Terms of Use
Terms of Use
Effective July 1, 2026
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
SECTION 15 OF THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU LIVE IN THE UNITED STATES, THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US. READ IT CAREFULLY.
YOU HAVE A RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE. UNLESS YOU OPT OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTIONS, AS SET FORTH BELOW) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE BOUQS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTION OR PROCEEDING, WHETHER IN COURT OR IN ARBITRATION, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Welcome to https://bouqs.com/ (the “Site”), a website dedicated to simplifying bouquet purchases. By browsing or using the Site, The Bouqs Company mobile applications (collectively, the “App”),The Bouqs’ social media sites, or other related applications or online services offered by The Bouqs Company (collectively, the “Service”), purchasing any goods through the Service, or entering into any other transactions with The Bouqs Company, you agree to the terms of use set forth herein (the “Agreement”).
This Agreement is between you and The Bouqs Company (“The Bouqs, we, our” or “us”), and it governs your access to and use of the Service. For purposes of this Agreement, “you” and “your” means you as the user of the Service. If you use the Service on behalf of a company, organization, or other entity, then “you” includes you and that entity, and you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement and that you agree to this Agreement on the entity’s behalf.
If you do not agree to any part of this Agreement, you are not permitted to use or access the Service, purchase goods through the Service, or enter into any transactions on the Service with The Bouqs. By using, accessing, and/or entering into any transactions on or through the Service, you agree to the terms and conditions contained herein.
CONTENTS
3. DATA AND INTELLECTUAL PROPERTY OWNERSHIP
4. LIMITED LICENSE AND GENERAL RULES
6. THIRD-PARTY WEBSITES OR RESOURCES
7. GIFT MESSAGE AND YOUR CONTENT GENERALLY
13. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
15. DISPUTE RESOLUTION BY BINDING ARBITRATION
19. NOTICE TO CALIFORNIA USERS AND RESIDENTS
20. ACKNOWLEDGEMENT AND AGREEMENT
1. AMENDMENTS AND CHANGES
The Bouqs may amend this Agreement at any time in its sole discretion by posting the amended Agreement on the Site. By continuing to use the Service after any such publication, you are agreeing to be bound by the then current version of this Agreement, subject to the opt out procedure set forth herein. Any changes to the Agreement will be in effect as of the “Effective as of” date referred to at the top of this page. If we make changes to the Agreement that are material, we will use reasonable efforts to attempt to notify you, including by sending you an email to the email address associated with your Account. You are responsible for providing us with your current email address when you create an Account, and, if your email address changes, for updating your Account information to reflect your new email address. By providing us with your email address, you agree to receive all required notices electronically. If at any point you do not agree to any portion of the then-current version of this Agreement, you must immediately stop using the Service, cease any ordering, and not renew any subscription service you may be using.
2. PRIVACY STATEMENT
Our privacy practices in operating the Service are described in our Privacy Statement located at https://bouqs.com/about-us/privacy (“Privacy Statement”). By using the Service, you represent that you have read and consent to our Privacy Statement. If at any point you do not agree to any portion of the Privacy Statement, you must immediately stop using the Service and not renew your subscription service, if any.
3. DATA AND INTELLECTUAL PROPERTY OWNERSHIP
As between you and The Bouqs, The Bouqs owns, has licensed, or otherwise has rights, title and interest in and to the images and other materials on the Service and the software for the Service. You agree that you have no right, title or interest in or to the Service and any such content, including, without limitation, any other attributes associated with any Account or stored on the Service, except that you retain ownership of Your Content (as defined below) subject to the license grant set forth herein.
All software (including source code), logos, icons, the Service’s “look and feel,” text, graphics, images, video clips, sound clips, content, notices, data, page layout, and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein shall be owned solely and exclusively by The Bouqs and/or its licensors and are protected by United States and international copyright, trade secret or other intellectual property laws and treaties. The Bouqs and its licensors reserve all rights in connection with the Service and its content, including, without limitation, the exclusive right to create derivative works therefrom.
Our name, “The Bouqs” and “Bouqs,” our logos, and all of our other marks, names, logos, product and service names, designs and slogans are trademarks or service marks of The Bouqs or its affiliates or licensors and protected by United States and foreign trademark laws. Other names, logos, product and service names, designs and slogans that appear on the Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Bouqs. Any images of persons or personalities contained on the Service are not an indication or endorsement of The Bouqs or any particular product or our service unless otherwise indicated.
4. LIMITED LICENSE AND GENERAL RULES
4.1 LICENSE
Subject to your compliance with the terms and conditions of this Agreement, The Bouqs grants you a personal, nonexclusive, non-sublicensable, revocable (as stated in this Agreement), nontransferable license to use the Service for your personal and noncommercial use only, and to download a single copy of the App onto your own mobile device. You may not use the Service for any other purpose, including any way that breaches the Privacy Statement or any other terms applicable to the Service. Neither the Service nor any portion of The Bouqs’ services may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of The Bouqs. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of The Bouqs or any other party. The license granted in this Section 4 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 4 will immediately terminate. You agree to comply with all applicable laws at all times when using the Service and using related services, and that you will not attempt to harm or overload the computer systems used to operate the Service or the computer systems of other users of the Service such as, by example only, causing any viruses or harmful code to be introduced to such computer systems.
4.2 MOBILE SOFTWARE FROM THE APPLE APP STORE
The following terms and conditions apply to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App from the Apple App Store. You acknowledge and agree that this Agreement is solely between you and The Bouqs, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement. You and The Bouqs acknowledge that Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to, (1) product liability claims, (2) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (3) claims arising under consumer protection or similar legislation. You and The Bouqs acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, The Bouqs, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You must comply with applicable third-party terms of agreement when using the App. You and The Bouqs acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as they relate to your license of the App, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
4.3 LICENSE LIMITATIONS
The license granted to you in Section 4.1 above is subject to the limitations as set forth in this Section 4 (collectively, the “License Limitations”). Any use of the Service in violation of these License Limitations or this Agreement will be regarded as an infringement of The Bouqs’ rights. The above-granted license in Section 4.1 does not grant you the right to, and you hereby agree that you will not, under any circumstances:
download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Service, without The Bouqs’ express prior written consent;
duplicate, decompile, reverse engineer, disassemble or decode the Service (including any underlying idea or algorithm), or attempt to do any of the same;
use, reproduce or remove any copyright, trademark, trade names, slogan, logos, images, service marks or other proprietary notations displayed on or through Service;
frame or utilize any framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of The Bouqs without our express consent;
purchase search terms or use any meta tags or other “hidden text” utilizing The Bouqs’ name or trademarks without our express consent;
attempt to gain unauthorized access to, interfere with, damage or disrupt the Service, accounts registered to other users, or the computer systems or networks connected to the Service;
circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Service;
use any robot, spider, crawlers or other automatic devices, processes, software or queries that intercept, “mine,” scrape or otherwise access the Service to monitor, extract, copy or collect information from or through the Service, or any manual process to do the same;
introduce any viruses, Trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful;
use the Service to ask users for their personal information;
use the Service for illegal, harassing, unethical, or disruptive purposes;
use the Service in any way that would affect us adversely or reflect negatively on us, the Service, our goodwill, our employees or moderators, our name or reputation, or discourage any person, firm or enterprise from using all or any portion, features or functions of the Service, or from advertising, linking or becoming a supplier to us in connection with the Service;
violate any applicable law or regulation in connection with your use of the Service; or
use the Service in any way not expressly permitted by the Agreement.
5. ELIGIBILITY AND ACCOUNTS
5.1 ELIGIBILITY
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 eighteen (18) years of age. Children under the age of 18 are not allowed to use the Service. You further represent that you are not an individual specifically prohibited by The Bouqs from using any part of the Service.
5.2 ACCOUNT
To access certain portions of the Service, you may be required to create an account through the Service (an “Account”). You agree that you shall not create an Account or use the Service if you (1) are under the age of 18, (2) have previously been removed by The Bouqs or banned from using The Bouqs’ services (including this Service), (3) already have an Account with us, (4) are located in a country embargoed by the United States or (5) are on the U.S. Treasury Department’s list of Specially Designated Nationals. You agree to only provide accurate and truthful information when setting up an Account and not to access Accounts or information about Accounts other than your own.
Your Account is for your use only. You agree not to lease, assign, sell, transfer, rent, share or provide access, directly or indirectly to, your Account or password with anyone else. You are responsible for all actions taken via your Account.
5.3 ACCOUNT INFORMATION
You can access, edit and update your Account information at any time through the My Account section of the Service (currently located on the Site at https://bouqs.com/login). You agree that you will supply truthful, accurate and complete information to The Bouqs, and that you will update such information promptly in the event that it changes. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, The Bouqs reserves the right to terminate the Agreement, your Account, and/or your use of the Service.
You may not transfer, share or make available your Account information to others. Any distribution by you of Account information may result in suspension, termination or cancellation of your access to the Service.
5.4 ACCOUNT SECURITY
You are entirely responsible for maintaining the confidentiality of your Account, username, and password, and for all activities which occur through the use of your Account, including purchases, whether or not authorized by you. You agree to (1) immediately notify The Bouqs of any unauthorized access to or use of your Account, username or password, or any other breach of security, and (2) ensure that you secure your Account and computer from third-party access, including by exiting from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. The Bouqs will not be liable for any loss or damage arising from your failure to comply with this Section 5.4. You may be issued a new password or be required to change your password from time to time.
You agree that all information you provide to register with the Service or otherwise, including, but not limited to through the use of any interactive features on the Service, is governed by our Privacy Statement, and you consent to all actions we take with respect to your information consistent with our Privacy Statement.
5.5 NO OWNERSHIP RIGHTS IN ACCOUNT
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT STORED OR HOSTED ON THE BOUQS’ SERVERS, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO SUCH ACCOUNTS ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF THE BOUQS.
6. THIRD-PARTY WEBSITES OR RESOURCES
The Service may contain links to websites or resources operated by other parties. WE PROVIDE 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 Bouqs, and we are not responsible for the content available on the other sites. Such links do not imply our endorsement of information or material on any other site. The Bouqs 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 use of, inability to use or reliance on any such content, goods or services available on such websites, apps or resources. These third-party websites and resources have separate and independent privacy statements, notices and terms of use, which we recommend you read carefully.
7. GIFT MESSAGE AND YOUR CONTENT GENERALLY
In the event you order a gift message (whether text, images, video or otherwise) to be delivered with your purchase, you agree that The Bouqs is not responsible in any manner for the content of your 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 rights of others when published, distributed or displayed by The Bouqs as part of The Bouqs offering its services through the Service. The Bouqs will not be liable for any claims relating to or arising from such gift message or, in the case of video gift messages, use or attempted use of the third-party video service, including, without limitation, any claims relating to invasion of privacy or security breaches. We reserve the right to discontinue or not display or distribute any gift message if we reasonably believe that such display or distribution would violate the terms above. You acknowledge and agree that any gift message you provide to The Bouqs may be shared with the recipient of the related product.
Portions of the Service may allow you to post, upload, publish, submit or transmit content to be made available through the Service, including gift messages, comments on our blogs, photos shared with #Bouqlove or any other Bouqs-owned tags, and Bouqs-owned social handles (e.g., @TheBouqsCo) (collectively, “Your Content”). By so posting or submitting Your Content, including on any publicly accessible blog, comments or community forum we may make available (collectively “Forums”), you represent and warrant (a) that you own or otherwise control all of the rights to Your Content, including without limitation, all copyrights; (b) that Your Content is accurate; and (c) that use of Your Content does not violate this Agreement and will not cause injury to any person or entity. We take no responsibility and assume no liability for any content or materials submitted or posted through the Service, including in the Forums, by you or any third party. The Bouqs from time to time may seek your permission to use certain of Your Content on the Site, on The Bouqs’ social media sites and/or in The Bouqs’ marketing materials. The Bouqs may use third party content aggregators for such purpose, and in giving The Bouqs permission to you Your Content, you are also giving the third party aggregator permission to use Your Content for the stated purpose. WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SERVICE.
As a condition of your use of the Service, you hereby grant to The Bouqs a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicensable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work from Your Content, including to post Your Content on and the Site and The Bouqs’ social media pages and in The Bouqs’ marketing materials, as provided above.
8. DMCA NOTICE
It is the policy of The Bouqs to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”).
Anyone who believes that his or her work has been reproduced in the Service in a manner which constitutes copyright infringement may submit a notification to The Bouqs’ copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
identification of the copyrighted work that is claimed to be infringed;
identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address;
a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to: The Bouqs, ATTN: Legal, 4094 Glencoe Ave., Marina Del Rey, CA 90292; or by email to dmca@thebouqs.com. The Bouqs will respond expeditiously to claims of copyright infringement using the Service that are reported to The Bouqs’ copyright agent in the notification explained above.
It is The Bouqs’ policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who infringe copyrights or intellectual property rights of others.
9. FEES AND PAYMENTS
9.1 PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, PayPal, 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 (1) discontinue or limit the available quantity of any product or aspect of the Service, (2) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions, and (3) refuse to allow any user to purchase a product or deliver any product to a user.
When you purchase products through the Service, you (1) agree to pay the price for such products set forth in the Service, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (2) authorize The Bouqs to charge your credit card or other payment method for the Full Purchase Amount. Our Service may allow you purchase products and designate them to be delivered at a future date. In such instance, you acknowledge and agree that The Bouqs may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of delivery of the applicable products. 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 PayPal or other means that we may make available. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor (including Authorize.net, Braintree or Paypal) are solely your responsibility.
9.2 SUBSCRIPTIONS
If you purchase a subscription for repeated deliveries or other ongoing services (a “Service Subscription”), then you hereby authorize The Bouqs and its service providers to bill your credit card or other payment method for the amounts and at the intervals described on our Service (or at approximately those intervals, to accommodate for holidays and other irregularities) until the end of the Service Subscription period or indefinitely if you decide to purchase an open-ended Service Subscription. In cases where your credit card expires, is canceled, is over the limit, or is otherwise declined for any reason, we will not continue to deliver bouquets or renew your Service Subscription, though we may, but are not obligated to, contact you to notify you of the issue.
When you purchase a Service Subscription, you will be able designate the frequency of deliveries for specific products. For pre-paid services, you will be able to determine the pre-paid period of the overall subscription (e.g., three (3) month subscription for one delivery per month, one (1) year subscription for four (4) deliveries each month during that year, etc.).
When you opt into a Service Subscription via The Bouqs product page, your activating purchase is considered a singular discounted order, unaffiliated with your subscription deliveries. Your first subscription order will arrive approximately one month from your activating purchase delivery date.
At the expiration of the pre-paid period of your Service Subscription, your Service Subscription will automatically renew at the frequency referenced on your subscription page (or if not designated, then monthly), and you will be charged applicable subscription and delivery fees, and be subject to the Terms of Use when you last used or accessed any part of the Service, until you cancel your subscription or we terminate it. You may cancel your subscription at any time by emailing help@thebouqs.com or using the manage subscription feature on your account settings (currently located at https://bouqs.com/flower-subscriptions).
We reserve the right to adjust pricing for any subscription in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes to your Service Subscription will take effect on the next renewal date.
9.3 DISCOUNTS
The Bouqs may provide a discount for referrals, as well as a discount for subscription plans and/or prepaid purchase plans. These promotions may be altered by information published on our Service, and if any information is conflicting, the terms most beneficial to The Bouqs shall prevail and take effect. We 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 our sole discretion. Discounts, promotions, and store credits of any kind may not be combined unless at our sole discretion. Subject to the specific terms of any offer, discounts offered for subscriptions and/or prepaid purchases will be forfeited if the subscription or prepaid orders are canceled before completed, and in such case we reserve the right to reverse any discounts provided and retroactively charge you the full retail price for any orders fulfilled as part of such subscription or prepaid purchases. In these cases, we may offset the amount of the voided discounts from any refunds that you may be entitled to.
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 that constitute theft and/or fraud, we 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. We reserve 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.
9.4 RETURN AND REFUND POLICY
Except as provided below, there are no refunds or returns for the goods purchased on the Service. All sales are final. You may receive a replacement bouquet only if (1) the wrong item was delivered, the bouquet arrives in substandard condition, or the bouquet was never delivered and (2) you complete a customer service request form at https://help.bouqs.com/hc/en-us/requests/new (or its successor webpage) within three (3) calendar days of the delivery date. In the event the bouquet arrived in substandard condition, you must also attach a photograph of the bouquet to the customer service request form. Credits issued for replacement bouquets cannot be transferred or redeemed for cash.
In the event the bouquet is delivered on a day other than the selected delivery date, The Bouqs may issue a promotional credit for the amount paid for shipping.
9.5 PROMOTIONAL CREDITS
From time to time, we may issue credits for replacement bouquets, late deliveries, other customer service issues, or in connection with certain marketing initiatives. All such credits are considered “Promotional Credits.” You agree that Promotional Credits are not Gift Cards (as defined below) and will not be treated as Gift Cards. Promotional Credits are for one-time use, are only redeemably by the recipient of the Promotional Credit, and subject to the Terms of Use effective when the recipient of the Promotional Credit uses or accesses the Service. Promotional Credits cannot be combined with other codes or promotional offers. Promotional Credits cannot be (i) resold, (ii) used for payment outside of the Service, (iii) used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, (iv) redeemed for more than face value, (v) transferred for value, or (vi) redeemed for cash.
Promotional Credits will expire one (1) year from issuance unless otherwise stated when issued .
9.6 CHANGES TO PRODUCTS AND PRICING
The Bouqs may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold or services offered through the Service. The inclusion of any products or services through the Service at a particular time does not imply or warrant that these products will be available at any other time. We reserve the right to change prices for products displayed on the Service, or the Service, 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 Service and/or upon making the customer aware of the pricing error, as explained in further detail in Section 9.9.
9.7 ORDER ACCEPTANCE/CONFIRMATION
Once we receive your order, we’ll provide you with an e-mail order confirmation. Your receipt of an order confirmation, however, does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline your order for any reason. If we cancel an order after you have already been billed, then we will refund the billed amount.
9.8 SHIPMENT OF PRODUCTS
Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. 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 goods purchased by you through the Service will be delivered within the time period specified for the delivery method you have selected. All orders are shipped using one of our third-party couriers. The earliest delivery date available for an order is as indicated for the item on the Service. Shipping is not available for delivery on Sundays or Mondays, unless otherwise indicated. Online tracking may be available at our courier’s website (for example, FedEx), though we make no warranties regarding its availability because it is not under our control. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific time. No recipient signature is typically required for deliveries of our products. The courier may leave the package at the address whether the recipient or another person is available or not. 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.
Product purchases (whether by Account holders or non-account holders) will be subject to a shipping fee that is clearly stated prior to completing purchase. As a thank you for your continued business, subscription and scheduled reoccurring deliveries may receive discounted shipping.
9.9 NO DELIVERY TO CHILDREN
In furtherance of our policy of not collecting personal information from children under the age of 13, users are not allowed to give The Bouqs the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
9.10 TYPOGRAPHICAL ERRORS
We have no obligation to honor incorrect pricing on the Service or that you receive from our suppliers or any other third party. 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 or any other third party, 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 payment method charged . If your payment method 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.
10. Gift Cards
10.1 Generally
From time to time, we may make available for purchase one or more gift cards (each a “Gift Card”) via the Service. Gift Cards may only be redeemed toward the purchase of goods through the Service or, if a Gift Card is for a specific product, for the purchase of such product. Goods eligible for purchase using a Gift Card are subject to change in our sole discretion. If you use your Gift Card to make a purchase of goods through the Service and your purchase does not exhaust your Gift Card balance, then you may use the remaining balance for future purchases, subject to the restrictions set forth herein. If you use your Gift Card to make a purchase of goods through the Service that exceeds your Gift Card balance, you will have to use another payment method for the remainder of your purchase. Any purchase of goods through the Service shall be subject to the Terms of Use effective at the time of purchase.
Gift Cards cannot be used to purchase other Gift Cards, reloaded, resold, used for payment outside of the Service, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law).
All returns for purchases made using a Gift Card will result in credit to a Gift Card or issuance of a new Gift Card in the amount of the return.
10.2 No Expiration; no Dormancy Fee.
Gift Cards do not expire, and The Bouqs will not assess a service fee or dormancy fee with respect to a Gift Card.
10.3 Risk of Loss.
The risk of loss and title for Gift Cards pass to the purchaser upon our electronic transmission of the Gift Card to the purchaser or designated recipient. Gift Cards must be obtained from The Bouqs, and you are responsible for safeguarding your Gift Card from unauthorized use. Gift Cards that are lost, stolen, destroyed, or used without your permission are not replaceable.
10.4 Compliance with Laws; FRAUD.
By purchasing a Gift Card, you represent and warrant to The Bouqs that use of the Gift Card will comply with this Agreement and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers.
The Bouqs may request alternative forms of payment if The Bouqs believes a Gift Card has been fraudulently obtained.
11. LOCATION
The Service is operated by The Bouqs in the United States. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
12. DISCLAIMER OF WARRANTIES
THE SERVICE, 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, NONINFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE SERVICE MAY INCLUDE INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
TO THE EXTENT PERMITTED BY LAW, THE BOUQS DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND 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. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BOUQS, 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 SERVICE, EVEN IF THE BOUQS 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 PAYPAL OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND PAYPAL, 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 SITE OR APPLICATIONS WHICH PREVENT ACCESS TO OUR SERVICE TEMPORARILY OR PERMANENTLY, OR WHICH DELAY OR PREVENT THE DELIVERY OF OUR GOODS TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BOUQS AND RELATED PARTIES DISCLAIM ANY AND ALL LIABILITY WITH RESPECT TO ANY FOREIGN OBJECTS OR MATERIALS THAT MAY BE INCLUDED WITH OR IN ANY GOODS PURCHASED ON OUR SERVICE, WHICH GOODS MAY BE PACKAGED AND SHIPPED BY THIRD PARTIES.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF THE BOUQS OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES OR SUPPLIERS 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 RELATED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. THEREFORE, THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. INDEMNIFICATION
YOU HEREBY AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE BOUQS 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 BOUQS ARISING OUT OF OR RELATING TO ANY (1) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY POLICY OR GUIDELINES REFERENCED HEREIN BY YOU, INCLUDING ANY UNAUTHORIZED DISCLOSURE OF PERSONAL OR CONFIDENTIAL INFORMATION, (2) ACT OF FRAUD OR DISHONESTY BY YOU IN CONNECTION WITH THE SERVICE, OR (3) UNAUTHORIZED USE OR MISUSE OF THE SERVICE.
15. DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS SECTION 15 CAREFULLY. YOU HAVE A RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE. IF YOU DO NOT REJECT IT IN THE MANNER SET FORTH BELOW, THIS SECTION 15 WILL APPLY, AND YOU AND THE BOUQS ARE WAIVING THE RIGHT TO HAVE OUR DISPUTE HEARD BEFORE A JUDGE OR OTHERWISE TO BE DECIDED BY A COURT, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO A SMALL CLAIMS COURT OR AS OTHERWISE STATED BELOW. MOST DISPUTES BETWEEN YOU AND THE BOUQS WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY DISPUTES (EXCEPT AS STATED HEREIN), (2) YOU AND THE BOUQS ARE WAIVING ANY ABILITY TO ASSERT OR PARTICIPATE IN A CLASS, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING, WHETHER IN COURT OR IN ARBITRATION, (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY, AND (4) APPEAL RIGHTS WILL BE LIMITED.
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you, or any other user of your account, and The Bouqs, our affiliates, and/or agents, whether arising out of or relating to your Account, your use of the Service, this Agreement (including any alleged breach thereof), any advertising, or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement and as permitted by law, except that you may assert individual claims in small claims court or your state’s equivalent court, if your claims qualify. You agree that, by entering into this Agreement, you and The Bouqs are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. You and The Bouqs agree that either of us may elect to proceed by arbitration, that the goal of proceeding in arbitration shall be to achieve effective, efficient, and less costly resolution between you and us, and that the Arbitration Agreement shall be interpreted and applied to achieve that goal.
Nothing in this Section 15 shall limit either party from seeking injunctive or other exigent relief from a court of law, and/or bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief. Disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. You and The Bouqs agree that any claim that is not subject to arbitration and is not otherwise proceeding in small claims court or your state’s equivalent court shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, and you agree to submit to the personal jurisdiction and venue of such courts. IN SUCH INSTANCES, YOU AND WE EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
YOU HAVE A RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE. UNLESS YOU OPT OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, YOU AND THE BOUQS ARE WAIVING THE RIGHT TO HAVE OUR DISPUTE HEARD BEFORE A JUDGE OR OTHERWISE TO BE DECIDED BY A COURT, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO A SMALL CLAIMS COURT OR AS OTHERWISE STATED HEREIN. YOU AND THE BOUQS ARE WAIVING ANY ABILITY TO ASSERT OR PARTICIPATE IN A CLASS, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING, WHETHER IN COURT OR IN ARBITRATION, AND TO HAVE ANY CLAIMS HEARD BY A JURY. ALL DISPUTES, EXCEPT AS STATED BELOW, MUST BE RESOLVED BY BINDING ARBITRATION WHEN EITHER YOU OR THE BOUQS REQUEST IT.
15.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE BOUQS ARE WAIVING THE RIGHT TO ASSERT OR PARTICIPATE IN A CLASS ACTION, OR ANY REPRESENTATIVE OR CONSOLIDATED PROCEEDING IN COURT OR IN ARBITRATION, AND ARE WAIVING THE RIGHT TO HAVE A JURY DECIDE ANY CLAIM, AS PERMITTED BY LAW. YOU AND THE BOUQS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTION OR PROCEEDING. YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER ACCOUNTHOLDER OR USER OF THE SERVICE NOT ON YOUR ACCOUNT. UNLESS BOTH YOU AND THE BOUQS AGREE OTHERWISE, THE ARBITRATOR MAY NOT ENTERTAIN ANY CLAIM AS A CLASS ACTION OR ON ANY OTHER SIMILAR REPRESENTATIVE BASES, NOR CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INDIVIDUAL AND/OR PUBLIC INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
FOR INDIVIDUAL CLAIMS FILED AS PART OF A “MASS ARBITRATION,” AS THAT TERM IS DEFINED HEREIN, THE ADDITIONAL REQUIREMENTS SET FORTH IN THE MASS ARBITRATION SECTION BELOW SHALL APPLY.
15.3 Opt-out of Arbitration Agreement
You have the right to opt out of and reject this Section 15 of the Agreement, and it will not affect any other terms and conditions of the Agreement, including your waiver of the right to proceed in a class action, or any representative or consolidated proceeding in court and the right to have a jury decide any claim. If You choose to opt out, You will remain subject to the prior dispute resolution and arbitration terms available Here for the duration of Your current agreement with us. If You want to opt out, the exclusive way to do so is by emailing us at legalnotices@thebouqs.com within sixty (60) days after you first open your Account or we first provided you with your right to reject this Section 15. The notice must include your name, address and account number. An election to opt out applies only to claims arising under this Arbitration Agreement. The Arbitration Agreement will apply to any claims between You and The Bouqs for which we do not receive an opt out notice as described in this paragraph. If You validly opt out of this agreement to arbitrate, Your decision to opt out will apply only to this Arbitration Agreement, and the prior arbitration provisions (found here) will remain in effect between You and The Bouqs.
15.4 Pre-Arbitration Dispute Resolution
The Bouqs is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing support at help@thebouqs.com. If such efforts prove unsuccessful, you and The Bouqs agree that a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to The Bouqs should be sent to 4094 Glencoe Ave., Marina Del Rey, CA 90292, Attention: Legal (“Notice Address”). The Notice must (i) contain the claimant’s name, telephone number, mailing address, e-mail address, (ii) describe the nature and basis of the claim or dispute, (iii) set forth the specific relief sought, including the dollar amount, if demanded, and (iv) include the claimant’s signature. You and The Bouqs further agree to provide, within reason, any requested factual information necessary to assess and investigate the purported claim. If after providing the required and any requested information, The Bouqs and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or The Bouqs may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by The Bouqs or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or The Bouqs is entitled.
15.5 Arbitration Procedures
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to the address set forth above. Unless You and The Bouqs agree in writing to proceed before a different arbitral body and/or arbitral rules, any arbitration will be conducted by JAMS. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-streamlined-arbitration/ (“JAMS Streamlined Rules”). All other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/ (“JAMS Comprehensive Rules”). JAMS shall apply its Mass Arbitration Procedures and Guidelines to mass arbitration matters in effect at the time arbitration is commenced, available at https://www.jamsadr.com/mass-arbitration-procedures (“JAMS Mass Arbitration Rules,” and together with JAMS Streamlined Rules and JAMS Comprehensive Rules, “JAMS Rules”). A single arbitrator shall conduct proceedings under the Streamlined Rules or Comprehensive Rules, as appropriate, and a Process Administrator and single Merits Arbitrator shall conduct each mass arbitration case. Arbitral fees will be paid consistent with the JAMS Rules. JAMS Rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If there is any inconsistency between any the JAMS Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
Unless The Bouqs and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances, including the ability for a remote or virtual arbitration. If the parties are unable to agree on a location, the determination will be made by JAMS or the arbitrator consistent with the JAMS Rules .
15.6 Authority of Arbitrator
The Parties agree that, upon motion by either of us, any arbitrator shall have the power to decide dispositive issues of law prior to a full merits hearing, consistent with Federal Rules of Civil Procedure 12 and 56, and will decide the claim in accordance with all applicable substantive law and recognized principles of equity. The arbitrator will determine whether the claimant has completed the steps necessary to initiate the suit. The arbitrator will construe the claim under the applicable statutes of limitations provided for under the governing law, or the two-year limitations period prescribed in Section 18 below, whichever is shorter, to the extent reasonable and as permitted by law. The arbitrator will honor all claims of privilege recognized by law. The arbitrator will have the power to award to a party any damages or relief as permitted by the law and the agreement between You and The Bouqs (including the limitations set forth above). In addition, the arbitrator has the same power as a federal court to impose sanctions against any represented party or counsel for any violation of the standards of Federal Rule of Civil Procedure 11(b) or 28 U.S.C. § 1927.
The arbitrator must follow the provisions of these Terms as a court would. The arbitrator shall have exclusive authority to (a) determine the scope, enforceability, and arbitrability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”), any arbitration between you and The Bouqs will be conducted subject to JAMS Rules as set forth above, and California law should apply to the extent state law is relevant under the FAA. The arbitrator must apply the same law and legal principles, consistent with the FAA that would apply in court, but may use different procedural rules. You and we 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.
The arbitration will decide the rights and liabilities, if any, of you and The Bouqs. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim, consistent with Federal Rules of Civil Procedure 12 and 56. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision will be final and binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged under the provisions of the FAA.
Arbitration Demand Filing Requirements
In addition to the requirements set forth in the JAMS Rules, you agree that upon commencing a case with JAMS, you will provide your name, mailing address, telephone number, email address, a factual description of every claim for which you seek compensation, explanation of the basis of your claim, an itemized calculation of all alleged damages, and, if represented by counsel, a signed statement authorizing The Bouqs to share your information with them. You must personally sign the demand for arbitration (and your counsel must also sign the demand, if you are represented by counsel). By submitting an arbitration demand, you (and your counsel, if you are represented) represent that, as in court, you are complying with the requirements of Federal Rule of Civil Procedure 11(b). You agree and understand that failure to provide this information may result in dismissal of your claim(s), though you have the right to refile once you provide the information described in this section.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement or the parties entered into a separate agreement.
The arbitrator is authorized to afford any relief or impose any sanctions (including in the form of reallocation of compensation, expenses and administrative fees) available under the substantive standards established by Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, or any applicable state law on represented parties and their counsel, to the extent permitted by law. If the arbitrator finds that either the substance of your or The Bouqs’ claim or the relief sought was frivolous, without sufficient reasonable inquiry and/or a good faith basis, or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), and/or under 28 U.S.C. § 1927), the arbitrator may reallocate compensation, expenses, and administrative fees as justice requires, and as permitted by applicable law.
Mass Arbitration
You agree that these additional requirements (“Mass Arbitration Procedures”) shall apply to your claim if it is filed as part of a “mass arbitration,” which means twenty-five (25) or more arbitration claims involving the same or similar subject matter and/or issues of law or fact that are filed within 90 days of each other, and where representation of all claimants is the same or coordinated across the cases. You understand and agree that these procedures related to mass arbitrations will apply and that they are designed to (a) lead to the streamlined and cost-effective resolution of claims, consistent with the goal of this arbitration agreement; (b) ensure that large volume filings do not impose unnecessary burdens or impediments to the resolution and cost-effective adjudication of your Claim and similar claims; and (c) preserve the integrity of the arbitration process. You agree to these procedures even though they may delay the arbitration of your individual claim. If at any point you are unsatisfied with the speed by which your matter is proceeding in mass arbitration, you are free to withdraw your arbitration demand and proceed in small claims court if the claim is in that court’s jurisdiction and proceeds on an individual basis.
15.9(i) Process Administrator Appointment
You and The Bouqs agree that before an arbitrator is assigned to determine the merit of your claim, a “Process Administrator” will be appointed. The Process Administrator will have the authority to ensure these Mass Arbitration Procedures and the JAMS Rules are followed. The Parties agree that the Process Administrator will be selected by the process set forth in the JAMS Mass Arbitration Rules or any equivalent JAMS rule then in effect, or consistent with the process set forth herein in the absence of any JAMS rule. In short, each Party will receive a list of proposed Process Administrators provided by JAMS and will meet and confer to identify a mutually-agreeable candidate. If the Parties cannot agree, they will submit their preferences to JAMS, and JAMS will select a Process Administrator.
15.9(ii) Process Administrator Authority
In addition to the authority outlined in the JAMS Mass Arbitration Rules, the parties agree that the Process Administrator shall be empowered to resolve any dispute regarding whether your claim should be dismissed because, for example, you failed to comply with the Mass Arbitration Filing Requirements, any other requirements outlined in the Arbitration Agreement, or as permitted to address dismissal as would be permitted under the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 12. You agree that if the Process Administrator finds you failed to comply with any requirement, your claim will be dismissed, without prejudice to refiling once the deficiencies are remedied. The Process Administrator will also have the power to decide whether, based on the information submitted in the Mass Arbitration Filing Requirements and/or pursuant to any alternative filing requirements then in effect, there are other threshold eligibility issues for your case to proceed, including but not limited to whether you cannot pursue the claim due to a clear legal or factual deficiency, and to dismiss your claim as appropriate. The Process Administrator shall have the power to determine whether or not a given dispute regarding these Mass Arbitration Filing Requirements and/or Procedures are within the Process Administrator’s jurisdiction. The Process Administrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, or any applicable state law.
15.9(iii) Mass Arbitration Procedure
Following the resolution of any disputes within the jurisdiction of the Process Administrator, if any, counsel for the claimants and counsel for The Bouqs shall each select fifteen (15) cases (per side) to proceed first in individual arbitration proceedings on the merits of each claim in an initial batch, unless the parties agree to another number of cases per batch. Unless the Parties otherwise agree, in no event shall any individual Merits Arbitrator be assigned more than fifteen (15) cases. JAMS will administer each Batch as a single consolidated arbitration with one arbitrator, one set of arbitration fees, and one hearing held by videoconference or in a location decided by the arbitrator for each Batch in accordance with the JAMS Mass Arbitration Rules. The Parties agree that each Batch of [30 cases] shall proceed to final hearing, which shall occur within ninety (90) days of the selection of the cases (unless the Parties agree to a different time period), before the process described in this section moves forward. After the first thirty (30) cases are resolved, counsel will meet and confer regarding ways to improve the efficiency of the proceedings, including whether to pursue settlement discussions or mediation or to change the number of cases filed in each stage. If the Parties are unable to resolve the remaining cases after the conclusion of the initial thirty (30) proceedings and conferring in good faith, each side shall select another fifteen (15) cases per side to proceed to individual arbitration proceedings, which shall occur within ninety (90) days of the selection of the cases (unless the Parties agree to a different time period). After this second set of thirty (30) cases are resolved, counsel will again meet and confer regarding ways to improve the efficiency of the proceedings, including whether to pursue settlement discussions or mediation or change the number of cases filed in each stage. If the Parties do not reach a global resolution after the second set of cases are resolved, on either Party’s motion, the Process Administrator can decide to expedite the proceedings by forgoing more rounds of case selection and instead assigning Merits Arbitrators to all of the remaining cases at once. If no motion is made, this Mass Arbitration Procedure shall continue with thirty (30) cases in each set of proceedings, consistent with the parameters identified above. You and The Bouqs agree to engage in these Mass Arbitration Procedures in good faith, which includes an agreement to pay the parties’ respective case fee if Your case is selected. Any dispute regarding any aspect of the specific Mass Arbitration Procedures outlined in this section shall be resolved by the Process Administrator.
If any part of this section is found to be invalid or unenforceable as to a particular claimant or Batch, it will be severed and arbitrated in individual proceedings.
15.9(iv) Mass Arbitration Fees
No Arbitrator Appointment fees shall be assessed in connection with any case until the case is selected to proceed to individual arbitration proceedings as part of the process identified in this section, the Process Administrator has issued rulings resolving, and has relinquished jurisdiction of, all global issues implicating the case, and a merits arbitrator has been assigned.
15.9(v) Interpretation and Enforcement of Mass Arbitration Procedure
Any dispute regarding the interpretation or enforcement of these Mass Arbitration Procedures shall be decided by the Process Administrator or, in cases that have been released to merits proceedings, the Merits Arbitrator. Their decisions regarding the Mass Arbitration Procedures shall be considered interlocutory in nature and not subject to immediate judicial review. If any terms of these Mass Arbitration Procedures are found to be legally unenforceable for any reason, the remaining terms shall continue to apply and the proceedings shall otherwise continue in arbitration in accordance with the JAMS Mass Arbitration Rules, or any equivalent JAMS rule then in effect
15.10 Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
15.11 Severability
If any term or provision of this Section 15 is found invalid or unenforceable, you and The Bouqs agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 15 shall be enforceable as so modified, with the exception that there can be no arbitration of any class, representative, or consolidated proceeding between you and The Bouqs.
15.12 Future Changes to Arbitration Agreement
Notwithstanding any provision in this Agreement to the contrary, The Bouqs agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending the Bouqs written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
16. CLASS ACTION WAIVER
TO THE EXTENT ALLOWED BY LAW, YOU WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST THE BOUQS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
17. TERM AND TERMINATION
This Agreement is effective until terminated. You may terminate this Agreement by discontinuing your use of the Service and affirmatively cancelling all accounts, features or services to which you are subscribed. You will continue to incur and be responsible for any recurring subscription fees associated with any account, feature or service until you have affirmatively terminated each such account, feature or service in accordance with all applicable terms.
The Bouqs shall have the right to terminate the Agreement, and/or temporarily or permanently suspend, withdraw or restrict your access to some or all of your Account and/or the Service, at any time, effective immediately, with or without notice, for any or no reason whatsoever. If The Bouqs terminates or restricts your use and access of the Service, then you must immediately stop using all portions of the Service and delete the App from your mobile device. The provisions of Sections 3, 12, 13, 14, and 15 shall survive any termination of the Agreement.
18. GENERAL
18.1 FORCE MAJEURE.
The Bouqs shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including, without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond our 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.
18.2 NO PARTNERSHIP.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and The Bouqs as a result of this Agreement or your use of the Service.
18.3 ASSIGNMENT.
The Bouqs 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 our prior written consent, and any unauthorized assignment by you shall be null and void.
18.4 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.
18.5 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.
18.6 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.
18.7 EQUITABLE REMEDIES.
You hereby agree that The Bouqs 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
18.8 ENTIRE AGREEMENT.
This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Service; provided, however that this Agreement is in addition to, and does not replace or supplant, our Privacy Statement. This Agreement may only be modified as set forth herein.
18.9 HEADINGS.
The section headings used herein are for reference only and shall not be read to have any legal effect.
18.10 GOVERNING LAW.
Except as expressly stated otherwise, and consistent with rules and procedures set forth in Section 15, this Agreement shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim you might have against The Bouqs should be brought within two (2) years after the cause of action arises, or such claim or cause of action is barred, to the extent reasonable and as permitted by law.
18.11 APPLE.
Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and, by accepting this Agreement, you acknowledge that Apple and Apple’s subsidiaries will have the right (and are deemed to have accepted the right) to enforce this Agreement against you as a third party thereof.
19. NOTICE TO CALIFORNIA USERS AND RESIDENTS
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding The Bouqs or the Service, please send an e-mail to help@thebouqs.com. You may also contact us by writing to:
The Bouqs Company ATTN: California Legal Notice 4094 Glencoe Ave., Marina Del Rey, CA 90292
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by telephone at (916) 445-1254 or (800) 952-5210, or by postal mail at:
California Department of Consumer Affairs 1625 North Market Blvd. Sacramento, CA 95834
20. ACKNOWLEDGEMENT AND AGREEMENT
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE THAT MY USE OF THE SERVICE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.