Terms and Conditions and Terms of Use

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND HORTIHOP LLC (“HORTIHOP”).  These Terms and Conditions and Terms of Use ("Terms") govern the terms by which Hortihop provides goods and services as well as any access and use of Hortihop’s website, social media, and any Hortihop mobile application, whether as a guest or a registered user.

Please read the Terms carefully before you start to use the Hortihop website, social media, or any Hortihop mobile application (collectively, "Website") or order any goods or services provided by Hortihop. By using the Website or by clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, found at https://hortihop.com/policies/privacy-policy, incorporated herein by reference. If you do not want to agree to these Terms or the Privacy Policy, you must not access or use the Website or Hortihop’s services. If you are using this Website or Hortihop’s Services on behalf of a business or other entity, you represent and warrant that you have the necessary authority to bind that business or entity to these Terms and that you are agreeing to these Terms on behalf of that business or entity.

1. Applicability.

(a) These Terms govern the sale of the goods (the "Goods") and provision of design and delivery services ("Services") by Hortihop ("Seller") to any purchaser of such Goods and Services ("Buyer").  These Terms also govern all use of Seller’s Website by any person.  Users of the Website are also referred to herein as Buyer.

(b) The Terms comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, regarding the Goods, Services, and Website.

2. Delivery of Goods and Performance of Services.

(a) The Goods ordered by Buyer will be delivered within one of the time windows specified by Buyer during the order process or, if none of these times work, a mutually agreed-to time window.  Buyer agrees that Buyer will be present at the delivery address specified by Buyer during the order process (“Delivery Point”), and Seller will make reasonable efforts to have the Goods delivered to the door at the Delivery Point.  In the event that nobody is present at the Delivery Point at the time of delivery or if Seller is directed by a doorman in the building to leave the Goods elsewhere, Buyer agrees that Seller may leave the Goods in the package room, with a doorman, or in the lobby.

(b) Seller shall direct delivery of the Goods to the Delivery Point using standard methods for packaging and delivery of such Goods. Upon delivery, Buyer shall conduct a general inspection for damages, and absent written notice to Seller (and with or without inspection) within 24 hours of the delivery of the Goods, Buyer shall be deemed to have accepted the Goods. Buyer shall be responsible for all delivery costs, which shall be included in the price quoted by Seller to Buyer.

(c) Once accepted, the Goods may not be returned for any reason.

(d) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence); provided, however, that Seller shall use reasonable efforts to have a re-delivery arranged as soon as is practical and, if delivery cannot be arranged within a reasonable time, Buyer shall be entitled to a refund. 

(e) Buyer acknowledges and agrees that the remedies set forth in Section 2 are Buyer's exclusive remedies for any non-delivery of Goods.

3. Taxes.

Sales tax may not have been added to the quoted price, and where such taxes are applicable, such amounts shall be added. Buyer shall pay all applicable sales, use, and value-added taxes imposed by any governmental authority arising from the sale of the Goods. If Seller pays any such taxes or charges, Buyer shall upon demand, immediately reimburse Seller for such amounts. 

4. Buyer's Acts or Omissions.

If Seller's performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. 

5. Inspection and Rejection of Nonconforming Goods.

(a) Buyer shall inspect the Goods within the periods set forth in Section 2(b) upon delivery to the Delivery Point ("Inspection Period"). Buyer will be deemed to have accepted the Goods within the times so specified unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. "Nonconforming Goods" means only the following: (i) Goods shipped are different than those ordered, as set out in the quote provided by Seller; or (ii) Goods are not of a merchantable quality.

(b) If Buyer timely notifies Seller of any Nonconforming Goods and the existence of Nonconforming Goods is acknowledged by Seller, Seller shall, at Seller’s option, replace such Nonconforming Goods with conforming Goods or provide a refund for the Goods only. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, deliver to Buyer the replaced Goods to Buyer’s Delivery Point.  No refunds will be provided for any Services provided by Seller, including design services.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under these Terms to Seller.

6. Price.

(a) Buyer shall purchase the Goods and Services from Seller at the prices quoted by Seller to Buyer (the "Prices").  The Prices are inclusive of any delivery charges from the plant shops with which Seller contracts.  Some plant shops charge for delivery, and others do not.

(b) Prices quoted may be exclusive of all sales, use, and excise taxes. Consistent with the terms and provisions of Section 3, Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets.

7. Payment Terms.

(a) All amounts due shall be fully and timely paid by Buyer before the delivery window agreed to by Buyer and Seller. Buyer shall make all payments hereunder by payment method specified in the quote and in US dollars.  Seller shall be under no obligation to deliver the Goods until all amounts due have been paid.

(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month, calculated daily and compounded monthly, but in no event exceeding the amount allowed by law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees and costs. 

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise. 

8. Limited Warranty.

(a) Seller warrants to Buyer that, at the time of delivery of the Goods, such Goods will not be materially different than the Goods ordered by Buyer, as set out in the quote provided by Seller, and the Goods will be of a merchantable quality.

(b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8(a) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, SERVICES, OR WEBSITE, INCLUDING WITHOUT LIMITATION ANY (i) OTHER WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, OR (iv) WARRANTY THAT THE WEBSITE IS FREE FROM VIRUSES; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.   THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

(c) The Seller shall not be liable for a breach of the warranties set forth in Section 12(a) unless: (i) Buyer gives written notice of the defective Goods (a “Notice of Defect”), reasonably described, to Seller within 24 hours of delivery of the Goods; (ii) if requested by Seller, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 12(a) to examine such Goods and Buyer; and (iii) Seller reasonably verifies Buyer's claim that the Goods or Services are defective.

(d) The Seller shall not be liable for a breach of the warranties set forth in Section 12(a) if: (i) Buyer makes any further use of such Goods after giving such Notice of Defect; (ii) the defect arises because Buyer or Buyer’s agent failed to follow Seller's oral or written instructions as to the storage or maintenance of the Goods; or (iii) Buyer alters or damages such Goods.

(e) THE REMEDIES SET FORTH IN SECTION 5(b) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THESE TERMS.

(f) USE OF THE WEBSITE AND ITS CONTENT IS AT THE USER’S OWN RISK. THE WEBSITE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NEITHER SELLER NOR ANY PERSON ASSOCIATED WITH SELLER MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE.  WITHOUT LIMITING THE FOREGOING, NEITHER SELLER NOR ANYONE ASSOCIATED WITH SELLER REPRESENTS OR WARRANTS THAT THE WEBSITE OR ITS CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT SELLERS’ SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE WILL OTHERWISE MEET ANY NEEDS OR EXPECTATIONS. 

9. Limitation of Liability.

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.

(c) The limitation of liability set forth in Section 9(b) shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct, (ii) death or bodily injury resulting from Seller’s grossly negligent acts or omissions, or (iii) any other liability for which limitation is not allowed by law.

10. Indemnification.

Buyer shall indemnify and hold harmless Seller, its consultants, subcontractors, agents, officers, directors and employees from and against all claims, damages, losses, and expenses including defense costs and attorneys’ fees arising from or related to Buyers’ or its agents’ gross negligence, willful misconduct, or breach of these Terms. 

11. Right of Entry.

Buyer agrees to and hereby furnishes Seller and Sellers’ agents with the right-of-entry solely for the purposes of delivering the Goods and providing any Services purchased by Buyer, including without limitation plant care services. Buyer further represents and warrants that if the Delivery Point is not owned by the Buyer, that Buyer has the right to grant such permission to Seller. 

12. Website and Mobile Applications.

Seller reserves the right to withdraw or amend the Website in our sole discretion without notice. Seller will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, Seller may restrict access to some parts of the Website, or the entire Website, to users, including registered users. Buyer’s continued use of the Website following the posting of revised Terms of Use means that Buyer accepts and agrees to the changes. Buyer is expected to check this page from time to time so Buyer is aware of any changes, as they are binding on Buyer. To access the Website or some of the resources it offers, Buyer may be asked to provide certain registration details or other information. Buyer may use the Website only for lawful purposes and in accordance with these Terms. Buyer is responsible for making all arrangements necessary for Buyer to have access to the Website and ensuring that all persons who access the Website through Buyer’s internet connection are aware of these Terms and comply with them. By posting any information to the Website, Buyer is granting its permission for Seller to (a) use such information without restriction or compensation to Buyer or (b) remove such information for any reason or no reason. Seller shall be under no obligation to any person with respect to information posted to the Website by third parties.

13. Account Registration.

In order to access the Website or some of the resources it offers, Buyer may be asked to provide certain registration details or other information. When Buyer creates an account, Buyer provides Seller with information that includes, without limitation, a name and a password. Buyer can also choose to add other information to its account in order to receive the Services or updates about the Services.  It is a condition of Buyer’s use of the Services that all the information Buyer provides is correct, current, and complete. Buyer agrees that all information it provides is governed by Seller’s Privacy Policy, and Buyer consents to all actions Seller takes with respect to its information consistent with Seller’s Privacy Policy.  Buyer also acknowledges that its Account is personal to Buyer and agrees not to provide any other person with access to the account or portions of it using Buyer’s username, password, or other security information. Buyer agrees to notify Seller immediately of any unauthorized access to or use of Buyer’s username or password or any other breach of security. Buyer also agrees to ensure that it exits from Buyer’s account at the end of each session. Buyer should use particular caution when accessing its account from a public or shared computer so that others are not able to view or record Buyer’s password or other personal information.  Seller has the right to disable any username, password, or other identifier, whether chosen by Buyer or provided by Seller, at any time in our sole discretion for any reason, including if, in Seller’s opinion, Buyer has violated any provision of these Terms of Use.

14. Waiver.

No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15. Confidential Information.

All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with these Terms is confidential and may not be use, disclosed, or copied unless authorized in advance by Seller in writing. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

16. Force Majeure.

The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Buyer shall be entitled to give notice in writing to Seller to terminate the order and receive a refund.

17. Assignment.

Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.

18. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

19. No Third-Party Beneficiaries.

These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

20. Governing Law.

All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.

21. Submission to Jurisdiction.

Any legal suit, action, or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding, or if specified to the contrary in the Contract, then to such other venue or jurisdiction as specified therein.

22. Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the quote or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

23. Severability.

If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

24. Survival.

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Confidential Information, Limited Warranty, Limitation of Liability, Governing Law, Submission to Jurisdiction and Survival.

25. Amendment and Modification.

Seller may revise and update these Terms from time to time in Buyer’s sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Website or purchase of Goods or Services thereafter. However, any changes to the provisions set out in Governing Law and Submission to Jurisdiction will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Application, and no change will apply to Goods and Services which have been purchased before the date of the change.