- Terms and Conditions
Terms and Conditions
Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS ("AGREEMENT" OR "TERMS AND CONDITIONS") CAREFULLY BEFORE USING THE WEBSITE AND SERVICES OFFERED BY BLOOMPOP INC. ("BLOOMPOP"), DOING BUSINESS AS BLOOMPOP (“BLOOMPOP”) AND FRESHCUT (“FRESHCUT” or “FRESHCUT MARKET”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AT http://www.freshcutmarket.com (THE "SITE") AND ALL SERVICES PROVIDED BY BLOOMPOP ON THE SITE.
By using the Site in any manner, including but not limited to visiting or browsing the Site, you (the "user" or "you") agree to be bound by this Agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. This Agreement applies to all users of the Site, including without limitation users who are vendors, customers, merchants, contributors of content, information and other materials or services on the Site. If you have any questions, please contact Bloompop at email@example.com for more information.
1. Freshcut is a Venue
Freshcut is a marketplace platform created and provided by Bloompop. Freshcut acts as a venue to allow users who comply with Bloompop's policies to offer, sell and buy certain goods within a fixed-price format. Bloompop is not directly involved in the transaction between buyers and sellers (“Growers” or “Providers”). As a result, Bloompop has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. Bloompop cannot ensure that a buyer or seller will actually complete a transaction.
Consequently, Bloompop does not transfer legal ownership of items from the seller to the buyer.
Bloompop cannot guarantee the true identity, age, and nationality of a user.
You agree that Bloompop is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on Bloompop. You use the Bloompop service at your own risk.
2. Membership Eligibility
Age: Bloompop's services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. Bloompop may, in its sole discretion, refuse to offer access to or use of the Site to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions.
Valid Business: As a member of Freshcutmarket.com you are required to provide a valid email address at registration, as well as additional information about your business or shop, including your FEIN/EIN and other information needed to validate your business identity. Freshcutmarket.com is “To the Trade” only, which means that you must possess a valid FEIN/EIN as well as a resale ID if you intend to make purchases from growers or vendors (collectively, “Providers”) via the platform.
Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. You are responsible for all applicable taxes. In addition, you must abide by Bloompop's policies as stated in the Agreement and the Bloompop policy documents listed below (if applicable to your activities on or use of the Site) as well as all other operating rules, policies and procedures that may be published from time to time on the Site by Bloompop, each of which is incorporated herein by reference and each of which may be updated by Bloompop from time to time without notice to you:
Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify Bloompop of any unauthorized use of your password or any breach of security. You also agree that Bloompop cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than Bloompop without Bloompop's express written permission.
Account Information: You must keep your account information up-to-date and accurate at all times, including a valid email address.
Account Transfer: You may not transfer or sell your Bloompop account and User ID to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Refuse Service: Bloompop's services are not available to temporarily or indefinitely suspended Bloompop members. Bloompop reserves the right, in Bloompop's sole discretion, to cancel unconfirmed or inactive accounts. Bloompop reserves the right to refuse service to anyone, for any reason, at any time.
3. Commission and Billing
Joining and setting up a shop via Bloompop on Freshcut is free. Bloompop retains a percentage of the sale price when an item sells. To learn more about Providers' commission and compensation, please contact firstname.lastname@example.org. Bloompop's Fees Policy, which is subject to change, is incorporated into this Agreement by reference and can be obtained by Providers partnering with Bloompop by writing to email@example.com for more information. Changes to the Fees Policy and the fees for Bloompop's services are effective after Bloompop provides you with at least fourteen (14) days' notice in writing. Bloompop may, at Bloompop's sole discretion, change some or all of Bloompop's services at any time. In the event Bloompop introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD).
4. Listing and Selling
Listing Description: By listing an item on the Site you warrant that you and all aspects of the item comply with Bloompop's published policies. You also warrant that you may legally sell the item. You must accurately describe your item and all terms of sale in your Bloompop shop. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. Each unique item must have its own listing.
Binding Sale: All sales are binding. The seller is obligated to deliver the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller's listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity or (c) the seller is unable to fill the order due to Acts of God or circumstances beyond their control. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance.
5. Prohibited, Questionable and Infringing Items and Activities
You are solely responsible for your conduct and activities on and regarding to Bloompop and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that you submit, post, and display on Bloompop.
Restricted Activities: Your Content and your use of Bloompop shall not:
- Be false, inaccurate or misleading
- Be fraudulent or involve the sale of illegal, counterfeit or stolen items
- Infringe upon any third-party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy.
- Violate this Agreement, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)
- Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall
- Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including Bloompop staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device
- Be obscene or contain child pornography
- Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
- Host images not part of a listing
- Modify, adapt or hack Bloompop or modify another website so as to falsely imply that it is associated with Bloompop
- Appear to create liability for Bloompop or cause Bloompop to lose (in whole or in part) the services of Bloompop's ISPs or other suppliers
Furthermore, you may not list any item on Bloompop (or consummate any transaction that was initiated using Bloompop's service) that could cause Bloompop to violate any applicable law, statute, ordinance or regulation, or that violates the Terms and Conditions.
Re-Posting Content: By posting Content on Bloompop, it is possible for an outside website or a third party to re-post that Content. You agree to hold Bloompop harmless for any dispute concerning this use. If you choose to display your own Bloompop-hosted image on another website, the image must provide a link back to its listing page on Bloompop.
Idea Submissions: Bloompop considers any unsolicited suggestions, ideas, proposals or other material submitted to it by users via the Site or otherwise (other than the Content and the tangible items sold on the Site by users) (collectively, the "Material") to be non-confidential and non-proprietary, and Bloompop shall not be liable for the disclosure or use of such Material. If, at Bloompop's request, any member sends Material to improve the site (for example through the Forums or to customer support), Bloompop will also consider that Material to be non-confidential and non-proprietary and Bloompop will not be liable for use or disclosure of the Material. Any communication by you to Bloompop is subject to this Agreement. You hereby grant and agree to grant Bloompop, under all of your rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the API, documentation, or any product or service, without compensation or accounting to you and without further recourse by you.
7. Information Control
Bloompop does not control the Content provided by users that is made available on Bloompop. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.
Additionally, there may also be risks dealing with international trade and foreign nationals. By using Bloompop, you agree to accept such risks and that Bloompop (and Bloompop's officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on Bloompop. Please use caution, common sense, and practice safe buying and selling when using Bloompop.
Other Resources: Bloompop is not responsible for the availability of outside websites or resources linked to or referenced on the Site. Bloompop does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that Bloompop shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
8. Resolution of Disputes and Release
In the event a dispute arises between you and Bloompop, please contact Bloompop at firstname.lastname@example.org for more information.
Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in the Commonwealth of Virginia, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the District of Columbia. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and Bloompop agree that any cause of action arising out of or related to the Site (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
Should you have a dispute with one or more users, or an outside party, you release Bloompop (and Bloompop's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Bloompop encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
Bloompop, for the benefit of users, may try to help users resolve disputes. Bloompop does so in Bloompop's sole discretion, and Bloompop has no obligation to resolve disputes between users or between users and outside parties. To the extent that Bloompop attempts to resolve a dispute, Bloompop will do so in good faith based solely on Bloompop's policies. Bloompop will not make judgments regarding legal issues or claims.
10. Bloompop's Intellectual Property
BLOOMPOP, FRESHCUT, and other Bloompop or Freshcut graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Bloompop, Inc. in the U.S. and/or other countries. Bloompop's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
11. Access and Interference
Bloompop may contain robot exclusion headers which contain internal rules for software usage. Much of the information on Bloompop is updated on a real-time basis and is proprietary or is licensed to Bloompop by Bloompop's users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access Bloompop for any purpose whatsoever, except to the extent expressly permitted by and in compliance with Bloompop’s Terms and Conditions or otherwise without Bloompop's prior express written permission. Additionally, you agree that you will not:
- Take any action that imposes, or may impose, in Bloompop's sole discretion, an unreasonable or disproportionately large load on Bloompop's infrastructure
- Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) from the Site except to the extent expressly permitted by and in compliance with Bloompop's Terms and Conditions or otherwise without the prior express written permission of Bloompop and the appropriate third party, as applicable
- Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site
- Bypass Bloompop's robot exclusion headers or other measures Bloompop may use to prevent or restrict access to Bloompop
Without limiting any other remedies, Bloompop may, without notice, and without refunding any fees, delay or immediately remove Content, warn Bloompop's community of a user's actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user's account privileges, terminate a user's account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:
From time to time, Bloompop may offer you the possibility of utilizing a coupon code or promotional code ("promo code") to receive certain discounts on some or all items on Bloompop. Unless expressly directed otherwise, these codes are intended for one-time use by the recipient of the code. Bloompop makes no guarantees of availability of such codes.
15. No Warranty
BLOOMPOP, BLOOMPOP'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND BLOOMPOP'S SUPPLIERS PROVIDE BLOOMPOP'S WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. BLOOMPOP, BLOOMPOP'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND BLOOMPOP'S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM BLOOMPOP SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
16. Liability Limit
IN NO EVENT SHALL BLOOMPOP, AND (AS APPLICABLE) BLOOMPOP'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR BLOOMPOP'S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, BLOOMPOP'S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
BLOOMPOP'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF BLOOMPOP'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO BLOOMPOP IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD BLOOMPOP AND (AS APPLICABLE) BLOOMPOP'S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
18. No Guarantee
Bloompop does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside Bloompop's control.
19. Legal Compliance; Taxes
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any Bloompop service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on Bloompop's net income).
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
21. No Agency
You and Bloompop are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
22. Bloompop Service
Bloompop reserves the right to modify or terminate the Bloompop service for any reason, without notice, at any time. Bloompop reserves the right to alter these Terms and Conditions or other Site policies at any time, so please review the policies frequently. If Bloompop makes a material change Bloompop will notify you here, by email, by means of a notice on our home page, or other places Bloompop deems appropriate. What constitutes a "material change" will be determined at Bloompop's sole discretion, in good faith, and using common sense and reasonable judgment.
23. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the Commonwealth of Virginia, excluding its conflicts of laws rules, and the United States of America.
Sections 3 (Fees and Services, Fees and Termination), 6 (Content, License), 7 (Information Control), 8 (Meetings, Groups or User Fees), 9 (Resolution of Dispute and Release), 10 (Bloompop's Intellectual Property), 11 (Access and Interference), 12 (Breach), 13 (Privacy), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 22 (Choice of Law) shall survive any termination or expiration of this Agreement.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Bloompop; Attn: Bloompop, 1400 Key Blvd Ste 100, Arlington, VA, 22209 (in the case of Bloompop) or, in your case, to the email address you provide to Bloompop (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Bloompop may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Bloompop. In such case, notice shall be deemed given three days after the date of mailing.
The services hereunder are offered by Bloompop Inc., located at 1400 Key Blvd Ste 100, Arlington, VA, 22209. If you are a resident of the Commonwealth of Virginia, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
27. Substitution Policy
Products from Freshcutmarket.com are unique and occasionally seasonal products from flower growers or providers (“Providers”). If a Provider is out of a particular item or decorative element, the Provider may substitute a similar item or element of equal or greater value to ensure your items arrive on time. In making substitutions, Providers take great care and consideration in finding products that will meet or exceed your expectations. Occasionally, if a listed Provider is not able to fill your order, Freshcut reserves the right to find an alternate Provider to fill your order and ensure your order arrives complete. In these cases, Freshcut will take great care in finding a substitute Provider to fill your order, and strive to match the original Provider in product quality and service as well as country of origin.
As an organic product, variation in product colors, size, weight, stem length, diameter, etc, is a natural and inevitable occurrence. Any measurements, photographs, or other representations of product are made as a guideline, not a guarantee. Customer acknowledges that variations in product may occur, and that reasonable variation from the displayed product is not a valid reason to request a refund or other claim towards Bloompop, Freshcut, or grower.
29.1. Requested Delivery Dates. The requested Delivery Date is conveyed to the Provider sending your product. While the Provider will make every effort to have your product arrive on the requested Delivery Date, the actual delivery date may change +/- 1 day based upon field or cooler availability and shipping changes within or beyond the control of the Provider. Please plan accordingly.
29.2. Outside Factors. Bloompop and Providers will not be liable for delays in delivery of goods or inability to deliver goods caused by the inability to obtain transportation, equipment, or material or by fire, flood, action of any military authority, labor difficulties, acts of God or other circumstances beyond the control of Bloompop or its Providers. As an organic product, availability of product may be limited due to circumstances within or beyond the control of Bloompop or its Providers. Customer understands that placing an order does not guarantee availability, and that availability may change. Bloompop and its Providers will at all times attempt to provide product in the quantities and dates for which an order was placed, and will attempt to communicate any changes or delays to Customer in a timely manner.
29.3 Holidays. Most Providers do not ship product out on holidays. Deliveries requested for holidays will ship the day after the holiday for arrival 2-3 days after the requested delivery date. If a Provider observes holidays outside of the US system, such as international holidays, every attempt will be made to notify you as soon as possible of the potential delay. Please plan accordingly.
Customers agree to immediately submit claims within 24 hours of delivery of any items, at the contact information provided with their order confirmation (email@example.com). Customer will submit substantiation of claims in the form of photographic evidence along with their claim (within 24 hours of delivery), and must be prepared to return any merchandise or product back to Provider as may be requested by Bloompop or Provider. If a box is delivered late by Fedex, you must accept the box from Fedex and inspect the product in order to submit a claim. For all claims, please include 1) A photo of the contents of the box in their entirety 2) A photo of the exterior of the box 3) Close-up photo(s) of the damaged product, and a stem count of unusable product. Bloompop offers NO guarantee of refunds, nor does it cover the cost of any refunds for items not delivered or not delivered to the satisfaction of the customer. Bloompop is a platform, and as such, does not guarantee the goods provided by Providers on its platform. It is at the sole discretion of the Provider (flower farm) to find a suitable remedy in the form of refund, replacement, or other such remedy, should a claim be submitted by a customer. Customer must include all requested photos and information in order for a refund claim to be processed.
31. Resale Certificates and Licenses
Freshcut is intended for the exclusive use of registered retail and other businesses who intend solely to re-sell products purchased via Freshcut. By purchasing products via Freshcut, the Buyer certifies that they hold a valid seller's permit or resale certificate/license, that they are engaged in the business of selling products or services utilizing products like those found on Freshcut, and that the tangible goods and products purchased on Freshct will be resold by Buyer. In the event that any such product is used for any purpose other than retention, demonstration, or display while holding it for sale in the regular course of business, it is understood that Buyer is required by Sales and Use Tax Law to report and pay such taxes as are required by Buyer, measured by the purchase price of such product or other authorized amount.
Effective Date: June 1st, 2015. Updated June 13th 2016.