The Flowery Terms And Conditions Of Service And Agreement To Arbitrate Disputes
1.Binding Agreement
This constitutes a binding agreement (“Terms,” “Terms of Use,” or “Agreement”) between You and Bill’s Nursery, Inc., a Florida corporation, doing business as “The Flowery” (“The Flowery,” “Us,” “We,” or the “Company”).
2. Scope Of Agreement
These Terms apply to all services provided by The Flowery (“Services”), including but not limited to those where information is collected from or about You, or where data from or about You is used. Services include retail sales and age verification at stores branded or owned by The Flowery (“Stores”). Services also include digital services provided through the Internet website located at www.The Flowery.co (the “Website” or “Site”), applications or software provided online or in conjunction with the Website, and electronic and telephonic communications sent to You by The Flowery or its partners (collectively, “Digital Services”). These Terms also apply with respect to Your purchase and use of products from The Flowery (“Products”).
3. Acceptance Of Terms
Your acceptance of the Terms in this Agreement begins when You take the earliest of any of the following actions: (i) receiving the Terms from The Flowery in connection with a transaction, or otherwise receiving the Terms from The Flowery; (ii) giving The Flowery a written or electronic signature accepting the Terms; or (iii) telling The Flowery orally that You accept the Terms.
4. Availability Of Terms
This Agreement is published on the Company’s Website at www.The Flowery.com. To access it, visit the Website, and click on the “Terms of Use” hyperlink, or visit: www.The Flowery.co/terms-use. You may also elect to receive a printed copy of this Agreement by contacting The Flowery at 1(305) 912-2929.
5.Changes To Terms Of Use
The Company may modify these Terms of Use from time to time in its sole and absolute discretion and with or without notice to You of such modification. If We do this, We will post the amended Terms on this Website page and indicate at the top of the page the date the Agreement was last revised. Your continued use of our Products or Services after any such changes constitutes Your acceptance of the new Terms of Use. It is Your responsibility to review these Terms of Use periodically, and if at any time You find these Terms of Use unacceptable, do not use or access (or continue to use or access) the Products or Services.
6.Disclaimers
The Flowery does not offer medical advice. Any information accessed through the site and services, or within any of The Flowery’s social media pages or channels is for informational and educational purposes only, is not intended to be a substitute for medical advice, diagnosis, or treatment, and is not intended to cover all possible uses, directions, precautions, or adverse effects. Such information includes, without limitation, third-party materials, user content, and The Flowery-generated content derived from user content (e.g., strain highlights, attributes, and other data). Any information on the Site, related to the Services or Products, or provided via The Flowery’s social media pages and channels should not be used for the diagnosis or treatment of any medical condition. Always consult Your doctor or other qualified health care provider if You have any questions about a medical condition. Never disregard professional medical advice or delay in seeking it because of something You have read on the Site, or on The Flowery’s social media pages and channels.
7. Acknowledgement Of Federal Law
You expressly acknowledge that The Flowery’s Products and Services are for residents of Florida only, that Florida’s laws regulate medical use of cannabis, and that medical cannabis collectives and patients are established pursuant to Florida’s laws. Marijuana is included on Schedule 1 of the United States Controlled Substances Act. Under the federal laws of the United States of America, manufacturing, distributing, dispensing or possession of marijuana is illegal, and may subject individuals to arrest and/or prosecution. You further acknowledge that medical use is not recognized as a valid defense under federal laws regarding marijuana. You also acknowledge that the interstate transportation of marijuana is a federal offense. You will not use any of the Services in any way that that is illegal or prohibited by law.
8. Privacy Policy
The Company respects Your privacy and permits You to control the treatment of Your personal information. A complete statement of the Company’s current Privacy Policy can be found on the Website by visiting www.The Flowery.com and then clicking on the Privacy Policy hyperlink, or by visiting: www.The Flowery.co/privacy-policy/. By using the Company’s Services, including the Website, You agree to be bound by the Company’s Privacy Policy, which is expressly incorporated into this Agreement.
9. No Use Of The Services By Persons Under 18 Permitted
The Flowery’s Products and Services, including the Website, are only intended for persons who are 18 years or older. You agree that by using the Products and Services, You represent that You are at least 18 years old and that You are legally able to enter into this Agreement. You must be a qualified medical cannabis patient to use the Products and Services.
10. Communications Between The Flowery And You
a. General: By agreeing to these terms, You expressly consent to and authorize The Flowery and its affiliates, agents, and its third-party representatives to use written, electronic or verbal means to contact You for any reason, including relating to information about The Flowery’s services and Products, and marketing of any kind, including offers, solicitations, and promotions. This consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems. You agree that The Flowery and its affiliates, agents, and its third-party representatives may, now or in the future, use any email address or the telephone number that You are assigned for The Flowery’s services, to contact You for any reason, regardless of whether You incur charges as a result.
b. Text Messaging: By agreeing to these Terms, You agree that The Flowery and those acting on its behalf may send You text (SMS) messages at the phone number You provided Us. These messages may include operational messages about Your use of the Products or Services, as well as marketing or other promotional messages. Furthermore, Messages from The Flowery, its affiliated companies and necessary third-party service providers, may include but are not limited to: operational communications concerning Your User account or use of the Products or Services, updates concerning new and existing features on The Flowery, communications concerning promotions run by Us or our third-party partners, and news concerning The Flowery and industry developments. Standard text messaging charges applied by Your cell phone carrier will apply to text messages We send. Your agreement to receive promotional texts is not a condition of any purchase or service offered by The Flowery. If You change or deactivate the phone number You provided to The Flowery, You must update Your account information to help prevent Us from inadvertently communicating with anyone who acquires Your old number. You agree that texts, calls, or prerecorded messages sent to You may be generated by automatic telephone dialing systems.
c.Opting Out of Text Messages: You may opt out of receiving promotional text messages from The Flowery at any time by replying STOP to a promotional text message from The Flowery. You may opt out of receiving all text messages from The Flowery at any time by deleting Your account or by replying STOP to any text message from The Flowery. NOTE: if You opt out of receiving all text messages from The Flowery, You will not be able to use certain Services without agreeing to receive operational text messages. You may continue to receive text messages for a short period while The Flowery processes Your request, and You may also receive text messages confirming the receipt of Your opt-out request.
d.Opting Back In To Receiving Text Messages: If You previously elected to opt out of receiving promotional text messages from The Flowery, You may opt back into receiving text messages from The Flowery at any time by replying START to a text message from The Flowery.
e.Email:You agree that We may send You emails concerning Our Products and Services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
11. Indemnification
You agree to indemnify and hold harmless The Flowery from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties including the costs, expenses, and attorneys’ fees on account thereof resulting from Your use of a The Flowery Product or Service, whether based in contract or tort (including strict liability) and regardless of the form of action.
12. Limitation Of Liability
To the extent permitted by law, You and We each agree to limit claims for damages or other monetary relief against each other to direct and actual damages or statutory damages, regardless of the theory of liability. This means that neither of us will seek any indirect, special, consequential, treble, or punitive damages from the other, nor will either of us be entitled to recover such damages. This limitation and waiver also applies to any claims You may bring against any other party to the extent that We would be required to indemnify that party for such claim. You agree We are not liable for problems caused by You or a third party, or by any act of nature. Applicable law may not allow the limitation of liability, implied warranties or the exclusion or limitation of certain damages set forth above, so this limitation of liability may not apply to You. If any part of this limitation on liability is found to be invalid or unenforceable for any reason, then the aggregate liability of The Flowery under such circumstances shall be limited to the total amount which You have paid to The Flowery, in exchange for Products and services or otherwise, during the six month period prior to the date of the event giving rise to Your claim(s) against The Flowery.
13. Dispute Resolution – Agreement To Arbitrate Disputes
Many customer concerns can be resolved quickly and to the customer’s satisfaction by contacting The Flowery’s customer service department at 1(305)912-2929. Before taking any formal action, You agree to first contact Us and provide a description of Your dispute, all relevant documents, and Your proposed resolution. If We are unable to resolve Your dispute within 30 days of Your notice to Us, You agree to submit Your dispute to binding arbitration or small claims court as set forth in this provision. Please submit your dispute using the following link: Submit a Ticket
a.Agreement to Arbitrate Disputes: This section of the Agreement shall be referred to as the “Agreement to Arbitrate Disputes.” This Agreement to Arbitrate Disputes shall be deemed a contract entered into under the laws of the State of Florida and will be governed by the laws of the State of Florida together with the Federal Arbitration Act. The Effective Date of the Agreement To Arbitrate Disputes is June 2, 2020. This Agreement to Arbitrate Disputes may change from time to time, and each change will reflect a new effective date. The operative version of the Agreement to Arbitrate Disputes is the version that applied or applies at the time You accepted the Agreement to Arbitrate Disputes as defined in Section 13(b) below.
b. Time of Acceptance of Agreement to Arbitrate Disputes: Your agreement with The Flowery to arbitrate disputes starts when You accept the The Flowery Terms and Conditions Of Service. You accept the The Flowery Terms and Conditions Of Service by taking the earliest of any of the following actions (i) receiving the Terms from The Flowery in connection with a transaction, or otherwise receiving the Terms from The Flowery: (ii) giving The Flowery a written or electronic signature accepting the Terms; or (iii) telling The Flowery orally that You accept the Terms.
c. Effect of Acceptance: Once accepted, this Agreement to Arbitrate Disputes applies to all disputes involving You and The Flowery regardless of when the circumstances giving rise to the dispute occurred, including after the termination of Your use of any The Flowery service or Product. The Agreement to Arbitrate Disputes remains effective even if stop purchasing or using Our Products or Services. If You have any questions, contact The Flowery’s Customer Service Department to have Your questions answered.
d. Binding Arbitration: Please read this section carefully as it affects rights that You may otherwise have. This Agreement requires the use of individual arbitration rather than jury trials or class actions to resolve disputes and claims (including ones that already are the subject of litigation). Arbitration is more informal than litigation because it uses a neutral arbitrator instead of a judge or jury and allows for less discovery and less appellate review than a proceeding in a court of law. This arbitration clause shall survive termination of the The Flowery Terms and Conditions Agreement or termination of Your use of the Services or Your use of any The Flowery Product. You agree that You are aware that there is no judge or jury in arbitration but that an arbitrator may award You the same damages and relief that You may be able to recover in a court of law subject to the limitation of liability in Section 12 of this Agreement. You and The Flowery further agree that the arbitrator must honor the terms of this Agreement. Notwithstanding the foregoing, provided that such action is within the governing jurisdictional limitations, either party may bring a claim on an individual basis only in small claims court or the small claims division of a court of appropriate jurisdiction.
e.Claims Covered by Agreement to Arbitrate Disputes. This Agreement to Arbitrate Disputes governs all claims or disputes between You and The Flowery with no exceptions, including any claims that relate to conduct that pre-dates the Effective Date of this Agreement. References to You and The Flowery include our respective suppliers, vendors, Service Providers, Service Companies, or their respective subsidiaries, officers, agents, partners, employees or consultants, predecessors in interest, successors, and assigns. This Agreement to Arbitrate Disputes includes but is not limited to any and all claims for relief and theories of liability, between You and The Flowery, whether based in contract, tort, fraud, negligence, regulation or ordinance; claims for relief under any state or federal statutes, including but not limited to the federal and any state analogs of the Telephone Consumer Protection Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, and other statutes; claims for common law fraud, misrepresentation, or any other legal or equitable theory arising out of Your relationship with The Flowery, any interactions between You and The Flowery, and/or claims arising from or related to Your contract with The Flowery. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in a court of law, in which case You agree that the venue for litigating such claim shall be either Miami-Dade County, Florida, or your county of residence but only to the extent that you reside in Florida.
f. Severance: If any term of this Agreement to Arbitrate Disputes is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms herein shall remain in full force and effect.
g. Delegation Provision: You and The Flowery agree that the Arbitrator shall have the power to rule on his or her own jurisdiction, the existence, scope, validity and arbitrability of this Agreement. This Delegation Provision shall be deemed a contract entered into under the laws of the State of Florida and will be governed by the laws of the State of Florida together with the Federal Arbitration Act. Your agreement with The Flowery to be bound by this Delegation Provision starts when You Accept the The Flowery Terms and Conditions of Service.
h. Single Arbitrator: Claims shall be heard by a single arbitrator.
i. No Class Action In Arbitration:You and The Flowery agree that any arbitration will be conducted on an individual basis and not on a consolidated,class wide, or representative basis. Further, You and The Flowery agree that the arbitrator may not consolidate proceedings or consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Each party waives the right to litigate in court or arbitrate any claim or dispute as a class action, either as a member of a class or as a representative, or to act as a private attorney general. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
j. AAA Rules:The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Agreement. The AAA Rules are available online at www.adr.org, or by calling the AAA a 1-800-778-7879.
k. Interpretation of Agreement to Arbitrate Disputes:You and The Flowery agree that use of The Flowery Services or Products evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the laws of the State of Florida, the Federal Arbitration Act and federal arbitration law.
l. Payment of Fees in Arbitration: (i) For claims that You bring against The Flowery: Absent a finding that Your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), if You initiate an arbitration in which You seek no more than $30,000 in damages, The Flowery will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement to Arbitrate Disputes, with the exception that You are responsible for the first $50 in filing fees of an arbitration initiated in accordance with this Agreement to Arbitrate Disputes If You prevail at arbitration, You will receive Your $50 share of the filing costs from The Flowery. If, however, the arbitrator does deem that Your demand was frivolous, was brought for an improper purpose, or was malicious, payment of all fees will be determined in accordance with AAA Rules. Additionally, The Flowery hereby waives any right to seek its attorneys’ fees from You in the event that it prevails in the arbitration, except where Your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. If You initiate an arbitration in which You seek more than $30,000 in damages, the payment of fees will be governed by the AAA rules. (ii) For claims that The Flowery brings against You, the payment of fees will be governed by the AAA rules.
m. Location of Arbitration: Unless You and The Flowery agree otherwise and in an effort to reduce the burden of arbitration on You, the location of any arbitration shall be in the Florida county of Your residence. In the event that you are not a Florida resident at the time you commence arbitration, the location of the arbitration shall be Miami-Dade County, Florida, unless you and The Flowery agree otherwise. Either or both parties may participate in the proceedings by telephone.
n. Governing Law in Arbitration Proceeding: The arbitrator shall apply the laws of the State of Florida to the substantive issues at issue in the dispute. Notwithstanding anything to the contrary, the arbitrator shall apply the laws of the State of Florida and the Federal Arbitration Act to interpret and enforce this Agreement to Arbitrate Disputes and each of its provisions, including with regard to any issues over acceptance of the terms of the Agreement to Arbitrate Disputes. Judgment on the award rendered may be entered by any court of competent jurisdiction.
o. Disclosure With Consent of Both Parties. Except as may be required by law, such as through a petition to confirm or a petition to vacate an arbitration award, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
p. Opting Out of Arbitration: You have the right to opt out of this Agreement to Arbitrate Disputes within the earlier of (i) 14 days of Your acceptance of the Agreement to Arbitrate Disputes as defined in Section 13(b) of this Agreement; or (ii) 14 days after the first of any actions that are deemed to constitute acceptance under Section 13(b) of this Agreement. This means that unless We make any changes to the Agreement to Arbitrate Disputes, You will have only one opportunity to opt out of arbitration of any claim between You and The Flowery. If We make changes to this Agreement to Arbitrate Disputes, You will then have the right to opt out within 14 days of those changes. You may exercise this right to opt out of this Agreement to Arbitrate Disputes by Writing to Us at The Flowery, at info@The Flowery.com. Your letter to Us must indicate Your name, Your The Flowery phone and account number, and state that You are opting out of the Agreement to Arbitrate Disputes. Any opt out received after the opt-out deadline (or, in the case of those mailed, postmarked after the opt-out deadline) will be invalid, and You must pursue any claims or dispute against The Flowery (as defined in Section 13 of this Agreement) in arbitration.
14. Class Action Waiver If Dispute Is Brought In Court
If for any reason the Agreement to Arbitrate Disputes is deemed inapplicable or invalid, or to the extent the Agreement to Arbitrate Disputes allows for litigation of disputes in court, or if any claims between You and The Flowery are litigated in court for any reason, You and The Flowery waive to the fullest extent permitted by law: (i) any right to pursue any claims on a class or consolidated basis, and (ii) Your right to serve in a representative capacity in any class or consolidated basis. If this Class Action Waiver is deemed to any extent invalid, illegal, or incapable of being enforced, it shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms of this Agreement hereof remain in full force and effect.
15. GoverningLaw
This Agreement shall be construed under Florida law, without regard to the state’s choice of law rules, except for the Agreement to Arbitrate Disputes contained in this Agreement, which will be governed by the Federal Arbitration Act and Florida law, as provided in Section 13 of this Agreement.
16. Entire Agreement
This Agreement, the Agreement to Arbitrate Disputes and the Privacy Policy constitute the entire Agreement between You and The Flowery. The failure of either party to enforce any of the terms set forth herein shall not be construed to be a waiver of any such terms nor in any way affect the validity and enforceability of these Terms. No waiver of a breach of any term shall be deemed a waiver of any other or subsequent breach of a term.
17. Severance
In the event any provision contained in this Agreement is deemed unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.