assignment or other transfer without such consent shall be void, and any such attempt shall be deemed to be a breach of this Agreement. All of our rights and obligations under this Agreement are freely assignable by BloomNation. As used herein, the terms “assignment” and “transfer” shall include (a) any sale or transfer of all or substantially all of your assets, (b) a merger, consolidation or reorganization, and (c) a change in ownership.

Right to Refuse Service: We reserve the right, in our sole discretion, to cancel unconfirmed or inactive accounts. Further, we reserve the right to refuse service to anyone, for any reason, at any time.

Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. In addition, you must abide by our policies as stated in this Agreement and the policy documents listed below (if applicable to your activities on or use of the Site) as well as all other operating rules, policies and procedures that may be published from time to time on the Site by BloomNation, each of which is incorporated herein by reference and each of which may be updated by BloomNation from time to time without notice to you:

Eligibility for Registration as a Florist at the Site is subject to the following additional terms and conditions:

Florist Legal Obligations - If you would like to register as a Florist, you must be an authorized seller of floral arrangements and related goods through BloomNation in the jurisdiction where you reside and in compliance with any local laws or regulations. Where applicable, each Florist is solely responsible for obtaining all permits, licenses or other permissions required to offer goods through the Site. BloomNation assumes no responsibility for any Florist’s failure to obtain such permits, licenses or permissions or otherwise comply with applicable laws and regulations.

Single Account Restriction - Only one membership account per Florist is permitted.

No more filling to value - All orders should be prepared with the look and temperament your customer is expecting. Your reputation depends on it.

Images in Listings – Florist may not utilize wire-service or stock photos in its listings. The images that Florists post in the listings must be images of your own creation featuring your own designs or those created by BloomNation as part of its service to the Florist. By posting them with the listing, Florists are each representing and warranting the posted images do not infringe on anyone else’s copyright or intellectual property rights.

Delivery area – The delivery area in the listing must accurately represent the area the Florist is capable of hand delivering arrangements to.

No “order gathering” or resales – BloomNation has absolutely no tolerance for order gathering. Florists may only create listings and accept orders that it is capable of fulfilling on its own. No wiring or reselling orders is permitted and will result in immediate termination of membership.

The Customers are Your Customers – BloomNation is not the broker, agent or joint venturer of any Florist. There is no hiding behind a middle man. Florists must treat all of orders obtained from Customers through the Site as if they are from someone that has just walked into your flower shop. Happy customers make repeat customers.

Your Customer is Your Responsibility – If there is an issue with an order, Florists are solely responsible for addressing those issues with the Customer directly. Via the ordering process on the Site, Florists will be provided with Customer contact information and must work directly with them to resolve any issues. If no resolution can be reached, Florists and Customers may address their concerns to BloomNation and BloomNation may elect to act as an intermediary, but is under no independent obligation to do so.

Privacy Policy Compliance: Florists are solely responsible for complying with all applicable state and federal laws, including those governing the collection, use and disclosure of user information. Although BloomNation may provide platforms (e.g. Listings, Storefonts, Custom Sites) for Florists to serve customers, Florists must provide users with all requisite disclosures relative to the collection of personally identifiable information of users by Florists, including, but not limited to, the prominent display of a privacy policy. To the extent Florists utilize BloomNation’s platforms to communicate with their users, Florists represent and warrant that they have obtained such user’s authorization to send them e-mails for the Florist’s marketing or promotional purposes. For any email obtained from a user outside of BloomNation’s platform and imported into his or her BloomNation profile for our email marketing services, Florists must first have obtained the user’s authorization to send them e-mails for the Florist’s marketing or promotional purposes.

Florists that do not abide to the above terms and conditions and those listed below are subject to immediate removal without written or advance notification from BloomNation. Users are encouraged to report any violations of the foregoing terms and conditions by a Florist by contacting BloomNation at [email protected].

3. Marketplace/Storefront/Premium Custom Site Services, Fees/Taxes and Payments

Services: We will issue Florists who properly register through the Site with an individualized florist web page to display and sell their flower arrangements within the BloomNation flower marketplace, which aggregates and exhibits products from all Florists’ Storefronts (the “Marketplace”) and through the Florist’s Facebook and other third party website and mobile sites affiliated with or served by BloomNation (the Florist’s BloomNation profile page and linked third party web page are collectively referred to as a “Storefront)). We will host the Storefronts by providing a server to store the data relating to the Storefronts, maintain the content of the Storefronts, and communicate the orders placed by buyers through the Storefronts to the florists. Additionally, we will provide ongoing hosting, maintenance, updates and marketing of the Marketplace. BloomNation also offers Florists the option of creating custom website for Florists who maintain a URL outside of the Marketplace (hereafter, “Premium Custom Sites”).

Fees: Joining and setting up a Storefront on BloomNation and Premium Custom Sites are free for registered Florists. Florists are charged a ten percent (10%) commission fee based on the total dollar amount of the order received via BloomNation (either directly or through affiliated third party web and mobile sites), excluding sales tax, HST, PST, and/or GST determined by BloomNation. BloomNation also offers Florist’s the option of utilizing BloomNation’s point of sale system (“POS”). The charge for use of BloomNation’s POS system is a 2.99% commission fee based on the total dollar amount of the order received via BloomNation, excluding sales tax, HST, PST, and/or GST determined by BloomNation. We may, at our sole discretion, change some or all of BloomNation's services at any time. In the event we introduce a new service , the fees for that service are effective at the launch of such service. Unless otherwise stated, all fees are quoted in US Dollars (USD). We keep accepted payment information on file. We shall not be responsible in any way for any fraudulent payment or credit information provided by any third parties.

Taxes: We are responsible for collecting and remitting all applicable sales and government taxes in relation to transactions conducted through the Storefront based upon the information provided by Florists. You are responsible for notifying BloomNation of any and all changes related to applicable sales tax for your Storefront.[G3] With respect to Premium Custom Sites, BloomNation will collect and pass onto the Florist any applicable sales and government taxes for transactions conducted through such sites, based upon the tax rates selected by the Florist.

Payments: Settled transactions will be debited to your account balance via direct deposit or a check mailed to your address on file with BloomNation, within a reasonable time after the order has been processed and the buyer’s credit card has been authorized. In no event shall the payment time exceed thirty-one (31) days from the end of the month in which the order was delivered and the buyer’s credit card has been authorized. BloomNation reserves the right to withhold, reverse or otherwise refuse payments to Florists for any unfulfilled or returned customer transactions, including, without limitation, refunds due to non-delivery by Florist, customer rejections for quality issues, non-payment due to customer fraud, chargeback or contested charges.

4. Listings - Responsibilities of Florists

Listing Description: By listing an item on BloomNation Florists warrant that you and all aspects of the item comply with this Agreement. Florists also warrant that they may legally sell the item. Florists must accurately describe your item and all terms of sale in its Storefront. Florist’s listings may only include text descriptions, graphics, pictures and other content applicable to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. Each unique item must have its own listing. The price stated in each item listing description must be an accurate representation of the sale. Florist may not misrepresent the item's location, or use another user's account without permission.

Binding Sale: All sales are binding. The Florist is obligated to deliver the order or otherwise complete the transaction with the Customer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the Customer fails to meet the terms of the Florist's listing (such as payment method), or (b) the Florist cannot authenticate the Customer’s identity. The Customer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance. In the event that an order is received that you are unable to deliver, you are responsible for promptly notifying BloomNation so that the order can be forwarded to another florist to fulfill or so that the order can be canceled and refunded to the customer in a timely manner

Responsibilities: Notwithstanding anything to the contrary herein, Florists are solely responsible for all orders placed through its Storefront, whether such orders are lost, unprocessed, mishandled or otherwise. Florists remain solely responsible even if such failure to fulfill the order is a result of not checking notifications sent to the Florist via BloomNation. Florists are also solely responsible for informing the Customer of any lost, unprocessed or mishandled orders, and for all other Customer relationship matters relating to orders processed through the Florist’s Storefront. We are not responsible in any way whatsoever for the foregoing matters.

5. Prohibited, Questionable and Infringing Items and Activities by All Users

Each user is solely responsible for his/her/its conduct and activities on and regarding to the Site and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that the user submits, posts, and displays on the Site. Furthermore, Florists may not list any item on the Site (or consummate any transaction that was initiated using the Site) that, by paying to BloomNation the final value fee, could cause BloomNation to violate any applicable law, statute, ordinance or regulation, or that violates this Agreement.

Restricted Activities: Your Content and your use of the Site shall not:

(i) Be false, inaccurate or misleading

(ii) Be fraudulent or involve the sale of illegal, counterfeit or stolen items.

(iii) Infringe upon any third-party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy (see also, BloomNation's Copyright Policy).

(iv) Violate this Agreement, any site policy, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising).

(v) Contain items that have been identified by the U.S. Consumer Products Safety Commission as hazardous to consumers and therefore subject to a recall.

(vi) Be defamatory, discriminatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including our staff or other users), or falsely state or otherwise misrepresent your affiliation with any person through, for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device.

(vii) Be obscene or contain child pornography.

(viii) Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

(ix) Host images not part of a listing.

(x) Modify, adapt or hack the Site or modify another website so as to falsely imply that it is associated with BloomNation.

(xi) Appear to create liability for BloomNation or cause BloomNation to lose (in whole or in part) the services of BloomNation's ISPs or other suppliers.

(xii) Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement, other agreements hyperlinked herein, or other policy documents as posted on the Site.

(xiii) Use the Site to collect orders for any other business to fulfill.

(xiv) Reproduce, duplicate, copy, sell, trade or resell any of the services within the Site for any purpose.

(xv) Engage in activity that interferes with or disrupt the Site (or the servers and networks which are connected to the Site).

(xvi) Contain alcohol

Notwithstanding anything to the contrary herein, we reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Site.

6. Content, Material & Licenses

We own all legal right, title and interest in and to the Site, including any intellectual property rights which subsist in the Site, whether those rights happen to be registered or not, and wherever those rights may exist. Unless you have agreed otherwise in writing with BloomNation, nothing in this Agreement gives you a right to use any of BloomNation’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features.

Copyright Ownership of BloomNation Generated Content: As part of its services to Florists, BloomNation (either directly or through one of its authorized contractors) may create or otherwise generate images of certain products offered by Florists (hereafter, “BloomNation Generated Content”) which may then be utilized to advertise or other sell the respective Florist’s products through Storefronts and Premium Custom Sites only. By availing themselves of this service, Florists acknowledge and agree that BloomNation owns any and all rights to use, publish, and copyright BloomNation Generated Content in any and all media, now or hereafter known. Florists further release to BloomNation all rights to exhibit this BloomNation Generated Content (even if it includes or otherwise encompasses any work that Florist may claim copyright upon) in any and all media, now or hereafter known, publicly or privately. Florists further acknowledge and agree that they have no right, title, or interest in or to any of the BloomNation Generated Content and hereby release and hold harmless BloomNation and its successors and assigns from any damages or liability relating to or arising from any use of or modification or alteration to any of the BloomNation Generated Content; and hereby waive any claims they may have based on any use of the BloomNation Generated Content or works derived therefrom. Florists further acknowledge and understand that, in the event Florists’ account with BloomNation is terminated (for any reason and whether by BloomNation or the subject Florist), Florists shall have no right to use any BloomNation Generated Content, absent the express, written content of BloomNation, and must promptly remove any BloomNation Generated Content from any materials their publish or distribution in any forum (online or otherwise.)

BloomNation License to User Generated Content: BloomNation does not claim ownership rights in user content which is content generated solely by its users and expressly defined as not including BloomNation Generated Content (hereafter, “User Content”). However, by submitting User Content to the Site, users grant BloomNation (and its affiliated third party websites and their operators) a license to fully enable BloomNation (and affiliates) to use any information or User Content you supply BloomNation with, so that BloomNation is not violating any rights you might have in that Content. By submitting User Content to the Site, users further grant BloomNation and its affiliates a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) the user has in the User Content, in any media now known or not currently known, with respect to the User Content. Users agree to allow BloomNation and its affiliates to store or re-format their User Content on or through the Site and display your User Content on or through the Site in any way as we choose (including for advertising, marketing or other promotional purposes relative to BloomNation). BloomNation’s use personal information submitted by users shall be governed by and in accordance with BloomNation's Privacy Policy.

Florists explicitly grant to BloomNation (and its affiliated third party websites and their operators) a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any User Content, Florists submit, post or display on or through the Site (including affiliated third party websites), or post or display on a Florist’s Storefront or Premium Custom Sites. Florists are solely responsible to ensure the User Content posted is of their own images, copyright and intellectual property or that the Florists have the express written consent to use such User Content. Florists hereby further grant to BloomNation the right to promote the services provided to Florists in BloomNation press kits, press releases, and any other promotional materials related to BloomNation. Florists acknowledge BloomNation as the creator and provider of the Site. Unless provided otherwise in a separate written agreement between the Florist and BloomNation, Florists acknowledge and agree that each of them are solely responsible for protecting and enforcing any rights the Florist may have to any User Content that submitted, posted, transmitted or displayed on, or through, the Site and that BloomNation has no obligation to protect or enforce those rights on the Florist’s behalf.

Users confirm and warrant to BloomNation that they have all the rights, power and authority necessary to grant the above licenses to User Content.

As part of a transaction, Florists may obtain personal information, including email address and shipping information, from another user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for BloomNation related communications. BloomNation does not grant any users a license to use any personal information of any other user for unsolicited commercial messages. Without limiting the foregoing and without express consent from the user, users are not licensed to add any BloomNation user to any email or physical mail list. For more information, see BloomNation's Privacy Policy.

Re-Posting Content: By posting User Content on BloomNation, it is possible for an outside website or a third party may re-post that User Content. Users agree to indemnify and hold BloomNation harmless for any dispute, claims or causes that may arise from any such action.

Idea Submissions: We consider any unsolicited suggestions, ideas, proposals or other material submitted to BloomNation by users (other than the User Content and the tangible items sold on BloomNation by users) (collectively, the "Material") to be non-confidential and non-proprietary, and BloomNation shall not be liable for the disclosure or use of such Material. If, at BloomNation’s request, any member sends Material to improve the Site (for example through the forums or to customer support), BloomNation will also consider that Material to be non-confidential and non-proprietary and BloomNation will not be liable for use or disclosure of the Material. Any communication by users to BloomNation is subject to this Agreement. Users hereby grant and agree to grant to BloomNation, under all of such user’s rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the API, documentation, or any product or service, without compensation or accounting to the user and without further recourse by the user.

7. Information Control

BloomNation has limited control of the User Content provided by users and that is made available on the Site. You may find some User Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.

Additionally, there may also be risks of dealing with international trade and foreign nationals. By using the Site, users agree to accept such risks and that BloomNation and its officers, directors, agents, subsidiaries, joint ventures, employees, suppliers, licensors and representatives (collectively, BloomNation’s “Affiliates”), are not responsible for any and all acts or omissions of users on the Site. Please use caution, common sense, and practice safe buying and selling when using the Site.

Other Resources: BloomNation is not responsible for the availability of outside websites or resources linked to or referenced on the Site. We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Users agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.

8. Meetings & Groups

Meetings: Users may arrange and attend online virtual meetings or in-person meetings ("Meetings") with one or more individuals. Users are solely responsible for all interactions with other users at Meetings. Users must comply with BloomNation's policies and acknowledge and agree to comply with the laws of the city, county and country in which the Meeting occurs. Additional eligibility requirements for a particular group or Meeting may be set by the group's contact person. BloomNation is not involved with user generated groups, the groups' requirements, or the Meetings.

BloomNation does not supervise or control the Meetings, user-initiated online or offline gatherings, or the interactions among and between users and other persons or companies. Users are solely responsible for interactions with other users. Users understand that we do not in any way screen or conduct background checks its users. All users agree to exercise caution and good judgment in all interactions with others, particularly if meeting offline or in person.

Groups or User Fees: Some user-generated groups on BloomNation may require or request that users pay fees in order to be a member of the group, participate in a promotion, or participate in Meetings. ANY SUCH FEES ARE GOVERNED SOLELY BY THE SUBJECT USERS AND BLOOMNATION IS NOT INVOLVED IN THE REQUEST FOR, OR COLLECTION OR PAYMENT OF SUCH FEES AND RELATED TRANSACTIONS, THE PAYMENTS OR THEIR PROCESSING. THE PAYMENT DOES NOT GO TO BLOOMNATION; THIS MONEY IS SEPARATE FROM ANY FEES OR CHARGES ASSESSED BY BLOOMNATION, AND WE HAVE NO CONTROL OVER THE FEES, THE USER-GENERATED GROUPS, PROMOTIONS, THE MEETINGS, OR THE LEADER OF THE GROUP IN CONNECTION WITH ITS USE. BY PARTICIPATING IN MEETINGS, USERS ACKNOWLEDGE AND AGREE THAT BLOOMNATION IS NOT INVOLVED OR OTHERWISE A PARTY TO ANY TRANSACTION OR INTERACTION BETWEEN OR AMONG USER-GENERATED GROUPS, BLOOMNATION USERS AND/OR THIRD PARTIES (TOGETHER A "THIRD PARTY TRANSACTION"), AND THAT YOU BEAR ALL RISK IN CONNECTION WITH YOUR THIRD PARTY TRANSACTIONS. USERS SHOULD USE COMMON SENSE AND BE CAREFUL IN DECIDING WHETHER TO CONTRIBUTE MONEY TO SUCH RELATED TRANSACTIONS.

9. Driving Directions through BloomNation Mobile Application

Please note the following relative to driving directions offered through the BloomNation Mobile Application (as feature of the Site as defined above): The information provided through the BloomNation Mobile Application is not intended to replace the information provided on the road, such as traffic signs, traffic lights, police instructions, etc. Those utilizing the BloomNation Mobile Application must always drive vigilantly according to road conditions and in accordance with traffic laws. Use of the BloomNation Mobile Application is not intended while driving or to otherwise interfere with the due course of driving and distract the driver's attention to the road. The information provided by the BloomNation Mobile Application originates from third party sources which are not continually updated and may be inaccurate, incomplete or outdated. BloomNation makes no warranties or representations regarding the information’s correctness or reliability.

10. Resolution of Disputes and Release

In the event a dispute arises between a user and BloomNation, the user should contact BloomNation at [email protected] to assess the possibility of informal resolution.

Barring such informal resolution, any dispute arising from or relating to the subject matter of this Agreement or a user’s use of the Site or relationship with BloomNation shall be finally settled by binding arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, LLC. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the federal or state courts located in the County of Los Angeles in the State of California. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, unless expressly noted otherwise herein, including without limitation, this section.

Should a dispute arise between you and any other user or users of the Site, or an outside party, you release BloomNation and its Affiliates from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. BloomNation encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable and appropriate.

BloomNation, for the benefit of users, may elect to assist users resolve disputes, however, BloomNation do so in its sole and exclusive discretion, and BloomNation undertakes no formal obligation to resolve disputes between users or between users and outside parties. To the extent that BloomNation attempts to resolve such disputes, BloomNation does so in good faith and based solely on its policies. BloomNation will not make judgments regarding legal issues or claims.

11. BloomNation's Intellectual Property

BloomNation, and other BloomNation graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of BloomNation, Inc. in the U.S. and/or other countries. BloomNation's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.

12. Access and Interference

The Site may contain robot exclusion headers which contain internal rules for software usage. Much of the information on the Site is updated on a real-time basis and is proprietary or is licensed to BloomNation by the Site’s users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose whatsoever, except to the extent expressly permitted by and in compliance with this Agreement or otherwise without our prior express written permission. Additionally, you agree that you will not:

(i) Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on BloomNation;s infrastructure.

(ii) Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) or other allowed uses as set out in this Agreement from the Site except to the extent expressly permitted by and in compliance with this Agreement or otherwise without the prior express written permission of BloomNation and the appropriate third party, as applicable.

(iii) Interfere or attempt to interfere with the proper working of the Site or any activities conducted thereon.

(iv) Bypass the Site’s robot exclusion headers or other measures we may use to prevent or restrict access to the Site.

13. Breach

Without limiting any other remedies, BloomNation may, without notice, and without refunding any fees, delay or immediately remove Content, warn BloomNation's community of a user's actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user's account privileges, terminate a user's account, prohibit access to BloomNation, and take technical and legal steps to keep a user off BloomNation and refuse to provide services to a user if, not intended to be an exclusive list, any of the following apply:

(i) We suspect (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a user has breached this Agreement, the Privacy Policy or other policy documents and community guidelines incorporated herein.

(ii) We are unable to verify or authenticate any of the user’s personal information or Content.

(iii) We believe that a user is acting inconsistently with the letter or spirit of BloomNation's policies, has engaged in improper or fraudulent activity in connection with the Site or the actions may cause legal liability or financial loss to BloomNation's users or to BloomNation itself.

14. Privacy

Any personal information you submit to the Site or BloomNation is governed by BloomNation's Privacy Policy . This Privacy Policy encompasses any and all information you may provide to the Site or BloomNation either for purposes of becoming a Member of the Site, submitting feedback about the Site or any content or other users of the Site, or to receive further information, updates and promotions about or related to the Site or BloomNation. Except as disclosed in BloomNation's Privacy Policy, we will not sell or disclose your personal information (as defined in the Privacy Policy) to third parties without your explicit consent.

15. No Warranty

BLOOMNATION AND ITS AFFILIATES PROVIDE THE SITE "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT BLOOMNATION AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SITE WILL BE ACCURATE OR RELIABLE; AND (iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS A PART OF THE SITE WILL BE CORRECTED. BLOOMNATION AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM BLOOMNATION OR ITS AFFILIATES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

16. Liability Limitation

BLOOMNATION AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU FOR: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND (ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF (a) ANY CHANGES WHICH WE MAY MAKE TO THE SITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN PROVIDING THE SITE (OR ANY SERVICES OFFERED THROUGH OR FEATURES WITHIN THE SITE), (b) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SITE, (c) YOUR FAILURE TO PROVIDE BLOOMNATION WITH ACCURATE ACCOUNT INFORMATION, (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (e) YOUR USE OR MISUSE OF THE SITE, (f) ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, AND/OR (g) HYPERLINKS TO WEB SITES OR CONTENT OR RESOURCES PROVIDED BY COMPANIES OR PERSONS OTHER THAN BLOOMNATION. THESE FOREGOING LIMITATIONS ON OUR LIABILITY SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

In no event shall BloomNation or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, BloomNation partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.

Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.

BloomNation does not warrant that the Service will be uninterrupted, timely, secure, or error-free.

BloomNation does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.

BloomNation does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.

17. Indemnity

YOU AGREE TO INDEMNIFY AND HOLD BLOOMNATION AND ITS AFFILIATES, HARMLESS FROM AND AGAINST ALL DAMAGES, COSTS (INCLUDING, WITHOUT LIMITATION, SETTLEMENT COSTS), LOSSES, EXPENSES, (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) AND LIABILITIES RELATING TO ANY CLAIM OR DEMAND ASSERTED BY ANY PARTY AGAINST BLOOMNATION AND/OR ITS AFFILIATES ARISING FROM OR RELATED TO YOUR ACTIVITES OR CONDUCT ON OR THROUGH THE SITE.

18. Access and Data Integrity

BloomNation does not guarantee continuous, uninterrupted access to the Site. Although BloomNation attempts to maintain the integrity and accuracy of the information on the Site, we make no guarantees as to its correctness, completeness, or accuracy. The Site may contain typographical errors, inaccuracies, or other errors or omissions. Also, unauthorized additions, deletions, or alterations could be made to the Site by other users or third parties without BloomNation’s knowledge. If you believe that information found on the Site is inaccurate or unauthorized, please inform BloomNation by e-mailing us [email protected].

19. Severability

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.

20. No Employment or Agency

No Employment Relationship

BloomNation is not an employment service and does not serve as an employer of any user (Florist, Customer or otherwise). BloomNation is not be liable for any tax or withholding, including but not limited to unemployment insurance, employer's liability, social security or payroll withholding tax in connection with any use of the Site. By using the Site, users understand and agree that, if BloomNation is found to be liable for any tax or withholding tax in connection with your use of the Site, then you will immediately reimburse and pay to BloomNation an equivalent amount, including any interest or penalties thereon.

No Agency Relationship

No brokerage, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Without limiting the foregoing, except as expressly set forth herein, BloomNation is not acting and does not act as an agent for any Florist, Customer or any other user or visitor of the Site.

21. BloomNation Service

BloomNation reserves the right to modify, limit, suspend or terminate any and all services offered on or through the Site (or any feature thereof) for any reason, without notice, at any time. BloomNation reserves the right to alter this Agreement or other BloomNation policies at any time, so please review the policies frequently.

22. Amendments

BloomNation may amend this Agreement at any time, and from time to time, in our sole and absolute discretion, without any notice to you. You should regularly review this Agreement as posted on the Site on this page to check for amendments. You understand and agree that if you use the Site after the date on which these amendments have been applied to the Agreement, BloomNation will treat your continued use of the Site as acceptance of the updated terms. You may not amend this Agreement at any time without our prior written consent.

23. No Waiver

You agree that if BloomNation does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), it shall not constitute a waiver of BloomNation’s rights, and as such, those rights or remedies will still be available to BloomNation. Nothing in this Agreement shall prevent BloomNation from complying with the law and these terms do not confer any third party beneficiary rights.

24. Choice of Law

This Agreement shall in all respects be interpreted and construed with and by the laws of the State of California, without regard to its conflict of law provisions.

25. Survival

Sections 3 (Services, Fees/Taxes and Payments), 6 (Content, Material & Licenses), 7 (Information Control), 8 (Meetings & Groups), 9 (Resolution of Dispute and Release), 10 (BloomNation's Intellectual Property), 11 (Access and Interference), 12 (Breach), 13 (Privacy), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 24 (Choice of Law) shall survive any termination or expiration of this Agreement.

26. Notices

Except as explicitly stated otherwise, any notices to BloomNation shall be sent via postal mail to BloomNation, Attn: Legal Department, 110 North Doheny, Beverly Hills, California 90211 and any notices to users (in the case of BloomNation) shall be sent to the email address you have provided to BloomNation. Notice sent by email shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, BloomNation may elect, at its own discretion, to deliver notice by certified mail, to the address you provided to BloomNation. In such case, notice shall be deemed given three days after the date of mailing.

For issues with intellectual property, please provide the notice as specified in BloomNation's Copyright and Intellectual Property Policy.

27. Disclosures

The services hereunder are offered by Bloom Nation, Inc. located at 110 North Doheny, Beverly Hills, California 90211. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.

28. Notice for Users in California

This notice is for users of the Site residing in the State of California. Please be advised that the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be reached by mail at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (800) 952-5210.

29. Contact

If you have any questions about this Agreement, please contact [email protected].