EveryStem Terms of Service

Last Updated: December 7, 2023

The Terms of Service (“Terms”) govern your access and use of the web site located at everystem.com (the “Website”), including the software and services (the “Services”) provided via the Website by Profitable Floral Design, LLC a Texas limited liability company d/b/a EveryStem (“EveryStem,” “we,” “our” or “us”).  You agree to these Terms and our Privacy Policy by one or more of the following: (a) creating an account with EveryStem online and checking the box(es) to affirmatively “accept” these Terms and our Privacy Policy; (b) executing an ordering document that incorporates these Terms and our Privacy Policy by reference; or (c) using the Website and/or the Services. If you do not agree to these Terms or to our Privacy Policy, please do not access or use the Website or the Services.

LICENSE

EveryStem grants you a limited license to access the Website and use the Services in accordance with these Terms and the instructions and guidelines posted on the Website. Your license to use the Services is limited to the operation of your business. You shall not, or permit any third party to, directly or indirectly: (a) sublicense the use of the Services; or (b) use the Services for any third-party use including, but not limited to, the operation of a business other than your own.  EveryStem reserves the rights to terminate your license to use the Services at any time and for any reason or in the future charge for commercial usage.

You acknowledge and agree that EveryStem and its licensors own all legal, right, title, and interest in and to: (i) the Services and all software used to provide the Services, (ii) the content created by EveryStem or its licensors, and (iii) any and all intellectual property rights which subsist in the Services, the software used to provide the Services or the content created by EveryStem or its licensors, including, but not limited to any trademarks or copyrights, and the goodwill associated therewith (whether those rights happen to be registered or not, and wherever in the world those rights might exist) (collectively, the "EveryStem IP"). Should you ever acquire any right, title, or interest in the EveryStem IP, by operation of law or otherwise, you shall assign, and hereby do assign, all such right, title, or interest to EveryStem or its licensors immediately upon request.

PROFESSIONAL SERVICES

EveryStem may, in its sole discretion, provide you with Professional Services. “Professional Services” may include consultations, training, customization, and data processing.  A proposal for such Professional Services will be provided to you and mutually agreed upon before the performance of any Professional Services.

CONTENT AND THE SERVICES

All content posted on, entered into, or uploaded to the Services (the “Content”) is the sole responsibility of the person who originated such Content. We do not monitor or control Content and we cannot take responsibility for such Content. Any use or reliance on any Content posted on, entered into, or uploaded to the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, accuracy, or reliability of any Content. Under no circumstances will EveryStem be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, any Content that infringes on the intellectual property rights of another person or entity, or any loss or damage of any kind incurred as a result of the use of any Content entered into, posted on, uploaded to, emailed, transmitted or otherwise made available via the Services.

CONFIDENTIALITY 

The term “Confidential Information” means (i) any material disclosed to you by EveryStem that EveryStem does not disclose to the public, (ii) trade secrets belonging to EveryStem, or (iii) information designated by EveryStem in writing as confidential. You agree that you will not disclose the Confidential Information to any third party and that these Terms and the details of your customer account shall be deemed Confidential Information.  You further agree that the Services and all proprietary information and trade secrets related thereto, are Confidential Information of EveryStem, regardless of whether or not the same are identified as "confidential."

LICENSE TO CUSTOMER DATA; SHARING INFORMATION WITH THIRD PARTIES

You hereby grant EveryStem the right to gather your customer Content in accordance with our Privacy Policy and these Terms and to use such Content as is necessary to provide the Services. Such Content may include, but is not limited to: flower information, quantity, cost, price, and markup. We may, from time to time, share non-personal information that is aggregated or de-identified so that it cannot reasonably be used to identify an individual. We may disclose such information publicly and to third parties, for example, to partners under agreement with us, or as part of the community benchmarking information we provide to users of the Services.

FEES; PAYMENT TERMS; LIMITED CANCELLATION POLICY 

In consideration for the Services, you agree to pay EveryStem subscription fees (the “Fees”) depending on the then-current subscription rates and subscription term (e.g. monthly, annually etc.), as selected from the Website and reflected in your customer account. EveryStem shall charge monthly or annually and requires credit card authorization.

If you are a first-time subscriber to the Services, EveryStem offers a limited cancellation policy allowing you to cancel your subscription within ninety (90) days of the start of your Initial Term (as defined below) (such period, the “Cancellation Window”). If, during the Cancellation Window, EveryStem receives notice of your cancellation by (i) email to luann (at) everystem (dot) com, or (ii) your use of a subscription cancellation option on the Website, EveryStem shall cancel your subscription, and if you meet the Refund Criteria (as defined below) and request a refund, EveryStem shall refund any Fees paid by you prior to the receipt of your of cancellation notice. Upon such cancellation EveryStem shall immediately cease providing you access to the Services.

“Refund Criteria” shall mean: i) you have watched the series of “EveryStem Tutorials Essentials” videos linked on the Website, and ii) you have used the Website for at least one event from start to finish. 

Except for the limited cancellation policy set forth above, all payments are non-cancelable, and amounts paid are non-refundable. EveryStem reserves the right to update or amend pricing for any of its subscriptions or subscription terms at any time with prior written notice.

TERM; TERMINATION 

The subscription term for your use of the Services will be as set forth in your account on the Website, and shall continue in effect for a period corresponding to the subscription term selected (e.g. monthly, annually, etc.) (the "Initial Term"). Your subscription term shall automatically renew for additional, successive subscription terms (each a "Renewal Term," the Initial Term and any Renewal Terms collectively referred to herein as the "Term" of your subscription) unless notice of non-renewal is given by either party prior to the end of the Initial Term or applicable Renewal Term.  EveryStem may terminate your subscription immediately upon your material breach of these Terms, including but not limited to, your failure to timely pay any Fees due. Upon termination, EveryStem shall immediately cease providing access to the Services and you shall immediately pay any and all amounts due for all Services rendered through the date of termination.

TERMINATION OR SUSPENSION OF YOUR ACCESS

EveryStem may terminate or suspend your access to, or use of, the Services at any time, temporarily or permanently, at our sole discretion, with or without notice to you. We reserve the right in our sole discretion to take any other action that we deem necessary relating to use or misuse of the Services.

If your access to, or use of, the Services is terminated or suspended, you agree to immediately cease all use of the Services. In the event of any termination or suspension, EveryStem reserves the right to impose a reconnection fee in the event your account is suspended and thereafter you request access to the Services. You acknowledge and agree that EveryStem has no obligation to retain its data when an account is suspended or after expiration or termination of your subscription, and that such data may be irretrievably deleted if your account is suspended or terminated for any reason. In the event of any such termination or suspension, the liability limitations and protections afforded to EveryStem, as set forth in these Terms shall survive and continue in effect, including, without limitation, the following Sections: “Disclaimers and Limitations of Liability,” “Indemnification,” “Governing Law and Jurisdiction,” “Notices” and “General.”

DISCLAIMERS AND LIMITATIONS OF LIABILITY

THE SERVICES ARE AVAILABLE “AS-IS”

Your access to and use of the Services or any Content are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, EVERYSTEM DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

EveryStem makes no warranty or representation and disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from EveryStem or through the Services, will create any warranty or representation not expressly made herein.

LINKS

The Services may contain links to third-party websites or resources. You acknowledge and agree that EveryStem is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by EveryStem of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

 LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVERYSTEM SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; (iv) ANY CONTENT THAT INFRINGES ON THE RIGHTS OF ANY THIRD PARTY; OR (v) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EVERYSTEM EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID EVERYSTEM, IF ANY, IN THE PAST TWELVE MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.

THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT EVERYSTEM HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

SERVICE AVAILABILITY

We reserve the right to modify or discontinue the Services, temporarily or permanently, for any reason and at our sole discretion, with or without notice to you. We do not guarantee availability of the Services, shall not have any liability to you for any unavailability of the Services, and are under no obligation to provide you with maintenance, technical support or updates for the Services.

MODIFICATIONS TO THESE TERMS

We may change the terms and conditions of the Terms from time to time with or without notice to you. You agree to review the Terms periodically to ensure that you are aware of any modifications. Your continued access or use of the Services after the modifications have become effective shall be deemed your conclusive acceptance of the modified Terms. We may post notices or links to notices through the Services to inform you of changes to these Terms, the Services, or other matters of importance.

ACCEPTABLE USE

You agree not to misuse the Services. For example, you must not, and must not attempt to, use the Services to do the following things.

●       probe, scan, or test the vulnerability of any system or network;

●       breach or otherwise circumvent any security or authentication measures;

●       access, tamper with, or use non-public areas of the Services, shared areas of the Services you have not been invited to, our computer systems;

●       interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;

●       plant malware or otherwise use the Services to distribute malware;

●       access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);

●       send unsolicited communications, promotions or advertisements, or spam;

●       send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;

●       publish anything that is fraudulent, misleading, or infringes another's rights;

●       impersonate or misrepresent your affiliation with any person or entity;

●       violate the law in any way, or to violate the privacy of others, or to defame others.

FEEDBACK

Any feedback provided by you regarding the Services (“Feedback”) is the proprietary and Confidential Information of EveryStem, and you hereby assign all right, title and interest in and to such Feedback, including all intellectual property rights therein, to EveryStem. You agree not to disclose or provide such Feedback to any third party.

INDEMNIFICATION

You agree to indemnify, defend and hold EveryStem, its affiliated companies and their respective partners, officers, directors, employees, agents, licensors and suppliers harmless from and against all claims, liabilities, losses, damages, costs and expenses, including but not limited to reasonable attorneys' fees and costs, arising out of or relating to use of the Services by you.

CALCULATION AND TAXATION 

You agree that you are solely responsible for calculating and verifying all amounts that are listed on your invoices. You further agree that you are solely responsible for calculating, collecting, and remitting all sales and other taxes charged on products and services that you may provide to your customers.  Complying with all applicable laws relating to your business and its transactions with its customers is your sole and exclusive responsibility. You agree to indemnify, defend, and hold harmless EveryStem from and against all claims, demands, causes of action, debts, and liabilities, including reasonable attorneys’ fees, that arise from you or any third party bringing a claim against EveryStem relating to amounts that you charge or the collection and payment of any taxes.  EVERYSTEM UNDERTAKES NO RESPONSIBILITY FOR ANY OF THE MATTERS REFERENCED IN THIS PARAGRAPH, NOR DOES IT MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT REGARDING CALCULATION OF FEES AND TAXES, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY EVERYSTEM AND WAIVED BY YOU.

GOVERNING LAW; JURISDICTION; LIMITATION ON ACTIONS

These Terms shall be governed by and interpreted in accordance with the laws of the State of Texas exclusively, excluding its conflicts of laws principles. Both the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods (1980) are excluded in their entirety from application to these Terms. The parties consent to the exclusive jurisdiction of and venue in the federal and/or state courts for Austin, Texas, for all claims arising out of or relating to these Terms or your use of the Services. Notwithstanding any law, rule or regulation to the contrary, you agree that any claim or cause of action you may have arising out of these Terms or your use of the Services or must be filed within one (1) year after such claim or cause of action arose or be forever barred.

GENERAL

The failure of EveryStem to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. The provisions of these Terms apply for the benefit of EveryStem and its affiliates, and their respective partners, officers, directors, employees, and agents. Each of these entities or individuals shall have the right to assert and enforce those provisions directly against you on its own behalf. The headings contained in these Terms are for reference only and shall not affect the meaning of any of the provisions of these Terms.

QUESTIONS OR CONCERNS

If you have any questions or concerns regarding these Terms or our Privacy Policy, please send us a detailed email to: luann (at) everystem (dot) com.