This Agreement is important and contains terms and conditions that: (i) govern all uses of the website www.secondflor.com (the “Site”), and (ii) apply to any offer for sale, sale or order of decorative flowers and preserved plants (the “Products”) (collectively, with the Site, the “Services”), between SecondFlor US and any professional buyer located in the United States of America (“you”). Because such terms affect your legal rights, please read it carefully. The Site may be used only for informational and online shopping purposes. By accessing or using the Site, you agree to be bound by the terms and conditions contained in this Agreement and all other terms incorporated herein by reference. If you do not agree to abide by any of the terms herein, in any manner, do not use the Site, including but not limited to, uploading or downloading information or material onto the Site and/or making any purchases on the Site.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2.1. If you are below the age of consent under applicable law in the country in which you reside, then your parent or legal guardian must read and accept this Agreement in your name and on your behalf.
2.2. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Site. We may, in our sole discretion, refuse to offer the Services to any person or entity and change our eligibility criteria at any time.
2.3. We continually test new features, functionalities, services, user interfaces and Products that we are considering incorporating into or providing through our Site. We reserve the right to include or exclude you from these tests without notice.
2.4. You are solely responsible for ensuring that your use of the Services complies with all laws, rules and regulations applicable to you. If the applicable law in the country in which you reside requires that you must be older than 18 to receive certain Services, then the minimum age is the legally required one. If you are a minor, you may wish to consult your parents about what portions of the Services are appropriate for you. The right to access the Site is revoked where this Agreement or use of the Site is prohibited or to the extent offering, sale, or provision of the Services conflicts with any applicable law, rule or regulation.
Any reference to a SecondFlor product, application, or service on the Site does not imply that such product or service is or will be available in your country and/or state, where it may be subject to different regulations and conditions of use. Such reference does not imply any intention on our part to sell this product, application, or service in your country and/or state, and you should always rely on product information especially created for your country and/or state. The Site contains information about Products to be sold in the United States; however, Products may or may not be available in some states, and where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different states. You should not construe anything on linked sites as a promotion or solicitation for any Product or for the use of any Product that is not authorized by the laws and regulations of the country outside of the United States where you are located. In addition, the Products and their essential characteristics are described on the Site and/or the Content including but not limited to technical data sheets, photographs, do not reflect the exact colors, tones and sizes of the Products you may order. SecondFlor reserves the right to make changes, additions, replacements, or deletions to the Products as it deems necessary, at any time and for any reason.
4.2. SecondFlor reserves the right to ask you to confirm, by any appropriate means, your identity, eligibility, and the information provided.
4.3. You are solely responsible for the use of your login credentials or actions taken through your Account. SecondFlor shall not be held liable in the event of identity theft. In case of loss, theft, or unauthorized use of your login credentials, you agree to notify SecondFlor immediately via the contact form: https://www.secondflor.us/contact-us.
5.1. The Site contains material, including but not limited to software, text, graphics, and images (collectively referred to as the “Content”). We either own the Content, or portions of the Content may be made available to us through arrangements that we have with third parties. We do not guarantee that any Content you access on or through the Site is or will continue to be accurate. The Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy or display the Content. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Site shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
5.2. The trademarks, service marks, and logos of SecondFlor, whether (collectively, the “SecondFlor Trademarks”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of SecondFlor. Other company, product, and service names located on the Site or otherwise used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks”, and, collectively with the SecondFlor Trademarks, the “Trademarks”). Nothing on the Site, in the Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site or otherwise used in connection with the Services without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks (this shall exclude any negative feedback on the Products). Use of any SecondFlor Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any SecondFlor Trademark shall inure to our benefit.
5.3. You may not use the Sites for any unlawful or prohibited purpose or in any manner that is inconsistent with the limited privilege granted herein. In particular, you agree not to: (a) take any action that imposes an unreasonable load on the Site’s infrastructure; (b) use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site; (c) attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or making up the Site; (d) delete or alter any material we or any other person or entity posts on the Site; (e) otherwise take any action in violation of our guidelines and policies; (f) using the Site to invade the privacy of, obtain the identity of, or obtain any personal information about any other user of the Site; or (g) modify, erase, or damage any information contained on the computer of any user connected to the Site.
5.4. In using the Site, you agree not to: (a) disrupt or interfere with the security of, or otherwise abuse the Site, or any services, system resources, accounts, servers, or networks connected to or accessible through the Site or affiliated or linked sites; (b) disrupt or interfere with any other user's enjoyment of the Site or affiliated or linked sites; (c) upload, post, or otherwise transmit through or on any Site any viruses or other harmful, disruptive or destructive files; (d) transmit through or on the Site spam, chain letters, junk mail or any other type of unsolicited mass email to people or entities who have not agreed to be part of such mailings; (e) attempt to obtain unauthorized access to the Site or portions of the Site which are restricted from general access.
In addition, you agree that you will comply with all applicable local, state, national and international laws and regulations that relate to your use of or activities on the Site.
The Site may contain links to third party websites, services or other resources on the Internet (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk. You acknowledge and 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 content, goods, or services available on or through any External Sites.
7.1. With respect to the Photos (as defined below), Submissions (as defined below), and any content or other materials you provide to or upload through the Site or share with other Site users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights, and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules, and regulations. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty. You shall not (and shall not permit any third party to) take any action or upload, post, or otherwise distribute any User Content that you know if false, misleading, untruthful or inaccurate, or is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion.
7.2. The Site may pull content from our users who share photos and videos on Instagram using our brand hashtags, including, without limitation, #SecondFlor, #createwithSecondFlor, #SecondFlorus, #SecondFlorusa (collectively, the “SecondFlor Hashtags”), or tagging the @SecondFlor_usa (collectively, “Photos”).You acknowledge and agree that the Photos may be used by SecondFlor, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with the Photos for identification, publicity related to the Services and similar promotional purposes, including after your termination of your Account or the Services. You represent and warrant that the posting and use of your Photos, including to the extent such Photos include your name, username, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and other intellectual property rights.
7.3. By uploading any User Content you hereby grant and will grant SecondFlor and its affiliated companies, successors and assigns a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to reproduce, adapt, publish, create derivative works from, copy, display, upload, publicly perform, distribute, store, modify and otherwise use your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content, without compensation to you, in connection with the operation of the Site or the promotion, advertising or marketing of the Services, in any form, medium or technology now known or later developed, and including after your termination of your Account or the Services. For clarity, the foregoing license does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
7.4. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (collectively, “Submissions”) that you provide to us are non-confidential, and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
7.5. You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of SecondFlor, our users and the public. You understand that the technical processing and transmission of the Site, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
8.1. We respect the intellectual property rights of others and require that the people who use our Site and products do the same. If you are a copyright owner and believe that any content posted on the Site infringes upon your copyrights, please provide our designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the “DMCA”):
8.2. Our DMCA designated copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:
Philip A. Nicolosi
Phil Nicolosi Law, P.C.
6735 Vistagreen Way, Suite 210
Rockford, IL 61107
SecondFlor may terminate, change, suspend or discontinue any aspect of the Site, including the availability of any features, at any time. SecondFlor may remove, modify or otherwise change any Content, including that of third parties, on or from the Site. SecondFlor may impose limits on certain features and services or restrict your access to parts or all of the Site without notice or liability. SecondFlor reserves the right to terminate your authorization to use the Site and to delete one or more of your related accounts immediately at any time if you breach or threaten to breach any of the terms herein. SecondFlor may further terminate the authorization and rights provided herein and your use of the Site at any time in its sole discretion and upon such termination, you shall immediately destroy all materials that you have downloaded from the Site.
SecondFlor Sites may contain "forward-looking statements" as defined in the Private Securities Litigation Reform Act of 1995. These statements, at the time they were made, were based on then-current expectations of future events. If any of those underlying assumptions prove or have proven to be inaccurate or unknown or if risks or uncertainties materialize or have materialized, actual results could vary or already may have varied materially from SecondFlor expectations and projections in these statements.
These risks and uncertainties include general industry conditions and competition: economic conditions such as interest rate and currency exchange rate fluctuations, technological advances and patents attained by competitors, challenges inherent in new product development including obtaining regulatory approvals, domestic and foreign health care reforms and governmental laws and regulations and trends toward health care cost containment. SecondFlor assumes no obligation to update any forward-looking statements as a result of new information or future events or developments.
11.1. Orders for Products are placed directly on the Site via your Account. No sample Products are provided by SecondFlor. You agree to provide accurate and up-to-date payment information at the time you order any Product.
11.2. Once you have selected and added the Products to your cart, you must click on the cart and verify that the Order's content is accurate, including the quantity, characteristics, references of the Products ordered, the billing address, the means of payment, and the price before validating it. After validating the content of your cart and identifying/ registering yourself, you will be prompted to fill in the delivery address and delivery method information. Please note that the asterisk (*) indicates mandatory fields that you need to complete for your Order to be processed by SecondFlor. You can then proceed to pay for the Products according to the chosen means of payment, following the instructions on the Site and providing all necessary billing information. It is important to note that you cannot proceed with payment without having previously and unreservedly accepted these T&C.
11.3. We have contracted with a third-party payment processor to facilitate purchases made on the Site. When you make a purchase through the Site, you will provide your payment details and any additional information required to complete your order directly to our third-party payment processor, STRIPE (https://stripe.com/en-fr/legal/ssa). The full payment for the order is due at the time of purchase. Payment for the Products is made online through the following methods:
11.5. You agree to have sufficient funds or credit available upon placement of any such order to ensure that the purchase price will be collectible by us. After you place your order, we will send you a confirmation email which shall contain the order number and a description of the Product purchased (the “Order Confirmation”). The invoice is also downloadable from your online account. We strive to provide accurate pricing information regarding the Products available on the Site. We cannot, however, insure against pricing errors. We reserve the right, at our sole discretion, to not process or to cancel any orders placed for a Product whose price was incorrectly posted on the Site as a result of an error. If this occurs, we will notify you by email. The processing of the Order is subject to the physical availability of the Products. If a Product is unavailable after you receive an Order Confirmation, SecondFlor will inform you and send you a Credit Note for future purchases in an amount equivalent to the Product initially ordered. In no event shall SecondFlor be held liable in cases of temporary or permanent unavailability of the Products ordered by the Customer. In the event of a payment incident, the Client must contact SecondFlor in order to pay for the order by any other valid and accepted means of payment within 48 hours of the occurrence of the incident. Otherwise, the Order will be cancelled, and the sale automatically terminated.
11.6. Unless otherwise specified, prices quoted are exclusive of: (a) the costs of shipping or carriage to the agreed place of delivery, insurance, special packaging that may vary; and (b) value added tax and any other tax or duty which (where applicable) must be added to the price payable. You agree to pay for taxes, shipping, or carriage of the Products as such costs are specified by us when you submit your order.
11.7. All orders are subject to our acceptance or rejection based on Product availability, noncompliance with this Agreement or any other reason as determined in our sole discretion. We also reserve the right, in our sole discretion, to take steps to verify your identity to process your order. We will either not charge you or refund the charges for orders that we cancel or do not process.
11.8. The Products are provided at the prices in effect at the time an Order is placed. SecondFlor reserves the right to modify the price of the items concerned for future orders. We occasionally run promotions or provide limited time offers for our Products. Please review the promotion or offer for eligibility and other terms and conditions.
11.9. We attempt to provide accurate descriptions of Products. We do not guarantee, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product delivered is not as described, please refer to Section 16.
12.1. SecondFlor reserves the right to use its preferred carrier. When placing an order, SecondFlor informs you of the shipping conditions of the purchased Products. The details of the delivery conditions are available on the website at the following address: https://www.secondflor.us/content/27-delivery-informations. Delivery dates are indicated as accurately as possible, but are subject to variations due to availability and transportation methods. Late deliveries do not render SecondFlor accountable for the payment of damages, nor permit the cancellation in whole or in part of pending orders.
12.2. We reserve the right not to deliver to any state where Products are prohibited by applicable export laws.
12.3. The Product(s) ordered will be at your risk from the time you receive the Product(s). Ownership of the Product(s) ordered will also pass to you upon your receipt of the Product(s), provided full payment of all sums due in respect of the Product(s), including any delivery charges, has been received.
12.4. You shall be responsible for storage of the Products, their handling, and their use once the delivery is complete.
12.5. The delivery zone includes the Contiguous United States. We do not deliver to Alaska, Puerto Rico, Hawaii, and parts of the United States not accessible by land such as Point Roberts (WA), Elm Point (MN) and Northwest Angle (MN).
12.6. The Products are shipped to the delivery address(es) you indicated during the order process. Deliveries are made according to Incoterm ICC 2020, DDP, unless a specific agreement is reached between the parties in writing. Risks and costs will be transferred to you according to the applicable Incoterm ICC 2020 and notwithstanding the reservation of ownership clause provided below.
13.1. SecondFlor does not refund Products except in cases where the Products have been found, in SecondFlor’s sole discretion to be defective. Any refund shall be made solely upon SecondFlor’s express written agreement to do so. After we receive your written request, which must be initiated via the “Quality Complaint” tab on the Site, we will respond with further instructions to verify the defect. Such failure to give written notice shall constitute an irrevocable acceptance of Products and an admission that they fully comply with all the terms, conditions, and specifications in this Agreement.
13.2. Upon the verification of defect, we will process any refund or credit note due to you as soon as possible. If you received any promotional or other discount when you paid, any refund or credit note will only reflect the amount you actually paid.
13.3. You understand that if you do not comply strictly with SecondFlor recommendations for use of the Products and applicable standards of care, including but not limited to storage of such Products, SecondFlor will not accept any refund and Product Purchase.
In case of non-payment on the due date, Secondflor may avail itself of its ownership rights after a formal demand letter sent to you. The Products shall, in this case, be returned to Secondflor at your expense and risk, without prejudice to the exercise of any other right belonging to Secondflor. You shall be responsible for Products which have been delivered to an agreed location.
15.1. Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement if such failure or delay is caused by an event of force majeure. An event of force majeure means any event or circumstance beyond the reasonable control of the affected party, including but not limited to acts of God, fire, flood, war, terrorism, government regulations, orders of quarantine, pandemics, or any other similar cause beyond the reasonable control of the affected party.
15.2. If an event of force majeure occurs, the affected party shall give prompt written notice to the other party, specifying the nature and expected duration of the event. The affected party shall use all reasonable efforts to mitigate the effects of the event and to resume performance of its obligations as soon as reasonably practicable.
15.3. If an event of force majeure continues for a period of more than fourteen (14) days, either party may terminate this Agreement upon written notice to the other party. In such case, neither party shall be liable to the other for any damages arising from or related to such termination.
15.4. This force majeure clause shall be construed in accordance with the laws of the United States.
16.1. Any complaint by you, including the aforementioned reasons, must be made via the "Quality Complaint" tab on your Account. Any complaint made via the "Quality complaint" tab must:
Failing to comply with the aforementioned rules, the claim by you will not be processed by SecondFlor.
16.2. Within the framework of the quality claim, you undertake to respond to any correspondence from SecondFlor US within a maximum period of fifteen (15) days. Failing this, SecondFlor reserves the right to close your request.
16.3. After examination and in case of acceptance of the claim by SecondFlor, SecondFlor will propose an appropriate solution. When a compensation proposal is made by SecondFlor, you may opt for a refund within a maximum of fifteen (15) days via the means of payment used for the Order or for a credit note that will be sent by email.
17.1. THE SITE AND ITS CONTENT IS PROVIDED AS A CONVENIENCE TO YOU. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AND EXCEPT AS OTHERWISE PROVIDED BY US IN WRITING, SECONDFLOR, OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “SECONDFLOR PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THE SITE’S ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE SECONDFLOR PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR THE SITE OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SERVICES AND THE CONTENT AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WHETHER IN ANY ACTION IN WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR FUNDAMENTAL BREACH), OR OTHERWISE, SHALL THE SECONDFLOR PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SITE OR ANY CONTENT CONTAINED ON THE SITE, OR, EXCEPT AS OTHERWISE PROVIDED UNDER APPLICABLE LAWS AND REGULATIONS REGARDING THE SECURITY OF PERSONAL DATA, RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR OTHER INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, INTERRUPTION OF SERVICE, LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK, EVEN IF SECONDFLOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF CERTAIN WARRANTIES OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE LIABILITY OF SECONDFLOR WOULD IN SUCH CASE BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
17.2. YOU ACKNOWLEDGE THAT SECONDFLOR DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH ANY WEBSITES INCLUDING THE SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, SECONDFLOR AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY LESSON, MATERIAL, ADVICE, OPINION, SUMMARY, STATEMENT OR OTHER CONTENT OR OF ANY APPLICATIONS, PRODUCTS OR SERVICES DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH ANY THIRD-PARTY OR THE SITE.
17.3. THE SECONDFLOR PARTIES DO NOT WARRANT THAT THE SITE WILL OPERATE ERROR FREE OR THAT THE SITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO SECONDFLOR PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
17.4. EXCEPT AS OTHERWISE PROVIDED BY US IN WRITING, THE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE SECONDFLOR PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
17.5. IN NO EVENT SHALL ANY SECONDFLOR PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH SECONDFLOR PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $500.00.
17.6. The above disclaimer applies to any damages, liability, or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Except as otherwise provided under applicable laws and regulations regarding the security of personal data, SecondFlor disclaims any warranty or representation that confidentiality of information transmitted through the Site will be maintained.
No advice or information, whether oral or written, obtained by you from SecondFlor or third parties through the Site shall create any warranty. Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF SECONDFLOR PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW.
To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the SecondFlor Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any User Content or Submissions you provide, or your access to, use or misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to us via the contact form. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
PLEASE READ THIS DISPUTE RESOLUTION SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.THIS SECTION CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
19.1. Scope of the Arbitration Agreement. If SecondFlor cannot resolve any dispute with you regarding the Site, any transaction conducted on the Site or these terms, both you and SecondFlor agree that any such dispute will be resolved through binding individual arbitration. Both you and SecondFlor understand and agree to waive the right to sue or go to court to assert or defend our respective rights. However, either you or SecondFlor may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. The term “dispute” means any dispute, action, claim, or other controversy between you and SecondFlor, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
19.2. Informal Dispute Resolution. Either party asserting a dispute shall first try in good faith to resolve it by providing written notice to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Both you and SecondFlor agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
19.3. How Arbitration Works. Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by these Arbitration Provisions. To file an arbitration demand and review the AAA Rules, you can go to the AAA’s website www.adr.org, or call the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the dispute, you and SecondFlor will mutually agree to, or the court shall select, another arbitration provider. The arbitration will be conducted by telephone, videoconference, or in-person in the county of your residence (as determined by your billing address on file in your SecondFlor account) as mutually agreed upon by you and SecondFlor. If you live outside the United States, any arbitration will take place in New York, NY. Unless the arbitrator finds some or all of your claims to be frivolous, without merit or otherwise non-reimbursable, SecondFlor will pay all filing, administrative, arbitrator and hearing costs up to the amount of $10,000. In determining whether an action is frivolous, the arbitrator may consider whether SecondFlor offered you a full refund of the sum you paid for any items you purchased, or otherwise offered full relief to you in relation to your individual claim.
19.4. Waiver of Right to Bring Class Action and Representative Claims. All arbitration shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and SecondFlor also agree waive the right to assert or participate in any class action lawsuit or class action arbitration, any private attorney general lawsuit or private attorney general arbitration, and any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, provincial, national, and international laws and regulations.
22.1. This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. Any dispute between you and SecondFlor that is not subject to arbitration or cannot be heard in small claims court will be resolved in state and federal courts sitting in the City of New York in the State of New York. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation. Any information you submit to or provide through the Site might be publicly accessible, and you should protect important and private information. We are not liable for protection of privacy of email or other information transferred through the Internet or any other network that you may use. Products, including any intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. Any term herein may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby. Ambiguities, if any, shall not be construed against any party, irrespective of which party may be deemed to have authored the ambiguous provision.
Effective: May 22, 2023.