Last Modified on February 1, 2017
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
1. AMENDMENTS AND CHANGES
2. PRIVACY STATEMENT
By using the Site, you represent that you have read and consent to our Privacy Statement which is incorporated into this Agreement by this reference. My Little Posy may revise the Privacy Statement at any time, and the new versions will be available at the above link. If at any point you do not agree to any portion of the Privacy Statement, you must immediately stop using the Site and not renew your subscription service. Without limiting the foregoing, you authorize us to share your information with third parties PayPal, Braintree. We strongly advise you to read each of their privacy policies.
3. COPYRIGHTS AND TRADEMARKS
The images and other materials on the Site belong to or are licensed to My Little Posy. The materials are protected by United States and foreign copyright laws. “My Little Posy” and the graphics included in the logo are trademarks protected by United States and foreign trademark laws. You agree not to use any of My Little Posy trademarks without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of the Site or its design, without our prior written consent, especially to start your own floral business. You further agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site, without receiving our prior written permission. If you use the images, materials or trademarks on the Site in a way that is not allowed by this Agreement, you are violating the Agreement and may also be violating copyright, trademark, and other laws. In that case, we automatically revoke your permission to use the Site. Title to the materials remains with us or with the authors of the materials contained on the Site. All rights not expressly granted are reserved.
4. LIMITED LICENSE
Subject to your compliance with the terms and conditions of this Agreement, My Little Posy grants you a non-exclusive, non-sub licensable, revocable as stated in this Agreement, non-transferable license to use the Site. Neither the Site, nor any portion of the My Little Posy’s services, may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of My Little Posy. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of My Little Posy or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.
5. ELIGIBILITY AND ACCOUNTS
You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside, and are at least 18 years of age. Children under the age of 18 are not allowed to use the Site.
To access certain portions of the My Little Posy Services, you may be required to create an account through the Site (an “Account”). You agree that you shall not create an Account or use the Site if you (i) are under the age of 18, (ii) if you have previously been removed by My Little Posy or banned from using the My Little Posy services, (iii) already have an Account with My Little Posy, (iv) are located in a country embargoed by the United States or (v) are on the U.S. Treasury Department’s list of Specially Designated Nationals.
5.3. ACCOUNT SECURITY.
You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify My Little Posy immediately if you believe that your Account username and/or password have been compromised.
5.4. ACCOUNT SUSPENSION.
My Little Posy reserves the right to permanently suspend or terminate your Account and
your access to the Site or seek appropriate injunctive or monetary relief if it suspects that you have violated any part of the Agreement.
6. LINKS TO OTHER WEBSITES
The Site may contain links to websites operated by other parties. My Little Posy provides these links to other websites as a convenience, and use of those sites is at your own risk. The linked sites are not under the control of My Little Posy, and My Little Posy is not responsible for the content available on the other sites. Such links do not imply My Little Posy’s endorsement of information or material on any other site and My Little Posy disclaims all liability with regard to your access to and use of such linked websites.
7. FEES AND PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, PayPal, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice, to (i) discontinue or limit the available quantity of any product or aspect of the Site, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; and (iii) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Site, you (a) agree to pay the price for such products set forth in the Site, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize My Little Posy to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
Payment can be made by credit card, debit card, or through PayPal. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor (including Braintree) are solely your responsibility.
If you purchase a subscription for repeated deliveries, then you hereby authorize My Little Posy to bill your credit card for the amounts and at the intervals described on our Site (or at approximately those intervals, to accommodate for holidays and other irregularities), until the end of the subscription period, or indefinitely if you decide to purchase an open-ended subscription. In cases where your credit card expires, is cancelled, is over the limit, or is otherwise declined for any reason, we will not continue to deliver bouquets or renew your subscription, though we may, but are not obligated to, contact you to notify you of the issue.
My Little Posy provides a discount for referrals, as well as a discount for subscription plans. These promotions may be altered by information published on our Site, and if any information is conflicting, the terms most beneficial to My Little Posy shall prevail and take effect. My Little Posy may refuse to provide such discounts for any reason including, but not limited to, fraud, mistake on the part of our publication of information, actual or expected financial hardship, sale of all or part of our business, or any other reason at My Little Posy ‘s sole discretion. Discounts, Promotions, and Store Credits of any kind may not be combined unless at the sole discretion of My Little Posy. Discounts or other financial benefits given in reward for referring other users to us may be considered a taxable benefit by any revenue agency having jurisdiction over you, which you are solely responsible for, and you should consult an accountant and/or tax attorney in your jurisdiction to determine your tax liabilities incurred as a result of participating in our referral program. Should a user abuse the referral program through fraudulent activities such as referring oneself, creating multiple accounts or other such tactics which constitute theft and/or fraud, My Little Posy may notify the authorities and you may be prosecuted under statutes including 18 U.S.C. § 506 No Electronic Theft Act, 18 U.S.C. § 1029 Fraud and Related Activity in Connection with Access Devices, 18 U.S.C. § 1030 Fraud and Related Activity in Connection with Computers, or other similar laws or statutes. My Little Posy reserves the right to charge any payment method on file the full retail price of all deliveries under any account deemed to be fraudulent, and these charges may include any amounts previously discounted in a previous promotion.
If a subscription plan is cancelled after only 1 delivery My Little Posy may charge a $5 cancellation fee.
7.3. RETURN AND REFUND POLICY.
Except as provided for replacement bouquets below, there are no refunds or returns for the floral goods purchased on the Site. All sales are final. You may receive a replacement bouquet only if: (1) you complete a request form at www.mylittleposy.com/en/contact-us within three calendar days of the delivery date, (2) the wrong item was delivered, or if a bouquet is delivered after the delivery date or never delivered at all, and (3) if the bouquet arrived in substandard condition, then (i) a photograph of the bouquet must be attached to the customer service request within 2 days of the delivery at www.mylittleposy.com/en/contact-us or email@example.com, and (ii) you must have chosen the “Indirect Signature Required” delivery method, and (iii) someone must have been present to take delivery of the bouquet upon arrival, as indicated by the carrier. Replacement bouquets cannot be transferred for value, delivered on a later date more than 1 week after the request, or redeemed for cash.
My Little Posy will make exceptions on a case by case basis. Any refunds will be made minus any promotional discounts/coupons used.
7.4. CHANGES TO PRODUCTS AND PRICING.
My Little Posy may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold through the Site. The inclusion of any products through the Site at a particular time does not imply or warrant that these products will be available at any other time. My Little Posy reserves the right to change prices for products displayed on the Site, or the Site, at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new product prices to the Site.
My Little Posy is in the business of providing very fresh, seasonal flowers. If that morning’s market does not yield a particular flower pictured on the Site or social media, we will replace that flower with another flower of like color, size and price.
7.5. ORDER ACCEPTANCE/CONFIRMATION.
Once we receive your order, we’ll provide you with an email order confirmation. Your receipt of an order confirmation, however, does not signify My Little Posy’s acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. My Little Posy reserves the right at any time after receiving your order to accept or decline your order for any reason. If My Little Posy cancels an order after you have already been billed, then My Little Posy will refund the billed amount.
7.6. DELIVERY OF PRODUCTS.
All orders are delivered using My Little Posy’s delivery team or another third party courier. Delivery is not available on Saturdays, Sundays, Public holidays, or days when My Little Posy shuts down operations. Prior announcements will be made to inform of the operation shut down. Online tracking is not available. All deliveries are scheduled by a 7pm arrival, though we cannot guarantee delivery by any specific time. We strongly encourage recipients to be at the delivery location to receive the flowers as flowers that remain outside are more likely to wilt and die.
My Little Posy offers one delivery option: (1) No Signature Required. My Little Posy strongly encourages the No Signature Required option to ensure safe and fresh delivery.
No Signature Required means that My Little Posy will leave the package at the address whether the recipient or another person is available or not. My Little Posy cannot guarantee freshness and cannot provide replacements or refunds based on flower quality or freshness. Without the signature provided, we cannot be sure that the package was delivered at the correct time and place, or that the flowers were treated as is needed to maintain quality. My Little Posy cannot be held responsible or liable for product quality or longevity.
Delivery is free for customers who are in our delivery zone.
In the event an incorrect address was given by the sender to My Little Posy, there will be a $20 redelivery charge in order to deliver the bouquet to a 2nd address. 3 attempts (phone call, text, and e-mail) will be made by My Little Posy to inform the sender of the wrong address and to collect the redelivery charge. If the $20 redelivery charge is not collected immediately from the sender (within 1 day), the bouquet will be held by My Little Posy for 3 days and no refunds will be given. After 3 days the bouquet will be disposed of. My Little Posy will not be held liable for typos, wrong addresses, non payment of the $20 redelivery charge, and non communication from the sender.
7.7. NO DELIVERY TO CHILDREN.
In furtherance of My Little Posy’s policy of not collecting personal information from children under the age of 18, users are not allowed to give My Little Posy the personal information of any children under the age of 18 for delivery or shipping purposes or any other reason.
My Little Posy will make exceptions on a case by case basis.
7.8. TYPOGRAPHICAL ERRORS.
In the event a product 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 to refuse or cancel any orders placed for the product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card or PayPal account charged. If your credit card or PayPal account 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.
The Site is operated by My Little Posy in the United States. Those who choose to access the Site from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
9. DISCLAIMER OF WARRANTIES
THE SITE, THE PRODUCTS OFFERED FOR SALE ON IT, AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE SITE MAY INCLUDE INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
MY LITTLE POSY DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU AGREE THAT MY LITTLE POSY SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
10. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MY LITTLE POSY, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, EVEN IF MY LITTLE POSY AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING PAYPAL OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND PAYPAL, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY (SUCH AS OUR COURIER), INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY, OR WHICH DELAY OR PREVENT THE DELIVERY OF OUR GOODS TO YOU.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF MY LITTLE POSY OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of My Little Posy and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and defend My Little Posy and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, network service providers, business partners and licensors at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by My Little Posy arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of personal or confidential information or (b) use or misuse of the Site.
12. DISPUTE RESOLUTION AND GOVERNING LAW
This Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of Arizona, without regard to conflict of law principles. Except as provided in Section 13 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site shall be subject to the exclusive jurisdiction of the state and federal courts located in The United States District Court in the District of Arizona, and you agree to submit to the personal jurisdiction and venue of such courts. You are responsible for compliance with all local laws if and to the extent local laws are applicable.
13. BINDING ARBITRATION
(a) Arbitration Procedures. You and My Little Posy agree that, except as provided in Section (d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail.
Except as otherwise set forth in Section (d) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and My Little Posy may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND MY LITTLE POSY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(b) Location. The arbitration will be conducted in Phoenix, Arizona, unless the parties agree to video, phone and/or internet connection appearances.
(c) Limitations. You and My Little Posy agree that any arbitration shall be limited to the Claim between My Little Posy and you individually. YOU AND MY LITTLE POSY AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
(d) Exceptions to Arbitration. You and My Little Posy agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or My Little Posy’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
(e) Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
(f) Severability. You and My Little Posy agree that if any portion this Section is found illegal or unenforceable (except any portion of Section (d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section (d) is found to be illegal or unenforceable, then neither you nor My Little Posy will elect to arbitrate any Claim falling within that portion of Section (d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Phoenix, State of Arizona, United States of America, and you and My Little Posy agree to submit to the personal jurisdiction of that court.
14. TERM AND TERMINATION
This Agreement is effective until terminated. My Little Posy may terminate this Agreement with or without notice for any reason, or for no reason. You may terminate this agreement by discontinuing your use of the Site and notifying My Little Posy by emailing: firstname.lastname@example.org
Agreement Revisions. This Agreement may only be revised in writing by My Little Posy, or published by My Little Posy on the Site.
Force Majeure. My Little Posy shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of My Little Posy, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond My Little Posy’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and My Little Posy as a result of this Agreement or your use of the Site.
Assignment. My Little Posy may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without My Little Posy’s prior written consent, and any unauthorized assignment by you shall be null and void.
Severability. If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion shall be severed, and the remainder of the Agreement shall be given full force and effect.
Attorneys’ Fees. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Equitable Remedies. You hereby agree that My Little Posy would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.
16. NOTICE TO CALIFORNIA USERS AND RESIDENTS.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding My Little Posy or the Site, please send an email to email@example.com
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by telephone at (916) 445-1254 or (800) 952-5210, or by postal mail at:
California Department of Consumer Affairs
1625 North Market Blvd.
Sacramento, CA 95834
17. ACKNOWLEDGEMENT AND AGREEMENT