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Terms and Conditions of Use
Welcome to SummerWindsNursery.com. SummerWinds Nursery ("SummerWinds") provides website features and other products and services to you when you visit or shop at SummerWindsNursery.com (collectively, "Website Services"). SummerWinds provides the Website Services subject to the following terms and conditions of use (“Terms and Conditions of Use”), including all mentioned SummerWinds policies, which are incorporated by reference and each of which may be updated from time to time in accordance with these Terms and Conditions of Use. By using Website Services, you agree to these terms and conditions and all mentioned SummerWinds policies. Please read them carefully.
SummerWinds sells products and services only to adults. If you are under 18, you may use the Website Services only with involvement of a parent or guardian. If you are under 13, you may not, under any circumstances or for any reason, use the Website Services. SummerWinds reserves the right to refuse service, terminate accounts, terminate rights to use Website Services, or cancel orders in its sole discretion.
You may need your own SummerWinds account to use certain Website Services. You must provide accurate and complete information when establishing your account and you must keep that information updated. You shall not select or use as a username a name of another person with the intent to impersonate that person; use as a username a name subject to any rights of a person other than you without appropriate authorization; or use, as a username, a name that is otherwise offensive, vulgar or obscene. If you provide any information that is untrue, inaccurate, not current or incomplete, or SummerWinds has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SummerWinds has the right to refuse any and all current or future use of the Website Services. You may be required to be logged in to the account and have a valid payment method associated with it to complete a sales transaction. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account. You agree to accept responsibility for all activities that occur under your account or password. You may never use another person’s user account or registration information for the Website Services without permission. SummerWinds will share your selected payment information with its suppliers and payment processors to the extent necessary to process your payment.
SummerWinds attempts to be accurate in its product descriptions, labelling of plant varieties and the attributes of products, including the applicable colors. However, SummerWinds does not warrant that product descriptions, labelling, displays or other content of any Website Service is accurate, complete, reliable, current, or error-free. Such information and the availability of any product or service are subject to removal or change at any time without notice. Further, the actual colors you see will depend on your monitor; SummerWinds cannot guarantee that your monitor's display of any color will accurately reflect actual product color or finish. In addition, certain weights, measures, and similar descriptions are approximate and are for convenience only. If a product offered by us is not as described, your sole remedy is to return it in unused condition per SummerWinds’ Return Policy (set up as hotlink).
Any toxicity of plants mentioned on the SummerWinds website is based on third party websites/resources publicly available. The degree of reliability of the information on any plant's toxicity or its lack of toxicity from these websites/resources is unknown and may not be error-free or accurate. SummerWinds has not independently verified any of this information from these websites/resources. SummerWinds disclaims all representations, warranties and liabilities in connection with any errors in or the inaccuracy of this information, included any and all damages, whether direct or indirect, general or special, including any consequential damages, which may result from contact with any plants mentioned on the SummerWinds website and/or purchased through the Website Services.
SummerWinds cannot confirm the price of an item until you order. After you submit your order and the checkout process is completed, your order is taken from inventory and your payment method associated your account is charged immediately. If the charged price of an item sold by SummerWinds is higher than our website stated price, we will, at our discretion, either contact you for instructions before shipping or cancel and refund your order and notify you of such cancellation and refund.
When you chose to use a credit or debit card as your payment method associated with your account, we use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Website Services (your “Billing Account”) for purchases of products or services. If you select to use a credit or debit card as your payment method, you must provide the Payment Processor with a valid credit card number and associated payment information required by the Payment Processor. Information you provide the Payment Processor must be current, complete and accurate. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms and Conditions of Use (“Payment Processor Agreement”). We are not responsible for any error by the Payment Processor. You agree to pay us, through the Payment Processor, all charges at the prices then in effect and you authorize us, through the Payment Processor, to charge your chosen payment provider. You agree to make payment using your selected payment method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. The terms of your payment will be based on your selected payment method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your selected payment method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
YOU ARE SOLELY RESPONSIBLE FOR PROMPTLY UPDATING ALL INFORMATION AS NECESSARY TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CARD NUMBER, OR CARD EXPIRATION DATE), AND YOU AGREE TO PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY PURCHASE OF PRODUCTS OR SERVICES UNDER YOUR BILLING ACCOUNT.
CANCELING AN ORDER
Orders CANNOT be cancelled after the order is shipped or if the order is in the packaging process. Requests for cancellation of other orders must be made by calling SummerWinds during normal business hours. Large orders and/or freight shipped orders may incur a cancellation fee.
SummerWinds will carefully package products in a manner that optimizes the safe delivery of the products to your location. The risk of loss and title for purchased products pass to you upon our delivery to the carrier. You agree that your order will be delivered without requiring a signature. Our carrier will leave the package(s) unsupervised unless you make other arrangements with us. If your order arrives missing an item, your sole remedy is to proceed as described in SummerWinds’ Return Policy. (set up as hotlink)
RECEIPT OF SHIPMENT REFUSED
All sales are final. If receipt of a shipment is refused, SummerWinds may, in its sole and absolute discretion, accept the returned merchandise from the carrier, provided, that the same is in "like-new condition," and is saleable. SummerWinds will not refund shipping on returned items and will not pay for shipping on a returned item (per Return Policy (set up as hotlink)). If SummerWinds accepts returned merchandise, it may assess a restocking fee, together with all shipping charges (per Return Policy). SummerWinds shall not, in any event, be required to grant a refund for merchandise returned to it if such merchandise is not, in the sole and absolute discretion of SummerWinds, re-saleable.
LICENSE AND ACCESS
Subject to your compliance with these Terms and Conditions of Use, and your payment of any applicable fees, SummerWinds grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Website Services. This license does not include any resale or commercial use of any Website Service; any derivative use of any Website Service; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms and Conditions of Use are reserved and retained by SummerWinds or its licensors, suppliers, publishers, rightsholders, or other providers.
You may only use the information accessible via your account on the SummerWinds website for purposes of purchasing products or services offered on this website; you may not share, distribute, copy, resell, rent, lease, sublicense, transfer, or create derivative works of such information. No Website Service, nor any part of any Website Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of SummerWinds. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of SummerWinds without express written consent. You may not use any meta tags or any other "hidden text" utilizing SummerWinds' name or trademarks without the express written consent of SummerWinds. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Website Services or any activities conducted on the Website Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Website Services (or other accounts, computer systems or networks connected to the Website Services); (iv) run any form of auto-responder or “spam” on the Website Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the SummerWinds’ website; (vi) harvest or scrape any content from the Website Services; or (vii) otherwise take any action in violation of our guidelines and policies. You may not misuse the Website Services. You may use the Website Services only as permitted by law. The licenses granted by SummerWinds terminate if you do not comply with these Terms and Conditions of Use.
When you use Website Services, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the other Website Services and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
All content included in or made available through any Website Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software is the property of SummerWinds or its content suppliers and protected by U.S. and international copyright laws. The compilation of all content included in or made available through any Website Service is the exclusive property of SummerWinds and protected by U.S. and international copyright laws.
Graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Website Service are trademarks or trade dress of SummerWinds or its content suppliers in the U.S. and other countries. SummerWinds' trademarks and trade dress may not be used in connection with any product or service that is not SummerWinds', in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits SummerWinds. All other trademarks not owned by SummerWinds that appear in any Website Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by SummerWinds.
THIRD PARTY SITES AND BUSINESS DEALINGS
CONTENT AND USER CONTENT
The SummerWinds website, in its entirety, is the sole property of SummerWinds or its licensors, suppliers, publishers, rightsholders, or other providers. The Website Services may contain information, data, text, graphics, photographs, videos, audio clips, written posts and comments generated, provided, or otherwise made accessible on or through the Website Services (collectively, “Content”) provided by us or our licensors, suppliers, publishers, rightsholders, or other providers. Content may be protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Website Services. Subject to these Terms and Conditions of Use, we grant you as a user of the Website Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Website Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Website Services is expressly prohibited. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. We do not guarantee that any Content you access on or through the Website Services is or will continue to be accurate.
All information, data, text, photographs, videos, audio clips, written posts and comments added, created, uploaded, submitted, distributed, or posted to the Nursery Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. By submitting User Content through the Website Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the our website, the Website Services and our businesses, and including after your termination of your account or the Nursery Services. You also hereby do and shall grant each user of the SummerWinds website and/or the Website Services a non-exclusive, perpetual license to access your User Content through the SummerWinds website and/or the Website Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your account or the Website Services. 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.
You shall not (and shall not permit any third party to) either take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any Content or User Content on or through the Website Services that: (i) 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; (ii) you know is false, misleading, untruthful or inaccurate; (iii) 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; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (v) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party; (vi) impersonates any person or entity, including any of our employees or representatives; or (vii) includes anyone’s identification documents or sensitive financial information.
You acknowledge that all Content and User Content accessed by you using the Website Services is at your own risk and you will be solely responsible for any resulting damage or loss to you or any other party. We reserve the right to, but do not have any obligation to: remove, edit or modify any Content or User Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or User Content or if we are concerned that you may have violated these Terms and Conditions of Use), or for no reason at all; and to remove or block any Content or User Content from the Website Services.
You shall defend, indemnify, and hold harmless us, our affiliates, each of our and their respective employees, contractors, directors, suppliers and representatives and each of our and their licensors, suppliers, publishers, rightsholders, or other providers from all liabilities, claims, and expenses, including reasonable attorneys fees, that arise from or relate to your User Content, or your violation of these Terms and Conditions of Use. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
NEITHER SUMMERWINDS NOR ANY OF ITS SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WARRANTIES OF FITNESS OR MERCHANTABILITY, REGARDING ANY PRODUCT OR SERVICE PURCHASED FROM SUMMERWINDS AND SUMMERWINDS SPECIFICALLY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
IN CONNECTION WITH ANY PRODUCT OR SERVICE PURCHASED FROM SUMMERWINDS, SUMMERWINDS SHALL NOT, IN ANY EVENT, BE LIABLE FOR DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN AN AMOUNT GREATER THAN THE ORIGINAL PURCHASE PRICE OF THE PRODUCT OR SERVICE. THE REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS OF USE CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU.
THE WEBSITE SERVICES AND ALL CONTENT, USER CONTENT, AND ANY INFORMATION, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE SERVICES ARE PROVIDED BY SUMMERWINDS ON AN "AS IS" AND "AS AVAILABLE" BASIS. NEITHER SUMMERWINDS NOR ANY OF ITS SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE SERVICES, OR THE CONTENT, USER CONTENT OR ANY INFORMATION, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY LAW, SUMMERWINDS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER SUMMERWINDS NOR ANY OF ITS SUPPLIERS WARRANTS THAT THE WEBSITE SERVICES, CONTENT, USER CONTENT, OR OTHER INFORMATION, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE SERVICES, SUMMERWINDS' SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM SUMMERWINDS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULL EXTENT PERMISSIBLE BY LAW, NEITHER SUMMERWINDS NOR ANY OF ITS SUPPLIERS WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY WEBSITE SERVICE, OR FROM ANY CONTENT, USER CONTENT, OR ANY INFORMATION, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY WEBSITE SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
By using any Website Service, you agree that the laws of the state Idaho, without regard to principles of conflict of laws, will govern these Terms and Conditions of Use and any dispute of any sort that might arise between you and SummerWinds.
MODIFICATION, WAIVER, SEVERABILITY, INTEGRATION, AND BUSINESS ACCOUNTS
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.