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. THE ROSEMAN 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 as Payment Service Providers, UPS and FedEx. 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 THE ROSEMAN. The materials are protected by the United States and foreign copyright laws. “THE ROSEMAN” and other marks and logos are trademarks protected by United States and foreign trademark laws. You agree not to use any of “THE ROSEMAN” 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, THE ROSEMAN grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Site. Neither the Site, nor any portion of the THE ROSEMAN services, may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of THE ROSEMAN. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of THE ROSEMAN , 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 THE ROSEMAN 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 THE ROSEMAN or banned from using the THE ROSEMAN Services, (iii) already have an Account with THE ROSEMAN, (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 THE ROSEMAN immediately if you believe that your Account username and/or password have been compromised.
5.4. Account Suspension.
THE ROSEMAN 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. THE ROSEMAN 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 THE ROSEMAN, and THE ROSEMAN is not responsible for the content available on the other sites. Such links do not imply “THE ROSEMAN” endorsement of information or material on any other site and THE ROSEMAN 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, PSP´s, 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 THE ROSEMAN 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 a Payment Service Provider. Orders will not be processed until payment has been received in full, and any holds on your account at one of our Payment Service Providers are solely your responsibility.
If you purchase a subscription for repeated deliveries, then you hereby authorize THE ROSEMAN 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.
THE ROSEMAN 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 THE ROSEMAN shall prevail and take effect. THE ROSEMAN 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 THE ROSEMAN sole discretion. Discounts, Promotions, and Store Credits of any kind may not be combined unless at the sole discretion of THE ROSEMAN Company. 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, THE ROSEMAN Company 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. The THE ROSEMAN Company 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 THE ROSEMAN there are no charges of cancellation fees.
7.3. Return and Refund Policy.
Except as provided for replacement of flowers below, there are no refunds or returns for the floral goods purchased on the Site. All sales are final. You may receive a replacement of flowers only if: (1) you complete a request form at www.theroseman.com within three calendar days of the delivery date, (2) the wrong item was delivered, or if the flowers arrive in substandard condition, or if the flowers are delivered after the delivery date or never delivered at all, and (3) if the flowers arrived in substandard condition, then (i) a photograph of the flowers must be attached to the customer service request at www.theroseman.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 upon arrival, as indicated by the carrier. Replacement bouquets cannot be transferred for value or redeemed for cash.
7.4. Changes to Products and Pricing.
THE ROSEMAN 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. THE ROSEMAN 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.
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 THE ROSEMAN acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. THE ROSEMAN reserves the right at any time after receiving your order to accept or decline your order for any reason. If THE ROSEMAN cancels an order after you have already been billed, then THE ROSEMAN will refund the billed amount.
7.6. Shipment of Products.
Title and risk of loss for any purchases of physical products pass to you upon our delivery to one of our carriers. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment. Unless as a result of events outside of our direct control, orders of floral goods purchased by you through the Site will be delivered within the time period specified for the delivery method you have selected. All orders are shipped using a third party courier. The earliest delivery date available for an order is approximately ……..from the day that payment for the order is confirmed. Shipping is not available for delivery on ………... Online tracking is available at the couriers website, though we make no warranties regarding its availability because it is not under our control. All deliveries are scheduled for ……. 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.
The Roseman offers two delivery options: (1) Indirect Signature Required, and (2) No Signature Required. Indirect Signature Required means that the recipient, or someone at the location (or at an address close by) must sign for the package to be delivered. THE ROSEMAN strongly encourages the Indirect Signature Required option to ensure safe and fresh delivery.
No Signature Required means that the carrier will leave the package at the address whether the recipient or another person is available or not. Should a customer choose the No Signature Required option, THE ROSEMAN 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. If you choose the No Signature Required shipping method, then neither THE ROSEMAN nor the carrier can be held responsible or liable for product quality or longevity. Thus, THE ROSEMAN strongly encourages the use of Indirect Signature Required shipping.
Shipment is free for customers who have registered an Account with us for deliveries ………… through Friday. For customers without an Account a shipping fee is charged per product.
7.7. No Delivery To Children.
In furtherance of THE ROSEMAN’ policy of not collecting personal information from children under the age of 13, users are not allowed to give THE ROSEMAN the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
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 PSP account charged. If your credit card or PSP 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 THE ROSEMAN 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.
THE ROSEMAN 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 THE ROSEMAN 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, THE ROSEMAN , 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 THE ROSEMAN 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 PAYMENT SERVICE PROVIDERS OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND THE PAYMENT SERVICE PROVIDER, 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 SHIPPER), 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 THE ROSEMAN 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 The Bouqs and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and defend THE ROSEMAN 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 THE ROSEMAN 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 and is governed by, and will be construed under, the laws of the United States of America and the law of the State of Delaware , 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 ………………….(Determinar), 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 THE ROSEMAN 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 THE ROUSEMAN 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 THE ROUSEMAN WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(b) Location. The arbitration will be conducted in ……………………., unless the parties agree to video, phone and/or internet connection appearances.
(c) Limitations. You and THE ROSEMAN agree that any arbitration shall be limited to the Claim between THE ROSEMAN and you individually. YOU AND THE ROSEMAN 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 THE ROSEMAN 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 THE ROSEMAN’ 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 THE ROSEMAN 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 THE ROSEMAN 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 the County of …………s, State of Delaware, United States of America, and you and THE ROSEMAN agree to submit to the personal jurisdiction of that court.
14. Term and Termination
This Agreement is effective until terminated. THE ROSEMAN 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 THE ROSEMAN in writing.
Agreement Revisions. This Agreement may only be revised in writing by THE ROSEMAN, or published by THE ROSEMAN on the Site.
Force Majeure. THE ROSEMAN shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of THE ROSEMAN, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond THE ROSEMAN’ 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 THE ROSEMAN as a result of this Agreement or your use of the Site.
Assignment. THE ROSEMAN 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 THE ROSEMAN’ 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 THE ROSEMAN 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 ………..Civil Code Section…………, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding THE ROSEMAN or the Site, please send an email to ……………… You may also contact us by writing to:
THE ROSEMAN Company
Delaware residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the Delaware Department of Consumer Affairs by telephone at………………, or by postal mail at:
(Llenar en correspondencia con los datos de la Dirección de la compañía)
17. Acknowledgement and Agreement