Terms & Conditions
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Terms & Conditions
THE POSY TERMS AND CONDITIONS OF USE
THESE TERMS AND CONDITIONS (“Agreement”) are made and entered into by and, between You (“Client”, “You” or “Your”) and THE POSY, LLC a Florida limited liability company ("The Posy," the “Company, “We,” “Us,” or “Our”) with corporate offices at 9400 East Broadview Drive, Bay Harbor Islands, Florida 33154 establishing terms and conditions under which You will submit information to, and receive floral arrangements via delivery (each an “Arrangement” and collectively the “Arrangements”) and receive related services “Services” from The Posy via our website (www.theposyco.com) and mobile application (the “Application” or “Website”).
WHAT WE DO
The Posy is a company dedicated to providing unique Arrangements and simplifying Arrangement purchases and delivery. In addition, The Posy also provides Arrangements for events. Through the Website You will gain access to refreshing, unique Arrangements made specifically for You. Our Services include obtaining the freshest in-season flowers, designing and constructing the Arrangements, and delivering them. Our Arrangements will be slightly different every time You order, based on the seasonality of the flowers and what is available that day from our farmers and markets. We also give You the option to subscribe to our delivery Service weekly, bi-weekly, and monthly.
We may ask You (as a “User”) for personal information when You register for The Posy in order to create an Account. Creation of User Accounts are subject to certain specific terms and conditions as set forth below.
a. Misrepresentation. In the event that You misrepresent information about Yourself, Your Account is subject to suspension and cancellation without notice to You.
b. Account Information. You, as a User, must ensure that this information is accurate and current at all times. You shall not include in Your online identity or Account anything that could potentially infringe anyone’s rights or which is intended to confuse, or which is offensive, defamatory or otherwise inappropriate, as determined by us, in Our sole and absolute discretion. Users agree that they are each responsible for everything which is done on or through our Application through or in connection with their Account, while logged on as a User to our Application, or through their e-mail address(es). Users must ensure that the e-mail address we have on file is kept current and that You have full access to it. By using the Website or Application You expressly consent to electronic communications. Please note that all important and legal notifications from us will be sent by electronic communication. In order to create a User Account, You must certify that You are at least eighteen (18) years of age.
c. Cancellation of Your Account. You may cancel Your account at any time if there are no pending orders. In the event that there are pending orders, You may cancel the account once the order has been delivered. If You have a subscription, then You must first cancel the subscription within the specified time frame (as specified in the Subscriptions section) and subsequently cancel Your account.
d. Eligibility Criteria. The availability of all or part of Our Website or Application may be limited based on demographic, geographic, health or other criteria as we may establish from time to time. You understand and agree we may disallow You from subscribing to The Posy or may terminate Your subscription at any time based on these criteria.
e. Subscribing Organizations. If You are using or opening an account on behalf of a company, entity, or organization (a “Subscribing Organization”), then You represent and warrant that You are an authorized representative of that Subscribing Organization with the authority to bind such organization to this Agreement; and agree to be bound by this Agreement on behalf of such Subscribing Organization.
f. Account Information. You agree that the information You provide to The Posy at registration and at all other times will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. When You register, You will be asked to create a password. You are solely responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account. You may close Your Account at any time pursuant to the cancellation section of this Agreement.
The fee for the Arrangements (depending on the size and/or packages chosen) and taxes and delivery charges (“Fee”), are listed on the Website. When You place Your order, You hereby authorize The Posy to charge Your credit or debit card for the Fee displayed in Your confirmation page for the Fee. The Posy will charge Your credit or debit card the amount of the Fee immediately upon Your order. You hereby acknowledge and agree that The Posy may use a third party credit card processor which may have its own terms and conditions. The Posy does not accept any responsibility for actions taken by the third party processor. We may terminate this Agreement in the event that You fail to pay us the correct purchase or subscription price due and fail to remedy such outstanding payment within thirty (30) days of a written request to do so and reserve the right to pursue any recourse against You, at law or equity.
The Posy offers three types of subscriptions: weekly, bi-weekly and monthly. First time subscribers for any weekly subscription will be extended a 25% discount on their first thirty (30) days. The subscription will then automatically renew at the full rate at the end of the initial thirty (30) days. User will receive a reminder 7 days before the subscription is set to auto renew. In the event the User would like to modify the subscription, please refer to our modification and cancellations section for requisite notice. If You sign up for a subscription please note that You authorize The Posy to bill Your credit card in intervals to accommodate for delivery time, holidays, and other irregularities until You terminate Your subscription. User may alternatively prepay for a subscription for a set amount of months; subscriptions will automatically terminate at the end of the period that the User prepaid for. In the event Your credit card is declined, expired, over the limit or cancelled, We will immediately discontinue services and all amount due and owing shall be due immediately. We will send out a courtesy email for You to provide a new credit card if You would like to continue Your subscription.
The Posy may at any time change the pricing, availability, descriptions or features, of any Arrangements sold. We reserve the right to change pricing on Arrangements, deliveries and other Services at the sole discretion of The Posy. Such changes shall be effective immediately upon the posting of such new pricing. In the event a typographical error occurs on the Website or Application in pricing, description, or other information we reserve the right to refuse or cancel any orders placed for the product listed at the incorrect price or with the incorrect description. In the event the payment has already processed we will issue a credit to Your account for the amount paid.
Discounts, promotions and store credits may not be combined. Discounts on subscriptions may be altered from time to time as reflected in our terms and conditions. We may refuse to provide such discounts for any reason including but not limited to: mistake, fraud, inaccurate information, financial hardship, sale or transfer of part of all of the company, at Our sole discretion. We reserve the right without prior notice to (i) impose conditions or refuse to honor any coupons or promotions (ii) limit availability of any given product or Service.
Custom orders and event services are available. We request three to four weeks of advanced notice for events. Additional terms and conditions may apply, please contact email@example.com for more details.
MODIFICATIONS AND CANCELLATIONS
You may cancel Your order for an Arrangement for a full refund up until forty-eight (48) hours prior to the anticipated delivery date on Your confirmation email. Any cancellations not made within the forty-eight (48) hour window will not be awarded any refund whatsoever.
If the terms of Our Application permit the purchase of a subscription based program, unless paid for in full upfront, You authorize us to continue Your membership automatically, charged per delivery to the payment method provided until You notify Us in writing of Your cancellation within the following timeframe:
- Weekly Subscription: must cancel 72 hours prior to expected delivery date
- Bi-Weekly Subscription: must cancel 5 days prior to expected delivery date
- Monthly Subscription: must cancel 7 days prior to expected delivery date
Modifications such as shipping address, size, frequency are permitted but must be made within the following timeframe:
- Weekly Subscription: must modify 72 hours prior to expected delivery date
- Bi-Weekly Subscription: must modify 5 days prior to expected delivery date
- Monthly Subscription: must modify 7 days prior to expected delivery date
In the event a cancellation or modification is not received within the specified time frame then it will be applied to the next order.
a. Availability. The Posy does not guarantee any one particular flower, arrangement, or combination of flowers. Custom orders are available for an additional fee, please contact firstname.lastname@example.org for more information regarding custom orders. All Arrangements are at the sole discretion of the florist and pictures or colors shown on the Website or Application are meant only to show size and style.
b. Delivery Time. Delivery times presented in Your confirmation are meant only as estimates and are not guaranteed. If You require a guaranteed specific time frame additional fees may apply, requests for guaranteed times may be placed at email@example.com.
c. Territory. The Posy delivers to the territory specified in our “delivery map” (“Territory”). A request for deliveries outside of the Territory can be arranged, please email firstname.lastname@example.org for more information.
d. Receipt of Delivery. Upon delivery of Arrangements You bear full responsibility for an Arrangement You have ordered. By providing a shipping address other than Your own You represent that You have permission to use this address. A “Secure Shipping Address”, a location where an individual can physically receive Arrangements is highly recommended. In the event that a non-secure shipping address is provided, The Posy does not bear liability for Arrangements left unattended. Furthermore, providing a non-secure shipping address could result in the Arrangement being lost, stolen, damaged, deteriorating or additional delivery delays. The Posy does not bear liability for these potential risks. Deliveries will not be made to children under the age of 13. You authorize Us to share Your information with necessary third parties.
You may elect to include a handwritten note along with Your Arrangement (“Gift Messages”). The note will be copied exactly as it appears in Your confirmation. The Posy is not liable in any way for the content of the message or the receipt or use of that message by the recipient or others. You agree not to include any defamatory, obscene, illegal or offensive content in Your Gift Messages or content that would violate the privacy or intellectual property of others. The Posy will not be liable for any claims in connection with Gift Messages including but not limited to invasion of privacy, security breach or defamation. We reserve the right to refuse the Gift Message if We believe it may violate applicable law.
If You wish to make any changes to your Gift Messages after Your order is placed, you must email email@example.com within twenty-four (24) hours of placing Your order or at least twenty-four (24) hours prior to your delivery if your order is subscription based. Please note, after twenty-four (24) hours Your order will be deemed final and no changes will be made.
RETURNS AND REFUNDS
If You receive the wrong order (incorrect size), The Posy must be notified via firstname.lastname@example.org and with corresponding images of the incorrect Arrangement and will at its sole discretion determine if a refund or credit is warranted. In the event an Arrangement is damaged upon receipt then a claim must be filed by sending an email with photographs to email@example.com.
Our Services, Website and Application are legally protected in various ways, including copyrights, trademarks, service marks, patents, trade secrets, and other rights and laws, including but not limited to the rights and to The Posy trademark and the copyright ownership in and to the images and content made available through our Website and Application. You agree to respect all copyright and other legal notices, information, and restrictions contained in any content accessed through the Website or Application. You also agree not to change, translate, or otherwise create derivative works therefrom.
By using the Application, The Posy grants You a license to reproduce content from the Services for personal use only. This license covers both our own protected content and user-generated content on the Application. (This license is worldwide, non-exclusive, non-sublicensable, and non-transferable.) If You want to use, reproduce, modify, distribute, or store any of this content for a commercial purpose, You need prior written permission from The Posy or the relevant copyright holder. A “commercial purpose” means You intend to use, sell, license, rent, or otherwise exploit content for commercial use, in any way.
Users understand that when using the Application, You may be exposed to User Posts from a variety of sources and that The Posy does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that You may be exposed to content that is inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST POSY WITH RESPECT THERETO.
If You provide The Posy with any comments, bug reports, feedback, or modifications proposed or suggested by You to the Application (“Feedback”), The Posy shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Application. You hereby grant The Posy a perpetual, irrevocable, non-exclusive license under all rights necessary to incorporate and use Your Feedback for any purpose.
DISCLAIMERS; NO WARRANTIES
a. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH HEREIN, THE SERVICES AND ARRANGEMENTS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, THE POSY DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE POSY CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF HARMFUL COMPONENTS, OR (V) THE ARRANGEMENTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS.
b. UNDER NO CIRCUMSTANCES SHALL THE POSY BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE ARRANAGEMENTS, EVEN IF THE POSY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THIS AGREEMENT.
INDEMNIFICATION; HOLD HARMLESS
To the fullest extent permitted by law, You agree to indemnify and hold Us harmless together with Our officers, directors, shareholders, employees, contractors, attorneys, agents and representatives from and against all claims, damages, losses and expenses of any kind including but not limited to attorney's fees, arising out of or resulting from any allergies or physical ailment caused by the Arrangements or the products used (please note that allergies can be disclosed in our comments section), Your performance or obligations under this Agreement caused in whole or in part by an negligent act or omission, including but not limited to any violation of the terms of this Agreement. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity, which would otherwise exist as to any party or person, described herein. You further covenant to pay, in advance, for any and all expenses or disbursements of any nature (including all attorneys’ fees and costs) incurred by Us or Our representatives for any loss or damage suffered as a result of or in connection to, any claims, judgments, proceedings or claims established against Us by any person in connection with anything done to fulfill the purposes and obligations under this Agreement or in the event any party brings an action against Us based on Your performance under this Agreement.
AMENDMENTS TO OUR TERMS & CONDITIONS
We reserve the right to change this Agreement from time to time, and post the new version on our Website. The new version of this Agreement will take effect on (a) the date falling thirty (30) calendar days after the date of such posting (or such later date as we indicate in the relevant posting) if any of the changes is to an operative provision of this Agreement which is capable of adversely affecting You, or (b) immediately upon the date of posting or such later date as we indicate in the relevant posting if the changes are not capable of adversely affecting You, examples of which would include, without limitation: (i) changing the name of or the web address (www.theposyco.com) that You use to access our Application, or (ii) the refinement of provisions that are already included or referred to in this Agreement. In either case, if You do not wish to be governed by the new version of this Agreement, You must send us a Termination Notice and immediately cease to use our Application. We shall not have any liability to You in such an event. In the event of a termination of this Agreement, Your obligations to Us hereunder shall survive, including but not limited to the payment of all fees and costs.
DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
You agree that in the event of any dispute between You and The Posy, You will first contact The Posy and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to Your use of The Posy’s Services and/or products, or relating in any way to The Posy’s communications with You, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to You and The Posy. However, this arbitration agreement does not (a) govern any Claim by The Posy for infringement of its intellectual property or access to the Services that (including the Website and Application) that is unauthorized or exceeds authorization granted in these Terms or (b) bar You from making use of applicable small claims court procedures in appropriate cases.
IF YOU ARE AN INDIVIDUAL YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT WITHIN THIRTY (30) DAYS OF THE FIRST OF THE DATE YOU ACCESS THIS WEBSITE OR APPLICATION OR THE DATE YOU RECEIVE ANY SERVICES BY FOLLOWING THE PROCEDURE DESCRIBED BELOW.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that You and The Posy are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive any termination of these Terms.
If You wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, You must send a letter requesting arbitration and describing Your claim to The Posy, LLC at 9400 East Broadview Drive, Bay Harbor Islands, FL 33154. The arbitration shall be administered by the American Arbitration Association (AAA) under its rules including, if You are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If You are not an individual or have used the Services on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at www.adr.org.
The number of arbitrators shall be one. 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. The arbitration will be conducted in the English language. Florida law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable.
If You do not want to arbitrate disputes with The Posy and You are an individual, You may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the first of the date You access the Site or App or the date You receive any Services.
CLASS ACTION WAIVER
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the arbitration section, if otherwise effective, shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, You and The Posy each waive any right to a jury trial.
GOVERNING LAW AND VENUE
These Terms are governed and interpreted pursuant to the laws of the State of Florida, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that result in court action, in accordance with these Terms, will be resolved exclusively by a state or federal court located in Miami-Dade County, Florida, and You specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
These Terms are the entire agreement between You and The Posy relating to the subject matter herein and shall not be modified except by The Posy in accordance with these Terms, or as otherwise agreed in writing by You and The Posy. No employee, agent or other representative of The Posy has any authority to bind The Posy with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
SEVERABILITY AND WAIVER
If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of The Posy to require performance of any provision will not affect the right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
You may not assign or transfer these Terms or any of Your rights or obligations under these Terms. The Posy may assign these Terms at any time without notice to You.
The Posy will not be liable for, or be considered to be in breach of these Terms, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond The Posy’s reasonable control.
Please send any questions or comments, or report violations of these Terms, to The Posy at email@example.com or The Posy, LLC, 9400 East Broadview Drive, Bay Harbor Islands, FL 33154.
Last Updated: December 14, 2016