Terms of Use

Last Updated:  July 22, 2020

WELCOME TO MARKSGARDEN.COM.  THE SITE IS OWNED AND OPERATED BY, MARK’S GARDEN (HEREAFTER “MARK’S GARDEN”).  PLEASE READ THESE TERMS OF USE (THIS “AGREEMENT”) CAREFULLY BEFORE USING MARKSGARDEN.COM, ITS MOBILE APPLICATIONS AND SOCIAL MEDIA PAGES (INCLUDING FACEBOOK, INSTAGRAM AND TWITTER PAGES) AND ANY SERVICES OFFERED THROUGH MARKSGARDEN.COM, ITS MOBILE APPLICATIONS AND AFFILIATED SOCIAL MEDIA OR THIRD PARTY WEB PAGES OR PREMIUM CUSTOM SITES OPERATED BY USERS UTILIZING THE MARK’S GARDEN PLATFORM (COLLECTIVELY REFERRED TO HEREAFTER AS THE “SITE ”).  THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF MARK’S GARDEN.

By using Site in any manner, including but not limited to visiting or navigating any part of Marksgarden.com, all users of the Site (including, without limitation, Customers as defined below) agree to be bound by this Agreement, including those additional terms and conditions and policies referenced and/or available by hyperlink herein.  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 or in connection with Mark’s Garden.  Different sections of the Agreement may affect users different depending upon their use of the Site, so please make sure to review this Agreement carefully. 

If you have any questions, please refer to the contact us section.

Read our Privacy Policy

For information about our data practices, please see our Privacy Policy. By accessing or using the Site, you agree that we can collect and use your information in accordance with the Privacy Policy.

Membership Eligibility

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 Mark’s Garden of any unauthorized use of your password or any breach of security. You also agree that we 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 Mark’s Garden without our express written permission.

Account Information: You must keep your account information, including a valid email address, up-to-date and accurate and up to date at all times.  

Account Transfer:  The access rights granted to you under this Agreement are non-transferable without our express written permission. You may not assign or otherwise transfer this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, without our prior written consent, which may be withheld in our reasonable discretion.  Any attempted assignment or other transfer without such consent shall be void, and any such attempt shall be deemed to be a breach of this Agreement. All of our rights and obligations under this Agreement are freely assignable by Mark’s Garden. As used herein, the terms “assignment” and “transfer” shall include (a) any sale or transfer of all or substantially all of your assets, (b) a merger, consolidation or reorganization, and (c) a change in ownership.

Right to Refuse Service: We reserve the right, in our sole discretion, to cancel unconfirmed or inactive accounts. Further, we reserve the right to refuse service to anyone, for any reason, at any time.

Compliance: You agree to comply with all local laws regarding online conduct and acceptable content.  In addition, you must abide by our policies as stated in this Agreement and the 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 Mark’s Garden, each of which is incorporated herein by reference and each of which may be updated by Mark’s Garden from time to time without notice to you: 

Relative to all of the foregoing options, Mark’s Garden reserves the right, at our sole discretion, change some or all of Mark’s Garden’s services at any time.  In the event we introduce a new service, the fees for that service are effective at the launch of such service.  Unless otherwise stated, all fees are quoted in US Dollars (USD).  We keep accepted payment information on file.  We shall not be responsible in any way for any fraudulent payment or credit information provided by any third parties.

Taxes:  We are responsible for collecting and remitting all applicable sales and government taxes in relation to transactions conducted through the Storefront based upon the information provided by Clients.  We follow all California law tax codes.

Payments:  In no event shall the payment time exceed thirty-one (31) days from the end of the month in which the order was delivered and the buyer’s credit card has been authorized.

 Binding Sale:  All sales are binding. The Florist is obligated to deliver the order or otherwise complete the transaction with the Customer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the Customer fails to meet the terms of the Florist’s listing (such as payment method), or (b) the Florist cannot authenticate the Customer’s identity. The Customer is obligated to deliver appropriate payment for items purchased.In the event that an order is received that Mark’s Garden is unable to deliver, Mark’s Garden will promptly notify the client..

Restricted Activities: The Content on our Site shall not:

(i)        Be false, inaccurate or misleading

(ii)       Be fraudulent or involve the sale of illegal, counterfeit or stolen items.

(iii)      Infringe upon any third-party’s copyright, patent, trademark or other proprietary or intellectual property rights or rights of publicity or privacy

(iv)       Violate this Agreement, any site policy, 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).

(v)        Contain items that have been identified by the U.S. Consumer Products Safety Commission as hazardous to consumers and therefore subject to a recall.

(vi)       Be defamatory, discriminatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including our 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.

(vii)      Be obscene or contain pornography.

(viii)     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.

(ix)        Host images not part of a listing.

(x)         Modify, adapt or hack the Site or modify another website so as to falsely imply that it is associated with Mark’s Garden.

(xi)        Appear to create liability for Mark’s Garden or cause Mark’s Garden to lose (in whole or in part) the services of Mark’s Garden’s ISPs or other suppliers.

(xii)       Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement, other agreements hyperlinked herein, or other policy documents as posted on the Site.

(xiii)      Use the Site to collect orders for any other business to fulfill.

(xiv)       Reproduce, duplicate, copy, sell, trade or resell any of the services within the Site for any purpose.

(xv)        Engage in activity that interferes with or disrupt the Site (or the servers and networks which are connected to the Site).

(xvi)       Contain alcohol


By confirming your purchase at the end of the checkout process, you agree to accept and pay for the products, as well as all delivery and handling charges and applicable taxes. You will be charged for most orders when your order is placed. Some exceptions are:  By providing a debit card, credit card or other payment accepted by Mark’s Garden (collectively, “Cards”), you further authorize us to charge your Cards for any additional charges for your requested changes to your order, or any additional or future orders.

Mark’s Garden reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason. Mark’s Garden will attempt to notify you should such limits be applied. Mark’s Garden also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers.

  1. Pricing Information; Availability

Mark’s Garden confirms the price or availability of an item until after your order is placed. Pricing or availability errors may occur on the Sites from time to time. The receipt of an order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product.

Mark’s Garden reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or delivery notice, or the Florist may, at its discretion, either contact you for instructions or cancel your order and notify you of such cancellation.

Delivery

Products will be delivered to an address designated by you, if applicable, so long as such address is complete and accurate. All transactions are made pursuant to a delivery contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier.

Some products may be available for pick up at Mark’s Garden retail location. Some products may have restricted delivery within the United States. Estimated delivery times are determined based on the method of delivery chosen when products are purchased and the destination of the products.

Content, Material & Licenses

We own all legal rights, title and interest in and to the Site, including any intellectual property rights which subsist in the Site, whether those rights happen to be registered or not, and wherever those rights may exist. 

Users confirm and warrant to Mark’s Garden that they have all the rights, power and authority necessary to grant the above licenses to User Content.

As part of a transaction, Florists may obtain personal information, including email address and shipping information, from another user.  Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for Mark’s Garden related communications. Mark’s Garden does not grant any users a license to use any personal information of any other user for unsolicited commercial messages.  Without limiting the foregoing and without express consent from the user, users are not licensed to add any Mark’s Garden user to any third party mailing list.

Other Resources: Mark’s Garden is not responsible for the availability of outside websites or resources linked to or referenced on the Site.  We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Users agree that we 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.

Resolution of Disputes and Release

In the event a dispute arises between a user and Mark’s Garden, the user should contact Mark’s Garden at [email protected] to assess the possibility of informal resolution.

Barring such informal resolution, any dispute arising from or relating to the subject matter of this Agreement or a user’s use of the Site or relationship with Mark’s Garden shall be finally settled by binding arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, LLC. (“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 Comprehensive 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 federal or state courts located in the County of Los Angeles in the State of California. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, unless expressly noted otherwise herein, including without limitation, this section.

Should a dispute arise between you and any other user or users of the Site, or an outside party, you release Mark’s Garden and its Affiliates 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. Mark’s Garden encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable and appropriate.

Mark’s Garden, for the benefit of users, may elect to assist users resolve disputes, however, Mark’s Garden do so in its sole and exclusive discretion, and Mark’s Garden undertakes no formal obligation to resolve disputes between users or between users and outside parties. To the extent that Mark’s Garden attempts to resolve such disputes, Mark’s Garden does so in good faith and based solely on its policies. Mark’s Garden will not make judgments regarding legal issues or claims.

 

Mark’s Garden Intellectual Property

Mark’s Garden and all Mark’s Garden logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Mark’s Garden Inc. in the U.S. and/or other countries. Mark’s Garden 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.

Access and Interference

The Site may contain robot exclusion headers which contain internal rules for software usage.  Much of the information on the Site is updated on a real-time basis and is proprietary or is licensed to Mark’s Garden by the Site’s users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose whatsoever, except to the extent expressly permitted by and in compliance with this Agreement or otherwise without our prior express written permission. Additionally, you agree that you will not:

(i)        Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Mark’s Garden’s  infrastructure.

(ii)       Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) or other allowed uses as set out in this Agreement from the Site except to the extent expressly permitted by and in compliance with this Agreement or otherwise without the prior express written permission of Mark’s Garden and the appropriate third party, as applicable.

(iii)       Interfere or attempt to interfere with the proper working of the Site or any activities conducted thereon.

(iv)       Bypass the Site’s robot exclusion headers or other measures we may use to prevent or restrict access to the Site.

Breach

Without limiting any other remedies, Mark’s Garden  may, without notice, and without refunding any fees, delay or immediately remove Content, warn Mark’s Garden’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 Marksgarden.com and take technical and legal steps to keep a user off Marksgarden.com and refuse to provide services to a user if, not intended to be an exclusive list, any of the following apply:

(i)        We suspect (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a user has breached this Agreement, the Privacy Policy or other policy documents and community guidelines incorporated herein.

(ii)       We are unable to verify or authenticate any of the user’s personal information or Content.

(iii)      We believe that a user is acting inconsistently with the letter or spirit of Mark’s Garden policies, has engaged in improper or fraudulent activity in connection with the Site or the actions may cause legal liability or financial loss to Mark’s Garden users or to Mark’s Garden itself.

Privacy

Any personal information you submit to the Site or Mark’s Garden is governed by Mark’s Gardens privacy policy.  This Privacy Policy encompasses any and all information you may provide to the Site or Mark’s Garden either for purposes of becoming a Member of the Site, submitting feedback about the Site or any content or other users of the Site, or to receive further information, updates and promotions about or related to the Site or Mark’s Garden.  Except as disclosed in Mark’s Garden Privacy Policy, we will not sell or disclose your personal information (as defined in the Privacy Policy) to third parties without your explicit consent.

No Warranty

MARK’S GARDEN AND ITS AFFILIATES PROVIDE THE SITE “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK AND THAT MARK’S GARDEN AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT:  (i) YOUR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SITE WILL BE ACCURATE OR RELIABLE; AND (iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS A PART OF THE SITE WILL BE CORRECTED.  MARK’S GARDEN AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, 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 MARK’S GARDEN OR ITS AFFILIATES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.  YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

Liability Limitation

MARK’S GARDEN AND ITS AFFILIATES SHALL NOT BE LIABLE TO YOU FOR: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND (ii) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OR DAMAGE AS A RESULT OF (a) ANY CHANGES WHICH WE MAY MAKE TO THE SITE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN PROVIDING THE SITE (OR ANY SERVICES OFFERED THROUGH OR FEATURES WITHIN THE SITE), (b) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SITE, (c) YOUR FAILURE TO PROVIDE MARK’S GARDEN WITH ACCURATE ACCOUNT INFORMATION, (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (e) YOUR USE OR MISUSE OF THE SITE, (f) ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, AND/OR (g) HYPERLINKS TO WEB SITES OR CONTENT OR RESOURCES PROVIDED BY COMPANIES OR PERSONS OTHER THAN MARK’S GARDEN.   THESE FOREGOING LIMITATIONS ON OUR LIABILITY SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

Mark’s Garden does not warrant that the Service will be uninterrupted, timely, secure, or error-free.

Mark’s Garden does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.

Mark’s Garden does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.

Indemnity

YOU AGREE TO INDEMNIFY AND HOLD MARK’S GARDEN AND  ITS AFFILIATES, HARMLESS FROM AND AGAINST ALL DAMAGES, COSTS (INCLUDING, WITHOUT LIMITATION, SETTLEMENT COSTS), LOSSES, EXPENSES, (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) AND LIABILITIES RELATING TO ANY CLAIM OR DEMAND ASSERTED BY ANY PARTY AGAINST MARK’S GARDEN AND/OR ITS AFFILIATES ARISING FROM OR RELATED TO YOUR ACTIVITES OR CONDUCT ON OR THROUGH THE SITE.

Access and Data Integrity

Mark’s Garden does not guarantee continuous, uninterrupted access to the Site.  Although Mark’s Garden attempts to maintain the integrity and accuracy of the information on the Site, we make no guarantees as to its correctness, completeness, or accuracy.  The Site may contain typographical errors, inaccuracies, or other errors or omissions. Also, unauthorized additions, deletions, or alterations could be made to the Site by other users or third parties without Mark’s Garden’s knowledge.  If you believe that information found on the Site is inaccurate or unauthorized, please inform Mark’s Garden by emailing at [email protected]

Severability

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.

Mark’s Garden Service

Mark’s Garden reserves the right to modify, limit, suspend or terminate any and all services offered on or through the Site (or any feature thereof) for any reason, without notice, at any time. Mark’s Garden reserves the right to alter this Agreement or other Mark’s Garden policies at any time, so please review the policies frequently.

Amendments

Mark’s Garden may amend this Agreement at any time, and from time to time, in our sole and absolute discretion, without any notice to you. You should regularly review this Agreement as posted on the Site on this page to check for amendments. You understand and agree that if you use the Site after the date on which these amendments have been applied to the Agreement, Mark’s Garden will treat your continued use of the Site as acceptance of the updated terms.  You may not amend this Agreement at any time without our prior written consent.

No Waiver

You agree that if Mark’s Garden does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), it shall not constitute a waiver of Mark’s Garden’s rights, and as such, those rights or remedies will still be available to Mark’s Garden. Nothing in this Agreement shall prevent Mark’s Garden from complying with the law and these terms do not confer any third party beneficiary rights.

Choice of Law

This Agreement shall in all respects be interpreted and construed with and by the laws of the State of California, without regard to its conflict of law provisions.

Survival

Sections 4 (Services, Fees/Taxes and Payments), 9 (Content, Material & Licenses), 10 (Information Control), 11 (Meetings & Groups), 14 (Resolution of Dispute and Release), 15 (Mark’s Garden Intellectual Property), 16 (Access and Interference), 17 (Breach), 18 (Privacy), 19 (No Warranty), 20 (Liability Limit), 21 (Indemnity), 22 (No Guaranty), 23 (Severability), 24 (No Agency), 28 (Choice of Law) shall survive any termination or expiration of this Agreement.

Notice for Users in California

This notice is for users of the Site residing in the State of California.  Please be advised that the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be reached by mail at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (800) 952-5210.

Contact

If you have any questions about this Agreement, please contact [email protected]