Flourish Garden Terms and Conditions
Last updated: December 08, 2023
1. General
Flourish Garden website (“Website”), mobile applications (“Apps”), and related services (together with the Websites and Apps, the “Service”) are operated by PlanningMyGarden, Inc., a company doing business as Flourish Garden (“Flourish,” “us,” or “we”). Access and use of the Service is subject to the following Terms and Conditions of Service (“Terms and Conditions”).
Please read these Terms and Conditions carefully as they govern your use of (which includes access to) Flourish’s Service and any material that is made available through the Flourish Service ("Content"). By accessing or using any part of the Service, you represent that you have read, understood, and agree to be bound by these Terms and Conditions, including any future modifications. Flourish may amend, update, or change these Terms and Conditions. If we do this, we will post a notice that we have made changes to these Terms and Conditions on the Websites for at least 7 days after the changes are posted and will indicate at the bottom of the Terms and Conditions the date these terms were last revised. Any revisions to these Terms and Conditions will become effective the earlier of (i) the end of such 7-day period or (ii) the first time you access or use the Service after such changes. If you do not agree to abide by these Terms and Conditions, you are not authorized to use, access, or participate in the Service.
Use of the Service is subject to Flourish Privacy Policy and additional terms and conditions presented by Flourish, all of which are made part of these Terms and Conditions by this reference.
PLEASE NOTE THAT THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.
Service provider
These Terms and Conditions are between you and PlanningMyGarden Inc, doing business as Flourish a company registered in California, United States at PO Box 3211, Atascadero, CA 93423. You can contact us by email at info@planningmygarden.com or
Age and eligibility requirements
BY USING THE SERVICES, YOU AFFIRM THAT YOU ARE 18 YEARS OR OLDER TO ENTER INTO THESE TERMS AND CONDITIONS.
2. Website and Service
The Service allows users to access and use a service to help visualize a garden. Flourish may, in its sole discretion and at any time, update, change, suspend, make improvements to or discontinue any aspect of the Service, temporarily or permanently.
We provide several Service options where certain options are provided free of charge, while other options require payment before they can be accessed ("Paid Subscriptions"). We may also offer special promotional plans, memberships, or services, including offerings of third-party products and services. We are not responsible for the products and services provided by such third parties.
Trials
From time to time, we or others on our behalf may offer trials of Paid Subscriptions for a specified period without payment or at a reduced rate ("Trial"). By using a Service via a Trial, you agree to our Paid Subscription Terms as well.
Third-party applications, devices, and open source software
The Service may be integrated with, or may otherwise interact with, third-party applications, websites, and services ("Third-Party Applications") and third-party personal computers, mobile handsets, tablets, wearable devices, speakers, and other devices ("Devices"). Your use of such Third-Party Applications and Devices may be subject to additional terms, conditions, and policies provided to you by the applicable third party. Flourish does not guarantee that Third-Party Applications and Devices will be compatible with the Service.
Service limitations and modifications
We use reasonable efforts to keep the Service operational and to provide you with a personalized, immersive experience. However, Flourish reserves the right to change our Service offerings and the availability from time to time, without notice or liability to you. For example:
- The Service may experience temporary interruptions due to technical difficulties, maintenance or testing, or updates, including those required to reflect changes in relevant laws and regulatory requirements.
- We may modify, suspend, or stop (permanently or temporarily) providing all or part of the Service (including particular functions, features, subscription plans, and promotional offerings) in order to update or upgrade our technical solutions supporting the Services
Flourish has no liability to you, nor any obligation to provide a refund to you, in connection with internet or other Service outages or failures that are caused by the actions of government authorities, other third parties, or events beyond our control.
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.
If you have prepaid fees directly to Flourish for a Paid Subscription that Flourish permanently discontinues prior to the end of your Prepaid Period (as that term is defined in the "Payments and cancellations" section below), Flourish will refund you the prorated portion of the prepaid fees for the Pre-Paid Period after such discontinuation. Your account and billing information must be up to date in order for us to refund you.
3. Using the Services
Creating an Account
You may need to create an account with Flourish to use all or part of the Service. Your username and password are for your personal use only and should be kept confidential. You understand that you are responsible for all use (including any unauthorized use) of your username and password. If your username and password are misplaced or stolen we recommend you to inform our Customer Support team at info@planningmygarden.com to make sure there are no unauthorized usage of or access to your account.
Your License Right to Access to the Services
Subject to the terms of these Terms and Conditions, Flourish grants you a non-transferable, non-exclusive license to download, install, and use one copy of each App in object code form only on an interactive wireless device that you own or control. You may not derive or attempt to derive the source code of all or any portion of any App, permit any third party to derive or attempt to derive such source code, or reverse engineer, decompile, disassemble, or translate any App or any part thereof. Flourish retains all intellectual property rights and other rights in and to the Apps, and any changes, modifications, or corrections thereto.
The following terms and conditions apply to you only if you are using the Apps from the Apple App Store. To the extent the other terms and conditions of these Terms and Conditions 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 Apps from the Apple App Store. You acknowledge and agree that these Terms and Conditions are solely between you and Flourish, not Apple, and that Apple has no responsibility for the Apps or content thereof. Your use of any App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any 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 Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and Conditions. You and Flourish acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apps or your possession and/or use of any App, including, but not limited to: (i) product liability claims; (ii) any claim that an App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Flourish acknowledge that, in the event of any third-party claim that any App or your possession and use of that App infringes that third party’s intellectual property rights, Flourish, 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 these Terms and Conditions. You must comply with applicable third party terms of agreement when using any App. You and Floourish acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and Conditions as they relate to your license of the Apps, and that, upon your acceptance of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary thereof.
4. Payments and cancellation
I) Billing
You may purchase a Paid Subscription directly from AppleStore by:
a) paying a subscription fee plus applicable taxes in advance on a monthly basis or some other recurring interval disclosed to you prior to your purchase; or
b) prepayment giving you access to the Service for a specific time period ("Prepaid Period"), typical an annual 12-month basis.
Tax rates are calculated based on the information you provide and the applicable rate at the time of your monthly charge.
Flourish may revise the pricing for the goods and services offered through the Service at any time. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current.
II) Payment Processors
All financial transactions made in connection with the Service will be processed by a third party in accordance with their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. We encourage you to learn about the practices of such third party. In no event will Flourish be responsible for the actions or inactions of any third party payment processor, including, but not limited to, system downtime or payment service outages.
III) Renewal and cancellation
If you purchase an auto-renewing periodic subscription to the Service, your Flourish account will be billed continuously for the subscription until you cancel it before the end of the then-current subscription period. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew for an additional equivalent period. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your Flourish account and follow instructions to terminate or change your subscription, even if you have deleted your account.
Contact our Customer Support team at info@planningmygarden.com for instructions on how to cancel. The cancellation will take effect the day after the last day of the current subscription period.
IV) Refund Policy
We do not provide refunds or credits for any partial subscription periods, except as expressly stated in these Terms and Conditions.
If you cancel your periodic subscription to a paid Flourish service, you will continue to have access to the service through the end of your current billing period.
5. Third-Party Links, Sites, and Services
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Flourish. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access any third party website, service, or content from Flourish, you understand that these Terms and Conditions and our Privacy Policy do not apply to your use of such sites. You expressly acknowledge and agree that Flourish shall not be responsible or liable, directly or indirectly, for any damage or loss arising from your use of any third-party website, service, or content.
The Service may include advertisements, which may be targeted to the content or information on the Service, or other information. The types and extent of advertising by Flourish on the Service are subject to change. In consideration for Flourish granting you access to and use of the Service, you agree that Flourish and its third party providers and partners may place such advertising in connection with the display of content or information submitted by you or others.
6. Brand accounts
If you establish an account on behalf of a company, organization, entity, or brand ("Brand," and such account a "Brand Account"), the terms "you" and "your," as used throughout these Terms and Conditions (including other Flourish terms and conditions incorporated by reference herein), apply to both you and the Brand.
If you create a Brand Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and Conditions (including any other applicable Flourish terms and conditions) and to bind the Brand to these Terms and Conditions.
7. Content and Intellectual Property Rights
User Content
Flourish users may be able to post, upload, or otherwise contribute content to the Service ("User Content"). For the avoidance of doubt, User Content includes all information, materials and other content that is added, created, uploaded, submitted, distributed, or posted to the Flourish Service by users.
You are solely responsible for all User Content that you post.
You promise that, with respect to any User Content you post on Flourish, (1) you own or have the right to post such User Content; and (2) such User Content, or its use by Flourish pursuant to the license granted below, does not: (i) violate these Terms and Conditions, applicable law, or the intellectual property or other rights of any third party; or (ii) imply any affiliation with or endorsement of you or your User Content by Flourish without the prior express written consent from Flourish.
In posting or sharing User Content or other information on the Service, please keep in mind that content and other information will be publicly accessible, and may be used and re-shared by others on the Service and across the web, so please use caution in posting or sharing on the Service, and be mindful of your account settings. Flourish is not responsible for what you or others post or share on the Service.
Monitoring user content
Flourish may, but has no obligation to, monitor or review User Content. Flourish reserves the right to remove or disable access to any User Content for any or no reason. Flourish may take these actions without prior notification to you.
Licenses that you grant to us
User Content
You retain ownership of your User Content when you post it to the Service. However, in order for us to make your User Content available on the Service, we do need a limited license from you to that User Content. Accordingly, you hereby grant to Flourish a non-exclusive, transferable, sublicensable, royalty-free, fully paid, irrevocable, worldwide license to reproduce, make available, perform and display, translate, modify, create derivative works from, distribute, and otherwise use any such User Content through any medium, whether alone or in combination with other Content or materials, in any manner and by any means, method or technology, whether now known or hereafter created, in connection with the Service. Where applicable and to the extent permitted under applicable law, you also agree to waive, and not to enforce, any "moral rights" or equivalent rights, such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.
Feedback
If you provide ideas, suggestions, or other feedback in connection with your use of the Service or any Content ("Feedback"), such Feedback is not confidential and may be used by Flourish without restriction and without payment to you. Feedback is considered a type of User Content under these Terms and Conditions.
8. Customer Support, Information, Questions, and Complaints
Customer support, information, questions, and complaints
For customer support with account- and payment-related questions ("Customer Support Queries"), please use Customer Support at info@planningmygarden.com
If you have any questions concerning the Service or these Terms and Conditions (including any additional Flourish terms and conditions incorporated herein), please contact Flourish Customer Service at info@planningmygarden.com.
In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
9. Problems and Disputes
Suspending and terminating the Service
These Terms and Conditions will continue to apply to you until terminated by either you or Flourish. Flourish may terminate these Terms and Conditions (including any additional terms and conditions incorporated herein) or suspend your access to the Service at any time if we believe you have breached any of these Terms and Conditions, if we stop providing the Service or any material component thereof, or as we believe necessary to comply with applicable law. If you or Flourish terminate these Terms and Conditions, or if Flourish suspends your access to the Service, you agree that Flourish shall have no liability or responsibility to you, and (except as expressly provided in these Terms) and Conditions will not refund any amounts that you have already paid. You may terminate these Terms and Conditions at any time, in which case you may not continue accessing or using the Service.
The following sections shall survive termination: Sections 2 (Website and Service), 3 (Using Our Service) (except as set forth therein), 7 (Content and Intellectual Property Rights), 9 (Problems and Disputes), 10 (About These Terms and Conditions), as well as any other sections of these Terms and Conditions that, either explicitly or by their nature, must remain in effect even after termination of these Terms and Conditions.
Warranty disclaimers
THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. FURTHER, FLOURISH AND ALL OWNERS OF THE CONTENT DISCLAIM ANY EXPRESS, IMPLIED, AND STATUTORY WARRANTIES REGARDING THE CONTENT, INCLUDING WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER FLOURISH NOR ANY OWNER OF CONTENT WARRANTS THAT THE SERVICE OR CONTENT IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, FLOURISH MAKES NO REPRESENTATION REGARDING, NOR DOES IT WARRANT OR ASSUME ANY RESPONSIBILITY FOR, ANY THIRD-PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, DEVICES OR ANY PRODUCT OR SERVICE ADVERTISED, PROMOTED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE, AND FLOURISH IS NOT RESPONSIBLE FOR ANY TRANSACTIONS BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF THE FOREGOING. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM FLOURISH SHALL CREATE ANY WARRANTY ON BEHALF OF FLOURISH. WHILE USING THE SERVICE, YOU MAY HAVE ACCESS TO EXPLICIT CONTENT FILTERING FEATURES, BUT USE OF THESE FEATURES MAY STILL RESULT IN SOME EXPLICIT CONTENT BEING SERVED AND YOU SHOULD NOT RELY ON SUCH FEATURES TO FILTER ALL EXPLICIT CONTENT. THIS SECTION APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the exclusion and limitations in this section may not apply to you.
Limitation of liability and time for filing a claim
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE IS TO UNINSTALL ANY FLOURISH SOFTWARE AND TO STOP USING THE SERVICE. YOU AGREE THAT FLOURISH HAS NO OBLIGATION OR LIABILITY ARISING FROM OR RELATED TO THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICE, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD-PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO FLOURISH, FOR ANY PROBLEMS OR DISSATISFACTION WITH ANY THIRD-PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL OR STOP USING SUCH THIRD-PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FLOURISH, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, DEVICES, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER FLOURISH HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY APPLICATION CONTENT MORE THAN THE GREATER OF (A) THE AMOUNTS PAID BY YOU TO FLOURISH DURING THE TWELVE MONTHS PRIOR TO THE FIRST CLAIM; OR (B) $30.00.
For clarification, these Terms and Conditions do not limit Flourish’s liability for fraud, fraudulent misrepresentation, death or personal injury to the extent that applicable law would prohibit such a limitation.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM ARISING UNDER THESE TERMS AND CONDITIONS MUST BE COMMENCED (BY FILING A DEMAND OR FILING AN INDIVIDUAL ACTION AS SPECIFIED UNDER THE ARBITRATION AGREEMENT BELOW) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
Third-party rights
You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of these Terms and Conditions and have the right to enforce these Terms and Conditions directly against you. Other than as set out in this section, (1) these Terms and Conditions are not intended to grant rights to anyone except you and Flourish; and (2) in no event shall these Terms and Conditions create any third-party beneficiary rights.
Indemnification
You agree to indemnify and hold Flourish harmless from and against all damages, losses, and expenses of any kind (including reasonable attorneys' fees and costs) arising out of or related to: (1) your breach of any of these Terms and Conditions (including any additional Flourish terms and conditions incorporated herein); (2) any User Content you post or otherwise contribute; (3) any activity in which you engage on or through the Service; and (4) your violation of any law or the rights of a third party.
Governing law, jurisdiction, and jury trial waiver
These Terms and Conditions and any dispute, claim, and/or controversy that in any way relates to or arises in connection with these Terms and Conditions or your relationship with Flourish as a user of the Service ("Dispute") shall be governed by and construed under the laws of California, U.S.A, excluding any conflict of laws provisions, regardless of your country of origin or where you access the Service, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located within 60 miles of Atascadero, California.
To the fullest extent permitted by applicable law, the parties agree to waive any right to a jury trial.
Dispute Resolution and Arbitration
ANY DISPUTE OR CLAIM RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICE AND SEEKING MONETARY RELIEF SHALL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS ACCORDING TO THIS SECTION.
Subject to the exceptions set forth in the "Exceptions to arbitration" section below, you and Flourish agree that any Dispute between you and Flourish (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms and Conditions) will be determined by binding individual (not class) arbitration. The arbitrator has the authority to rule on all issues except that a court has exclusive authority to: (1) decide arbitrability, as well as scope, validity, and enforceability of this Arbitration Agreement; (2) decide whether you and Flourish have complied with the pre-arbitration filing requirements (including the requirements described in the "Pre-arbitration notice of dispute and informal resolution period" section below); (3) enforce the prohibition on class or representative actions; (4) enforce the provisions regarding mass arbitrations; and (5) enjoin an arbitration from proceeding if it does not comply with this Arbitration Agreement. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. The arbitrator can award the same damages and relief as a court (including attorneys' fees and costs where allowable under applicable law), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of these Terms and Conditions.
Exceptions to Arbitration
You and Flourish both agree that any Dispute relating to any actual or alleged infringement of your or Flourish’s intellectual property rights shall be brought in the federal courts of California and that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of your or Flourish’s rights, at any time, to elect to have an individual action heard in: (1) a U.S. small claims court (so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction); or (2) a court of law, in accordance with the jurisdiction and venue described in the "Governing law, jurisdiction, and jury trial waiver" section above, seeking only temporary or preliminary individualized injunctive relief, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement does not stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
No class or representative proceedings and class action waiver
YOU AND FLOURISH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER IN ARBITRATION OR LITIGATION ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE ACTION. Unless both you and Flourish agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief or request for relief (such as a request for public injunctive relief) and all appeals have been exhausted or the decision is otherwise final, then the parties agree that such a claim or request for relief shall be decided by a court only after all other claims and requests for relief are arbitrated.
Pre-arbitration notice of dispute and informal resolution period
Prior to initiating any arbitration, the party seeking arbitration (“Claimant”) must first send a written Notice of Claim to the other party (“Respondent”) by email or USPS Certified Mail. This Notice must contain the Claimant’s name, address, and contact information; the identity of counsel (if any); the nature and basis of the claim; and the specific relief sought.
After a Notice of Claim containing all of the information required above is received, the parties agree to engage in good faith for a period of sixty (60) days in an effort to resolve the Dispute (this time period may be extended by agreement of the parties) ("Informal Resolution Period"). The party receiving the Notice of Claim may request a telephone or video settlement conference during the Informal Resolution Period in an effort to facilitate resolution of the Dispute ("Informal Settlement Conference"). The Informal Settlement Conference, if any, will take place at a mutually agreeable time, which can be after the sixty (60) day Informal Resolution Period if needed to accommodate the parties' schedules. During the Informal Settlement Conference, you and a Flourish representative must both personally participate in a good-faith effort to resolve the Dispute without the need to proceed with arbitration. Any counsel representing the parties also may participate. Personal participation in an Informal Settlement Conference will not be required if both you and Flourish agree in writing.
The Notice of Claim, Informal Resolution Period, and Informal Settlement Conference are intended to give the parties a meaningful opportunity to resolve Disputes informally. If any aspect of this "Pre-arbitration notice of dispute and informal resolution period" section has not been met, the parties agree that a court can enjoin the filing or prosecution of an arbitration and, unless prohibited by law, the arbitration administrator shall not accept or administer an arbitration nor demand fees in connection with such an arbitration. Notwithstanding the foregoing, a party retains the right to raise non-compliance with the requirements of this section and seek appropriate relief in arbitration.
Any applicable statute of limitations or contractual limitations period will be tolled for any claims and requests for relief set forth in a Notice from the date that either you or Flourish sends the other a fully complete Notice until: (1) thirty (30) days after completion of the Informal Resolution Period, if no Informal Settlement Conference is held; or (2) thirty (30) days after completion of the Informal Settlement Conference if an Informal Settlement Conference is held ("Tolling Period").
Neither you nor Flourish may commence an arbitration proceeding until after the Tolling Period has ended.
The arbitration shall be conducted by a single arbitrator and administered by the American Arbitration Association (“AAA”) according to its Consumer Arbitration Rules, Procedures for the Resolution of Disputes Through Document Submission, Consumer Fee Schedule, and Supplementary Rules for Multiple Case Filings(“AAA Rules”), and the provisions of this section. Where they conflict, the provisions of this section shall take precedence over any AAA Rules. If the AAA is unavailable to conduct an arbitration, the parties shall arbitrate through another mutually agreed upon organization or on an ad hoc basis according to the rules in this section. The arbitration shall be conducted in the English language.
If twenty-five (25) or more similar Demands for Arbitration are filed against or on behalf of the same party or related parties, and if representation of the parties is consistent or coordinated across the cases, then the AAA’s Supplementary Rules for Multiple Case Filings shall apply. Counsel filing twenty-five (25) or more similar Demands for Arbitration against Flourish must comply with the AAA’s Filing Requirements for Multiple Case Filings. There shall be no class or collective arbitration, or joinder of claims, except as provided for in the AAA’s Supplementary.
If you do not want to arbitrate disputes with Flourish and you are an individual, you may opt out of this arbitration agreement by sending an email to info@planningmygarden.com within 30 days of the day you first access or use the Service.
Notwithstanding the above, either party may apply for and obtain non-monetary, injunctive remedies or urgent relief in court without engaging in any arbitration or informal dispute resolution process.
10. About These Terms and Conditions
Under applicable law, you may have certain rights that can't be limited by a contract. These Terms and Conditions are in no way intended to restrict those rights.
Changes
We may make changes to these Terms and Conditions (including any additional Flourish terms and conditions incorporated by reference herein) from time to time by notifying you of such changes by any reasonable means, including by posting the revised Terms and Conditions on the applicable Service (provided that, for material changes, we will seek to supplement such notice by email, an in-service pop-up message, or other prominent notice within the Service, or other means). Your use of the Service following any changes to these Terms and Conditions will constitute your acceptance of such changes. Subscribers who do not wish to continue using the Service under the updated Terms and Conditions must close their Flourish account prior to their renewal date or thirty (30) days after the Effective Date, whichever occurs first. If Flourish makes any material change to the Arbitration Agreement (other than a change to the notice address), you may reject any such change by sending us a personally signed, written notice of your decision to opt out of those changes via email to info@planningmygarden.com. This opt-out notice must be sent within thirty (30) days of when we notify users of the change and include: (1) your name, address, email address associated with your Flourish account, phone number, and Flourish username. Such an opt-out must be sent by you personally from your personal email address, and not by your agent, attorney, or anyone else purporting to act on your behalf. The opt-out notice also must include a statement that you wish to reject the change to the Arbitration Agreement. Opting out of a material change to the Arbitration Agreement is not an opt-out of arbitration altogether. Even if you opt out of a material change to the Arbitration Agreement, you and Flourish agree that any Dispute will be determined by binding individual (not class) arbitration in accordance with the Arbitration Agreement in effect immediately before any such opt-out.
Entire agreement
These Terms and Conditions constitute the entire agreement between Flourish and you concerning the subject matter hereof. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect. A waiver by Flourish or you of any provision of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Flourish may assign its rights or obligations under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of Flourish and you, and Flourish’s and your respective successors and permitted assigns.