gardenUP TERMS OF SERVICE
Effective Date: April 12, 2016
These Terms and Conditions of Service (“Terms of Service”) govern your purchase of the products and services from gardenUP, including through http://www.gardenUP.com (“gardenUP Site”). By accessing or using the gardenUP Site or by purchasing or attempting to purchase products or services through the gardenUP Site, you agree to be bound by these Terms of Service, along with gardenUP’s Terms of Use (“Terms of Use”) (which are hereby incorporated by reference), all other terms or policies incorporated herein by reference and all applicable laws, rules and regulations (“Law”).
The gardenUP Site is operated by gardenUP, LLC (collectively, “gardenUP,” “we,” “us” and “our”). References in these Terms of Service to “you” or “your” refer to both you and any person or entity on whose behalf you act, if any.
1. Privacy Policy
Please refer to the gardenUP Privacy Policy (“Privacy Policy”) for information regarding how gardenUP collects, uses, discloses and processes your Personal Information, Usage Data and Other Information (as each is defined in the Privacy Policy).
2. Eligibility
These Terms of Service have been executed and delivered by you and constitute a valid and binding agreement between you and gardenUP, enforceable against you in accordance with their terms. You represent that you (1) are at least 18 years of age, (2) have full power and authority to enter into these Terms of Service and in doing so will not violate any other agreement to which you are a party and (3) have not been previously suspended or removed from the gardenUP Site, or engaged in any activity that could result in suspension or removal from the gardenUP Site.
3. Registration
a. Establishing an Account
In order to purchase products and services available through the gardenUP Site, or otherwise access and use certain features of the gardenUP Site, you will need to register for a gardenUP account (“Account”). Upon creating an Account, you will receive a username and password.
At a minimum, creating an Account requires you to (1) indicate agreement to these Terms of Service, (2) provide contact information and other identification details and (3) submit any other form of authentication as gardenUP may require in its sole discretion. In addition, prior to submitting an order for products or services, you will need to provide certain information regarding your planting site, including (a) the delivery address for your order, (b) the shape, setting and dimensions of the planting site, (c) the sunlight and weather conditions associated with the planting sight, (d) the soil, grading and other ground conditions of the planting site and (e) any other information relating to the planting site as gardenUP may require in its sole discretion. You acknowledge that we rely on you to provide an accurate description of your planting site so that we can properly estimate the number and variety of plants required and suitable for your planting site and the effort involved in delivering or installing your plant order, as applicable. By placing an order through the gardenUP Site, you represent and warrant that the information you have provided regarding your planting site is accurate and complete. We are not responsible for untrue, inaccurate or incomplete descriptions or information submitted by you.
b. Use of Account
By creating an Account, you agree to (1) provide true, accurate, current and complete Account information, (2) maintain and promptly update from time to time as necessary your Account information, (3) maintain the confidentiality and security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, (4) immediately notify us if you discover or otherwise suspect any security breaches related to the gardenUP Site or your Account by contacting [email protected] and (5) not use your Account for any purpose that is competitive to gardenUP unless authorized in writing by gardenUP.
c. Communications
By creating an Account, you also consent to receive electronic communications from gardenUP (e.g., via email or by posting notices to the gardenUP Site). These communications may include notices regarding your Account (e.g., payment authorizations, password changes and other transactional information). You agree that any notices, agreements, disclosures or any other communications we send to you electronically will satisfy any legal communication
requirements, including, but not limited to, that such communications be in writing.
d. Termination of Account
You may cancel your Account through the gardenUP Site at any time and for any or no reason.gardenUP may terminate your Account and refuse any and all current or future use of the gardenUP Site or other services, or any portion thereof, (1) in order to comply with applicable Law, (2) if you breach these Terms of Service or the Terms of Use , (3) if you provide any information that gardenUP determines, in its sole discretion, to be untrue, inaccurate, not current, or incomplete (including untrue, inaccurate, or incomplete information regarding the conditions and requirements of your planting site), or if you fail to correct, update or complete such information on your Account or by contacting [email protected] within a reasonable time period as determined by gardenUP in its sole discretion, (4) if gardenUP determines, in its sole discretion, that you are using your Account in a manner not permitted by these Terms of Service or the Terms of Use or (5) in other circumstances, as gardenUP deems appropriate in its sole discretion.
4. Products and Services
a. General
gardenUP offers online landscape design, plant shopping and plant delivery services to registered users who meet the eligibility requirements set forth in these Terms of Service and who establish an Account on the gardenUP Site (“gardenUP Services”). As a separate service, the gardenUP Site provides an online platform for registered users to obtain information about and order installation services from gardenUP’s third party installation partners (“Installation Partners”) who have been authorized by gardenUP to install your plant order in accordance with the your selected gardenUP landscape design (“Installation Services” and, together with the gardenUP Services, the “Services”).
b. Inspection
Prior to delivery of your plant order, gardenUP will contact you by email or telephone to schedule a time for a gardenUP authorized representative to visit the planting site to confirm measurements, the site location and whether there are any conditions that might prevent or hinder the installation of your plant order in any respect. If the gardenUP authorized representative determines that the planting site conditions are not suitable to accommodate your selected gardenUP landscape design or will otherwise prevent the Installation Services to be completed within the initial cost estimate (provided at the time of your order) or at all, you will be given an opportunity to (1) cancel both your plant order and the Installation Services, (2) modify the landscape design to accommodate the planting site conditions or (3) cancel the Installation Services only.
c. Delivery
After an on-site visit by a gardenUP authorized representative (and subject to Section 4(b)), gardenUP will schedule a time to deliver your plant order. Delivery will be made to the delivery address provided on your Account. You are responsible for ensuring that someone is present at the delivery address to accept delivery of your order at the specified time. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the order. If we cannot deliver your plant order or must make an additional delivery because no one is at the delivery address to receive the plant order at the specified time, gardenUP reserves the right to assess an additional fee ofone hundred and fifty dollars ($150.00). gardenUP’s liability for missing a scheduled delivery date and time is limited to delivery at a later agreed upon time at no additional charge.
d. Installation
To the extent you have ordered Installation Services in connection with your gardenUP plant order , an Installation Partner will contact you to schedule a time to install your gardenUP plants. Installation Services are provided directly by our Installation Partners . Such Installation Services are governed by these Terms of Service and our Terms of Use.
e. Waiver and Release
YOU HEREBY WAIVE AND RELEASE gardenUP AND ITS AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FROM ANY AND ALL INJURIES, LIABILITIES, DAMAGES, CLAIMS AND RIGHTS OF ANY NATURE WHATSOEVER ARISING FROM ANY ACT OR OMISSION OF THE INSTALLATION PARTNERS IN CONNECTION WITH THE INSTALLATION SERVICES AND COMPLIANCE BY THE INSTALLATION PARTNERS WITH APPLICABLE LAW.
f. Depictions and Descriptions of Products and Services
i. Descriptions
gardenUP strives to provide accurate descriptions of the plants, Services, and other products provided through the gardenUP Site and when communicating with customers through electronic, telephonic or other means. gardenUP does not warrant, however, that such descriptions are accurate, complete, reliable, current or error-free. If a plant, Service or other product offered is not as described on the gardenUP Site or by a gardenUP representative, your sole remedy is to contact Customer Service at [email protected]
ii. Colors
gardenUP has made significant efforts to accurately display the image, appearance and colors of the plants and other products that appear in the pictures and images on the gardenUP Site. Because the actual plant or product image, appearance and colors you perceive on the gardenUP Site depend on your computer monitor, we cannot guarantee that your computer monitor’s display of any plant or product image, appearance or color will be accurate.
ii. Pictures and Images
The pictures and images associated with each landscape design that are provided on the gardenUP Site are only good faith representations of your finished landscape. Further, each picture and image depicts plants at maturity and at a specific site that may not be identical or even similar to the conditions of your planting site. Because the dimensions, soil, grading, moisture, lighting and other conditions of your planting site may differ from those in the landscape design pictures and images on the gardenUP Site, you acknowledge and agree that while your completed gardenUP planting site will be “inspired” by such pictures and images, it may not be identical to such pictures and images.While certain of the pictures and images associated with some of the landscape designs may contain depictions of stone, edging, fencing, mulch, irrigation, decorative objects or other products, gardenUP only sells and provides for the design, delivery and installation of plants. gardenUP does not sell or install stone, edging, fencing, mulch, decorative objects or other products. If you are in need of such goods or services, please contact us [email protected], as we may be able to recommend a professional in your area who can provide such services and
products.
g. Plant Substitutions
gardenUP reserves the right, in its sole discretion, to substitute substantially similar plants to those purchased by you in the event gardenUP is unable to procure sufficient quantities of the plant you initially selected to fulfill your order. In cases where gardenUP makes such substitutions, we will notify you in advance by email or telephone and will provide you with an opportunity to accept such substituted plants or cancel your order with respect to the substituted plants within two (2) business days of receipt of such notice. In the event you cancel any part of your order pursuant to this Section 4(g), and to the extent your credit or debit card (or other payment account approved by gardenUP) has already been charged for such order, gardenUP will issue a credit to your credit or debit card (or other payment account) in the amount of the applicable charge within thirty (30) business days.
h. Undue Hardship
If, during the course of performing the Installation Services, gardenUP or an Installation Partner discovers planting site conditions, such as soil or rock conditions, landscape grading or obstructions affecting access to the planting site, that were not readily apparent from gardenUP’s initial on-site visit and that gardenUP or an Installation Partner determines in its sole discretion will prevent an Installation Partner from completing the installation within the initial cost estimate (provided at the time of your order) or at all, we will notify you of such conditions by email or telephone and will provide you with an opportunity to accept or reject the plants that have been installed. If you accept the plants that have been installed, you will be charged (1) only for the plants that were successfully installed and (2) the related costs associated with Installation Services. If you reject the plants that have been installed, we will have an Installation Partners remove them on your behalf with no charge to you. In the event that you reject any part of your order pursuant to this Section 4(h), and to the extent your credit or debit card (or other payment account approved by gardenUP) has already been charged for such removed plants, gardenUP will issue a credit to your credit or debit card (or other payment account) in the amount of the applicable charge within thirty(30) business days.
5. Order Acceptance, Restrictions and Limitations
a. Order Acceptance
gardenUP may, in its sole discretion, choose to not process or to cancel your order in certaincircumstances. This may occur, for example, when (1) the plants, Services, or other products you wish to purchase are no longer available, (2) there are inaccuracies or errors in product, Services or pricing information (3) gardenUP suspects the order is fraudulent (4) gardenUP determines in its sole discretion that you have provided untrue, inaccurate, or incomplete information when placing an order, or (5) in other circumstances as gardenUP deems appropriate in its sole discretion. gardenUP also reserves the right, in its sole discretion, to take steps to verify your identity to process your order. In the event gardenUP chooses to not process or cancel your order pursuant to this Section 5(a), gardenUP will notify you by email or telephone and will either not charge you or, to the extent your credit or debit card (or other payment account approved by gardenUP) has already been charged, issue a credit to your credit or debit card (or other payment account) in the amount of the applicable charge within thirty(30) business days.
b. Quality Limits and Dealer Sales
gardenUP reserves the right, in its sole discretion, to limit the quantity of plants or other products purchased per person, per household or per order. These restrictions may apply to orders placed by the same Account, the same credit or debit card (or other payment account approved by gardenUP) and to orders that use the same billing and/or delivery address. We will notify you by email or telephone should such limits be applied. gardenUP also reserves the right, in its sole discretion, to prohibit sales to dealers or resellers who intend to resell plants and other products purchased through the gardenUP Site. For purposes of these Terms of Service, “resell” will be defined as purchasing or intending to purchase any plant or other product from gardenUP for the purpose of engaging in a commercial sale of that same plant or product with a third party.
6. Pricing Information and Payment
a. Pricing Information
The pricing information on the gardenUP Site represents only an estimate of the actual price of the plants, Services, and other products offered through the gardenUP Site. Subject to the payment provisions in Section 6(c) below, you will be charged for the actual price of the plants,Services, and other products ordered through the gardenUP Site, which will be determined by gardenUP in good faith upon the delivery and/or installation of your plant order, as applicable. Because the actual price of the plants, Services, and products offered through the gardenUP Site may differ from the price estimate of such products and services, you acknowledge and agree that the amount you are charged upon receipt and/or installation of your plant order, as applicable, may be higher or lower than the applicable pricing estimate provided on the gardenUP Site at the time of your order. Subject to Section 4(h) above, the amount you are charged will in no circumstances exceed an amount that is twenty percent (20)% higher than the price estimate].
b. Incorrect Pricing Information
While gardenUP strives to provide accurate pricing information regarding the plants, Services, and other products offered through the gardenUP Site, gardenUP cannot insure against pricing errors. In the event a plant, Service, or other product is listed at an incorrect price due to typographical error, error in pricing information received from gardenUP’s plant growers or suppliers, or other error as determined by gardenUP in its sole discretion, gardenUP reserves the right, in its sole discretion, to not process, cancel or refuse any orders placed for a plant, Service, or other product listed at the incorrect price, whether or not the order has been confirmed and your credit or debit card (or other payment account approved by gardenUP) has been charged. In the event this occurs, gardenUP will notify you by email or telephone and will either not charge you or, to the extent your credit or debit card (or other payment account) has already been charged, issue a credit to your credit or debit card (or other payment account) in the amount of the applicable charge within thirty (30) business days.
c. Payment
Payment for the plants, Services and any other items ordered (and the associated delivery fees) (“Payment”) will be processed as set forth below. You agree to pay to gardenUP the fees, costs, expenses and other charges in connection with your purchase of the plants and/or Services. You acknowledge and agree that the Payment will be billed to