LOCAL PLANT SOURCE, INC.

TERMS OF SERVICE

(Revised March 2014)


Background. Local Plant Source, Inc., a Delaware corporation ("LPS," "our,” "us,” or "we"), provides a proprietary service (including a web-based portal and a mobile application, collectively, the “LPS Service”) that is designed to connect buyers (Buyers"") and suppliers ("Suppliers") of plants and related products (“Products”), and to facilitate transactions among Buyers and Suppliers who use the LPS Service (together, “Users”). Buyers may include (without limitation) nurseries, landscape architects and contractors. Suppliers may include (without limitation) growers and nurseries. To be clear, the LPS Service does not include the provision or acquisition of Products themselves – we are technology and marketplace provider, not a buyer or supplier of Products.

Acceptance. This terms of service agreement ("Agreement") sets forth the legally binding terms for your use of the LPS Service, whether as a Supplier or a Buyer, as the case may be. The “SUPPLIERS” section below applies to you only insofar as you want to use the LPS Service as a Supplier. The “BUYERS” section applies only insofar as you use the LPS Service as a Buyer. And the “ALL USERS” section applies to all Users.

By clicking the “I AGREE” button or using the LPS Service, you (“you”) agree, effective as of such date (the “Effective Date”), to be bound by this Agreement. Our privacy policy (“Privacy Policy”) is hereby incorporated by reference into this Agreement. You also agree to our Privacy Policy and consent to the practices concerning data collection, transmission and use set forth therein.

You are only authorized to use the LPS Service if you agree to abide by all applicable laws and this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the LPS Service immediately.

 

TERMS APPLICABLE ONLY TO SUPPLIERS

Conditions of Supplier Eligibility. In order to qualify as a Supplier, you must (i) be at least 18 years of age, and (ii) have any license required by your applicable jurisdiction. If LPS has previously removed you as a Supplier or terminated your account, you are not eligible to become a Supplier via this Agreement.

Supplier Promises. As a Supplier, you agree that you will comply with this Agreement and all applicable law at all times. Seller is solely responsible for ensuring that it meets requirements imposed by any Buyer with which it transacts business via the LPS Service.

Supplier Acknowledgements. Suppler acknowledges that nothing in this Agreement, and no transaction conducted through the LPS Service, shall in any way be construed to establish Supplier an agent, employee or representative of LPS. LPS merely provides a technology-enabled service to Supplier. Supplier agrees to furnish all tools and materials necessary to undertake its obligations and responsibilities, and shall incur all expenses associated with Supplier’s provision of Products. It is the sole responsibility of Supplier to ascertain its appropriate and desired level of insurance. Supplier acknowledges that LPS is not responsible for and shall not be liable for actions taken or promises made by Buyers. Supplier accepts all risks related to interacting with and transacting with Buyers.

Taxes. Supplier acknowledges and agrees that Supplier is obligated to report as income all compensation received by Supplier pursuant to transactions conducted through the LPS Service, and is solely responsible for paying all self-employment and other taxes thereon. Supplier further acknowledges that states, cities or other applicable jurisdictions may impose taxes or surcharges related to Supplier’s transactions with Buyers. Because LPS merely provides a service to facilitate transactions between Suppliers and Buyers, is not a party to your agreement with the Buyer, Supplier is solely responsible for determining whether any such tax or charge is applicable, calculating the same and remitting it to the applicable authority, and adjusting the amounts that you impose upon Buyers accordingly, to the extent you want the Buyers to bear or share the burden of an such amount. Supplier agrees to indemnify LPS and hold LPS harmless from any claim relating to any such tax or charge. LPS does not offer tax-related advice; for questions about your tax liability, you must contact your own attorney, accountant or tax advisor.

Establishment of Account; Processing Fee. In order to become a Supplier, you must also configure a valid and verifiable bank account with your LPS account, in order to receive the funds that we (or our third party designee) process for you when a Buyer pays you. In consideration for your access to and use of the LPS Service as a Supplier, you agree to pay us (and hereby authorize us to deduct) a processing fee in accordance with our then current transaction fee schedule, the latest of which appears here .

 

TERMS APPLICABLE ONLY TO BUYERS

Buyer Eligibility. In order to qualify as a Buyer, you must be at least 18 years of age. If LPS has previously removed you as a Buyer or terminated your account, you are not eligible to use the LPS Service to make purchases from a Supplier.

Buyer Promises. As a Buyer, you agree that you will (i) conduct yourself at all times in accordance with this Agreement and applicable law, (ii) as a condition to ordering Products via the LPS Service, link your LPS account with a valid credit card or other authorized payment method (“Payment Method”), (iii) pay for the Products that you order via the LPS Service, and (iv) comply with all applicable law at all times. Buyer is solely responsible for ensuring that it meets requirements imposed by any Seller with which it transacts business via the LPS Service.

Buyer Acknowledgements. Buyer acknowledges that each Supplier is, vis-à-vis LPS, an independent contractor, and that LPS has no responsibility and makes no guarantees regarding Suppliers or Products. Suppliers are solely responsible for all aspects of any Products ordered. Buyer further acknowledges that LPS retains a portion of the payments made for such Products, but solely as a processing fee for facilitating the transactions and payments envisioned hereby, and not as payment for Products. LPS does not guarantee that any Supplier will fulfill any Product ordered via the LPS Service. Buyer solely accepts all risks related to interacting with and transacting with Suppliers.

Payment. Buyer hereby authorizes LPS to charge its Payment Method on file with the fees associated with each order that it places via the LPS Service. Any Supplier that fulfills an order placed via the LPS Service retains the right to settle your owed payment should you fail to properly settle your owed payment either as a result of your failure to use the LPS Service or as a result of the LPS Service to fail to properly process such owed payment. Buyer acknowledges that, should it dispute any charge that appears on your credit or debit card statement related to your use of the LPS Service to pay for a an order placed or owed payment, any chargeback for such charge shall apply to the applicable Supplier and LPS shall not be liable to you for such chargeback.

Taxes. Buyer acknowledges and agrees that as between LPS and Buyer, it shall be responsible for bearing the cost of any sales or comparable taxes associated with purchases it makes from a Supplier via the LPS Service.

 

TERMS APPLICABLE TO ALL USERS

Modifications. We may modify the terms of this Agreement from time to time. Any modification shall be effective when we notify you of the modification (via an update delivered through the Service or via email or other notification) and you subsequently use the LPS Service.

Supplemental Terms. To enjoy certain aspects of the LPS Service, additional terms may apply, for example the SUPPLEMENTAL TERMS APPLICABLE TO PAID SUBSCRIPTIONS section below applies to Users who are subscribing for a paid subscription to the LPS Service. We will present supplemental terms and conditions for review and acceptance at the time that you undertake such activity within the LPS Service, and any such supplemental terms (each, “Supplemental Terms”) shall become a part of this Agreement. In the event of any conflict between the terms hereof and any Supplemental Terms, the Supplemental Terms shall govern with respect to the matters contemplated thereby.

Terms of Purchase and Sale of Products. The LPS Service may allow Buyers and Sellers to establish certain terms and conditions of purchase and sale of Products, e.g. price, payment terms and delivery dates. Such terms and conditions, as supplemented by applicable law, shall comprise the terms of purchase and sale of Products for any transaction facilitated via the LPS Service.

Disputes Among Users and Release of LPS. The LPS Service is designed to create a marketplace for Products and to facilitate transactions among Suppliers and Buyers. LPS does not provide Products, nor does it guarantee any Products ordered via the LPS Service, or payment therefor. EACH USER IS SOLELY RESPONSIBLE FOR ITS INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE LPS SERVICE, AGREES TO LOOK SOLELY TO SUCH OTHER USERS FOR ANY CLAIM, DAMAGE OR LIABILITY ASSOCIATED WITH ANY TRANSACTION COMMISSED VIA THE LPS SERVICE AND ANY PRODUCT, AND EXPRESSLY WAIVES AND RELEASES LPS FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY SUCH USER, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY. LPS reserves the right, but has no obligation, to monitor disputes between Users.

Non-contravention. Each User agrees that it will not circumvent the LPS Service for the purpose of avoiding the Processing Fees imposed by LPS.

Representations About You, Generally. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo (or that has been designated by the U.S. Government as a “terrorist supporting” country), and you are not listed on any U.S. Government list of prohibited or restricted parties.

Representations About Your Information and Consent Regarding Use of Your Information. You represent and warrant that all information that you provide in connection with the LPS Service will be current, true, accurate, supportable and complete. If you submit comments, suggestions, ratings, or other feedback regarding the Application, the LPS Service, Suppliers, Buyers, or your experience (“Feedback”), you agree that we will be free to use such Feedback for any purpose and without restriction or obligation to you.

Consent to Receive Messages. YOU CONSENT TO RECEIVE COMMERCIAL E-MAIL MESSAGES AND MESSAGES THROUGH THE APPLICATION FROM OR ON BEHALF LPS AND OUR PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED BY LPS FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES.

License Terms. The LPS Service is licensed, not sold, to you. LPS reserves all rights in and to the LPS Service not expressly granted to you under this Agreement. This license granted to you is limited to a nontransferable license to use the LPS Service for your own internal business purposes.

Restrictions on Use of the LPS Service. You may not rent, lease, lend, sell, redistribute, or sublicense the LPS Service. You are solely responsible for actions taken via your account. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the LPS Service, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the LPS Service). Any attempt to do so is a violation of the rights of LPS and its licensors. You may not use the LPS Service for any use other than its intended use.

Third-Party Services and Materials. Aside from connecting you with other Users, the LPS Service may enable access to third-party products and services (collectively and individually, "Third-Party Services"). Use of Third-Party Services may require your acceptance of additional terms of service. You agree to comply with any such terms. Further, information you make available to Third Party Services is subject to the privacy policies of such third parties. You agree that you will use the Third Party Services at your sole risk.

One such Third-Party Service is our payment processing partner, Balanced. LPS uses Balanced as its third party service provider for payment services (e.g. card acceptance, merchant settlement, and related services). By buying or selling via the LPS Service, you agree to be bound by Balanced’s Privacy Policy (https://www.balancedpayments.com/privacy) and further hereby consent and authorize LPS and Balanced to share any information and payments instructions you provide with other third party service provider(s) to the minimum extent required to complete your transactions. As a Seller, by listing or selling items through the LPS Service, you also specifically agree to be bound by Balanced’s Seller Terms (https://www.balancedpayments.com/terms/selleragreement).

The LPS Service and/or Third-Party Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”), or provide links to third-party websites. You acknowledge and agree that LPS is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. LPS does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or websites.

Content. LPS does not claim any ownership rights in any text, images, photos, video, sounds, links, works of authorship, project information, or any other materials that you post to the LPS Service (collectively, "Your Content"). After posting Your Content to the LPS Service, you continue to retain all ownership rights in the same, and subject to any licenses granted by you (including in our Privacy Policy), you continue to have the right to use Your Content in any way you choose. By posting any of Your Content on or through the LPS Service, you hereby grant to LPS a non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the same (in whole or in part) in connection with the provision of the LPS Service and its features. You represent and warrant that: (i) you own Your Content or otherwise have the right to grant the license set forth in this section, and (ii) the posting of Your Content on or through the LPS Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity.

The LPS Service may also contain content of our licensors, including other Users ("Third Party Content"). “Third Party Content” and “Your Content” is collectively referred to as the “Content”. Third Party Content is protected by copyright and other laws, and our licensors own and retain all rights in Third Party Content. Neither LPS nor our licensors grant you any other licenses, express or implied, to the intellectual property of LPS or licensors, including to Third Party Content, and you may not otherwise copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any of Third Party Content.

Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights.

Limitations on Availability. The LPS Service is not available at all times, in all languages or in all geographies. LPS makes no representation will achieve any particular uptime, or that the LPS Service is appropriate or available for use in any particular location. Use of the LPS Service is void where prohibited.

Termination. This Agreement is effective until terminated by you or LPS. Your rights hereunder will terminate automatically without notice from LPS if you fail to comply with any term(s) of this Agreement. Upon termination, you shall cease all use of the LPS Service. You acknowledge that LPS may refuse to enroll you in the LPS Service, and may restrict, modify, or terminate your account, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation. In no event will LPS be liable for the removal or disabling of access to the LPS Service. LPS may also impose limits on the use or access to the LPS Service, in any case and without notice or liability.

Disclaimer of Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LPS SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LPS SERVICE ARE PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LPS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION, THE LPS SERVICE, AND THE TRANSACTIONS YOU CONDUCT THROUGH THE SAME, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LPS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LPS SERVICE, THAT THE FUNCTIONS CONTAINED THEREIN OR THE TRANSACTIONS YOU UNDERTAKE THROUGH THE SAME WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LPS SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LPS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LPS SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL LPS BE LIABLE FOR (I) PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LPS SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY DAMAGES WHATSOEVER ARISING OUT OF TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE LPS SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL LPS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY LPS) EXCEED THE TOTAL AMOUNT THAT LPS HAS BEEN PERMITTED TO RETAIN AS A RESULT OF TRANSACTIONS BETWEEN YOU AND OTHER USERS PROCESSED THROUGH THE LPS SERVICE IN THE SIX (6) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Compliance with Law, Export and Other Restrictions. To the extent you choose to use the LPS Service, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export it except as authorized by United States law and the laws of the jurisdiction in which the LPS Service was accessed.

The LPS Service and related documentation are "Commercial Items" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and your use of the LPS Service. Your use thereof may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between you and LPS regarding the LPS Service. The failure of LPS to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. “LPS” and all associated logos displayed within the LPS Service are trademarks of LPS or its licensors. This Agreement operates to the fullest extent permissible by law. LPS may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You may not transfer or assign this Agreement or any of your rights or obligations hereunder without the prior written consent of LPS, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

 

SUPPLEMENTAL TERMS APPLICABLE TO PAID SUBSCRIPTIONS

A description of the different LPS Service levels is located here. This Section of this Agreement applies only to Users who have subscribed for a premium version of the LPS Service.

Payment Terms. All subscription fees are due in advance for the applicable subscription term. All fees are due and payable in U.S. dollars, non-refundable (except to the extent set forth below) and are exclusive of applicable sales, excise, use or similar taxes. Users shall pay all such taxes directly or to us, as required by applicable law. If payment is not received when due, we may suspend User’s access to the LPS Service or the premium features thereof.

Term of Premium LPS Service Subscription. Upon receipt of the payment described herein and subject to User’s adherence to the terms and conditions of the Agreement, we will make the premium features of the LPS Service available to User for the applicable subscription period. The foregoing does not diminish our ability to terminate User’s account (without refund) in the event of a breach of the Agreement, or for our convenience subject to the following sentence. If we terminate this Agreement for our convenience during the term of a paid subscription, we will refund you a pro rata portion of the subscription fee.

 

CONTACT US

LPS can be reached at: 600 Congress Ave Suite 1400 Austin, TX 78701 (512) 522-5779, legal@localplantsource.com