KEEPING UP WITH THE ROSES LLC
Terms and Conditions for Services and Goods
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS. PLEASE READ IT CAREFULLY.
BY PLACING AN ORDER FOR SERVICES OR GOODS FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN SERVICES OR GOODS FROM THIS WEBSITE IF YOU DO NOT AGREE TO THESE TERMS.
These terms and conditions (the “Agreement”) apply to the purchase of services and goods through https://www.keepingupwiththeroses.com (the “Site”) and the sale of such services and goods by Keeping Up With The Roses LLC (“Service Provider”, “Us”, “We”, or “Our”).
By placing an order on the Site, you will become a customer and may hereinafter be referred to as “You” “Your” or “Customer”. You and the Service Provider are the “Parties” and each a “Party”.
Services and Goods.
1.1 We may offer the following goods and services to Customers:
Planting and caring for plants and cultivating flowers, mainly rosebushes;
Buying and selling plants, with a focus on rosebushes and flower bulbs; and
Constructing trellises and fences for the exclusive purpose of growing climbing roses.
1.2. You agree that Your order is an offer to buy, under these terms and conditions, all services and goods (together, “Services”) listed in the invoice provided to You (each invoice is a “Statement of Work”). Your order must be accepted by Us, in our sole discretion, or We will not be obligated to sell the Services to You. Payment must be received by Us before Our acceptance of an order.
2. Customer Obligations:
2.1 You shall respond promptly to Our requests for instructions, information, or approvals and remain professional at all times (harassment or unprofessional behavior will not be tolerated);
2.2 You shall cooperate with Us in Our performance of the Services and provide reasonable access to Your premises;
2.3 You shall maintain Your premises in a safe working environment for Us to perform the Services;
2.4 You shall identify any permits or permissions necessary for performing the Services; and
2.5 You represent and warrant that You have the authority to hire Us and guarantee to Us that the location of the Services are fully upon Your property.
3. Fees and Expenses.
3.1 In coIn consideration for the Services, You shall pay the fees set forth in the Statement of Work We provide to You (the “Service Fee”). The Service Fee will be payable in the frequency and by the deadline specified in the Statement of Work.
3.2 We use Stripe for payment processing. You represent and warrant that (i) the payment information you supply is true, (ii) You are duly authorized to use such payment method, (iii) charges incurred by You will be honored by your payment method and company, and (iv) You will pay charges incurred by You at the invoiced prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted at the time of Your consultation. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind.
3.3 All late payments shall bear interest at the rate of one percent (1%) per month, calculated daily and compounded monthly. In addition to all other remedies available to Us, We shall be entitled to suspend the provision of any Services if You fail to pay the Service Fees when due.
4. Opportunity to Correct and Disclaimer of All Warranties.
4.1 In the event that You are dissatisfied with the Services, You shall notify Us in writing (email acceptable) of the Services alleged to be unsatisfactory and provide Us with a reasonable opportunity of not less than thirty (30) days after notice to offer to re-perform or otherwise correct the Services. Although You will not be required to accept Our offer to correct the Services, Your written notice under this section shall be required prior to Your filing any lawsuit against Us.
4.2 WE DO NOT GUARANTEE OR PROMISE A FAVORABLE OUTCOME. ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.
(a) We do not warrant that the Services are appropriate for Your desired planting location (i.e., soil conditions, watering conditions, sunlight and shade conditions, seasonal conditions, climate, etc.);
(b) We do not warrant that plants will live to a certain age;
(c) We do not warrant that plants are free from disease and pests, or that the plants will be free from disease and pests in the future;
(d) We do not warrant proper planting conditions; and
(e) We do not warrant the transportation or shipping of plants.
5. Changes to Terms and Conditions. These terms and conditions are subject to change by Us without prior written notice to You. If You purchase any Services after changes are made by Us, then those changes may supersede and replace terms and conditions that You previously agreed to. You should therefore review these terms and conditions every time You purchase any Services. Your continued purchase of our Services will constitute Your acceptance of and agreement to such changes. No other modifications or amendments to this Agreement shall be effective unless in writing and signed by Us.
6. Photography Release. You hereby irrevocably authorize Service Provider and its owners, employees, representatives, successors, licensees, agents, and assigns (“Service Provider Representatives”) to take photographs and videos before, during, and after the performance of the Services (the “Images and Videos”) and to use, re-use, publish, and re-publish the Images and Videos, either separately or together and either in whole or in part, for any purpose whatsoever, including but not limited to advertising, promotion, and other commercial and business purposes in connection with the Service Provider and Our businesses, products, and services in perpetuity throughout the world and in any medium, format, or platform now existing or hereafter created, and without further consent from or any royalty, payment, or other compensation to You. You shall have no right to inspect or approve the Images and Videos. You specifically consent to the use of the Images and Videos with other images, text, graphics, film, audio, and audiovisual works. You acknowledge and agree that the Images and Videos may be altered or modified, including retouching, creating composite or distorted representations, and changing color, size, shape, perspective, context, foreground, or background. Service Provider is and shall be the exclusive owner of all rights in the Images and Videos and materials created from the Images and Videos. You hereby irrevocably transfer, assign, and otherwise convey to Service Provider all rights, title, and interests, if any, in and to the Images and Videos and all copyrights and other intellectual property rights in the Images and Videos arising in any jurisdiction throughout the world in perpetuity, including all registration, renewal, and reversion rights, and the right to sue to enforce such rights against infringers. Service Provider currently runs a YouTube channel featuring videos of gardening.
7. Privacy. Our Privacy Policy can be found at https://www.keepingupwiththeroses.com/privacy-policy.
8. Term and Termination.
8.1 This Agreement shall commence as of the date that You pay the amount listed on the order form; and:
(a) If You purchase monthly Services, then this Agreement shall continue for a period of one (1) month (the “Monthly Term”), unless sooner terminated pursuant to Section 8.2 or Section 8.3. This Agreement shall automatically renew for additional one month periods (the “Subsequent Monthly Terms”) unless either Party provides written notice thirty (30) days prior to the end of the Monthly Term or Subsequent Monthly Term, as applicable.
(i) If You purchase monthly Services, You authorize Us to keep Your payment information on file and authorize Us to auto-charge You every month in accordance with Section 8.1.(a) above. Should You wish to revoke this authorization, You must provide Us written notice in accordance with the timeline stated in Section 8.1.(a) above.
(b) If You purchase yearly Services, then this Agreement shall continue for a period of one (1) year (the “Annual Term”), unless sooner terminated pursuant to Section 8.2 or Section 8.3. This Agreement shall automatically renew for additional one year periods (the “Subsequent Annual Terms”) unless either Party provides written notice thirty (30) days prior to the end of the Annual Term or Subsequent Annual Term, as applicable.
8.2 Either Party may terminate this Agreement, effective immediately upon written notice (email acceptable) to the other Party (the “Defaulting Party”) if the Defaulting Party materially breaches this Agreement. A material breach includes Your failure to pay any amount when due.
8.3 Notwithstanding anything to the contrary in this Section 8, Service Provider may terminate this Agreement for convenience with three (3) days’ written notice (email acceptable) to You. In the event of termination pursuant to this Section 8.3, Service Provider shall be compensated for Services through the date of termination. If the Service Provider has already been compensated for Services that the Service Provider has not yet performed, then You may request a refund, but only for the fees that You paid for Services not performed.
8.4 Except as stated in this Section 8, no returns, refunds, or partial refunds will be provided.
9. Limitation of Liability; Indemnity. This Section 9 contains important terms limiting the liability of Service Provider and Service Provider Representatives and should be read carefully.
9.1 IN NO EVENT SHALL SERVICE PROVIDER OR SERVICE PROVIDER REPRESENTATIVES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE OR LOST PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND REGARDLESS OF WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL SERVICE PROVIDER'S AND SERVICE PROVIDER REPRESENTATIVES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3 CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS SERVICE PROVIDER AND SERVICE PROVIDER REPRESENTATIVES FROM AND AGAINST ALL CLAIMS, LOSSES, AND DAMAGES, INCLUDING REASONABLE COSTS AND ATTORNEYS’ FEES, ARISING OUT OF OR RESULTING FROM BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR PERSONAL PROPERTY THAT IS CAUSED BY OR ALLEGED TO BE CAUSED BY CUSTOMER’S NEGLIGENCE, RECKLESS CONDUCT, INTENTIONAL ACTS, OR BREACH OF THIS AGREEMENT. IN THE EVENT THAT CUSTOMER IS CONCURRENTLY NEGLIGENT WITH SERVICE PROVIDER OR SERVICE PROVIDER REPRESENTATIVES, THEN THE CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS SERVICE PROVIDER AND SERVICE PROVIDER REPRESENTATIVES ONLY TO THE EXTENT OF THE CUSTOMER’S NEGLIGENCE.
9.4 NO LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES MAY BE BROUGHT BY A PARTY AGAINST THE OTHER PARTY MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUED. THIS PROVISION APPLIES REGARDLESS OF THE NATURE OF THE CLAIMS, THEORIES OF LIABILITIES, AND TYPES OF DAMAGES ASSERTED.
10. Force Majeure. Service Provider and Service Provider Representatives shall not be liable or responsible to You, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, but not limited to, acts of God, flood, fire, earthquake, explosion, governmental actions (including stay-at-home orders), war, terrorism, riot or other civil unrest, national emergency, pandemic or epidemic, strikes or other labor disputes, restraints or delays in obtaining supplies of adequate or suitable materials, telecommunication breakdown, and power outage.
11. Entire Agreement. This Agreement, including and together with any Statements of Work, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
12. Successors, Assignment, Relationship. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors. You shall not assign, transfer, delegate, or subcontract any of Your rights or delegate any of Your obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations without Your prior written consent. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or joint venture.
13. General. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right arising from this Agreement shall operate or be construed as a waiver, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof of any other right. The Parties acknowledge that this Agreement is binding, reasonable, valid, and enforceable. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the Parties intend that such part or parts be reduced in scope only to the extent necessary to render the part or provision reasonable and enforceable, and such invalidity or unenforceability shall not affect any other term or provision of this Agreement. Termination of this Agreement relieves Service Provider from performing future Services. All other rights, obligations, and provisions contained in this Agreement shall survive termination. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington.