Last Updated: January 30th, 2020
By using Site in any manner, including but not limited to visiting or navigating any part of Escala Floral Design.com, all users of the Site (including, without limitation, Florists and Customers as defined below) agree to be bound by this Agreement, including those additional terms and conditions and policies referenced and/or available by hyperlink herein. This Agreement applies to all users of the Site, including without limitation users who are florists, vendors, customers, merchants, contributors of content, information and other materials or services on the Site or in connection with Escala Floral Design. Different sections of the Agreement may affect users different depending upon their use of the Site, so please make sure to review this Agreement carefully.
If you have any questions, please refer to the Contact Us section.
2. Escala Floral Design is a Venue
Escala Floral Design provides a venue where flower sellers (“Florists”) can create listings to sell certain floral arrangements and limited related goods within a fixed-price format at the Site (subject to compliance with the Florist’s Terms and Conditions set forth below) and customers who visit or utilize the Site can learn about Florists’ listings and make purchases from Florists (“Customers”). Escala Floral Design also provides a venue where Florists can send orders to other Florists (“Florist-to-Florist Orders”). Escala Floral Design is not directly involved in or otherwise a party to any transactions that may take place between Florists and Customers. Escala Floral Design has no control over the quality, safety, morality or legality of any aspect of the Florist’s listings or any claims made by Florists about the products or services they offer, the truth or accuracy of the listings created by Florists, the ability of Florists to sell the items, the ability of Customer to pay for the items, the ability of the Florist to fulfill an order in a Florist-to-Florist Order or the ability of Florists to pay for items in Florist-to-Florist Orders. Escala Floral Design does not conduct background checks regarding any users of the Site and our verification process for Florists is limited. Escala Floral Design is not a broker, agent or insurer for any users of the Site, whether they be Florists or Customers. Escala Floral Design makes no representations, warranties or guarantees regarding any content or information provided by the Florists, including, without limitation, the identity, age, and nationality of any seller, buyer or user. We encourage you to communicate directly with potential transaction partners through the tools available through Escala Floral Design. All purchases made by Customers from Florists are made at each Customer’s own risk, and all Florist-to-Florist Orders are made at each Florist’s own risk
You acknowledge and agree that the Site is solely a venue and has no responsibility or liability for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on the Site. Your use the Site is solely at your own risk.
3. Membership Eligibility
Registration for membership at the Site is subject to the following additional terms and conditions:Age: Escala Floral Design is available only to, and may only be used by, individuals who are 18 years of age and older, and who can form legally binding contracts under applicable law. By registering with the Site, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. We may, in our sole discretion, refuse to offer access to or use of Escala Floral Design to any person or entity and change the eligibility criteria at any time. This foregoing is void where prohibited by law and the right to access Escala Floral Design is revoked in such jurisdictions.
Authority: If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity you are acting on behalf of to this Agreement.
Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify Escala Floral Design of any unauthorized use of your password or any breach of security. You also agree that we cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than Escala Floral Design without our express written permission.
Account Information: You must keep your account information, including a valid email address, up-to-date and accurate and up to date at all times. To sell items on Escala Floral Design you must provide and maintain valid payment information.
Account Transfer: The access rights granted to you under this Agreement are non-transferable without our express written permission. You may not assign or otherwise transfer this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, without our prior written consent, which may be withheld in our reasonable discretion. Any attempted assignment or other transfer without such consent shall be void, and any such attempt shall be deemed to be a breach of this Agreement. All of our rights and obligations under this Agreement are freely assignable by Escala Floral Design. As used herein, the terms “assignment” and “transfer” shall include (a) any sale or transfer of all or substantially all of your assets, (b) a merger, consolidation or reorganization, and (c) a change in ownership.
Right to Refuse Service: We reserve the right, in our sole discretion, to cancel unconfirmed or inactive accounts. Further, we reserve the right to refuse service to anyone, for any reason, at any time.
Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. In addition, you must abide by our policies as stated in this Agreement and the policy documents listed below (if applicable to your activities on or use of the Site) as well as all other operating rules, policies and procedures that may be published from time to time on the Site by Escala Floral Design, each of which is incorporated herein by reference and each of which may be updated by Escala Floral Design from time to time without notice to you:
Eligibility for Registration as a Florist at the Site is subject to the following additional terms and conditions:
- Florist Legal Obligations – If you would like to register as a Florist, you must be an authorized seller of floral arrangements and related goods through Escala Floral Design in the jurisdiction where you reside and in compliance with any local laws or regulations. Where applicable, each Florist is solely responsible for obtaining all permits, licenses or other permissions required to offer goods through the Site. Escala Floral Design assumes no responsibility for any Florist’s failure to obtain such permits, licenses or permissions or otherwise comply with applicable laws and regulations.
- Single Account Restriction – Only one membership account per Florist is permitted.
- No filling to value – All orders should be prepared with the look and temperament your customer is expecting. All Florist-to-Florist Orders should be prepared according to the specifications of the order. Your reputation depends on it.
- Images in Listings – Florist may not utilize wire-service or stock photos in its listings. The images that Florists post in the listings must be images of your own creation featuring your own designs or those created by Escala Floral Design as part of its service to the Florist. By posting them with the listing, Florists are each representing and warranting the posted images do not infringe on anyone else’s copyright or intellectual property rights.
- Delivery area – The delivery area in the listing must accurately represent the area the Florist is capable of hand delivering arrangements to.
- No “order gathering” or resales on the Marketplace – Escala Floral Design has absolutely no tolerance for order gathering on the Marketplace. Florists may only create listings and accept orders that it is capable of fulfilling on its own. No wiring or reselling Marketplace orders is permitted and will result in immediate termination of membership.
- Florst-to-Florist – A Florist-to-Florist Order must be fulfilled by the Florist receiving such order. The receiving Florist cannot transfer a Florist-to-Florist Order to any other party.
- The Customers are Your Customers – Escala Floral Design is not the broker, agent or joint venturer of any Florist. There is no hiding behind a middle man. Florists must treat all of orders obtained from Customers through the Site as if they are from someone that has just walked into your flower shop. Happy customers make repeat customers.
- Your Customer is Your Responsibility – If there is an issue with an order, Florists are solely responsible for addressing those issues with the Customer or the other florist in a Florist-to- Florist Order, directly. Via the ordering process on the Site, Florists will be provided with Customer contact information and must work directly with them to resolve any issues. If no resolution can be reached, Florists and Customers may address their concerns to Escala Floral Design and Escala Floral Design may elect to act as an intermediary, but is under no independent obligation to do so.
Florists that do not abide to the above terms and conditions and those listed below are subject to immediate removal without written or advance notification from Escala Floral Design. Users are encouraged to report any violations of the foregoing terms and conditions by a Florist by contacting Escala Floral Design at email@example.com.
4. Marketplace/Storefront/Premium Custom Site Services, Fees/Taxes and Payments
Services: We will issue Florists who properly register through the Site with an individualized florist web page to display and sell their flower arrangements within the Escala Floral Design flower marketplace, which aggregates and exhibits products from all Florists’ Storefronts (the “Marketplace”) and through the Florist’s Facebook and other third party website and mobile sites affiliated with or served by Escala Floral Design (the Florist’s Escala Floral Design profile page and linked third party web page are collectively referred to as a “Storefront)). We will host the Storefronts by providing a server to store the data relating to the Storefronts, maintain the content of the Storefronts, and communicate the orders placed by buyers through the Storefronts to the florists. Additionally, we will provide ongoing hosting, maintenance, updates and marketing of the Marketplace. Escala Floral Design also offers Florists the option of creating custom website for Florists who maintain a URL outside of the Marketplace (hereafter, “Premium Custom Sites”).
Fees: Joining and setting up a Storefront on Escala Floral Design and Premium Custom Sites are free for registered Florists. Florists will be charged fees based upon their selection of the following options:
- Standard Escala Floral Design Option: Florists are charged a commission fee based on the total dollar amount of the order received via Escala Floral Design (either directly or through affiliated third party web and mobile sites), excluding sales tax, HST, PST, and/or GST determined by Escala Floral Design.
- BloomLite Option: A potential option for Florists where Florists pay a commission or hosting fee plus credit card processing fees for a Premium Custom Site until they reach a specific volume of sales. Once they reach the specific volume of sales threshold, as determined by Escala Floral Design in its sole discretion, Florists using the BloomLite Option will be switched over to the Standard Escala Floral Design Option described above. Escala Floral Design shall provide notification to the Florist achieving this threshold at the time of the switch. Notice of cancelation must be given prior to billing cycle.
- Florist to Florist Orders: Florists fulfilling a Florist-to-Florist Order are charged a ten percent (10%) commission fee payable to Escala Floral Design which is based on the total dollar amount of the order received via Escala Floral Design (either directly or through affiliated third party web and mobile sites), excluding sales tax, HST, PST, and/or GST determined by Escala Floral Design. The Florist fulfilling the Florist-to-Florist Order shall receive the remaining ninety percent (90%) of the total dollar amount of the order subject to the payment terms set forth herein. Escala Floral Design reserves the right to disqualify Florists from taking or receiving Florist-to-Florist Orders in its sole and exclusive discretion.
- Point of Sale System Option: In combination with either of the foregoing Options, Escala Floral Design offers Florist’s the option of utilizing Escala Floral Design’s point of sale system (“POS”). The charge for use of Escala Floral Design’s POS system is a 2.99% commission fee based on the total dollar amount of the order received via Escala Floral Design, excluding sales tax, HST, PST, and/or GST determined by Escala Floral Design.
- BloomPro Option: Escala Floral Design will provide a dedicated account manager to Florists for a flat fee of $299.00 per month. There is a three-month minimum commitment for the BloomPro Option and Florists cannot receive a refund of such amounts regardless of their volume of use of the dedicated account manager service or lack thereof. After the three-month period concludes, it can be canceled any time. Absent cancellation of the service, Florists will continue to be charged for the BloomPro service on a month-to-month basis.
Relative to all of the foregoing options, Escala Floral Design reserves the right, at our sole discretion, change some or all of Escala Floral Design’s services at any time. In the event we introduce a new service, the fees for that service are effective at the launch of such service. Unless otherwise stated, all fees are quoted in US Dollars (USD). We keep accepted payment information on file. We shall not be responsible in any way for any fraudulent payment or credit information provided by any third parties.
Taxes: We are responsible for collecting and remitting all applicable sales and government taxes in relation to transactions conducted through the Storefront based upon the information provided by Florists. You are responsible for notifying Escala Floral Design of any and all changes related to applicable sales tax for your Storefront. With respect to Premium Custom Sites, Escala Floral Design will collect and pass onto the Florist any applicable sales and government taxes for transactions conducted through such sites, based upon the tax rates selected by the Florist.
Payments: Settled transactions will be debited to your account balance via direct deposit or a check mailed to your address on file with Escala Floral Design, within a reasonable time after the order has been processed and the buyer’s credit card has been authorized. In no event shall the payment time exceed thirty-one (31) days from the end of the month in which the order was delivered and the buyer’s credit card has been authorized. Escala Floral Design reserves the right to withhold, reverse or otherwise refuse payments to Florists for any unfulfilled or returned customer transactions, including, without limitation, refunds due to non-delivery by Florist, customer rejections for quality issues, non-payment due to customer fraud, chargeback or contested charges.
5. Listings – Responsibilities of Florists
Listing Description: By listing an item on Escala Floral Design Florists warrant that you and all aspects of the item comply with this Agreement. Florists also warrant that they may legally sell the item. Florists must accurately describe your item and all terms of sale in its Storefront. Florist’s listings may only include text descriptions, graphics, pictures and other content applicable to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. Each unique item must have its own listing. The price stated in each item listing description must be an accurate representation of the sale. Florist may not misrepresent the item’s location, or use another user’s account without permission.
Binding Sale: All sales are binding. The Florist is obligated to deliver the order or otherwise complete the transaction with the Customer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the Customer fails to meet the terms of the Florist’s listing (such as payment method), or (b) the Florist cannot authenticate the Customer’s identity. The Customer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance. In the event that an order is received that you are unable to deliver, you are responsible for promptly notifying Escala Floral Design so that the order can be forwarded to another florist to fulfill or so that the order can be canceled and refunded to the customer in a timely manner
Responsibilities: Notwithstanding anything to the contrary herein, Florists are solely responsible for all orders placed through its Storefront, whether such orders are lost, unprocessed, mishandled or otherwise. Florists remain solely responsible even if such failure to fulfill the order is a result of not checking notifications sent to the Florist via Escala Floral Design. Florists are also solely responsible for informing the Customer of any lost, unprocessed or mishandled orders, and for all other Customer relationship matters relating to orders processed through the Florist’s Storefront. We are not responsible in any way whatsoever for the foregoing matters.
6. Prohibited, Questionable and Infringing Items and Activities by All Users
Each user is solely responsible for his/her/its conduct and activities on and regarding to the Site and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, “Content”) that the user submits, posts, and displays on the Site. Furthermore, Florists may not list any item on the Site (or consummate any transaction that was initiated using the Site) that, by paying to Escala Floral Design the final value fee, could cause Escala Floral Design to violate any applicable law, statute, ordinance or regulation, or that violates this Agreement.
Restricted Activities: Your Content and your use of the Site shall not:
(i) Be false, inaccurate or misleading
(ii) Be fraudulent or involve the sale of illegal, counterfeit or stolen items.
(iii) Infringe upon any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy
(iv) Violate this Agreement, any site policy, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising).
(v) Contain items that have been identified by the U.S. Consumer Products Safety Commission as hazardous to consumers and therefore subject to a recall.
(vi) Be defamatory, discriminatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including our staff or other users), or falsely state or otherwise misrepresent your affiliation with any person through, for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device.
(vii) Be obscene or contain child pornography.
(viii) Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
(ix) Host images not part of a listing.
(x) Modify, adapt or hack the Site or modify another website so as to falsely imply that it is associated with Escala Floral Design.
(xi) Appear to create liability for Escala Floral Design or cause Escala Floral Design to lose (in whole or in part) the services of Escala Floral Design’s ISPs or other suppliers.
(xii) Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement, other agreements hyperlinked herein, or other policy documents as posted on the Site.
(xiii) Use the Site to collect orders for any other business to fulfill.
(xiv) Reproduce, duplicate, copy, sell, trade or resell any of the services within the Site for any purpose.
(xv) Engage in activity that interferes with or disrupt the Site (or the servers and networks which are connected to the Site).
(xvi) Contain alcohol
Notwithstanding anything to the contrary herein, we reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Site.
7. User Responsibilities
A. Order Acceptance and Billing
Each User represents and warrants that you have the right to use any credit card or other means of payment that you provide to us. All billing information you provide to us must be truthful and accurate. Providing any untruthful or inaccurate information is a breach of this Agreement and may result in cancellation of your order. Prior to accepting an order, Escala Floral Design may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any purchase. Escala Floral Design reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified by us related to credit or fraud. If your order is canceled after your credit card (or other payment account) has been charged, Escala Floral Design will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. Escala Floral Design or the Florist will attempt to contact you if all or any portion of your order is canceled or if additional information is required to accept your order. Escala Floral Design may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you, but your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. Escala Floral Design does this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the products, as well as all delivery and handling charges and applicable taxes. You will be charged for most orders when your order is placed. Some exceptions are: Florist to Florist orders. By providing a debit card, credit card or other payment accepted by Escala Floral Design (collectively, “Cards”), you further authorize us to charge your Cards for any additional charges for your requested changes to your order, or any additional or future orders.
Escala Floral Design reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. Escala Floral Design will attempt to notify you should such limits be applied. Escala Floral Design also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers.
B. Pricing Information; Availability
Escala Floral Design or the Florist cannot confirm the price or availability of an item until after your order is placed. Pricing or availability errors may occur on the Sites or through the Marketplace. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product.
Escala Floral Design or the Floirst reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or delivery notice from Escala Floral Design. Escala Floral Design or the Florist may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation.
C. Promotional Codes
Promotional codes are limited in nature and may expire or be discontinued with or without notice. Promotional codes are void where prohibited by law. Promotional codes may not be copied, sold, or otherwise transferred. They are not redeemable for cash and are subject to cancellation or change at any time for any reason without notice. Escala Floral Design reserves the right in our discretion to impose conditions on the offering of any promotional code.
Products will be delivered to an address designated by you, if applicable, so long as such address is complete and accurate. All transactions are made pursuant to a delivery contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier.
Some products may be available for pick up at physical Florist locations. Some products may have restricted delivery within the United States. Estimated delivery times are determined based on the method of delivery chosen when products are purchased and the destination of the products.
9. Content, Material & Licenses
We own all legal right, title and interest in and to the Site, including any intellectual property rights which subsist in the Site, whether those rights happen to be registered or not, and wherever those rights may exist. Unless you have agreed otherwise in writing with Escala Floral Design, nothing in this Agreement gives you a right to use any of Escala Floral Design’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features.
Copyright Ownership of Escala Floral Design Generated Content: As part of its services to Florists, Escala Floral Design (either directly or through one of its authorized contractors) may create or otherwise generate images of certain products offered by Florists (hereafter, “Escala Floral Design Generated Content”) which may then be utilized to advertise or other sell the respective Florist’s products through Storefronts and Premium Custom Sites only. By availing themselves of this service, Florists acknowledge and agree that Escala Floral Design owns any and all rights to use, publish, and copyright Escala Floral Design Generated Content in any and all media, now or hereafter known. Florists further release to Escala Floral Design all rights to exhibit this Escala Floral Design Generated Content (even if it includes or otherwise encompasses any work that Florist may claim copyright upon) in any and all media, now or hereafter known, publicly or privately. Florists further acknowledge and agree that they have no right, title, or interest in or to any of the Escala Floral Design Generated Content and hereby release and hold harmless Escala Floral Design and its successors and assigns from any damages or liability relating to or arising from any use of or modification or alteration to any of the Escala Floral Design Generated Content; and hereby waive any claims they may have based on any use of the Escala Floral Design Generated Content or works derived therefrom. Florists further acknowledge and understand that, in the event Florists’ account with Escala Floral Design is terminated (for any reason and whether by Escala Floral Design or the subject Florist), Florists shall have no right to use any Escala Floral Design Generated Content, absent the express, written content of Escala Floral Design, and must promptly remove any Escala Floral Design Generated Content from any materials their publish or distribution in any forum (online or otherwise.)
Florists explicitly grant to Escala Floral Design (and its affiliated third party websites and their operators) a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any User Content, Florists submit, post or display on or through the Site (including affiliated third party websites), or post or display on a Florist’s Storefront or Premium Custom Sites. Florists are solely responsible to ensure the User Content posted is of their own images, copyright and intellectual property or that the Florists have the express written consent to use such User Content. Florists hereby further grant to Escala Floral Design the right to promote the services provided to Florists in Escala Floral Design press kits, press releases, and any other promotional materials related to Escala Floral Design. Florists acknowledge Escala Floral Design as the creator and provider of the Site. Unless provided otherwise in a separate written agreement between the Florist and Escala Floral Design, Florists acknowledge and agree that each of them are solely responsible for protecting and enforcing any rights the Florist may have to any User Content that submitted, posted, transmitted or displayed on, or through, the Site and that Escala Floral Design has no obligation to protect or enforce those rights on the Florist’s behalf.
Users confirm and warrant to Escala Floral Design that they have all the rights, power and authority necessary to grant the above licenses to User Content.
Re-Posting Content: By posting User Content on Escala Floral Design, it is possible for an outside website or a third party may re-post that User Content. Users agree to indemnify and hold Escala Floral Design harmless for any dispute, claims or causes that may arise from any such action.
Idea Submissions: We consider any unsolicited suggestions, ideas, proposals or other material submitted to Escala Floral Design by users (other than the User Content and the tangible items sold on Escala Floral Design by users) (collectively, the “Material”) to be non-confidential and non-proprietary, and Escala Floral Design shall not be liable for the disclosure or use of such Material. If, at Escala Floral Design’s request, any member sends Material to improve the Site (for example through the forums or to customer support), Escala Floral Design will also consider that Material to be non-confidential and non-proprietary and Escala Floral Design will not be liable for use or disclosure of the Material. Any communication by users to Escala Floral Design is subject to this Agreement. Users hereby grant and agree to grant to Escala Floral Design, under all of such user’s rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the API, documentation, or any product or service, without compensation or accounting to the user and without further recourse by the user.
10. Information Control
Escala Floral Design has limited control of the User Content provided by users and that is made available on the Site. You may find some User Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.
Additionally, there may also be risks of dealing with international trade and foreign nationals. By using the Site, users agree to accept such risks and that Escala Floral Design and its officers, directors, agents, subsidiaries, joint ventures, employees, suppliers, licensors and representatives (collectively, Escala Floral Design’s “Affiliates”), are not responsible for any and all acts or omissions of users on the Site. Please use caution, common sense, and practice safe buying and selling when using the Site.
Other Resources: Escala Floral Design is not responsible for the availability of outside websites or resources linked to or referenced on the Site. We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Users agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
11. Meetings & Groups
Meetings: Users may arrange and attend online virtual meetings or in-person meetings (“Meetings”) with one or more individuals. Users are solely responsible for all interactions with other users at Meetings. Users must comply with Escala Floral Design’s policies and acknowledge and agree to comply with the laws of the city, county and country in which the Meeting occurs. Additional eligibility requirements for a particular group or Meeting may be set by the group’s contact person. Escala Floral Design is not involved with user generated groups, the groups’ requirements, or the Meetings.
Escala Floral Design does not supervise or control the Meetings, user-initiated online or offline gatherings, or the interactions among and between users and other persons or companies. Users are solely responsible for interactions with other users. Users understand that we do not in any way screen or conduct background checks its users. All users agree to exercise caution and good judgment in all interactions with others, particularly if meeting offline or in person.
Groups or User Fees: Some user-generated groups on Escala Floral Design may require or request that users pay fees in order to be a member of the group, participate in a promotion, or participate in Meetings. ANY SUCH FEES ARE GOVERNED SOLELY BY THE SUBJECT USERS AND Escala Floral Design IS NOT INVOLVED IN THE REQUEST FOR, OR COLLECTION OR PAYMENT OF SUCH FEES AND RELATED TRANSACTIONS, THE PAYMENTS OR THEIR PROCESSING. THE PAYMENT DOES NOT GO TO Escala Floral Design; THIS MONEY IS SEPARATE FROM ANY FEES OR CHARGES ASSESSED BY Escala Floral Design, AND WE HAVE NO CONTROL OVER THE FEES, THE USER-GENERATED GROUPS, PROMOTIONS, THE MEETINGS, OR THE LEADER OF THE GROUP IN CONNECTION WITH ITS USE. BY PARTICIPATING IN MEETINGS, USERS ACKNOWLEDGE AND AGREE THAT Escala Floral Design IS NOT INVOLVED OR OTHERWISE A PARTY TO ANY TRANSACTION OR INTERACTION BETWEEN OR AMONG USER-GENERATED GROUPS, Escala Floral Design USERS AND/OR THIRD PARTIES (TOGETHER A “THIRD PARTY TRANSACTION”), AND THAT YOU BEAR ALL RISK IN CONNECTION WITH YOUR THIRD PARTY TRANSACTIONS. USERS SHOULD USE COMMON SENSE AND BE CAREFUL IN DECIDING WHETHER TO CONTRIBUTE MONEY TO SUCH RELATED TRANSACTIONS.
12. Driving Directions through Escala Floral Design Mobile Application
Please note the following relative to driving directions offered through the Escala Floral Design Mobile Application (as feature of the Site as defined above): The information provided through the Escala Floral Design Mobile Application is not intended to replace the information provided on the road, such as traffic signs, traffic lights, police instructions, etc. Those utilizing the Escala Floral Design Mobile Application must always drive vigilantly according to road conditions and in accordance with traffic laws. Use of the Escala Floral Design Mobile Application is not intended while driving or to otherwise interfere with the due course of driving and distract the driver’s attention to the road. The information provided by the Escala Floral Design Mobile Application originates from third party sources which are not continually updated and may be inaccurate, incomplete or outdated. Escala Floral Design makes no warranties or representations regarding the information’s correctness or reliability.
13. Delivery Tracking Mobile Application
Delivery Tracking is an Internet-based delivery management software service provided by Escala Floral Design. Florists may download a mobile application that allows Florists to manage their deliveries and drivers. When using the Delivery Tracking App, all data uploaded by Florists remains the property of the Florist, as between Escala Floral Design and the Florist (“Florist Data”). Florist Data includes your name, email address, postal address, phone number, company name, credit card payment information, and your customer and delivery information.
Florist grants Escala Floral Design and its third-party providers the right to use the Florist Data for purposes of performing the tasks provided by the Delivery Tracking App, collect information of Florist customers (“Senders”) and recipients of Florist products (“Recipients”) for marketing purposes, and sending text messages to Senders and Recipients.
In addition to the Liability Limitation Section and No Warranty Section set forth in these Terms of Service, Escala Floral Design SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF Escala Floral Design HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Escala Floral Design SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND Escala Floral Design’S REASONABLE CONTROL.
THE SERVICES OFFERED UNDER THE DELIVERY TRACKING MOBILE APPLICATION MAY BE USED BY YOU TO REQUEST AND SCHEDULE THE TRANSPORTATION OF PRODUCTS, BUT YOU AGREE THAT Escala Floral Design HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION OF GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY A THIRD PARTY PROVIDER
14. Resolution of Disputes and Release
In the event a dispute arises between a user and Escala Floral Design, the user should contact Escala Floral Design at firstname.lastname@example.org to assess the possibility of informal resolution.
Barring such informal resolution, any dispute arising from or relating to the subject matter of this Agreement or a user’s use of the Site or relationship with Escala Floral Design shall be finally settled by binding arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, LLC. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the federal or state courts located in the County of Los Angeles in the State of California. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, unless expressly noted otherwise herein, including without limitation, this section.
Should a dispute arise between you and any other user or users of the Site, or an outside party, you release Escala Floral Design and its Affiliates from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Escala Floral Design encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable and appropriate.
Escala Floral Design, for the benefit of users, may elect to assist users resolve disputes, however, Escala Floral Design do so in its sole and exclusive discretion, and Escala Floral Design undertakes no formal obligation to resolve disputes between users or between users and outside parties. To the extent that Escala Floral Design attempts to resolve such disputes, Escala Floral Design does so in good faith and based solely on its policies. Escala Floral Design will not make judgments regarding legal issues or claims.
FOR FLORIST-TO-FLORIST ORDERS ONLY:
In the event a dispute arises between Florists in connection with a Florist-to-Florist Order, the respective Florists shall be responsible for initially communicating with each other in an attempt to resolve the dispute. In the event the dispute remains unresolved between the Florists, Escala Floral Design will have the right, but not obligation, to step in and determine how the dispute should be resolved, including, without limitation, issuing a refund, reversing a sale or requiring the purchasing Florist to pay for the items in question.
15. Escala Floral Design’s Intellectual Property
Escala Floral Design, and other Escala Floral Design graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Escala Floral Design, Inc. in the U.S. and/or other countries. Escala Floral Design’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
16. Access and Interference
The Site may contain robot exclusion headers which contain internal rules for software usage. Much of the information on the Site is updated on a real-time basis and is proprietary or is licensed to Escala Floral Design by the Site’s users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose whatsoever, except to the extent expressly permitted by and in compliance with this Agreement or otherwise without our prior express written permission. Additionally, you agree that you will not:
(i) Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Escala Floral Design;s infrastructure.
(ii) Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) or other allowed uses as set out in this Agreement from the Site except to the extent expressly permitted by and in compliance with this Agreement or otherwise without the prior express written permission of Escala Floral Design and the appropriate third party, as applicable.
(iii) Interfere or attempt to interfere with the proper working of the Site or any activities conducted thereon.
(iv) Bypass the Site’s robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
Without limiting any other remedies, Escala Floral Design may, without notice, and without refunding any fees, delay or immediately remove Content, warn Escala Floral Design’s community of a user’s actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user’s account privileges, terminate a user’s account, prohibit access to Escala Floral Design, and take technical and legal steps to keep a user off Escala Floral Design and refuse to provide services to a user if, not intended to be an exclusive list, any of the following apply:
(ii) We are unable to verify or authenticate any of the user’s personal information or Content.
(iii) We believe that a user is acting inconsistently with the letter or spirit of Escala Floral Design’s policies, has engaged in improper or fraudulent activity in connection with the Site or the actions may cause legal liability or financial loss to Escala Floral Design’s users or to Escala Floral Design itself.
19. No Warranty
Escala Floral Design AND ITS AFFILIATES PROVIDE THE SITE “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT Escala Floral Design AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SITE WILL BE ACCURATE OR RELIABLE; AND (iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS A PART OF THE SITE WILL BE CORRECTED. Escala Floral Design AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM Escala Floral Design OR ITS AFFILIATES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
20. Liability Limitation
Escala Floral Design AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU FOR: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND (ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF (a) ANY CHANGES WHICH WE MAY MAKE TO THE SITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN PROVIDING THE SITE (OR ANY SERVICES OFFERED THROUGH OR FEATURES WITHIN THE SITE), (b) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SITE, (c) YOUR FAILURE TO PROVIDE Escala Floral Design WITH ACCURATE ACCOUNT INFORMATION, (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (e) YOUR USE OR MISUSE OF THE SITE, (f) ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, AND/OR (g) HYPERLINKS TO WEB SITES OR CONTENT OR RESOURCES PROVIDED BY COMPANIES OR PERSONS OTHER THAN Escala Floral Design. THESE FOREGOING LIMITATIONS ON OUR LIABILITY SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
In no event shall Escala Floral Design or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our site, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Escala Floral Design partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
Escala Floral Design does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
Escala Floral Design does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
Escala Floral Design does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
YOU AGREE TO INDEMNIFY AND HOLD Escala Floral Design AND ITS AFFILIATES, HARMLESS FROM AND AGAINST ALL DAMAGES, COSTS (INCLUDING, WITHOUT LIMITATION, SETTLEMENT COSTS), LOSSES, EXPENSES, (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) AND LIABILITIES RELATING TO ANY CLAIM OR DEMAND ASSERTED BY ANY PARTY AGAINST Escala Floral Design AND/OR ITS AFFILIATES ARISING FROM OR RELATED TO YOUR ACTIVITES OR CONDUCT ON OR THROUGH THE SITE.
22. Access and Data Integrity
Escala Floral Design does not guarantee continuous, uninterrupted access to the Site. Although Escala Floral Design attempts to maintain the integrity and accuracy of the information on the Site, we make no guarantees as to its correctness, completeness, or accuracy. The Site may contain typographical errors, inaccuracies, or other errors or omissions. Also, unauthorized additions, deletions, or alterations could be made to the Site by other users or third parties without Escala Floral Design’s knowledge. If you believe that information found on the Site is inaccurate or unauthorized, please inform Escala Floral Design by e-mailing us email@example.com.
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.
24. No Employment or Agency
No Employment Relationship
Escala Floral Design is not an employment service and does not serve as an employer of any user (Florist, Customer or otherwise). Escala Floral Design is not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with any use of the Site. By using the Site, users understand and agree that, if Escala Floral Design is found to be liable for any tax or withholding tax in connection with your use of the Site, then you will immediately reimburse and pay to Escala Floral Design an equivalent amount, including any interest or penalties thereon.
No Agency Relationship
No brokerage, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Without limiting the foregoing, except as expressly set forth herein, Escala Floral Design is not acting and does not act as an agent for any Florist, Customer or any other user or visitor of the Site.
25. Escala Floral Design Service
Escala Floral Design reserves the right to modify, limit, suspend or terminate any and all services offered on or through the Site (or any feature thereof) for any reason, without notice, at any time. Escala Floral Design reserves the right to alter this Agreement or other Escala Floral Design policies at any time, so please review the policies frequently.
Escala Floral Design may amend this Agreement at any time, and from time to time, in our sole and absolute discretion, without any notice to you. You should regularly review this Agreement as posted on the Site on this page to check for amendments. You understand and agree that if you use the Site after the date on which these amendments have been applied to the Agreement, Escala Floral Design will treat your continued use of the Site as acceptance of the updated terms. You may not amend this Agreement at any time without our prior written consent.
27. No Waiver
You agree that if Escala Floral Design does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), it shall not constitute a waiver of Escala Floral Design’s rights, and as such, those rights or remedies will still be available to Escala Floral Design. Nothing in this Agreement shall prevent Escala Floral Design from complying with the law and these terms do not confer any third party beneficiary rights.
28. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of California, without regard to its conflict of law provisions.
Sections 4 (Services, Fees/Taxes and Payments), 9 (Content, Material & Licenses), 10 (Information Control), 11 (Meetings & Groups), 14 (Resolution of Dispute and Release), 15 (Escala Floral Design’s Intellectual Property), 16 (Access and Interference), 17 (Breach), 18 (Privacy), 19 (No Warranty), 20 (Liability Limit), 21 (Indemnity), 22 (No Guaranty), 23 (Severability), 24 (No Agency), 28 (Choice of Law) shall survive any termination or expiration of this Agreement.
Except as explicitly stated otherwise, any notices to Escala Floral Design shall be sent via postal mail to Escala Floral Design, Attn: Legal Department, 1316 Third St, Suite 301, Santa Monica, California 90401 and any notices to users (in the case of Escala Floral Design) shall be sent to the email address you have provided to Escala Floral Design. Notice sent by email shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Escala Floral Design may elect, at its own discretion, to deliver notice by certified mail, to the address you provided to Escala Floral Design. In such case, notice shall be deemed given three days after the date of firstname.lastname@example.org
For issues with intellectual property, please provide the notice as specified in Escala Floral Design’s Copyright and Intellectual Property Policy.
The services hereunder are offered by Bloom Nation, Inc. located at 1316 Third St, Suite 301, Santa Monica, California 90401. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
32. Notice for Users in California
This notice is for users of the Site residing in the State of California. Please be advised that the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be reached by mail at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (800) 952-5210.
If you have any questions about this Agreement, please contact email@example.com.