Activepackets Inc. Terms of Service ("Agreement")
Please read these Terms of Service ("Agreement", "Terms of Service") carefully before using Pocket Flowers ("the App") operated by Activepackets Inc ("us", "we", or "our"). This Agreement sets forth the legally binding terms and conditions for your use of the App, Pocket Flowers.
By accessing or using the App in any manner, including, but not limited to, visiting or browsing the App or contributing content or other materials to the App, you agree to be bound by these Terms of Service. Capitalized terms are defined in this Agreement.
The App and its original content, features and functionality are owned by Pocket Flowers and are protected by international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
We may terminate your access to the App, without cause or notice, which may result in the forfeiture and destruction of all information associated with you. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
Links To Other Apps
Our App may contain links to third-party Apps that are not owned or controlled by Pocket Flowers.
This Agreement (and any further rules, polices, or guidelines incorporated by reference) shall be governed and construed in accordance with the laws of United States, without giving effect to any principles of conflicts of law.
Changes To This Agreement
We reserve the right, at our sole discretion, to modify or replace these Terms of Service by posting the updated terms on the App. Your continued use of the App after any such changes constitutes your acceptance of the new Terms of Service.
Please review this Agreement periodically for changes. If you do not agree to any of this Agreement or any changes to this Agreement, do not use, access or continue to access the App or discontinue any use of the App immediately.
Unless we allow "guest" purchases, you will need to establish an account with us to use certain features of the App (e.g., to order products and services from the App). During the account registration process you will be asked to select a unique password. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under the password. By logging into the App, you represent and warrant that: (i) you are the customer who registered for the services; (ii) that you are using the services only for permitted purposes; and (iii) you are not a competitor of Activepackets, or agent thereof. You will immediately notify us of any unauthorized use of the password or account or any other breach of security. You agree to exit from your account at the end of each session. Please notify us at email@example.com of any potential unauthorized use(s) of your account, or breach of security.
If you create an account, you represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; (iii) you will not select or utilize a user name that Activepackets in its sole discretion deems offensive; and (iv) you are not a competitor of Activepackets, or an agent thereof.
Violation of the Terms and Conditions
By using our App, you understand and agree that we, at our sole discretion and without prior notice, may suspend or terminate your access to, or bar your future access to, one or more of our Apps and to any services offered in our Apps, and may modify or remove any User Content if we believe, in our sole discretion, that the User Content violates or is inconsistent with these Terms and Conditions or their intent, that your conduct is disruptive, or you have violated the law, these Terms and Conditions, or the rights of Activepackets or another user. We will have no liability to you for any deletion of your User Content. License Granted by You
Prices; Colors; Availability
All prices listed in the Apps are subject to change. In the event a product (including, but not limited to, flowers, plants, floral arrangements, fruits, sweets, and other gift products) is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right, prior to the acceptance of your order pursuant to our Order Acceptance Policy described below, to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
Order Acceptance Policy
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order. Your order is not accepted until we send you shipping information for the order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order) or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided.
For each product or service you order on any of the Sites, you agree to pay the price applicable for the product or service (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. Unless you and Activepackets have agreed to an alternate billing arrangement in writing signed by Activepackets, Activepackets will automatically bill your credit card submitted as part of the order process for such price. All prices are non-refundable. Without limiting other remedies, we reserve the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorney's fees, and court costs incurred in the collection of past due amounts.
Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the Products.
We shall automatically charge and withhold the applicable sales tax for orders from Pocket Flowers to be delivered to addresses within New York.
Shipping and Delivery
Activepackets, in conjunction with our service providers, will attempt to deliver a product on the requested delivery day. You acknowledge that requested delivery dates are non-binding estimates only and that you have no claim against us for any delays or early deliveries. We reserve the right to make deliveries in installments, which shall not relieve you from your obligation to accept and pay for remaining deliveries. Our service providers do not telephone prior to delivering packages, and we cannot guarantee the time of delivery. All products are deemed accepted upon our delivery of the product to you or your designated recipient's address.
Activepackets is not responsible for:
- Flowers, plants, fruits, sweets, gift products and preserved items delivered to incorrect addresses supplied by the sender.
- Unsuccessful deliveries arising from the recipient not being present at time of delivery at the address supplied by the sender.
- Decreased product quality due to an incorrect delivery address supplied by the sender, or a re-route requested by the sender.
- Product quality problems caused by improper handling by the recipient.
WHILE WE ENDEAVOR TO PROVIDE THE MOST ACCURATE, UP-TO-DATE INFORMATION AVAILABLE, OUR SITES (INCLUDING OUR SITE CONTENT) MAY BE OUT OF DATE OR INCLUDE OMISSIONS, INACCURACIES OR OTHER ERRORS. OUR SITES (INCLUDING OUR SITE CONTENT) ARE PROVIDED "AS IS" AND "AS AVAILABLE." WE DO NOT PROMISE THAT OUR SITES (OR SITE CONTENT OR SERVICES) WILL BE ERROR-FREE, TIMELY, SECURE, VIRUS FREE, OR UNINTERRUPTED, OR THAT THE USE OF OUR SITES (OR SITE CONTENT) WILL PROVIDE ANY SPECIFIC RESULTS.
EXCEPT FOR THE LIMITED GUARANTEE PROVIDED ABOVE IN THIS SECTION, WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, GUARANTEES, WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO OUR SITES (INCLUDING OUR PRODUCTS, SERVICES, AND SITE CONTENT) INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ACCURACY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You may have other rights which vary from jurisdiction to jurisdiction. If applicable law requires any warranties with respect to the products or services, all such warranties are limited to the duration of the applicable express guarantee above.
Limitation of Liability
YOU AGREE THAT, EXCEPT AS EXPLICITLY SET FORTH HEREIN, ACTIVEPACKETS, ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, LICENSORS, AND SUPPLIERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING TYPES OF DAMAGES RELATED IN ANY WAY TO OUR RELATIONSHIP WITH YOU (INCLUDING OUR PRODUCTS, SERVICES, OR SITE CONTENT) OR THIRD-PARTY MATERIALS OR WEB SITES: INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, RELATED TO OUR PRODUCTS OR YOUR ACCESS TO, AND USE OF, OUR SITES OR ANY OTHER HYPER-LINKED THIRD PARTY WEB SITE, EVEN IF WE HAVE BEEN ADVISED OF, OR ARE AWARE OF, THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE ANYTHING TO THE CONTRARY, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED IN ANY WAY TO OUR RELATIONSHIP WITH YOU (INCLUDING OUR PRODUCTS, SERVICES, OR SITE CONTENT), OR THIRD-PARTY MATERIALS OR WEB SITES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID TO ACTIVEPACKETS FOR THE APPLICABLE TRANSACTION GIVING RISE TO THE LIABILITY, OR, IF THERE IS NO PAID TRANSACTION RELATED TO THE LIABILITY, THE LESSER OF THE AMOUNTS PAID BY YOU TO ACTIVEPACKETS IN THE PRIOR TWELVE (12) MONTHS AND FIFTY DOLLARS ($50).
Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent of applicable law.
Basis of Bargain
THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN ACTIVEPACKETS AND YOU. ACTIVEPACKETS WOULD NOT BE ABLE TO PROVIDE THE SITES (INCLUDING THE PRODUCTS, SERVICES, AND SITE CONTENT) ON AN ECONOMICALLY ACCEPTABLE BASIS WITHOUT SUCH LIMITATIONS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF ACTIVEPACKETS' SUPPLIERS.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Notwithstanding the foregoing, to the extent the Dispute arises from a violation of your or Activepackets's intellectual property rights in any manner, both parties agree that the non-infringing party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the "Governing Law" section below, and both parties consent to exclusive jurisdiction and venue in such courts.
Waiver of Class Arbitration: To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise ("Class Arbitration"). You further acknowledge and agree that any arbitrator assigned to a Dispute lacks the authority to conduct Class Arbitration and that such arbitrator shall only hear individual Disputes. By using the Sites, you acknowledge that you are voluntarily and knowingly waiving any right to participate as a representative or member of any class of claimants pertaining to any Dispute subject to arbitration under these Terms and Conditions, such that you shall not be entitled to arbitrate any Dispute as a representative, a class action or in a private attorney general capacity.
Governing Law: These Terms and Conditions and all Disputes shall be governed in all respects by the laws of the State of California, consistent with the Federal Arbitration Act, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. Further in any arbitration, both parties agree the arbitrator shall honor claims of privilege and privacy recognized under California law.
Enforcement of Arbitration Award: The arbitrator's award shall be final and binding on all parties subject to these Terms and Conditions, and may be entered as a judgment in any court of competent jurisdiction.
Severability: If any portion of this "Dispute Resolution" section (with the exception of your Waiver of Class Arbitration) is deemed invalid or unenforceable by any arbitrator or court of competent jurisdiction, the invalid or unenforceable portion shall be severed and removed from the Terms and Conditions, and the remaining portions (including your Agreement to Arbitrate Disputes) shall remain binding on you and Activepackets.
However, if any arbitrator deems your Waiver of Class Arbitration to be invalid or unenforceable, then this entire "Dispute Resolution" section shall be null and void. Under such circumstances, you expressly acknowledge and agree that: (i) all Disputes shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions; (ii) all Disputes shall be resolved by a state or federal court located in the county of San Diego, California; and (iii) you will submit to the personal jurisdiction of such California state or federal courts for the purposes of litigating such Disputes.
Put differently, you agree that your Waiver of Class Arbitration cannot be severed from your Agreement to Arbitrate Disputes. Unless otherwise agreed to in writing, you expressly acknowledge and agree that it is your intent and the intent of Activepackets not to proceed with any Dispute by way of Class Arbitration.
Outside the United States
We make no representations that the Site Content is appropriate for access outside the United States. Those who choose to access any one of our Sites from outside the United States do so on their own initiative and are responsible for compliance with local laws. If any provision within the Terms and Conditions is held to be invalid or unenforceable, such provision shall be struck and all remaining provisions shall be enforced.
By using any one of our Sites, you agree to indemnify and hold Activepackets, its subsidiaries, affiliates, officers, agents and other partners and employees, harmless from any loss, liability, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of such Site, including providing a link to another site or any User Content or your violation of these Terms and Conditions.
If any provision of the Terms and Conditions is held to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect and the invalid, void, or unenforceable provision shall be deemed modified so that it is valid and enforceable to the maximum extent permitted by the law.
Other General Provisions
Section titles in the Terms and Conditions are for convenience and do not define, limit, or extend any provision of the Terms and Conditions. As used herein, the term "including" means "including without limitation". Our failure to enforce any right or provision shall not operate as a waiver of such right or provision. Neither party is the agent or partner of the other party. These Terms and Conditions may not be assigned by you without our prior written consent and any attempted assignment in violation of the foregoing shall be null and void. We may assign any of our rights under these Terms and Conditions without your prior written consent, to any third party. The terms of these Terms and Conditions shall be binding upon permitted assignees.
If you have any questions about this Agreement, please contact us as firstname.lastname@example.org