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Terms of use

Gardeneur Terms of Use

Last Updated: July 29, 2021

Welcome to Gardeneur

Gardeneur, Inc. and its subsidiaries and affiliates, including any that Gardeneur may form or acquire in the future (“Gardeneur”), provide this website, www.gardeneur.com (the “Site”), and any other content, applications, features, functionality, information, and services offered by Gardeneur through the Site (“Services”) subject to your compliance with these Terms of Use (“Terms of Use”). The Terms of Use are a legally binding contract between you and Gardeneur. 

By accessing or using the Site, or by otherwise accepting these Terms of Use, you (an individual or entity) agree to the terms and conditions set forth in these Terms of Use. These terms apply to sellers and buyers alike. Please read these Terms of Use carefully before using the Site. If you violate or do not agree to these Terms of Use, your access to and use of the Site, is unauthorized.

These Terms of Use and/or the Site may be changed at any time and notice of such changes shall be given by posting updated Terms of Use on the Site with the updated date next to “Last Updated”. Your continued use of the Site following any such change constitutes acceptance of the updated Terms of Use.

The terms “we”, “us” and “our” means Gardeneur. The terms “you”, “your” or “user” means the users of the Site.


Your Privacy

Your privacy is important to us. Please also review our Privacy Policy, which details how your information is collected and used when you use our Site and Services. By using our Site and Services, you are consenting to the collection, use, disclosure, and other handling of your information as described in our Privacy Policy (as updated from time to time), which is incorporated into these Terms of Use and also governs your use of the Site. 


License to Use Our Site 

Gardeneur grants you a limited, non-exclusive, non-transferable, revocable, license (“License”) to access and use the Site pursuant to these Terms of Use.

These Terms of Use do not create any agency, partnership, joint venture, employment, or franchisee relationship between you and Gardeneur. 


Account Registration

To make a purchase or sell an item on the Site, you must register for an account (“Account”).  You must be at least 18 years old to register for an Account. 

You agree that all of your registration information will be true and complete, and you will keep your Account information current and up to date. You agree to keep your Gardeneur username and password confidential, and to access the Site from devices that have up-to-date operating systems and security software. 

You will be responsible for all purchases and sales made, and other activity that occurs, through your Account. If you are sharing your Account with others, then the person whose financial information is on the Account will be responsible for all activity. If you are registering as a business entity, you personally guarantee that you have the authority to agree to these Terms of Use on behalf of the business. 

Please notify us immediately of any suspected unauthorized activity on your Account.


Sales by Sellers 

  1. General. Third party sellers (“Sellers”) can list their products (“Products”) for sale on our Site. Sellers are required to provide certain information in their Accounts in order to be able to receive payment for their Products. Gardeneur will pick up the Products and deliver them to the buyers. Sellers will not receive payment until the Product they are selling is received by the buyer. 

  2. Our Fees.  The fees we charge to sellers for our Services (“Seller Fees”) on the Site are listed on our Site. By selling on our Site, Sellers authorize us to charge the Seller Fees to their Accounts. Gardeneur can also charge delivery fees to the buyers for its delivery service (“Delivery Fees”), which belongs to Gardeneur. Unless noted, fees are in US dollars. By selling Products on our Site, you are authorizing us to manage the transaction on your behalf and to deduct our Seller and Delivery Fees, and any sales taxes, or other taxes, from the transaction amount before sending you the remaining amount. Seller Fees will be partially or fully refunded if a partial or full refund is made to a customer. 

  3. Increasing Fees. We may increase our Seller and Delivery Fees from time to time by posting the changes on the Site 14 days in advance.

  4. Seller Liability for Fees. If you are a Seller, you are liable for Seller Fees arising out of all sales made using our Site, even if sale terms are finalized or payment is made outside of the Site.  If you fail to pay Seller Fees, Gardeneur may collect amounts owed, plus any late fees, by charging a payment method on file with us (if any), retaining collection agencies and legal counsel, or suspending or limiting your Account. 

  5. Limiting your Sales. You understand that Gardeneur can terminate your Account or limit your selling privileges on our Site at any time and for any reason. 


Purchases by Buyers

  1. Pricing and Taxes. Buyers can purchase Products sold by us or by third party Sellers on our Site (“Orders”) for the prices listed by us or the Sellers. Buyers will see our Delivery Fee (if any) as well as the amount of tax owed for each Order, if applicable. Payments are securely processed by Stripe. Gardeneur does not store your credit/debit card information. By purchasing on our Site, you are authorizing us to manage the transactions on behalf of Sellers.

  2. Errors. Pricing errors and other errors occasionally occur on the Site. We reserve the right to cancel any Orders containing pricing errors or other errors at any time without further obligation to you, including after you have received a confirmation of your Order.

  3. Acceptance of Order. The receipt of an order number or an email confirmation does not constitute the acceptance of an Order by us or a confirmation of an offer to sell. Gardeneur reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. If any Product you request becomes unavailable on the Site, we may cancel your Order. Verification of information may be required prior to the acceptance of an Order. Prices and availability of Products on the Sites are subject to change without notice. 

  4. Delivery Services. We will pick up the Product from the Sellers and deliver them to the address you provide us. We will give you an estimated time of delivery but do not make guarantees on delivery times. No refunds will be granted as a result of later deliveries. Sellers may also drop off Products at our hubs, and buyers can pick up Products from our hubs. Sellers may give an estimated time of shipment for some Products. 


Proprietary Rights

The Site contains valuable trademarks and service marks owned by Gardeneur, or other content providers (such as Sellers). All content on the Site (including, for example, text, designs, graphics, logos, icons, images, audio clips, downloads, interfaces, information, code and software, and the selection and manner of compilation and presentation), is owned by Gardeneur, other content providers, or their licensors, and may be protected by copyright, trademark, and other applicable laws.

Your access to, and use of, the Site does not grant you any license or right to use any trademark, logo, or service mark displayed on the Site. Gardeneur, other content providers, or their licensors, retain full and complete title to and reserve all rights in the material on the Site, including all associated intellectual property rights. Gardeneur neither warrants nor represents that your use of materials on the Site will not infringe rights of third parties.

Any other use of the material on the Site, including, without limitation, the modification, distribution, transmission, performance, publication, uploading, licensing, reverse engineering, transfer, or sale of, or the creation of derivative works from any material, information, software, products, or services obtained from the Site, or use of the Site or any content on the Site for purposes competitive with Gardeneur or for other commercial purposes, is expressly prohibited. You agree to abide by all additional restrictions displayed on the Site as they may be updated from time to time.


Content You Submit

You may create, provide, post, or upload certain content (“Your Content”) on your Account profile, forums, or other parts of the Site, including but not limited to, business names, a description of yourself or your business, Product listings with photos and descriptions, profile pictures, reviews, comments, requests for Products, videos, usernames. You are solely responsible for Your Content and the consequences of posting or publishing it. By providing or uploading Your Content, you represent that (i) Your Content is consistent with the Acceptable Use provision in Section 9 below, is accurate, and is not false or misleading, and (iii) you have proper ownership or license to grant Gardeneur, and do grant Gardeneur, a non-exclusive worldwide, irrevocable, perpetual, royalty-free license to display, reproduce, and use Your Content in the provision of service to you and others. 

For all communications with Gardeneur, including but not limited to feedback, questions, comments, and suggestions: (i) you will have no right to confidentiality in your communications and Gardeneur will have no obligation to protect your communications from disclosure; (ii) Gardeneur will be free to reproduce, use, disclose and distribute your communications to others without limitation; and (iii) Gardeneur will be free to use any ideas, concepts, know-how, content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.


Reporting Unauthorized Content

If you believe in good faith that any content that you own or have rights to has been posted to the Site without your permission and you want it removed, please email admin@gardeneur.com, pursuant to the Digital Millennium Copyright Act of 1998. Your notice  must include: (i) identification in sufficient detail of the copyrighted work that you claim has been infringed; (ii) identification of the URL or other specific location on the Site that contains the material that you claim to be infringing your copyright; (iv) the electronic or physical signature of the owner of the copyright or a person authorized to act on the copyright owner's behalf; (v) a statement that you have a good faith belief that use of the material on the Site is not authorized by the copyright owner or its agent or the law; and (vi) a statement that you swear under penalty of perjury that the information contained in your notice is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If Your Content is alleged to infringe on another person’s intellectual property, we will take appropriate action, such as disabling it if we receive proper notice or terminating your Account. You will have an opportunity to file a counter notification if you believe that Your Content has been removed as a result of a mistake.  


Acceptable Use of the Site

As a condition of your license to use and access the Site, you agree that you will not do any of the following:

  • Use the Site if you are under the age of 18 or otherwise unable to enter into binding legal agreements;

  • Share your Account or password with others;

  • Use the Site unlawfully or for an unlawful purpose;

  • Post, upload or transmit any of Your Content that is illegal, abusive, defamatory, threatening, harassing, obscene, vulgar, racist, or which constitutes hate speech;

  • Use the Site in a manner that is fraudulent or deceptive;

  • Fail to pay for Products purchased by you; 

  • Fail to make available items sold by you; 

  • Stalk, harass, or harm another individual;

  • Impersonate another, misrepresent or falsely identify yourself;

  • Use any device, software or routine to interfere or attempt to interfere with the proper working of the Site;

  • Take any action that imposes an unreasonable or disproportionately large load on Gardeneur's servers; or

  • Use any robot, spider or other automatic device, or a manual process, to collect or harvest information about users or Products for sale. 

You understand that plant and garden related Products that you buy or sell may be subject to state or country requirements and that it is your responsibility to meet applicable legal requirements in applicable jurisdictions, and to obtain any permits or licenses, such as nursery licenses, that are required. You may not sell anything that violates any laws.


Email Communications

You consent to receive communications from us electronically, including emails, SMS messages, mobile push notices, or notices and messages in your Account.  You can manage these preferences by emailing us from your Account settings, including whether you want to receive our newsletters, and how often, as well as if you would like to get email notifications when certain activities related to your Account occur. 

You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing (“Required Notices”). You may withdraw such consent to receive Required Notices electronically by sending an email to admin@gardeneur.com. In order for Gardeneur to send your Required Notices in the mail, which may be at your expense, you must have a current mailing address on file in your Account. 


Refund Policy

Our refund policy varies from Seller to Seller. Please see the Site for more details on our refund policy. As a buyer, it is your responsibility to know a Seller’s refund policy before purchasing from a Seller. You have 10 days to file a dispute from the day you receive your Product. We hope that the Seller settles the matter with you amicably.  However, if this does not occur within 7 days, Gardeneur will make the final judgement based on the evidence.  In the event a refund requires the Product to be returned to the Seller, such return is the responsibility of the buyer. Gardeneur is not responsible for any cost associated with the return of any Products.

By making a purchase on our Site, you agree to release Gardeneur from any claims, demands, and damages arising out of disputes with Sellers or other users. By selling Products on our Site, you agree to accept Gardeneur’s decision on refunds to buyers. Gardeneur can terminate your Account and ability to sell your Products on our Site at any time, including if you do not abide by our refund policy or if issues arise with your Products. 


Limitation of Liability

  1. Products You Purchase. You understand that Gardeneur does not manufacture, store, or inspect the Products produced and listed by independent Sellers through the Site.  We provide the marketplace, manage the payment, pick up and deliver the Products. Therefore, Gardeneur cannot and does not make any warranties about any Product’s existence, quality, safety, or legality.  Gardeneur does not guarantee the ability of Sellers to sell items or that they will actually complete a transaction or allow any refunds.  Any legal claim related to a Product that you purchase must be brought directly against the Seller of the Product. You release Gardeneur from any claims related to Products sold through our Site, including for defective Products, misrepresentations by Sellers, or Products that caused physical injury (like product liability claims).

  2. Products you Sell. Gardeneur does not guarantee the ability for buyers to pay for items, or that a buyer will actually complete a transaction or return an item if requesting a refund. 

  3. Content You Access. You may come across materials that you find offensive or inappropriate while using our Site. We make no representations concerning any content posted by users through the Site. Gardeneur is not responsible for the accuracy, copyright compliance, legality, or decency of content posted by users that you access through the Site. You release us from all liability relating to that content.

  4. People You Interact With. If you use the Site to interact with other individuals, either online or in person, you understand that we do not screen users of our Site, and you release us from all liability relating to your interactions with other users. It is important that you be careful and exercise caution and good judgment in all interactions with others, especially if you are meeting someone in person.

  5. Third-Party Websites. Our Site may contain links to third-party websites or services that we do not own or control. You may also need to use a third party’s product or service in order to use some of our Services. When you access these third-party services, you do so at your own risk. Gardeneur makes no claim and accepts no responsibility regarding the quality, nature or reliability of the third-party websites or services. The third parties may require you to accept their own terms of use. Gardeneur is not a party to those agreements; they are solely between you and the third party.

IN NO EVENT SHALL GARDENEUR, ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, EMPLOYEES, ADVERTISERS, OR DATA PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA) WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS SITE OR SERVICES, OR THE PRODUCTS SOLD ON THE SITE. 

IN NO EVENT SHALL GARDENEUR’S AGGREGATE LIABILITY FOR ANY DAMAGES EXCEED THE GREATER OF ONE HUNDRED ($100) US DOLLARS OR THE AMOUNT YOU PAID GARDENEUR IN THE PAST TWELVE MONTHS.


No Warranty

THE SITE AND ANY PRODUCT MADE AVAILABLE TO YOU THROUGH THE SITE IS PROVIDED “AS IS”. GARDENEUR MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS AND NEGATES ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS. FURTHERMORE, GARDENEUR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE SITE.

WE DO NOT GUARANTEE THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL MATERIALS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR EXPECTATIONS. YOU USE THE SERVICES SOLELY AT YOUR OWN RISK. 

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.


Indemnification

If Gardeneur gets sued because of something you did, you agree to defend and indemnify us. That means that you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Gardeneur and its subsidiaries and affiliates, and as to each, their officers, directors, employees, contractors, agents, licensors, service or third party providers, subcontractors, and suppliers, from and against, any and all losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees and court costs, arising out of or relating to your access to, or use of, the Site, any of Your Content that you post or submit to the Site, your violation of law or infringement of the rights of a third party, or your other violation of these Terms of Use. 

Gardeneur reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with Gardeneur if and as requested by Gardeneur in the defense of such matter.


Outages

Gardeneur periodically schedules system downtime for the Site for maintenance and other purposes. Unplanned system outages may also occur. You agree that Gardeneur has no responsibility and is not liable for: (a) the unavailability of any of the Site; (b) any loss of data, information or materials caused by such system outages; (c) the resultant delay, mis-delivery or non-delivery of data, information or materials caused by such system outages; or (d) any outages caused by any third parties, including without limitation any companies or servers hosting any of the Site, any Internet service providers or otherwise.


Termination

You may terminate your Account with Gardeneur at any time from your Account settings. If you delete your Account, your personal information (name, phone number, address, email, profile picture, etc.) will be deleted permanently and cannot be recovered. All the listings you have created will be removed. You will not be able to reactivate your Account. However, information where other members are involved (conversations with other people, transactions you have made, reviews you have given to others, etc.) is not removed when you delete your Account, but your name will no longer be displayed next to this information.

We may close your Account at any time in our sole discretion and without notice to you. This means we can close (or suspend) your Account if we believe you are using the Site in a manner not intended by us or in a way that violates our Terms of Use, or for any other reason. In no case will Gardeneur’s closure of your Account, or reduction of your access to the Site, waive or affect any other right or relief to which Gardeneur may be entitled. 

We may change, suspend, or discontinue any of the Services provided on our Site at any time, for any reason. We will not be liable to you for the effect that any changes to the Site may have on you, including your income or your ability to generate revenue through the Site.

These Terms of Use will remain in effect even after your access to the Site is terminated, or your use of the Site ends.


Resolution of Disputes 

We hope to be able to settle any disputes with you. If we cannot, these provisions will govern any legal disputes.

  1. Choice of Law. The Terms of Use shall be governed by the laws of the State of California without regard to its conflict of law provisions. 

  2. Disclaimer. YOU AND GARDENEUR AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION. 

  3. Prior to Arbitration. Prior to initiating any arbitration, the initiating party will give the other party at least 60-days' advanced written notice of its intent to file for arbitration. Gardeneur will provide such notice by email to your email address on file in your Account and you must provide such notice by email to admin@gardeneur.com. During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration. 

  4. Arbitration. Any controversy or claim arising out of or relating to these Terms of Use or the Site will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA"). Any such controversy or claim must be arbitrated on an individual basis, and must not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration must be conducted in the County of San Francisco, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either Gardeneur or you may seek any interim or preliminary relief from a court of competent jurisdiction in the County of San Francisco, California, as necessary to protect the rights or property of you or Gardeneur. 


Miscellaneous

  1. No Waiver. Gardeneur's failure to exercise or enforce any right or provision of the Terms of Use will not be deemed to be a waiver of such right or provision.

  2. Entire Agreement. These Terms of Use, together with the Privacy Policy, and any amendments and additional agreements you might enter with Gardeneur in connection with our Site, shall constitute the entire agreement between you and Gardeneur concerning the Site and our Services, and shall supersede any prior terms you had with Gardeneur regarding the Site and our Services.

  3. Severability. If any provision of these Terms of Use is deemed invalid, then that provision will be limited or eliminated to the minimum extent necessary, and the other provisions of these Terms of Use shall remain in full force and effect.

  4. Limitation of Claims. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site or Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.


How to Contact Us

If you have any questions or comments, please contact us by:

(1) emailing us at admin@gardeneur.com;

(2) contacting us by phone at 408-878-6798; or

(3) mailing us at the following address: 15065 Herring Ave. San Jose CA 95124