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BY ACCEPTING THESE TERMS AND CONDITIONS OF USE (“TERMS” OR “AGREEMENT”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY CLICKING THE ACCEPT BUTTON, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU REPRESENT THAT YOU AGREE WITH THESE TERMS. IF YOU DO NOT AGREE TO ACCEPT THESE TERMS YOU MUST NOT USE THE THIS WEBSITE.
Effective Date January 15, 2021
“Instead of Flowers,” “we,” “us” or “our” means Instead of Flowers, Inc. or its subsidiaries, including the Instead of Flowers company(ies) providing services to you, as applicable.
“Service” means this website located at insteadofflowers.com, and any and all content, software, data, information and materials contained therein and transactions completed thereon.
“Third Party Content” means certain third party analysis, content, tools, features, materials, websites, services or advertisements which Instead of Flowers makes available on or through this Service, or to which Instead of Flowers links on any site.
“You” or “Your” means the individual using the Site and procuring meals or services from Us.
All other terms and conditions on this Site that govern particular features of the Site (the “Additional Terms”) are incorporated into the Terms by this reference. The Terms and Additional Terms (collectively, the “Agreement”) set forth the terms and conditions which govern your access to and use of the Site. The Agreement sets forth the entire, final and exclusive agreement between Instead of Flowers and you with respect to your use of, and access to, the Service, and supersedes all previous oral and written terms, representations, or understandings concerning your use of, and access to, this Service. This Agreement is effective between you and Instead of Flowers as of the date of your acceptance of this Agreement.
Instead of Flowers shall not provide any services or provide any benefit to the extent that the provision of such services or benefit would violate applicable law or expose Instead of Flowers or its affiliates to any sanction, prohibition or restriction under UN Security Council Resolutions or under other trade or economic sanctions, laws or regulations.
By using the Service, you agree to transact electronically through the Site. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
By providing your telephone number, you are providing express written consent to receive communications from Instead of Flowers (including its affiliates, agents, service providers, and affiliates for the purposes of defined above) for any purpose, including but not limited to, marketing various services from both Instead of Flowers and companies Instead of Flowers has joint marketing agreements with. Additionally, you agree to receive communications from Instead of Flowers regarding your service, and any information you may have obtained via your use of a website. You agree that these communications include, but are not limited to, the use of an Automated Telephone Dialing System, prerecorded and/or artificial voice, SMS, MMS, text, fax, email or other similar means. Note that this applies regardless of whether your phone number is registered on a state or federal Do Not Call list. You agree that Instead of Flowers is not responsible for any charges to you regarding these communications. Standard voice and data rates may apply. Further, you understand that you do not need to provide this consent to call as a condition to receive any good or service, in which case you will not provide your phone number.
By providing another individual’s telephone number, you represent and warrant you have obtained express consent for that individual to receive communications from Instead of Flowers for the purpose of providing notice to that individual that they have a meal or gift certificate available to them.
As between Instead of Flowers and you, and subject to your right, title and interest in data you submit through this Service or otherwise provide or submit to Instead of Flowers, Instead of Flowers owns all right, title and interest in and to the Service, including all related intellectual property rights subsisting therein. Subject to the limited rights expressly granted hereunder, Instead of Flowers reserves all rights, title and interest in and to the Service, including all related intellectual property rights subsisting therein. We grant no rights to you hereunder other than as expressly set forth herein. This Service and all materials and information published thereon are protected by U.S. and foreign copyright and other intellectual property laws. You agree to protect the proprietary rights of Instead of Flowers and to comply with all reasonable written requests made by Instead of Flowers or its third party licensors to protect their and others’ rights in the Site and materials and content made available on or through the Service.
Instead of Flowers™, “Gift Meals Delivered” and our other trademarks and service marks are the property of Instead of Flowers. Instead of Flowers’s trademarks and trade dress may not be used in any form without the prior written consent of Instead of Flowers, and any use shall be subject to Instead of Flowers’s then-current policies and requirements. All other trademarks, services marks, logos, designs and trade dress not owned by Instead of Flowers that appear on this Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Instead of Flowers.
Prior to the purchase of any goods or services on our Site, unless you pay through an alternative payment method that we accept on the Site, you must provide a valid credit card number and associated payment information, including all of the following: (i) your name as it appears on the credit card; (ii) your credit card number; (iii) the credit card type; (iv) the date of expiration; and (v) any activation numbers or codes needed to charge your credit card. By submitting that information to us, you hereby agree that you authorize us to charge your card at our convenience but within thirty (30) days of credit card authorization. For each purchase made on the Site, you agree to pay the price applicable (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. We or our payment processer will automatically bill your credit card or other form of payment submitted as part of the order process for such price.
Our Shipping & Return’s Policy can be found here.
All payments must be made by Visa, MasterCard, Discover, American Express, or Instead of Flowers Rewards Card. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this through the acceptance of additional forms of payment on our checkout functionality on the Site. You agree that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify Instead of Flowers of any discrepancies within forty-five (45) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If Instead of Flowers does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Instead of Flowers or its agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including sales, use or value-added taxes.
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of an offer from us. Instead of Flowers reserves the right at any time after receipt of your order to accept or decline your order for any reason. Instead of Flowers further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Instead of Flowers upon our delivery of products or services that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion or the quantity not provided (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order or the quantity not provided. Do not assume that a cancellation or change of an order you have placed with Instead of Flowers has been effected until you receive a confirmation from Instead of Flowers via email or the Site. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed or shipped before your cancellation/change request or a request to terminate your credit card account was received.
We do our best to describe every item, product or service offered on the Site as accurately as possible. However, we do not warrant that specifications or pricing on the Site is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any item, product or service, Instead of Flowers shall have the right to refuse or cancel any orders in its sole discretion.
If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge. Additional terms may apply. If a product you purchased from us is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging.
The purchase of products and services on the Site is subject to availability. PRODUCTS AND SERVICES DISPLAYED ON THE SITE MAY NOT BE AVAILABLE AT ALL TIMES AND MAY BE SUBSTITUTED OR DISCONTINUED AT ANY TIME. INSTEAD OF FLOWERS RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY EMAIL DELIVERY TO YOU.
Except as otherwise expressly provided in these Terms or on the Site, you may not download, modify, copy, reproduce, republish, post, resell, upload, transmit or distribute any materials or content, except with the express written consent of Instead of Flowers or its third party licensors.
Use or access the Site for any purpose that is unlawful or prohibited by this Agreement or display, transmit or otherwise make available on or through the Service material that is infringing, threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another’s privacy or violative of third party privacy rights;
Reverse engineer, decompile, modify, or create derivative works from any software or materials accessible by or on the Service;
Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Instead of Flowers without express written consent;
Make any commercial or non-fair use of the copyrights, trademarks, logos, symbols, or any other mark, device, or commercial identifier of Instead of Flowers or any of our third party licensors without the express written consent of Instead of Flowers;
Use or access the Site in a manner that could damage, disable, overburden, or impair any Instead of Flowers server or the networks connected to any Instead of Flowers server;
Interfere with any third party’s use and enjoyment of the Service;
Attempt to gain unauthorized access to the Service, accounts, computer systems, or networks connected to any Instead of Flowers server through hacking, password mining, or any other means;
Sublicense any license granted in or to materials on the Service (whether or not any of such acts are for commercial gain or advantage); or
Access the Service in order to build a competitive product or service, or copy any features, functions or graphics of the Services.
You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content and data submitted to or published via the Site by you; (ii) comply with all applicable laws (including but not limited to export laws) in using the Service; and (iii) use the Service solely in accordance with any online user guides or instructions made available on or through the Site. You shall not disclose or share any ID(s) or password(s) used to access this Service. You are responsible for all activity that occurs under your ID(s) and password(s). You agree to notify Instead of Flowers in writing promptly upon becoming aware of any unauthorized access or use of the Site by any party.
You may be able to use certain parts of the Service to create, store, or access pictures, social media posts, blogs, and other materials (“Materials”). You acknowledge and agree that when the Agreement terminates in accordance with these Terms your access to such Materials through the Service may terminate, and that following such expiration or termination, Materials may be archived or deleted from the Service in accordance with our applicable records retention policy(ies). We do not guaranty the availability of Materials or any other content or materials on the Service, and you acknowledge and agree that Materials stored on or through this Site may be archived or deleted periodically in accordance our applicable record retention policy(ies). However, we make available features on the Service to allow you to download certain Materials to your own computers or servers at any time during the term of this Agreement.
Third Party Content is not maintained or controlled by Instead of Flowers, and as a matter of policy, Instead of Flowers does not independently verify, prescreen or monitor any such Third Party Content. While we believe the Third Party Content is from reliable third party sources, we are not responsible for the availability, content, completeness, adequacy, utility or accuracy of such Third Party Content. Instead of Flowers does not make any endorsement, express or implied, of any Third Party Content.
Certain Third Party Content is subject to additional specific terms and conditions which can be found in Additional Terms and in applicable areas of the Site and websites linked to this Site. You acknowledge and agree that your use of such Third Party Content is subject to all these terms.
Service features that interoperate with Third Party Content depend on the continuing availability of such third party services and materials for use with the Service. If the third party providers of such services or materials cease to make the services or materials available on reasonable terms for the Services, we may cease providing such Service features.
The information contained in this Service provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Instead of Flowers cannot provide any assurance that any products that can be obtained via the Service are suitable for a particular purpose.
THE SERVICE AND THE INFORMATION AND DATA ON THE SITE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
INSTEAD OF FLOWERS SHALL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR LOST PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSSES AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE, SERVICES, OR ANY INFORMATION OR SERVICE ON A LINKED WEBSITE. Some jurisdictions do not allow the limitation or exclusion of certain implied warranties, liability, incidental or consequential damages, so certain provisions of this Agreement may not apply to you.
We shall defend you against any claim, demand, suit, or proceeding (“Claim”) made or brought against you by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such Claim; provided, that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense.
You shall defend us against any Claim made or brought against us by a third party alleging that: (i) your use of the Services is in violation of this Agreement, (ii) our use of a mobile telephone number provided by you violates any applicable law or regulation, or (iii) the data or information you submit through the Service, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. You shall indemnify us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, us in connection with any such Claim; provided, that we: (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at our expense.
This Section 10 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
Instead of Flowers reserves the right to make changes, modifications, amendments, and/or updates to this Service and this Agreement. When these changes are made, we will make a new copy of this Agreement available on this Site. Changes to this Agreement shall be effective when posted. You understand and agree that continued use of the Site after this Agreement has changed will be treated as your acceptance of the updated Agreement.
This Agreement commences on the date you accept it and continues until terminated in accordance with this paragraph. You may terminate your use of the Service without cause at any time upon written notice to us. We may terminate access to and use of the Service (a) at any time, with or without cause, upon notice to you or (b) upon termination of your relationship with Instead of Flowers for any reason. Sections 3 (Our Proprietary Rights), 8 (Links and Third Party Information), 9 (Disclaimers and Limits of Liability), 10 (Indemnification), 14 (Governing Law) and 19 (Miscellaneous) shall survive any termination or expiration of this Agreement. We shall have no obligation to maintain or provide you a copy of any of your data in the Service following termination or expiration of this Agreement, unless otherwise specified in another applicable agreement between you and Instead of Flowers, or unless legally required to be retained. UPON TERMINATION, YOUR ACCESS TO OR USE OF MATERIALS STORED IN THE SERVICE WILL NOT BE ACCESSIBLE THROUGH THE SERVICE.
This Agreement is expressly made subject to any laws, regulations, orders or other restrictions which may be imposed by the Government of the United States of America on the transaction of business activities with certain countries or nationals or residents of certain countries. Services are not available through Instead of Flowers to any Restricted Entity (as defined below). You represent and warrant that neither you nor your organization is a Restricted Entity nor are you or your organization using the Services on behalf of or for the benefit of a Restricted Entity. “Restricted Entity” shall mean any individual or organization owned or controlled by, or acting as an agent for, any person or entity with whom a U.S. citizen, national, or company organized under the laws of or operating in the U.S. is prohibited from engaging in transactions by U.S. laws, including without limitation, a person on the Specially Designated Nationals List published by the U.S. Department of the Treasury’s Office of Foreign Assets Control.
This Agreement shall be governed by the laws of the State of Georgia, without reference to the principles of conflicts of laws thereof. You agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) and Uniform Computer Information Transactions Act (UCITA), as adopted by any state, are specifically excluded from application to this Agreement.
Instead of Flowers respects the intellectual property rights of authors. To assist copyright owners, Instead of Flowers has appointed an agent to receive notifications of claims or allegations of copyright infringement regarding materials available or accessible on, through, or in connection with the Site. Any person authorized to act for a copyright owner may notify us of such claims by contacting us in writing at the following address:
Instead of Flowers, Inc.
Attn: Copyright Agent
1331 Marietta Blvd, NW
Atlanta, GA 30318
You acknowledge and agree that any violation of the Agreement relating to the disclosure, use, copying, distribution, display or publishing of the content made available through the Service by us or by third party licensors, including any software licensed hereunder, may result in irreparable injury and damage to Instead of Flowers or its licensors that may not be adequately compensable in money damages, and for which Instead of Flowers will have no adequate remedy at law. You, therefore, consent and agree that Instead of Flowers may obtain injunctions, orders, or decrees as may be reasonably necessary to ensure compliance with this Agreement. You hereby waive any requirement of the posting of a bond that may apply for issuance of any injunctions, orders, or decrees.
Any controversy or claim arising out of, or relating to, these Terms of Use, or breach thereof, shall be settled by binding arbitration in accordance with the governing law as determined by these Terms of Use, the Federal Arbitration Act (insofar as it governs the arbitrability of such controversy or claim), and the Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association in the City of Atlanta, Georgia. Three qualified arbitrators shall be appointed in accordance with the Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association and these Terms of Use. Such qualified arbitrators shall be members of the Georgia bar and shall have at least five years of experience in the law relevant to the dispute in question. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. A stenographer shall be present at the arbitration proceedings and the stenographic record shall be the official record of the proceeding. The arbitrators shall provide written findings of fact and conclusions of law in justification of any arbitration award. Instead of Flowers shall have the right of appeal of any decision by the arbitrators by filing a request for reconsideration of any arbitration decision with the American Arbitration Association. Upon receiving such a request, the American Arbitration Association shall reconsider the matter de novo using the foregoing procedures. Should the arbitration award be inconsistent with the governing law as specified by these Terms of Use, Instead of Flowers may immediately appeal the arbitration award to any court of competent jurisdiction over the Instead of Flowers. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction over the parties, unless a subsequent request for reconsideration has been filed by Instead of Flowers under this Section, or the award has been appealed to a court of competent jurisdiction under this Section.
The parties waive any right to bring representative claims on behalf of a class of individuals, on behalf of the public, as a private attorney general, or otherwise (the “class action waiver”). Except for this class action waiver, this clause may be severed or modified if necessary to render it enforceable under the Federal Arbitration Act.
Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Site, and allowed pursuant to this Section, shall be instituted exclusively in the federal courts of the United States in the City of Atlanta, Georgia or the courts of the State of Georgia located in the City of Atlanta. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
We may assign our rights and obligations under this Agreement, without notice, to: (a) any affiliate of Instead of Flowers; or (b) any party or its affiliate acquiring all or substantially all of the assets or stock by merger or otherwise of Instead of Flowers or any affiliate of Instead of Flowers. This Agreement may not be assigned by you without our prior written consent. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.
Questions or comments regarding the Service or the Agreement should be directed to Instead of Flowers at:
sales@insteadofflowers.com
Or
Instead of Flowers, Inc.
1331 Marietta Blvd, NW
Atlanta, GA 30318
404.351.7171
