TERMS & CONDITIONS
FLOURISH PLANT LLC
Flourish Plant, Inc. ("Flourish", "us" or "we") is the operator of the www.flourishplant.com site (the "Site"), and the provider of Flourish Plant’s subscription houseplant care products (collectively, the "Products and Services"). These terms and conditions, together with any documents they expressly incorporate by reference (collectively the "Terms"), govern your access and use of the Site and the Products and Services offered on or through the Site.
THESE TERMS CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY BEFORE YOU CONSIDER PURCHASING OUR PRODUCTS AND SERVICES AS THEY AFFECT YOUR LEGAL RIGHTS.
By purchasing our Products and Services, you acknowledge that you have read, understood and agreed to be bound and abide by the Terms. If you do not agree to these Terms, you should not use or access this Site or purchase our Products and Services.
1. Use of the Products and Services
We grant you a personal, limited, non-transferable, non-exclusive license to access and use the Products and Services. We reserve the right, in our sole discretion, to revise our Products and Services and to change, suspend or discontinue any aspect of the Products and Services and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on the use of the Site or restrict your access to part, or all, of the Products and Services without notice or penalty. Your continued use of the Products and Services will constitute your acceptance of any such changes.
You are responsible for your use of the Site and the Products and Services, and we specifically prohibit any use of the Site or the Products and Services, for any of the following purposes: (i) engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation; (ii) attempting to interfere in any way with the Site, or Flourish’s network security, or attempting to use the Site to gain unauthorized access to any other computer system or network; and (iii) using the Site or the Products and Services to drop ship merchandise to third parties.
You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download or otherwise reproduce, store or distribute content available on the Site. Further, you may not use any such automated means to manipulate the Products and Services, such as automating what are otherwise manual or one-off procedures. You may not take any action to interfere with, or disrupt, the Products and Services or any other user's use of the Products and Services, including, without limitation, via means of overloading, "flooding," "mailbombing" or "crashing" the Site, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms. You may not frame portions of the Site within another web site. You may not resell use of, or access to, the Site or the Products and Services to any third party.
2. Registration and Passwords
We have the right to disable any user name, access code, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. As part of our order processing procedures, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity.
3. Site and Products and Services Not for Minors
4. Billing and Payments
You must provide us with one or more Payment Methods. "Payment Method" means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party.
The subscription fee for the Products and Services and any other charges you may incur in connection with your use of the Products and Services will be charged to your Payment Method on the specific billing date indicated on your "Account" page. You may visit your Account page to see your next payment date. You authorize us to charge your Payment Method in anticipation of subscription membership or Product and Service-related charges or any other charge you may incur in connection with your use of the Products and Services.
You authorize us to charge any Payment Method associated with your Account in case your primary Payment Method is declined or no longer available to us. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, we may suspend or cancel your access to the Products and Services until we have successfully charged a valid Payment Method. You can update your Payment Methods by going to the "Account" page. You also authorize us to update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s).
We reserve the right to change the fees charged for our Products and Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any fee changes or changes to your subscription will take effect following notice to you.
We use Shopify Payments in lieu of directly processing your credit card information. By submitting your credit card information, you grant Flourish the right to store and process your information with Shopify Payments (subject to their own terms and conditions at https://www.shopify.com/legal/terms) or any other third party payment service provider we use, which may change from time to time; you agree that Flourish will not be responsible for any failures by Shopify Payments, or any other third party payment service provider we use to process payments, to adequately protect such information.
By making a subscription purchase on flourishplant.com, you are enrolling in Flourish Plant’s houseplant fertilizer subscription plan which provides 4 shipments per year. Every three months from your date of purchase, your card on file will be charged based on your subscription plan. Charges for your plan will be charged based on your purchase date. If you do not wish to continue your subscription, please contact email@example.com or via your account on or before your subscription refill date.
You can cancel the Products and Services at any time, and you will continue to have access to the Products and Services through the end of your billing period. To cancel, go to the "Account" page on our Site and follow the instructions for cancellation. If you cancel your subscription, your Account will automatically close at the end of your current billing period. Fees are nonrefundable and there are no refunds or credits for partial periods.
6. Shipping and Risk of Loss
Unless otherwise indicated at the time of your purchase, shipping and handling fees are included with your order. Shipping dates and/or arrival times are only estimates. For loss/damage claims, you must notify Flourish within 30 days of the date of your purchase if you believe all or part of your order is missing or damaged at firstname.lastname@example.org.
Replacement of Products and Services and credits to your account for shipped merchandise claimed as not received are subject to our investigation, which may include postal-service notification. We will adjust your account at our discretion. Repeated claims of undelivered merchandise may result in the cancellation of your membership.
7. Referral Program
Registered Flourish customers may be eligible for a referral credit when they share their personalized referral link and the referred customer completes his or her first purchase. To qualify for the credit, the referred customer must be a new Flourish customer and click on the referrer’s unique link, create a new Account, and place an order for subscription via the Site. The use of the referral link cannot be used with any other offer or promotional code. Referral credit is granted as Flourish "store credit" to the referrer’s account once all items in the referred customer’s first order have shipped. The credit is non-transferable and will be automatically redeemed at the Flourish customer's next purchase or next subscription billing.
We reserve the right to review, investigate, and remove referral credit as well as suspend users or accounts in instances we identify behavior we believe to be abusive, fraudulent, or not aligned with the spirit of the program, such as:
- Attempts to gain credit through self-referral by opening multiple accounts using different email addresses or by adding identical payment methods to multiple accounts
- Credit gained by referring customers through paid advertising, sponsored links, posting to commercial sites, or spamming
- Violation of these Terms
- If referred cancels their purchase before their first box is shipped, their purchase will no longer count toward your successful referrals, and the credit will be reversed.
We reserve the right to suspend our referral program at any time. If we remove the links to your referral codes, you may not receive referral credit for new people completing their first purchases with us anymore.
You’re encouraged to share your referral link with friends and family and through social media outlets. However, you must not, without permission, include Flourish’s trademarks or engage in activity that may be regarded as misleading to Flourish customers.
8. Other Promotions
We reserve the right to refuse, suspend, or revoke promotional offers at any time.
9. Product Information; Limitation on Quantities.
All descriptions, images, references, features, content, specifications, products, and prices of products and Products and Services described or depicted on the Site are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or Products and Services on the Site does not imply or warrant that these products or Products and Services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from this Site. By placing an order, you represent that the products ordered will be used only in a lawful manner. Flourish reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all transaction(s); and (iv) refuse to provide any user with any product or service.
10. Proprietary Rights
You acknowledge and agree that the content, materials, text, images, videos, graphics, trademarks, logos, button icons, music, software and other elements available on the Site and within the Products and Services are the property of Flourish or our licensors and are protected by United States and international copyright, trademark and/or other intellectual property or proprietary rights and laws. These Terms permit you to use the Products and Services for your personal, non-commercial use only. You agree not to sell, license, rent, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, modify or create derivative works from any content or materials on the Site or the Products and Services.
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and you agree that we bear no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
11. User Content
"User Content" of the Site’s user means any and all information and content, including photographs, that such user submits to Flourish by any means, including through social media (e.g., Facebook, YouTube, Instagram, Pinterest, Twitter), uses with the Site (e.g., a user profile, product review, question & answer), or when you otherwise interact with Flourish (e.g., when you call customer service, send us emails). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby affirm, represent, and warrant that (a) you own, or have the necessary licenses, rights, and/or consents to use your User Content with the Site as described herein and (b) your User Content does not violate the Acceptable Use policy in these Terms. You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by Flourish. Because you alone are responsible for your User Content (and not Flourish), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use policy. Flourish is not obligated to backup any User Content, makes no representation that it will do so, and you agree that Flourish may delete User Content at any time.
By submitting your User Content or using it with the Site , you automatically grant, and you represent and warrant that you have the right to grant, to Flourish an irrevocable, nonexclusive, royalty-free and fully paid worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site, Flourish social media platforms or marketing or promotional initiatives. You agree to irrevocably waive (and cause to be waived) any claims and assertions of publicity or moral rights, or attribution with respect to your User Content.
You assume all responsibility and risk with respect to your use of the Site or the Products and Services. THE SITE, THE PRODUCTS AND SERVICES, AND ALL CONTENT, MERCHANDISE, AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THIS SITE OR A "LINKED" SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY. SPECIFICALLY, BUT WITHOUT LIMITATION, FLOURISH DOES NOT WARRANT THAT: (1) THE INFORMATION ON THIS SITE OR WITH THE PRODUCTS AND SERVICES IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKE THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Flourish makes no warranties of any kind regarding any non-Flourish sites to which you may be directed or hyperlinked from this Site. Hyperlinks are included solely for your convenience, and Flourish makes no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such non-Flourish sites. Flourish does not endorse, warrant or guarantee any products or Products and Services offered or provided by or on behalf of third parties on the Site.
Any information provided by us regarding the Products and Services (e.g. product descriptions or instructions) is for informational purposes only. Use of the Site or the Products and Services is not meant to serve as a substitute for professional advice. You should read and strictly follow all product labels, packaging inserts and instructions and all manufacturer directions and warnings and seek independent professional advice when appropriate.
You agree to indemnify, hold harmless, and defend Flourish, its parent, subsidiaries, divisions, and affiliates, and their respective officers, directors, employees, agents and affiliates from any and all claims, liabilities, damages, costs and expenses of defense, including attorneys’ fees, in any way arising from or related to your use of the Site or the Products and Services, your violation of these Terms, or your violation of any law or the rights of a third party.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FLOURISH, ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES, OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR WITH THE PRODUCTS AND SERVICES BE LIABLE TO ANY USER OF THE SITE OR THE PRODUCTS AND SERVICES OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR THE PRODUCTS AND SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT OR TORT (NEGLIGENCE), EVEN IF FLOURISH HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF FLOURISH, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR THE PRODUCTS AND SERVICES TO YOU FOR ANY DIRECT DAMAGES, EXCEED THE AMOUNT YOU PAID TO FLOURISH IN CONNECTION WITH THE EVENT GIVING RISE TO SUCH LIABILITY.
15.1 U.S. Use Only. We control and operate the Products and Services from the United States. We provide this Site and Products and Services for use only by persons located in the United States. We make no representation that materials on the Site or the Products and Services are appropriate or available for use outside the United States. If you choose to access this Site or the Products and Services from outside the United States, you do so at your own risk and are responsible for compliance with local laws, if and to the extent local laws are applicable.
15.2 Waiver; Remedies. The failure of Flourish to partially or fully exercise any rights or the waiver of Flourish of any breach of these Terms by you shall not prevent a subsequent exercise of such right by Flourish or be deemed a waiver by Flourish of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Flourish under these Terms and any other applicable agreement between you and Flourish shall be cumulative, and the exercise of any such right or remedy shall not limit Flourish’s right to exercise any other right or remedy.
15.3 Governing Law. All matters related to the Site, the Products and Services and these Terms shall be governed and constructed in accordance with the laws of the State of Texas without regard to conflict of laws provisions.
15.4 Disputes. Any dispute relating in any way to your visit to, or use of, the Site or the Products and Services or to your relationship to Flourish ("Claims") shall be exclusively submitted to confidential and binding arbitration in Travis County, Texas, including based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims; provided, however, that to the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Texas. You hereby waive any objections based on venue, forum, or forum non conveniens. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. The arbitrator shall apply Texas law consistent with the Federal Arbitration Act. YOU SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS OR TO ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with these Terms, in which case these Terms will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your customer account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but the prevailing party may recover any or all expenses from the other party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties. ANY CLAIM YOU HAVE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM ARISES. AS NOTED ABOVE, YOU AND FLOURISH HEREBY VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY TRIAL.
15.5 Changes of the Site or Products and Services. We may update the Products and Services from time to time. In addition, Flourish reserves the right to revise these Terms at any time by updating this posting; provided any material modifications will only be applied prospectively. Any changes to the Terms will be in effect as of the "Last Updated Date" referenced on the Site. You are encouraged to review these Terms each time you use the Site and prior to purchasing any Product and Service. Your continued use of the Site or the Products and Services after the posting of changes will constitute your acceptance of and agreement with such changes.