Terms of service

General Terms & Conditions




Index

Article 1 – Definitions 2

Article 2 - Identity of Sybotanica 2

Article 3 – General provisions 2

Article 4 – The offer 3

Article 5 – The agreement 3

Article 6 – Right of withdrawal for Consumers 3

Article 7 – Extension of the right of withdrawal if not informed 4

Article 8 – Exercising the right of withdrawal 4

Article 9 – Termination 4

Article 10 – Liability 4

Article 11 – Force majeure 5

Article 13 – Prices 6

Article 14 – Payment and invoices 6

Article 15 – Delivery 7

Article 16 – Complaints 7

Article 17 – Transfer of rights 7

Article 18 – Retention of title 8

Article 19 – Intellectual property 8

Article 20 – Rights of settlement and suspension for B2B 8

Article 21 – Applicable law 8

Article 22 − Survival 9

Article 23 – Amendment or addition 9

Article 24 - Text messaging marketing


Article 1 – Definitions

In these general terms and conditions the following definitions apply:

  1. Sybotanica: defined in article 2 of these general terms and conditions;
  2. Other Party: the person or legal entity which Sybotanica has entered an agreement with or is entering an agreement with;
  3. Consumer: a natural person, not acting in de exercise of a profession or business;
  4. Parties: Sybotanica and the Other Party;
  5. Written: put in writing; by post, by e-mail, or by any electronic means;
  6. Third Party(ies): (legal) persons, not being Sybotanica or the Other Party.
  7. BW: Burgerlijk Wetboek, which is the Dutch Civil Code.

Article 2 - Identity of Sybotanica

Company name: Sybotanica

Street name and number: Velperbuitensingel 13C

Postal code and place of business: 6828 CV Arnhem

Dutch Chamber of Commerce number: 81937709

Email: info@sybotanica.com

Article 3 – General provisions

  1. These general terms and conditions apply to every offer and all (legal) acts of Sybotanica and to every agreement reached between Sybotanica and the Other Party.
  2. If any provision in this English version of the general terms and conditions turns out to differ in meaning to the Dutch version, the Dutch version and Dutch meaning prevails. Please note that Dutch law applies (art. 21 par. 1).
  3. If the agreement is concluded electronically, contrary to the previous paragraph and before the agreement is concluded, the text of these general terms and conditions can be made available to the Other Party electronically in such a way that the Other Party can easily do this are stored on a durable data carrier. If this is not reasonably possible, it will be indicated before the agreement is concluded where the general terms and conditions can be inspected electronically and that they will be sent free of charge electronically or otherwise at the request of the Other Party.
  4. If a provision of the general terms and conditions or an agreement proves to be null and void or is nullified, this will not affect the validity of the entire general terms and conditions or agreement. The parties will enter into consultations in order to agree on a new provision to replace the invalid or annulled provision, whereby the purpose and purport of the invalid or annulled provision are taken into account as much as possible.
  5. Unless explicitly agreed otherwise in Writing, the applicability of other general terms and conditions is excluded.
  6. Deviations or additions to these general terms and conditions are only valid if they have been explicitly agreed in Writing.
  7. These general terms and conditions also apply to future and/or additional orders.   

Article 4 – The offer

  1. If an offer has a limited period of validity or is made subject to conditions, this will be explicitly stated in the offer.
  2. The offer contains a complete and accurate description of the products offered. The description is sufficiently detailed to allow a proper assessment of the offer by the Other Party. If Sybotanica uses images, these are a true representation of the products offered. However, natural products are unique and can therefore differ reasonably.
  3. Obvious mistakes or errors concerning for example amounts shown on offers or on web pages from Sybotanica, are not binding for Sybotanica.

Article 5 – The agreement

  1. The agreement is concluded at the time of acceptance of the offer by the Other Party and compliance with the corresponding conditions.
  2. An offer is only accepted if the Other Party has actually placed an order. The mere addition of a product to the digital shopping basket in the Sybotanica webshop does not constitute acceptance.
  3. Sybotanica reserves the right not to execute a concluded agreement, for example if it has reasonable doubts or information that the Other Party will not (be able to) meet its (financial) obligations. If Sybotanica refuses, it will inform the Other Party in Writing of the refusal within a reasonable period after the conclusion of the agreement.
  4. Agreed delivery periods are always indicative periods. Therefore, the deadlines for delivery are not strict deadlines. Exceeding a delivery period therefore does not entitle the Other Party to compensation.
  5. If the Other Party has accepted the offer electronically, Sybotanica will immediately confirm receipt of the acceptance of the offer electronically.
  6. Sybotanica is entitled to engage Third Parties for the execution of the agreement.
  7. The effect of art. 7:404 BW and art. 7:407 paragraph 2 BW is excluded.

Article 6 – Right of withdrawal for Consumers

  1. The Other Party acting as a Consumer, can terminate an agreement without giving reasons for a period of 14 (fourteen) days after the day on which the Consumer or the representative Third Party, who is not the carrier, has received the product.
  2. However, the Consumer’s right of withdrawal for the purchase of products with a limited shelf life, such as indoor and outdoor plants, can be invoked up to 7 (seven) days after receipt of the products.
  3. The Consumer’s right of withdrawal for the purchase of alive animals is excluded.
  4. If the Sybotanica products offered are specifically tailor-made or mixed for the Consumer, those products are exclusively intended for that individual buyer. Therefore, the right of withdrawal is excluded for those products .
  5. The exclusion referred to in paragraph 4 takes effect when Sybotanica is no longer able to cancel its order required for the agreement from its supplier free of charge.
  6. If a Consumer can use his right of withdrawal, the Consumer ensures the return of the product.
  7. The right of withdrawal never applies if the Other Party is not a Consumer.

Article 7 – Extension of the right of withdrawal if not informed

  1. If Sybotanica has not provided the Other Party with the legally required information about the right of withdrawal or the model form for withdrawal, the reflection period will expire 12 (twelve) months after the end of the original reflection period determined in accordance with the previous paragraphs of this article.
  2. If Sybotanica has provided the information referred to in the previous paragraph to the Other Party within 12 (twelve) months after the commencement date of the original reflection period, the reflection period will expire 30 (thirty) days after the day on which the Other Party received that information.

Article 8 – Exercising the right of withdrawal

  1. The Other Party will return the product with all accessories supplied, if reasonably possible in its original condition and packaging, and in accordance with the reasonable and clear instructions provided by Sybotanica .
  2. The risk and the burden of proof for the correct and timely exercise of the right of withdrawal lies with the Other Party.
  3. The Other Party bears the direct costs of returning the product.
  4. Returning plants and natural products is entirely at the risk of the Consumer.
  5. If on receipt by Sybotanica it appears that products are damaged, incomplete or (in the case of natural products) no longer alive, Sybotanica is not obliged to refund the (full) invoice amount.

Article 9 – Termination

  1. Sybotanica has the right to suspend the fulfillment of the agreement or to (partly) terminate the agreement as of by operation of law and without prior notice by a Written statement. This is always an option for Sybotanica and always reserving any future right to compensation of costs, damage and interest if:
    1. The Other Party does not, not timely or not properly fulfill one or more of its obligations.
    2. The Other Party is declared bankrupt.
    3. The Other Party applies for (provisional) suspension of payments and/or postponement of payment.
    4. The other party proceeds to liquidate its company.
    5. The assets of the Other Party are seized in whole or in part.

Article 10 – Liability

In case the Other Party is a Consumer:

  1. The total liability Sybotanica is limited to compensation for damages up to the invoice amount of the agreement (excluding VAT).
  2. Under no circumstances will the total compensation for damage amount more than the amount to be paid out by Sybotanica's liability insurance.
  3. The liability of Sybotanica is not limited for damage resulting from intent or deliberate recklessness on the part of Sybotanica.

In case the Other Party is acting in exercise of a profession or business:

  1. Sybotanica is not liable for direct and/or indirect damage. The liability of Sybotanica for damage resulting from intent or deliberate recklessness on the part of Sybotanica is not excluded.
  2. If Sybotanica is nevertheless liable for direct damage, Sybotanica's total liability will be limited to compensation for damage up to a maximum of the invoice amount of the agreement (excluding VAT).
  3. The amount of the compensation will never exceed the amount paid out by Sybotanica’s liability insurance.
  4. Direct damage is understood to mean:
    1. Reasonable costs that the Other Party would have to incur to have the performance of Sybotanica comply with the agreement; however, this replacement damage will not be compensated if the agreement is terminated by or at the request of the Other Party;
    2. Reasonable costs incurred to determine the cause and extent of the damage insofar as the determination relates to damage within the meaning of these terms and conditions;
    3. Reasonable costs incurred to prevent or limit damage insofar as the Other Party demonstrates that these costs have resulted in limitation of damage within the meaning of these terms and conditions.
  5. The Other Party indemnifies Sybotanica against any claims from Third Parties that suffer damage in connection with the performance of the agreement.

 

General provisions regarding liability:

  1. A condition for any right to compensation to arise is always that the Other Party reports the damage to Sybotanica in Writing as soon as possible after it has arisen. Any claim for compensation against Sybotanica will lapse by the mere lapse of 12 (twelve) months after the claim arose.
  2. Sybotanica is not liable for damage caused by auxiliary persons as referred to in art. 6:76 BW.
  3. Sybotanica is not liable for damage, of whatever nature, that has arisen because Sybotanica relied on incorrect and/or incomplete information provided by the Other Party.
  4. Sybotanica is not liable for damages of any nature whatsoever, arising because it appears that indoor or outdoor plants or alive animals have a disease on or after delivery. If the Other Party believes that the disease was already present at delivery, the Other Party must inform Sybotanica as soon as possible.
  5. Sybotanica is not liable for damage, of whatever nature, that has arisen because it appears that an indoor or outdoor plant or other natural product contains an organism that is spreading undesirably on or after delivery.

Article 11 – Force majeure 

  1. In addition to the provisions of art. 6:75 BW, a shortcoming by Sybotanica in the fulfillment of any obligation towards the Other Party cannot be attributed to Sybotanica in the event of a circumstance independent of Sybotanica's will, as a result of which the fulfillment of its obligations towards the Other Party are wholly or partially prevented or as a result of which the fulfillment of its obligations cannot reasonably be expected of Sybotanica. These circumstances include but are not limited to: defaults on the part of suppliers or other Third Parties, power failures or other technical malfunctions, the failure of vehicles and equipment with which the products have to be transported, absenteeism and/or incapacity for work, natural disasters, theft, destruction and consequences of pandemics/epidemics including but not limited to the pandemic caused by SARS-CoV-2 ('the coronavirus').
  2. If a situation as referred to in paragraph 1 of this article arises as a result of which Sybotanica can not fulfill its obligations towards the Other Party, those obligations will be suspended as long as Sybotanica can not meet its obligations. If the situation referred to in the previous sentence has lasted 30 (thirty) calendar days, both Parties have the right to (partially) terminate the agreement in Writing. In that case Sybotanica is not obliged to pay compensation for any damage, even if Sybotanica enjoys any advantage as a result of the force majeure situation. If the agreement ends due to force majeure, Sybotanica is entitled to payment for the hours already worked or investments already made at the time of termination of the agreement.

Article 13 – Prices

  1. All amounts are inc. VAT, unless otherwise indicated.
  2. The currency of the amounts shown in the webshop depend on the chosen currency by the Other Party. However, in the case no currency is indicated on webpages or in other communication, amounts are in euros.
  3. Any import costs or other government levies/taxes are at the expense of the Other Party, unless stated or agreed otherwise.
  4. Prices indicated on Sybotanica webpages apply at the time of placing an order. Sybotanica is never obliged to use prices that applied earlier or later than at the time an order is placed.
  5. A combined quotation does not oblige Sybotanica to execute part of the offer for a corresponding proportion of the quoted amount.
  6. Prices, discounts and quoted amounts do not automatically apply to future orders.

Article 14 – Payment and invoices

  1. Unless otherwise stipulated in the agreement or additional conditions, the amounts owed by the Other Party must be paid within 14 (fourteen) days after the invoice date.
  2. The Other Party is obliged to immediately report inaccuracies in provided or stated payment details to Sybotanica.
  3. If the Other Party does not fulfill its payment obligation(s) on time, Sybotanica will notify this of the late payment and the Other Party will be granted a period of 7 (seven) days to still fulfill its payment obligations. After non-payment within this seven-day period, the Other Party is in default and therefore also owes the statutory interest on the amount owed. In addition, Sybotanica is entitled to charge extrajudicial collection costs incurred by it.
  4. In the event of (reasonable prospect of) bankruptcy, liquidation or suspension of payments or debt rescheduling in the context of the WSNP, the claims of Sybotanica on the Other Party against Sybotanica are immediately due and payable.
  5. Payments made by the Other Party always serve to settle in the first place all interest and costs owed, in the second place of due and payable invoices that have been outstanding the longest, even if the Other Party indicates that the payment relates to a later invoice.

Article 15 – Delivery

  1. The place of delivery is the address that the Other Party has made known to Sybotanica .
  2. Sybotanica is authorized to suspend the delivery of products until all outstanding claims against the Other Party have been paid in full.
  3. If delivery of an ordered product proves impossible, Sybotanica will endeavor to provide a replacement product. At the latest upon delivery, it will be stated in a clear and comprehensible manner that a replacement item is being delivered. For replacement items, the right of withdrawal can not be excluded. The costs of any return shipment are at the expense of Sybotanica.
  4. The risk of damage and/or loss of products rests with Sybotanica until the moment of delivery with the Other Party or a representative appointed in advance and made known to Sybotanica , unless explicitly agreed otherwise.
  5. All delivery times and periods are indicative. The Other Party cannot derive any rights from any stated or stated times or periods. Exceeding a period does not entitle the Other Party to compensation.
  6. If a product turns out to be out of stock, Sybotanica will inform the Other Party of this and will give the Other Party a new indicative delivery period.
  7. Sybotanica is not obligated and cannot guarantee that the Other Party can track its order via package tracking systems.

Article 16 – Complaints

  1. The Other Party can not appeal to a default anymore if he does not complains within 2 (two) months after he discovers the default or reasonably should have discovered the fault. If there is a visible fault on delivery, a period of 48 (forty-eight) hours applies.
  2. If the Other Party believes that there is a visible default upon delivery, it must enclose a photo of the defect with its complaint, so that Sybotanica can arrive at a proper assessment of the complaint.
  3. The Other Party must in any case give Sybotanica 4 (four) weeks to resolve the complaint in mutual consultation.
  4. If a complaint is not reported to Sybotanica within the periods stated in the previous paragraphs, the product is deemed to comply with the agreement and to function in accordance with the agreement.
  5. Complaints do not suspend the Other Party's obligation to pay, in case the Other Party is not acting as a Consumer.

Article 17 – Transfer of rights

  1. Rights of the Other Party arising from this agreement or these general terms and conditions cannot be transferred without the prior written consent of the other party. This provision applies as a clause with property law effect as referred to in Article 3:83 paragraph 2 BW.

Article 18 – Retention of title

  1. The ownership of all goods sold and delivered by Sybotanica to the Other Party remains with Sybotanica as long as the Other Party has not paid claims under the agreement (or similar earlier or later agreements), and as long as the Other Party has not yet paid the claims of Sybotanica due to failure to fulfill their obligations. This also includes claims with regard to fines, interest and costs. All this, as referred to in art. 3:92 BW.
  2. Sybotanica will, where appropriate, be entitled to unhindered access to the product to take the product back. The other party will be cooperate with Sybotanica in order to let Sybotanica execute its retention of title as stated in paragraph 1, including any necessary disassembly.
  3. The Other Party is not authorized to pledge or otherwise encumber the items subject to retention of title.
  4. The Other Party now gives unconditional and irrevocable permission to Sybotanica or a Third Party to be appointed by Sybotanica to, in all cases in which Sybotanica wishes to exercise its property rights, enter all those places where its properties will be located and to take those items there.
  5. If Third Parties seize the goods delivered under retention of title or wish to establish or assert rights thereon, the Other Party is obliged to inform Sybotanica of this as soon as may reasonably be expected.

Article 19 – Intellectual property

  1. Sybotanica has the right to use the name and logo of the Other Party as a reference or for promotion.
  2. The Other Party indemnifies Sybotanica against the claims of Third Parties regarding intellectual property rights.

Article 20 – Rights of settlement and suspension for B2B

  1. The right of suspension and the right of settlement of the Other Party, not acting as a Consumer, are excluded.

Article 21 – Applicable law

  1. Agreements between Sybotanica and the Other Party to which these general terms and conditions apply are exclusively governed by Dutch law.      
  2. If and insofar as any provision of these general terms and conditions cannot be invoked on the grounds of reasonableness and fairness or the unreasonably onerous nature, the relevant provision will in any case have a meaning that is as similar as possible with regard to content and scope, so that it can be invoked.      
  3. In the event that these general terms and conditions and the agreement contain conflicting conditions, the conditions included in the agreement will apply.      
  4. All disputes related to agreements between the Other Party and Sybotanica, to which these terms and conditions apply and which do not fall within the competence of the subdistrict court (kantonrechter), will be settled by the competent court in the district where Sybotanica is located, unless the law requires otherwise. 

Article 22 − Survival

  1. The provisions of the general terms and conditions and the agreement that purport to remain valid after termination of the agreement, including but not limited to article 10 (Liability), article 19 (Intellectual property), article 21 (Applicable law) and this provision (Survival) will remain in full force after termination of the agreement.

Article 23 – Amendment or addition

  1. Sybotanica is entitled to unilaterally amend or supplement these general terms and conditions. In that case, Sybotanica will inform the Other Party properly in time.
  2. Notification takes place at least 30 (thirty) days before the amended or supplemented terms are in force.
  3. If the amendment or addition gives Sybotanica the authority to provide a performance that substantially deviates from the promised performance, the Other Party has the right to refuse the changed conditions or to terminate the agreement.

Article 24 – Text messaging marketing

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

Sybotanica (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy https://www.sybotanica.com/policies/privacy-policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

1. 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 Us. 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. Message frequency varies.

2. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. 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 acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Sybotanica and its service providers will have no liability for failing to honor such requests. 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.

3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of plants, soil, terrariums, insects and accessories related to these groups of products and other botanical hobbies. Messages may include checkout reminders.

4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at info@sybotanica.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

7. 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. Carriers are not liable for delayed or undelivered mobile messages.

8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes: - Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity; - Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age; - Pirated computer programs, viruses, worms, Trojan horses, or other harmful code; - Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; - Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and - Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in ARNHEM, before one arbitrator. The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Sybotanica’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.