Last Updated:  February 1, 2021

Terms of Service

PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CONCERNING YOUR USE OF AND ACCESS TO THE WEBSITE, ANY MOBILE APPLICATIONS, AND AFFILIATED WEBSITES (TOGETHER, COLLECTIVELY, THE “SERVICE”) .  BY ACCESSING AND/OR USING THE WEBSITE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS OF SERVICE ("TERMS").  IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE SERVICE.  

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER:  THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH THE COMPANY.  PLEASE READ IT CAREFULLY.

INFORMATION FOR USERS

Account Creation.  You are eligible to use the Service if you are the age of 18 or older.  You are ineligible to use the Service if you have been suspended by the Company or you are under the age of 18.  By becoming a user of the Service, you represent and warrant that you have the right, authority and capacity to use the Service and to abide by the Terms of Service.  Your registration with the Service is for your sole use. You may not authorize others to use your account and you may not assign or otherwise transfer your account to any other person or entity.

In order to use certain features of the Service, Users will need to provide their personal information or establish an account.  To set up an account on the Service, Users will have to provide a User Name, password, active email address, physical mailing address, mobile phone number, and phone number, all of which is subject to the Company’s Privacy Policy.  Any submission of false or materially inaccurate information by users in creating an account shall constitute a basis for the Company to terminate the account and bar such users from making further access or use of the Service.  You may only create one account per person, and any user creating multiple accounts with different email addresses may be subject to account termination.  

SUBMISSIONS

Except where expressly provided otherwise by the Company, all comments, feedback, information and data submitted to the Company through, in association with or in regard to the Service ("Submissions") shall be considered non-confidential and the Company’s property.  This may not include copyright ownership of images which you may upload, but does include an express license to use said images in any method the Company sees fit and make compilations and derivative works thereof in all media now known or hereafter devised.  Except as expressly enumerated in the preceding sentence, by providing such Submissions to the Company, you agree to assign to the Company, as consideration in exchange for the use of the Service, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions.  You represent that you have the right to grant the Company these rights.  The Company shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose.  You acknowledge that you are responsible for the Submissions that you provide, and that you, not the Company, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.

You will not post any Submission that (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b)  bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity.   

The Company reserves the right, but disclaims any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from the Service that violates these Terms of Use and (b) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these Terms of Use and/or protect the safety or security of any person or property, including any Service.  Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever. 

All Submissions must be true, and in accordance with the rights of privacy and publicity and all federal, state and international law.  You may not upload an image or any likeness of another without their consent (or the consent of their parent or guardian if they are under the age of 18).  If you do so, the Company reserves the right to cancel or suspend your account.  Furthermore, the Company reserves the right to cancel or suspend your account, if in its sole discretion, it believes you are using the Company for improper purposes, or any purpose inconsistent with its business.

GENERAL PROVISIONS

Content and Accuracy of Information.  We attempt to ensure that information on this Service is complete, accurate and current.  Despite our efforts, the information on this Service may be inaccurate, incomplete or out of date.  We make no representation as to the completeness, accuracy or currentness of any information on this Service.  

Use of Service Content.  All materials provided by the Service, including, but not limited to, information, images, graphics, logos, sounds, compilations, content and services ("Materials" or “Content”) are protected by and subject to copyright, trademark, patent, trade secret and other laws and are owned or controlled by the Company, or their respective partners, vendors, licensors, agents and/or representatives (whether or not such persons are credited as the provider of the Content).  The Company reserves all rights in and to the Content not expressly granted to you hereunder. You shall have no rights to the Materials and you shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Service.

None of the Content may be modified, copied, stored, printed, reproduced, distributed, republished, hosted, performed, downloaded, displayed, posted, reposted, transmitted and/or otherwise used in any form or by any means, including but not limited to electronic, mechanical, recording, or other means, without the prior express written permission of the Company.  Also, you may not "mirror" or “archive” any Content contained on the Service on any other server without the Company’s prior express written permission.

You may not sublicense, assign or transfer any licenses granted by the Company, and any attempt at such sublicense, assignment or transfer shall be null and void. You may not otherwise copy, distribute, modify, reverse engineer, or create derivative works of the Materials or Content.

Except where expressly provided otherwise by the Company, nothing on the Service shall be construed to confer any license or ownership right in or to the Materials, under any of the Company’s intellectual property rights, whether by estoppel, implication, or otherwise.  

Any unauthorized use of any Materials contained on the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or communications regulations and statutes.  It is the Users’ obligation to comply with all applicable state, federal and international laws.  Users are responsible for maintaining the confidentiality of their account information and password and for restricting access to such information and to their computer.  Users agree to accept responsibility for all activities that occur under your account or password.

Termination.  You or we may suspend or terminate your account or your use of this Service at any time, for any reason or for no reason.  We reserve the right to change, suspend, or discontinue all or any aspect of this Service at any time without notice. 

SMS/MMS MOBILE MESSAGE MARKETING

User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from the Company. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to opt out by following the instructions in the text message. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying the Company of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by the Company, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with the Company.

Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control.

LINKS TO THIRD PARTY SITES

The website or application may contain links or have references to websites controlled by parties other than the Company.  The Company is not responsible for and does not endorse or accept any responsibility for the contents or use of these third party websites.  The Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by the Company of the linked website and/or the content and materials found at the linked website, except as specifically stated otherwise by the Company.  It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of an intrusive nature.

LIMITATION OF LIABILITY

IN NO EVENT SHALL THE COMPANY OR ANY THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY AND/OR FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE TERMS, INCLUDING BUT NOT LIMITED TO THE ACCESSING OR USE OF, OR INABILITY TO USE, THE WEBSITE AND THE SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO THE DOWNLOADING OF ANY MATERIALS, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

LICENSES FROM THE COMPANY

Users are being granted solely a limited, non-exclusive, non-transferrable, license to access the Service and view the Content through the Service.  Except for the limited license, no right, title, interest shall be transferred to you.  

REPRESENTATIONS AND WARRANTIES

Each User represents and warrants that it has the power and authority to enter into these Terms.  The Company warrants that it will provide the Service in a manner consistent with its business practices, as the Company, in its sole and absolute discretion, deems fit.  

DISCLAIMER OF WARRANTIES

EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY THE COMPANY, THE MATERIALS ON THE WEBSITE ARE PROVIDED "AS IS," AND ARE FOR USE AS CONTRACTED HEREIN.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE COMPANYAND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE WEBSITE, THE MATERIALS, AND THE GOODS AND SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF GOODS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. THE COMPANY AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE AND THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED WITH THE WEBSITE, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE WEBSITE AND/OR THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE OR MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (C) THE GOODS, SERVICES, MATERIALS, OR THE SYSTEMS THAT MAKE THE SERVICES AND WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT NEITHER THE COMPANY NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE WEBSITE AND SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY THE COMPANY, THE WEBSITE AND THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH ARE PROVIDED TO YOU ON AN "AS IS" BASIS.  THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY RELATED TO THE QUALITY OF GOODS AND/OR SERVICES AND THE PERSONS OR BUSINESSES REFERENCED ON THE WEBSITE.  YOU USE THIRD PARTY PROVIDERS AND AFFILIATED SERVICES AT YOUR PERIL AND ASSUME ALL RISKS RELATED TO USE OF SAID THIRD PARTY PROVIDERS AND SERVICES.

YOUR RESPONSIBILITIES

Users will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which the Company controls and operates the Service associated therewith.  

NOTICES

The Company may give notice by means of a general notice on the website, app, or by electronic mail to your e-mail address on record in the Company’s account information.  All notices shall be deemed to have been given four days after mailing or 36 hours after sending by email or posting to the Website. 

Furthermore, the Company complies with the Digital Millennium Copyright Act (“DMCA”).  Any notices given pursuant to the DMCA shall be given to the Company designated agent via email at the email address listed below.  

RESOLUTION OF DISPUTES – MANDATORY ARBITRATION AND CLASS ACTION WAIVER

We offer the following process to help you resolve a complaint or Dispute (as defined below) that you may have with the Company or its Third Party Providers in connection with the use of this Service.  Please read this section carefully. Our Customer Service Department, which you can reach at the email address listed at the end of these Terms, can help you resolve most of your concerns. If our Customer Service Department is unable to resolve your complaint or Dispute, you agree to take the following steps to resolve any Dispute you may have with us.

Step 1. Notice of Dispute

You must first try to resolve any complaint or Dispute with us through our Notice of Dispute process. You begin by submitting a “Notice of Dispute” with any supporting documents by emailing the Company at the email address listed at the end of these Terms.  

A “Notice of Dispute” is a written form in which you provide your name, address, contact information, email address, the facts regarding your Dispute, and the relief you are requesting from us.  Once we receive your Notice of Dispute, you and we will attempt to resolve any Dispute through informal negotiation within forty-five (45) days from the date the Notice of Dispute is received by us. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or we may initiate an arbitration proceeding or small claims action as described below.

You agree that the term “Dispute” in these Terms of Use will have the broadest meaning possible. It applies to any dispute, action, or other controversy between you and us relating to the Website, the Services, the Terms of Use (or any breach thereof) – whether in contract, warranty, tort, laws or regulation. The term also applies to any dispute over the validity, enforceability, or scope of this arbitration provision.

Step 2: Arbitration

If your Dispute is not resolved to your satisfaction within 45 days from when we received your Notice of Dispute, you and we agree to arbitrate all Disputes between us.  As explained below, you and we also may also have the right to bring an individual action before a Small Claims Court for certain claims. You agree that arbitration or a small claims action will be your sole and exclusive remedy to resolve any dispute with us. The Federal Arbitration Act applies to this Agreement. 

By agreeing to arbitrate, you are giving up the right to litigate (or participate in as a party or class member) any and all Disputes in a court before a judge or jury (except Small Claims Court). Instead, a neutral arbitrator will resolve all Disputes. 

To read more about arbitration, visit www.adr.org. The American Arbitration Association (“AAA”) will conduct any arbitration under its Consumer Arbitration Rules in effect at that time. You can review the Consumer Arbitration Rules here: http://www.adrservices.com/wp-content/uploads/2020/01/ADR-ARBITRATION-RULES-Version-1-28-20-FINAL.pdf. You may begin an arbitration with us by completing a Demand for Arbitration form, available by clicking here: http://www.adrservices.com/wp-content/uploads/2016/10/Demand-for-Arbitration-form-Updated-1-1-20.pdf. The completed form(s) should be returned directly to the AAA. The AAA will assign someone to manage your case. You will be contacted with instructions for continuing the arbitration process. Be sure to keep a copy of everything you send to the administrator of your arbitration or us.  If, for any reason, the AAA is unavailable, the parties shall mutually select another arbitration forum which will be governed by the AAA Consumer Arbitration Rules. The AAA rules will determine whether the arbitration will take place through written submissions by you and us, by telephone, or in person.

Class Action Waiver

Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.

Costs

If you initiate an arbitration proceeding with the AAA, we will promptly reimburse you for any standard filing fee you may have been required to pay by the AAA, once you have notified us in writing and provided a copy of the arbitration demand. However, if we are the prevailing party in the arbitration, we will be entitled to seek and recover our attorneys’ fees and costs, subject to the arbitrator’s determination and applicable law. 

Small Claims Option

You may also litigate any Dispute in Small Claims Court in our local jurisdiction, if the Dispute meets all requirements to be heard in the small claims court. However, if you initiate a Small Claims case, you are responsible for all your court costs.

Choice of Law and Forum Selection

You agree that the local laws govern this agreement and any claim or Dispute or issues arising from it, without regard to our States' conflict of laws rules. Unless you and we agree otherwise, in the event that the Agreement to arbitrate above is found not to apply to you or to a particular claim or Dispute as a result of a decision by the arbitrator or a court order, you agree that any Disputes or claims that you may have against us reside in and will be resolved by a state or federal court located in our local jurisdiction and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.  The choice of law of and exclusive venue apply to you regardless of where you are accessing the Website from even if you are accessing the Website from outside of the United States of America.

The Terms of Use (together with the Privacy Policy) represent the parties' entire understanding relating to the use of the Website and supersedes any prior or contemporaneous, conflicting or additional, communications. The Company reserves the right to change these Terms of Use or policies relating to the Service at any time and from time to time, and such changes will be effective upon being posted herein.  You should visit this page from time to time to review the then current Terms of Use because they are binding on you.  Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages of the Website, which may be posted from time to time.  Your continued use of the Service after any such changes and/or postings shall constitute your consent to such changes. If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. 

You may not assign these Terms of Use without the prior written approval of the Company.  Any purported assignment in violation of this section shall be void.   The Company reserves the right to use third party providers in the provision of the Service and/or Materials associated therewith.  In the event of any litigation of any controversy or dispute arising out of or in connection with these Terms of Use, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any and all rights not expressly granted herein are reserved by the Company. 

UNITED STATES ONLY

Unless otherwise specified, the Service is solely for use within the United States.  We make no representation that the Service is appropriate or available for use in other locations.  If you access the Service from locations other than the United States, you do so at your own risk.  Whether inside or outside the United States, you are solely responsible for compliance with any applicable local laws. 

If you have any questions regarding these terms or wish to contact us for any matter:

Email:  info@sweet-peony.com