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.
a. Establishing an Account
b. Use of Account
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
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”).
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.
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.
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
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]
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
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.
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 your credit or debit card, or that you will pay the Payment using another payment method approved by gardenUP. You further acknowledge and agree that you are responsible and liable for any fees, including attorneys’ fees and collection costs, that gardenUP may incur in its efforts to collect any unpaid balances from you. If you have any questions regarding billing, please contact us at [email protected]
i. Plant and Installation Services Ordered
If you order both plants and Installation Services from gardenUP, one-third (1/3) of the Payment will be processed at the time your plant order is delivered to the delivery address provided on your Account and the remaining two-thirds (2/3) of the Payment will be processed upon completion of the Installation Services.
ii. Plants Ordered
If you order only plants from gardenUP, your entire Payment will be processed at the time your plant order is delivered to the delivery address provided on your Account.
7. Limited Warranties; Disclaimer of Warranties
gardenUP warrants plants to be true to name and in healthy growing condition when delivered and/or installed. Once delivered or installed, as applicable, it is your responsibility to properly care for the plants. We warrant plants purchased through gardenUP (1) for thirty (30) days from the delivery or Installation Services completion date, as applicable; or (2) sixty (60) days from the Installation Services completion date in the event the plant is installed at a site with a pre-existing irrigation system that provides proper watering for the plant. 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 gardenUP, we warrant the plants for the term of the maintenance agreement, without limitation on replacement. Notwithstanding anything to the contrary in this Section 7, you acknowledge and agree that gardenUP assumes no liability for plants killed or damaged by pests, insect infestation, abnormal weather conditions, abuse, neglect or other conditions beyond gardenUP’s control, nor will gardenUP replace plants experiencing “seasonal die-back” when pruning and proper care will restore them to health. Moving plants from their original installation site voids this limited warranty.
EXCEPT FOR THE EXPLICIT WARRANTIES PROVIDED IN THIS SECTION 7 OF THESE TERMS OF SERVICE, gardenUP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDNG THE PLANTS SOLD BY gardenUP, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Gift Cards
. When you purchase a Gift Card, we will send an email to the Gift Card recipient that can be used to redeem the Gift Card. The Gift Card recipient will be required to create an Account in order to purchase plants, Services and other products through the gardenUP Site. Gift Cards are not refundable or redeemable for cash, unless otherwise required by applicable Law. Gift Cards shall expire on the seventh (7th) anniversary of their purchase,unless otherwise required by applicable Law, and any unused balance will be placed in the Gift Card recipient’s Account. If you need assistance with respect to a Gift Card, please contact Customer Service at [email protected]
Should you have any feedback or complaints (collectively, “Feedback”) regarding the Services, please submit your Feedback in writing to [email protected]
. Feedback is non-confidential and shall become the sole property of gardenUP. gardenUP shall own exclusive rights, including without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial otherwise, without acknowledgment or compensation to you.
10. Entire Agreement
, the Terms of Service shall control.
If any provision of these Terms of Service is deemed invalid, void or unenforceable for any reason, the enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed to be restated to reflect the parties' original intentions as nearly as possible in accordance with applicable Law.
12. Modification of Terms of Service
You acknowledge and agree that gardenUP may, in its sole discretion and without providing notice thereof, modify, add or remove any portion of these Terms of Service at any time and in any manner, including the terms relating to your Account, by posting revised Terms of Service on the gardenUP Site. Should gardenUP modify these Terms of Service in any respect, the Effective Date at the beginning of these Terms of Service will be updated to reflect the effective date of such modifications. It is your responsibility to check periodically for any changes we may make to the Terms of Service. Your continued use of the gardenUP Site after any changes to the Terms of Service shall be deemed conclusive evidence of your acceptance of such changes. In addition, gardenUP may discontinue or revise any or all aspects of the Services without providing prior notice to you. You may not amend or modify these Terms of Service under any circumstances.
Notwithstanding anything to the contrary contained in these Terms of Service, gardenUP reserves the right, without notice and in its sole discretion, to terminate your right to access or use the gardenUP Site and to order, receive plants, Services, or other products at any time and for any or no reason, and you acknowledge and agree that gardenUP shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts you have already paid to gardenUP for plants delivered or completed Installation Services, to the fullest extent permitted by applicable Law.
14. Effect of Termination; Survival
All provisions hereunder that impose or contemplate continuing obligations or rights will survive the expiration or termination of these Terms of Service and the termination of your Account.
15. Dispute Resolution
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 19 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.
16. Governing Law; Venue
These Terms of Service shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law principles. In the event of any dispute or claim relating to the gardenUP Site, the Services or these Terms of Service, you agree that exclusive jurisdiction for any such dispute or claim resides in those state or federal courts located in Boston, Massachusetts.
YOU AND gardenUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS 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 SERVICE, THE gardenUP SITE, OR gardenUP PLANTS, SERVICES, OR OTHER PRODUCTS YOU PURCHASE THROUGH THE gardenUP SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
17. Limitation of Liability and Damages
gardenUP AND ANY THIRD PARTIES MENTIONED ON gardenUP 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 gardenUP SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE gardenUP SITE, ANY LINKED WEBSITE, AND/OR ANY PLANTS, SERVICES, OR OTHER PRODUCTS YOU PURCHASE THROUGH THE gardenUP 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 gardenUP TO YOU WITH RESPECT TO YOUR USE OF THE gardenUP SITE OR gardenUP PLANTS, SERVICES, OR OTHER PRODUCTS YOU PURCHASE THROUGH THE gardenUP IS FIVE HUNDRED DOLLARS ($500).
These Terms of Service, and any rights granted hereunder, may not be transferred or assigned by you without the prior written consent of gardenUP. No waiver of any provision of these Terms of Service shall constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and gardenUP’s failure or delay to enforce its rights or a provision hereunder shall in no way constitute a waiver of such right or provision.