Terms & Conditions
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
1. Amendments and Changes
2. Privacy Statement
By using the Site, you represent that you have read and consent to our Privacy Statement which is incorporated into this Agreement by this reference. Kendall Farms may revise the Privacy Statement at any time, and the new versions will be available at the above link. If at any point you do not agree to any portion of the Privacy Statement, you must immediately stop using the Site and not renew your subscription service. Without limiting the foregoing, you authorize us to share your information with third parties PayPal, Authorize.net, FedEx, UPS, and OnTrac. We strongly advise you to read each of their privacy policies.
3. Copyrights and Trademarks
The images and other materials on the Site belong to or are licensed to Kendall Farms. The materials are protected by United States and foreign copyright laws. “Kendall Farms,” and other marks and logos are trademarks protected by United States and foreign trademark laws. You agree not to use any of Kendall Farms’ trademarks without our prior written consent. Additionally, you agree not to use our trade dress, or copy the look and feel of the Site or its design, without our prior written consent, especially to start your own floral business. You further agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site, without receiving our prior written permission. If you use the images, materials or trademarks on the Site in a way that is not allowed by this Agreement, you are violating the Agreement and may also be violating copyright, trademark, and other laws and you are subject to all legal remedies including but limited to those found in 17 U.S.C. §504. In the at case of even an appearance of impropriety, we reserve the right to automatically revoke your permission to use the Site. Title to the materials remains with us or with the authors of the materials contained on the Site. All rights and remedies not expressly granted are reserved.
4. Limited License
Subject to your compliance with the terms and conditions of this Agreement, Kendall Farms grants you a non-exclusive, non-sublicensable, non-assignable, revocable as stated in this Agreement, non-transferable license to use the Site. Neither the Site, nor any portion of the Kendall Farms’ services, may be reproduced, duplicated, copied, modified, sold, resold, distributed, or otherwise exploited for any commercial purpose without the express written consent of Kendall Farms. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of Kendall Farms or any other party. The license granted in this section 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 will immediately terminate.
5. Eligibility and Accounts
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 18 years of age. Children under the age of 18 are not allowed to use the Site.
To access certain portions of the Kendall Farms Services, you may be required to create an account through the Site (an “Account”). You agree that you shall not create an Account or use the Site if you (i) are under the age of 18, (ii) if you have previously been removed by Kendall Farms or banned from using the Kendall Farms Services, (iii) already have an Account with Kendall Farms, (iv) are located in a country embargoed by the United States or (v) are on the U.S. Treasury Department’s list of Specially Designated Nationals.
5.3. Account Security.
You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify Kendall Farms immediately if you believe that your Account username and/or password have been compromised.
5.4. Account Suspension.
In addition to any and all other available legal rights and remedies Kendall Farms reserves the right to permanently suspend or terminate your Account and to permanently suspend or terminate your access to the Site or seek appropriate injunctive or monetary relief if it suspects that you have violated any part of this Agreement.
6. Links to Other Websites
The Site may contain links to websites operated by other parties. Kendall Farms provides 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 Kendall Farms, and Kendall Farms is not responsible for the content available on the other sites. Such links do not imply Kendall Farms’ endorsement of information or material on any other site and Kendall Farms disclaims any and all liability with regard to your access to and use of such linked websites.
7. Fees and 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 (i) discontinue or limit the available quantity of any product or aspect of the Site, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; and (iii) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Site, you (a) agree to pay the price for such products set forth in the Site, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize Kendall Farms to charge your credit card or other payment method for the Full Purchase Amount. 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. 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) are solely your responsibility. If you purchase a subscription for repeated deliveries, then you hereby authorize Kendall Farms to bill your credit card for the amounts and at the intervals described on our Site (or at approximately those intervals, to accommodate for holidays and other irregularities), until the end of the subscription period, or indefinitely if you decide to purchase an open-ended subscription. In cases where your credit card expires, is cancelled, is over the limit, or is otherwise declined for any reason, we will not continue to deliver bouquets or renew your subscription, though we may, but are not obligated to, contact you to notify you of the issue.
7.2. Cancellation Policy
Written or e-cancellation notice requires a 30 days notice period for subscription services. For one time purchase orders, written or e-cancellation notice rrequires a 48 hours otice period for an effective-purchase cancellation.
Kendall Farms may at times provide a discount for referrals, as well as a discount for subscription plans. These promotions may be altered by information published on our Site, and if any information is conflicting, the terms most beneficial to Kendall Farms shall prevail and take effect. Kendall Farms 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 Kendall Farms’ sole discretion. Discounts, Promotions, and Store Credits of any kind may not be combined unless at the sole discretion of Kendall Farms. 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 which constitute theft and/or fraud, Kendall Farms may notify the authorities and you may be prosecuted under statutes including 178 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. Kendall Farms reserves 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.
7.4. Return and Refund Policy.
If you are for any reason unsatisfied with the quality or accuracy of your order, please contact us to report the problem.
We are happy to replace your flowers with the same (if possible) or a similar arrangement at no cost if the wrong item is delivered or if the flowers arrive in sub-standard condition. In order to qualify for a replacement, the following conditions must be met:
- For any return: replacement request must occur within 48 hours (2 days) of delivery.
- For quality reasons: To ensure the quality of the flowers, we recommend someone be present to take delivery of the flowers upon arrival.
- To receive a replacement, someone must be present to take receipt of the flowers. For quality refunds, replacements we require a photo of the bouquet taken and delivered to us via our Contact Form within 48 hours (2 days) of delivery.
- Proper care of the flowers must be taken – we cannot guarantee freshness or beauty for flowers that are not watered and well cared for.
For flowers that are not shipped at all, we will provide a free flower replacement. For flowers that are delivered late due to a processing error by Kendall Farms, we will provide a replacement of flowers or full refund if desired. For arrangements that are delivered late due to an incorrect address or a recipient not being present to receive the package, we cannot provide a refund. In certain situations with extenuating circumstances, we may provide a replacement arrangement. If this is the case for you, please contact us via our Contact Form
For flowers that arrive late due to storms, earthquakes, hurricanes, lightning or other acts of God that slow down our shipping partners, we may provide a replacement arrangement on a case by case basis pending timing of delivery of the original arrangement. If this is the case for you, please contact us via our Contact Form.
If you have any questions or concerns please reach out and let us know how we can help! Thank you so much for your patronage.
7.5. Changes to Products and Pricing.
Kendall Farms may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold through the Site. The inclusion of any products through the Site at a particular time does not imply or warrant that these products will be available at any other time. Kendall Farms reserves the right to change prices for products displayed on the Site, or the Site, 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 Site.
7.6. Order Acceptance/Confirmation.
Once we receive your order, we’ll provide you with an email order confirmation. Your receipt of an order confirmation, however, does not signify Kendall Farms’ acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. Kendall Farms reserves the right at any time after receiving your order to accept or decline your order for any reason. If Kendall Farms cancels an order after you have already been billed, then Kendall Farms will refund the billed amount.
7.7. Shipment of Products.
Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carriers, including but not limited to, FedEx, UPS, or and OnTrac. 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 floral goods purchased by you through the Site will be delivered within the time period specified for the delivery method you have selected. All orders are shipped using FedEx, UPS, OnTrac, or other insured, bonded, and licensed third party courier. The earliest delivery date available for an order is approximately one week from the day that payment for the order is confirmed. Delivery is not available for Sundays, Mondays or Thursdays. Online tracking is available via the shipping entity websites. We cannot guarantee the availability or accuracy of the online tracking information because it is not under our control. We cannot guarantee delivery by any specific time. We strongly encourage you or your designated recipient to be at the delivery location to receive the shipment as flowers or floral products that remain outside are more likely to wilt and die.
Kendall Farms offers two delivery options: (1) Indirect Signature Required, and (2) No Signature Required. Indirect Signature Required means that the recipient, or someone at the location (or at an address close by) must sign for the package to be delivered. Kendall Farms strongly encourages the Indirect Signature Required option to ensure safe and fresh delivery.
No Signature Required means that FedEx will leave the package at the address whether the recipient or another person is available or not. Should a customer choose the No Signature Required option, Kendall Farms cannot guarantee the safety of the delivery no its freshness and therefore cannot provide replacements or refunds based on flower quality or freshness. Without the signature provided, we cannot be sure that the package was delivered at the correct time and place, or that the flowers were treated as is needed to maintain quality. If you choose the No Signature Required shipping method, then neither Kendall Farms nor FedEx shall be held responsible or liable for product quality or longevity. Thus, Kendall Farms strongly encourages the use of Indirect Signature Required shipping.
7.8. No Delivery To Children.
In furtherance of Kendall Farms’ policy of not collecting personal information from children under the age of 13, users are not allowed to give Kendall Farms the personal information of any children under the age of 13 for delivery or shipping purposes or any other reason.
7.9. Typographical Errors.
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, 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 credit card or PayPal account charged. If your credit card or PayPal account 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.
The Site is operated by Kendall Farms in the United States. Those who choose to access the Site from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
9. DISCLAIMER OF WARRANTIES
THE SITE, 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, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE SITE MAY INCLUDE INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
KENDALL FARMS DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU AGREE THAT KENDALL FARMS SHALL NOT BE LIABLE 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.
10. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, KENDALL FARMS, 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 SITE, EVEN IF KENDALL FARMS 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 WHICH PREVENTS OR INTERRUPTS ACCESS TO OUR WEBSITE 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.
WE ARE NOT LIABLE FOR ANY FAILURE WHICH PREVENTS OR INTERRUPTS ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY, OR WHICH DELAYS OR SOMEHOW PREVENTS THE DELIVERY OF OUR GOODS TO YOU.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF KENDALL FARMS OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CLAIMOR 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 Kendall Farms and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and defend Kendall Farms 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 Kendall Farms arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of personal or confidential information or (b) use or misuse of the Site.
12. Dispute Resolution and Governing Law
This Agreement shall be is 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 conflict of law principles. Except as provided in Section 13 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site shall be subject to the exclusive jurisdiction of the state and federal courts located in San Diego County, California, and you agree to submit to the personal jurisdiction and venue of such courts. You are responsible for compliance with all local laws if and to the extent local laws are applicable.
13. Binding Arbitration
(a) Arbitration Procedures. You and Kendall Farms agree that, except as provided in Section (d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be conducted using JAMS in San Diego County under thoes Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration or mediation is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section shall control and prevail.
Except as otherwise set forth in Section (d) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Kendall Farms will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and Kendall Farms 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; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND KENDALL FARMS WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(b) Location. The arbitration will be conducted in San Diego County, California, unless the parties agree to video, phone and/or internet connection appearances.
(c) Limitations. You and Kendall Farms agree that any arbitration shall be limited to the Claim between Kendall Farms and you individually. YOU AND KENDALL FARMS AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
(d) Exceptions to Arbitration. You and Kendall Farms agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Kendall Farms’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
(e) Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
(f) Severability. You and Kendall Farms agree that if any portion this Section is found illegal or unenforceable (except any portion of Section (d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section (d) is found to be illegal or unenforceable, then neither you nor Kendall Farms will elect to arbitrate any Claim falling within that portion of Section (d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of San Diego, State of California, United States of America, and you and Kendall Farms agree to submit to the personal jurisdiction of that court.
14. Term and Termination
This Agreement is effective until terminated. Kendall Farms may terminate this Agreement in its sole discretion with or without notice for any reason, or for no reason. You may terminate this agreement by discontinuing your use of the Site and notifying Kendall Farms in writing.
Agreement Revisions. This Agreement may only be revised in writing by Kendall Farms, or published by Kendall Farms on the Site. Force Majeure. Kendall Farms shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Kendall Farms, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Kendall Farms’ 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. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kendall Farms as a result of this Agreement or your use of the Site.
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.
Attorneys’ Fees. In the event any litigation (including arbitration or mediation) 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.
No Waiver. Kendall Farms' 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.
Equitable Remedies. You hereby agree that Kendall Farms 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.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.
16. 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 Kendall Farms or the Site, please send an email to firstname.lastname@example.org. You may also contact us by writing to:
Attn: California Legal Notice
4230 White Lilac Rd.
Fallbrook, CA 92028.
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
17. Acknowledgement and Agreement
The following are Kendall Farms trademarks: The Flower Stand™ and Kendall Farms™