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terms of use

Effective Date: October 10, 2017

 

b. Joy Brands, LLC d/b/a Petalura® (“Petalura”) operates its Website located at Petalura.com (our “Website”). Please read the following Terms of Use carefully before viewing, using, accessing, browsing or submitting any content or information to the Website (“Website Use”). By engaging in any Website Use, you agree to be bound by Terms of Use in force at the time of use.  If you do not agree to these Terms of Use, then you may not engage in Website Use. Petalura reserves the right to modify these Terms of Use at any time without prior notice. 

1. Your Account 

    The Website allows users (“Users”) to create a Petalura Account. To create an Account, you must select provide certain personal information to Petalura and submit a valid password.  In consideration of the use of the Website, you agree to: (a) provide true, accurate, current and complete information about yourself when creating an Account, and (b) maintain and promptly update the personal information you provide in connection with your Account to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Petalura has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Petalura has the right to suspend or terminate your Account and refuse any and all current or future use of the Website or Website services.

    You are responsible for maintaining the confidentiality and security of your Account and password, and you are fully responsible for all activity associated with your Account.  You agree to (a) immediately notify Petalura of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you logout from your Account at the end of each session. Petalura will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.

    2. User License

      a. Scope. Petalura grants you permission (which may be revoked at Petalura’s discretion) to view the Website and to download, email, share via social networking or print individual pages from the Website in accordance with these Terms of Use and solely for your own personal, non-commercial use. No other use is permitted. You may not, for example, incorporate the information, content, or other material in any database, compilation, archive or cache. You may not modify, copy, distribute, re-publish, transmit, display, perform, reproduce, publish, reuse, resell, license, create derivative works from, transfer, or sell any information, content, material, software, products or services obtained from the Website, except as specifically noted above.

      Except as specifically authorized by Petalura, you may not deep-link to the Website for any purpose or access the Website manually or with any robot, spider, web crawler, extraction software, automated process or device to scrape, copy, or monitor any portion of the Website or any information, content, or material on the Website. Petalura reserves all of its statutory and common law rights against any person or entity who violates these Terms of Use. You may not link or frame to any pages of the Website or any content contained therein, whether in whole or in part, without prior written consent from Petalura.   You may like or follow Petalura via social media buttons on the Website.

      Any rights regarding Petalura and Website content not expressly granted herein are reserved.

      b. User Conduct. You agree that your use of the Website and/or services on the Website is subject to all applicable local, state and federal laws and regulations. You also agree:

      to comply with US law and local laws or rules regarding online conduct and acceptable material;

      • not to use the Website or their services or submit content to the Website if you are under the age of 13;
      • not to access the Website or services using a third-party’s Account/registration without the express consent of the Account holder;
      • not to use the Website for illegal purposes;
      • not to commit any acts of infringement on the Website or with respect to content on the Website;
      • not to use the Website to engage in commercial activities apart from sanctioned use of Petalura services;
      • not to post content to the Website for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Website;
      • not to attempt to gain unauthorized access to other computer systems from or through the Website;
      • not to interfere with another User’s use and enjoyment of the Website;
      • not to disrupt, interfere with, or otherwise harm or compromise the security of the Website, or any services, system resources, Accounts, passwords, servers or networks connected to or accessible through the Website.

            c. Harm from Commercial Use. You agree that the consequences of commercial use or re-publication of content or information from the Website may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy and that Petalura will be entitled to temporary and permanent injunctive relief to prohibit such use.

            3. Website Content

            a. Nature of User Material. Some of the services offered by Petalura on the Website allow Users to post, transmit, display, publish, distribute, or otherwise submit user generated material including, but not limited to, product/service reviews (“User Content”). You agree not to post any User Content on the Website that:

            • contains vulgar, profane, abusive, hateful, or sexually explicit language, epithets or slurs, text in poor taste, inflammatory attacks of a personal, sexual, racial or religious nature, or expressions of bigotry, racism, discrimination or hate;
            • is defamatory, threatening, disparaging, inflammatory, false, misleading, deceptive, fraudulent, inaccurate, or unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights or right of publicity of any third party, is unreasonably harmful or offensive to any individual or community, contains any actionable statement, or tends to mislead or reflect unfairly on any other person, business or entity;
            • advertises, disparages, promotes or offers to trade any goods or services in any manner that does not comport with the purpose or spirit of the Website, including, but not limited to, negative reviews posted by competing merchants;
            • is intended primarily to promote a cause or movement, whether political, religious or other;
            • contains copyrighted content (copyrighted articles, illustrations, images, text, or other content) without the express permission of the owner of the copyrights in the content;
            • constitutes, promotes or encourages illegal acts, the violation of any right of any individual or entity, the violation of any local, state, national or international law, rule, guideline or regulation, or otherwise creates liability;
            • discloses any personal identifying information relating to or images of a minor without consent of a parent, guardian or educational supervisor;
            • infringes any copyright, trademark, patent, trade secret, or other intellectual property right;
            • contains viruses or other harmful, disruptive or destructive files;
            • links to any commercial or other website; and/or
            • is not otherwise in compliance with these Terms of Use.

            b. User Representations and Warranties. Each time you post User Content to the Website, you represent and warrant that you have the right to provide such User Content, which means:

            • you are the author of the User Content, or
            • the User Content is not protected by copyright law, or
            • you have express permission from the copyright owner to use the User Content in connection with the Website; and
            • you have the right to grant Petalura the license set out in these Terms of Use;
            • for User Content reviews, you have had first hand experience with the subject product or Merchant; and
            • you have not received anything of value in exchange for your User Content;
            • your use of the Website and User Content does not violate these Terms of Use.

            c. User License Grant to Petalura. You grant Petalura, its affiliates, and related entities a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, copy, modify, display, archive, store, publish, transmit, perform, distribute, reproduce and create derivative works from all User Content you provide to Petalura or post on the Website in any form, media, software or technology of any kind now existing or developed in the future. Without limiting the generality of the previous sentence, you authorize Petalura to include your User Content in a searchable format that may be accessed by users of the Website. You also grant Petalura and its and related entities the right to use any Personally Identifiable Information (as that term is defined in Petalura’s Privacy Policy) included with any User Content in connection with the use, reproduction or distribution of such User Content. You also grant Petalura the right to use the User Content and any facts, ideas, concepts, know-how or techniques contained in any User Content or communication you send to Petalura for any purpose whatsoever, including but not limited to, developing, manufacturing, promoting and/or marketing products and services. You grant all rights described in this paragraph in consideration of your use of the Website, without compensation of any sort to you. Petalura does not claim ownership of User Content.

            d. Disclaimer of Responsibility for Material. User Content is not endorsed by Petalura, and does not represent the views of Petalura.  You acknowledge and agree that Petalura does not control all User Content, and disclaims any responsibility for such User Content. Petalura specifically disclaims any duty, obligation, or responsibility, to review, screen, refuse to post, remove, or edit any User Content. In addition, Petalura does not represent or warrant that any other content or information accessible via the Website is accurate, complete, or current. Product price, description and product/service availability are subject to change without notice. Petalura assumes no responsibility or liability for any errors or omissions in the content of the Website.

            e. Review & Removal of Material.

            Petalura reserves the right (but disclaims any duty, obligation or responsibility) to review, screen, refuse to post, remove in their entirety, or edit (at any time and without prior notice) any User Content that Petalura believes, in its absolute and sole discretion, may violate any portion of the Terms of Use. You may contact Petalura at info@petalura.com or 2950 W. Carroll Ave, Suite 3N, Chicago IL 60612 to request removal of User Content.  However, Petalura disclaims any duty, obligation or responsibility to comply with such request except as specifically outlined in this paragraph.  Petalura also reserves the right (but disclaims any duty, obligation, or responsibility) to refuse to post, remove in their entirety, or edit (at any time and without prior notice) any User Content on the Website for any reason or no reason whatsoever, in its absolute and sole discretion.

            The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under US copyright law. If you believe in good faith that User Content posted by the Website infringes your copyright, you (or your agent) may send Petalura a notice requesting that the material be removed from the Website, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Website are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Petalura to locate the material on the Website; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the Website should be sent to 2950 W. Carroll Ave, Suite 3N, Chicago IL 60612. Petalura suggests that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.

            f. Proprietary Rights. You acknowledge and agree that the Website contains proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in these Terms of Use without advance, written permisssion of Petalura.  All Petalura Website design, text, graphics, interfaces, and images (and the selection and arrangements thereof), and software, hypertext markup language ("HTML"), scripts, active server pages, and other content and software used in the Website are ©2018 Petalura, all rights reserved.

            4. Termination and Modifications to the Website

            Petalura reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Website and/or services offered on or through the Website (or any part thereof), including but not limited to the Website’ features, look and feel, and functional elements and related services.

            5. Indemnity

            You agree to indemnify, defend and hold Petalura, its parents, subsidiaries and affiliates, agents, officers, directors, or other employees harmless from any claim, demand, or damage (whether direct, indirect, or consequential), including reasonable attorneys’ fees, made by anyone in connection with your use of the Website, with your User Content, with any alleged infringement of intellectual property or other right of any person or entity relating to the Website, your violation of these Terms of Use, and any other acts or omissions relating to the Website.

            6. Disclaimer of Warranties 

            THE INFORMATION, CONTENT, PRODUCTS AND SERVICES AVAILABLE THROUGH THE WEBSITE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PETALURA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, FREEDOM FROM DEFECTS AND COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

            7. Limitation of Liability

            IN NO EVENT SHALL PETALURA BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR GOODS OR SERVICES PROVIDED ON OR THROUGH THE WEBSITE.  PETALURA ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE WEBSITE. PETALURA ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE WEBSITE, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITE LINKED TO THIS WEBSITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL PETALURA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED (A) THE AMOUNT PAID BY YOU TO PETALURA, IF ANY, OR (B) $100 (WHICHEVER IS LESS).

            YOU AND PETALURA AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND PETALURA AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE.

            IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

            8. Cancellation, Termination, Transfer, and Expiration of Account or Services

            You may cancel or terminate your Petalura Account and/or use of any service provided on or through the Website, with or without cause at any time, upon providing written notice to Petalura. If you cancel or terminate your Account or any services, your request will take effect as soon as the request is processed by Petalura. Upon termination, your ability to use your Account or all Petalura services immediately ceases. Your notice to Petalura of cancellation or termination must be sent via email to info@Petalura.com or conventional mail to Petalura’s address as set forth in these Terms of Use.

            Petalura, in its sole and absolute discretion, and at any time and with or without prior notice to you, may suspend, cancel, or terminate your password, Account, and/or use of any services provided on or through the Website for any reason whatsoever including and without limitation, due to lack of use, unauthorized commercial use, cybersquatting, in connection with Petalura’s resolution of any dispute among multiple persons claiming the right to use the same or similar Accounts or services, or Petalura’s belief, in its absolute and sole discretion, that you have violated or acted inconsistently with the letter or spirit of these Terms of Use In the event of a dispute or conflict among, or complaint from, users of the Website about another’s right to establish, use, or maintain an Account or service on the Website, Petalura reserves for itself the sole right to determine whether or how to resolve such dispute, conflict or complaint, with or without factual or other investigation.

            Upon cancellation or termination by either party, of your Account, your password, and/or use of any service provided on or through the Website, you will have no right to any User Content you have provided, and Petalura may temporarily or permanently block access to, remove, deactivate, delete, and discard all such User Content. Petalura accepts no liability for removed or deleted User Content. In addition, any contracts (verbal, written, or assumed) with respect to your Account, User Content, and/or use of any service on the Website, will be terminated at Petalura’s discretion. You agree that Petalura shall not be liable to you or any third-party for any termination of your access to any service.

            Upon suspension, cancellation, or termination of your Account or your use of any service provided on or through the Website (for whatever reason), there shall be no refund of money you paid to Petalura.

            9. Trademarks

            Petalura®is a trademark of Petalura. The trademark (as well as other trademarks that Petalura may use or register) and other logos, and names of Petalura, used on or in connection with the Website may not be used in connection with any product or service that is not under Petalura’s ownership or control.  Furthermore, such trademarks may not be used in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Petalura. All other trademarks not owned by Petalura (or its affiliates) that appear on the Website are the property of their respective owners.

            10. Consideration

            You acknowledge that these Terms of Use are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Website and receipt or use of data, content, products and/or services through the Website, the possibility of our review, use or display of your User Content, and the possibility of publicity and promotion from our review, use or display of your user-generated content.

            11. Jurisdiction, Applicable Law, and Limitations

            This Website is created and controlled by Petalura in the State of Illinois, U.S.A. You agree that these Terms of Use will be governed by and construed in accordance with the laws of the United States of America and the State of Illinois, without regard to its conflicts of law provisions. Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms of Use.  Petalura makes no claims or assurances that the Website is appropriate or may be downloaded outside of the United States. You agree that all legal proceedings arising out of or in connection with these Terms of Use, or services available on or through the Website must be filed in a federal or state court located in Chicago, Illinois, within one year of the time in which the events giving rise to such claim began, or your claim will be forever waived and barred. You expressly submit to the exclusive jurisdiction of said courts and consent to extraterritorial service of process.

            12. General

            a. Enforceability. If any portion of these Terms of Use is found to be void, invalid or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of these Terms of Use shall continue to be enforceable and valid according to terms contained herein.

            b. Entire Agreement. Except as expressly provided in on the Website, these Terms of Use, which hereby incorporate by reference the terms of Petalura’s Privacy Policy, constitute the entire agreement between you and Petalura, superseding all prior agreements regarding the Website.

            c. No Waiver. The failure of Petalura to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of said right or provision. Neither party hereto shall be deemed to be in default of any provision of the Terms of Use or for failure in performance resulting from acts or events beyond the reasonable control of such party and arising without its fault or negligence, including, but not be limited to, acts of God, civil or military authority, interruption of electric or telecommunication services, civil disturbances, acts of war or terrorists, strikes, fires, floods or other catastrophes.

            d. Headings & Construction. The section titles in the Terms of Use are for your convenience only and carry no contractual or legal effect whatsoever. The language in these Terms of Use shall be interpreted in accordance with its fair meaning and shall not be strictly interpreted for or against either party.

            e. Contact Petalura. For purposes of providing notice of cancellation or termination, contact us at  info@Petalura.com or 2950 W. Carroll Ave, Suite 3N, Chicago IL 60612.

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