gardenUP WEBSITE TERMS OF USE
Effective Date: April 12, 2016
THESE TERMS OF USE (THESE “TERMS OF USE”) GOVERN YOUR USE OF THE gardenUP.COM WEBSITE AND YOUR PURCHASE AND USE OF THE GOODS AND SERVICES OFFERED ON THE WEBSITE (COLLECTIVELY, THE “SITE”). BY USING THE SITE YOU AGREE TO BE BOUND BY THESE TERMS OF USE OUR WEBSITE PRIVACY POLICY, AND, IF YOU PURCHASE PRODUCTS AND SERVICES FROM gardenUP, OUR TERMS OF SERVICE , EACH OF WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU ARE NOT AUTHORIZED TO USE THE SITE. We may update these Terms of Use from time to time without notice to you. Your use of the Site after the Terms of Use have been updated constitutes your acceptance of any modifications, additions, or deletions to these Terms of Use contained un any such update. You may refer to the most current version of these Terms of Use at any time by accessing this web page. References to “gardenUp”, “we”, “us” or “our” in these Terms of Use mean gardenUP, LLC. References in these Terms of Use to “you” or “your” refer to both you and any person or entity on whose behalf you act, if any.
1. Ownership of the Site
You may use the Site for your personal, non-commercial use only. All pages within this Site and any material made available for download are the property of gardenUP, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. The contents of the Site, including without limitation the files, documents, text, photographs, images, designs audio, and video, and any materials accessed through or made available for use or download through this Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by gardenUP. You may not frame or utilize framing techniques to enclose or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including; images, designs text, page layout, or form) of gardenUP without our express written consent.
The gardenUP name, logos, and all related names, logos, product and service names, designs and slogans are trademarks of gardenUP. You must not use such marks without the prior written permission of gardenUP. All other names, logos, product and service names, designs and slogans on this Site are the trademarks of their respective owners.
2. Prohibited Uses
You agree not to:
- Use the Site in any way that violates any applicable federal, state, local or international law or regulation.
- Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site.
- Use any robot, spider or other automatic device, process or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
- Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Site.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Site.
3. Security Restrictions; Passwords
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law. Violations of system or network security may result in civil or criminal liability. gardenUP will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. In the event access to the Site or a portion thereof is limited by requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by gardenUP. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Site may be revoked by gardenUP at any time with or without cause. You agree to defend, indemnify and hold gardenUP harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by gardenUP arising out of your breach of these Terms of Use or violation of applicable law, your use of, or access of the Site, or access to the Site by anyone using your user ID and password.
4. Products and Services
All purchases through the Site or other transactions for the sale of goods or services formed through the Site or as a result of visits made by you are governed by our Terms of Service, which is hereby incorporated into these Terms of Use by this reference.
a. Accuracy and Integrity of Information; Colors
Although gardenUP attempts to ensure the integrity and accurateness of the Site, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform gardenUP so that it can be corrected. Information contained on the Site may be changed or updated without notice.
We have made significant efforts to accurately display the image, colors and appearance of the plants and other products that are available on the Site. However, as the actual plant image,appearance and colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any image, color or appearance will be accurate.
b. 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 set forth in the Terms of Service, 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(g) below, the amount you are charged will in no circumstances exceed an amount that is twenty percent (20%) higher than the price estimate.
c. 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.
d. Order Acceptance
We reserve the right, at our sole discretion, to refuse to accept or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. For your convenience, you will not be charged until your payment method is authorized, the order information is verified for accuracy and your order is shipped. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department, or site conditions that prevent installation of the plants ordered or for the quoted estimate. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit or debit card (or other payment account) has been charged, we will issue a credit to your credit or debit card (or other payment account) in the amount of the charge.
e. Quantity Limits and Dealer Sales
gardenUP reserves the right, at our sole discretion, to limit the quantity of plants or other items purchased per person, per household, or per order. These restrictions may be applicable to orders placed by the same account, the same credit or debit card (or other payment account), and also to orders that use the same billing and/or shipping address. We will provide notification to the customer should such limits be applied. We reserve the right, at our sole discretion, to refuse to accept or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. gardenUP also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, reselling will be defined as purchasing or intending to purchase any product(s) from gardenUP for the purpose of engaging in a commercial sale of that same product(s) with a third party.
f. Plant Substitutions
gardenUP reserves the right, at our 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 we make such substitutions, we will provide you with reasonable advance notice (by telephone, email or other method selected by gardenUP) and the opportunity to cancel your order with respect to the substituted plants.
g. Undue Hardship
In order to provide you with an estimate for plants and related garden services, you will need to provide us with information about the site of your garden. We rely on you to provide an accurate description of your garden site so we can properly estimate the number and variety of plants required and the effort involved in installing the garden. By placing an order and submitting descriptions of your garden site (e.g., shape, type, size, weather and setting) you represent and warrant that the information you have provided regarding your garden site is accurate and complete. We are not responsible for incomplete or inaccurate descriptions submitted by you. We reserve the right to cancel your order and/or revise our initial estimate based on our good faith judgment or the good faith judgment of our third party installation partners (“Installation Partners”) (a) that the information you provided was insufficient to provide an accurate estimate or (b) that the conditions and requirements of your garden site prevent us or our third party installers from completing the installation of the ordered plants without unreasonable effort or expense, either within the initial estimate we provided or at all. If, during the course of performing an installation, we or an Installation Partner discover site conditions, such as soil or rock conditions or landscape grading, that prevent us or an Installation Partner from completing the installation, we will inform you of such conditions and 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 (a) only for the plants that were installed and (b) the related installation services that were rendered in connection with your gardenUP order. If you reject the plants that have been installed, we will have an Installation Partner remove them on your behalf with no charge to you. .
h. Green Goods
gardenUP only sells and provides for the design of your garden and the selection delivery, and installation of plants. We do not sell stone, edging, mulch, irrigation or other products s or provide installation services. . If you are in need of such goods or services, ask us, and we may be able to recommend a professional in your area who can help.
i. Design Pictures
Pictures associated with each design are good faith representations of the finished garden. However, each image represents plants at maturity and a specific site that may not match the conditions for your garden. Therefore, while your completed gardenUP garden site will be ‘inspired by’ our designs, you acknowledge and agree that, because the dimensions, soil, grading, moisture, lighting and other conditions are unique to each garden, your garden will not exactly match the design pictures.
j. Installation Partners
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 Installation Partners who have been authorized by gardenUP to install your plant order in accordance with the your selected gardenUP landscape design. 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 Use and our Terms of Service.
k. 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.
5. Links to Other Sites
gardenUP makes no representations whatsoever about any other website that you may access through this Site. When you access a non-gardenUP site, please understand that it isindependent from gardenUP, and that gardenUP has no control over the Content on that website. In addition, a link to a non-gardenUP website does not mean that gardenUP endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.
6. Limited Warranties; Disclaimer of Warranties
a. Plants
gardenUP warrants plants to be true to name and in healthy growing condition when installed. Once installed, it is the responsibility of the owner to properly care for the plants. We warrant plants purchased through gardenUP (a) for thirty (30) days from the date of installation; or (b) sixty (60) days from the date of installation in the event the plant is installed at a site with a pre-existing and properly functioning irrigation system that services the plants. gardenUP will replace plants once during the foregoing warranty periods should the plants die. If you receive garden maintenance services under an agreement procured through our installation or maintenance partners, we warrant the plants for the term of the maintenance agreement, without limitation on replacement.
gardenUP assumes no liability for plants killed or damaged by pests, insect infestation, abnormal weather conditions, or other conditions beyond our control, nor will we replace plants experiencing “seasonal die-back” when pruning and proper care will restore them to health. Moving landscape plants from their original location voids this limited warranty.
EXCEPT FOR THE EXPLICIT WARRANTIES PROVIDED IN THIS SECTION 6(a) OF THESE TERMS OF USE, gardenUP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDNG THE PLANTS SOLD BYOR SERVICES FROM gardenUP, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR A FITNESS FOR A PARTICULAR PURPOSE.
b. Site
gardenUP DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. gardenUP DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
7. Dispute Resolution
Any dispute or claim relating in any way to your use of the gardenUP services, the gardenUP Site or any product or service ordered or purchased through the gardenUP Site will be resolved by binding arbitration, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory
damages), and must follow these Terms of Service and the Terms of Service as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to gardenUP at the address set forth below in Section 11 of this Agreement. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes.
The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. In addition, you and gardenUP each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. You and gardenUP both agree that you or gardenUP may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
8. Governing Law; Venue
In the event of any dispute or claim relating to the Site or these Terms of Use, you agree to resolution of such dispute in the state or federal courts located in Boston, Massachusetts in accordance with Massachusetts law, without regard to its conflict of law principles.
YOU AND gardenUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE TERMS OF SERVICE, IF APPLICABLE, THE WEBSITE, OR gardenUP PRODUCTS AND SERVICES YOU PURCHASE FROM gardenUP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
9. Limitation on Liability and Damages
gardenUP AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING
FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES,
CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, ANY LINKED WEBSITE, AND/OR ANY PLANTS, PRODUCTS, OR SERVICES YOU PURCHASE
THROUGH THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF COMPANY TO YOU WITH RESPECT TO YOUR USE OF THIS SITE OR gardenUP PRODUCTS AND SERVICES YOU PURCHASE THROUGH THE SITE IS FIVE HUNDRED DOLLARS ($500).
10. Miscellaneous
If any part of these Terms of Use is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use will continue in full force and effect. Unless otherwise specified herein, these Terms of Use, the Terms of Service, if applicable, and the accompanying website Privacy Policy constitute the entire agreement between you and GardenUp with respect to the Site and the products and services ordered from gardenUP ,and it supersedes all prior communications and agreements, whether electronic, oral or written, between you and gardenUP with respect to the Site.
10. NOTICES
Please send all questions, comments and notices regarding these Terms of Use to: