Terms of Service
Besanti Terms of Service
Last Updated: August 12, 2024
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Welcome to the Besanti Landscapes, LLC (“Besanti”) website located at https://besantinatives.com (the “Site”). Please read these Terms of Service (the “Terms”) and our Privacy Policy [https://besantinatives.com/privacy-policy] (“Privacy Policy”) carefully because they govern your use of our Site, our services, our applications, our products, and to personal information collected online or offline, such as through a purchase of our products or subscription to our mailing lists or newsletters (collectively called the “Services”). Throughout the site, the terms “we,” “us,” and “our” refer to Besanti.
Our site is hosted on Wix.com. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
1. Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
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2. Privacy Policy. Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND BESANTI THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
3. Changes to Terms or Services. We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site or through other communications. It’s important that you review the Terms whenever we update them. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 16(f) “Effect of Changes on Arbitration,” you may not use the Services anymore. We may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
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4. Who May Use the Services?
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(a) Eligibility. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Besanti and are not barred from using the Services under applicable law.
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(b) Registration and Your Information. If you want to use certain features of the Services, you’ll have to create a profile (“Profile”). You can do this by completing your Profile on the Site by providing certain information about you, including your name, address, and preferences.
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(c) Accuracy of Profile Information. It’s important that you provide us with accurate, complete and up-to-date information for your Profile and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your use of the Services. You agree that you won’t disclose your Profile password to anyone and you’ll notify us immediately of any unauthorized use of your Profile. You’re responsible for all activities that occur under your Profile, whether or not you know about them.
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5. Feedback. We welcome feedback, comments, and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by submitting a message through our Contact Us web page. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose.
6. Payments. Besanti offers different services, products, and packages (collectively, the “Package(s)”) to users who have created a Profile. Besanti requires different one-time payments for use of the Services, depending on which Package is selected by the user. More information on some of the different Packages and pricings can be found at https://besantinatives.com/book-online/.
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(a) General. When you make a one-time payment (a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (such information, “Payment Information”). When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
(b) Canceling a One-Time Payment Policy. If no work has been completed toward the Services, you have the option to cancel a Transaction and receive a full refund within seven (7) calendar days of your initial purchase. If you choose to cancel the Transaction between the eighth (8th) and thirtieth (30th) calendar days after your initial purchase, and no work has been initiated on the Services, a refund will be provided, but it will amount to 90% of the total purchase amount, with a 10% processing fee deducted. BEYOND THESE TIMEFRAMES OR ONCE ANY WORK HAS COMMENCED ON THE SERVICES, NO REFUNDS WILL BE ISSUED. Besanti also reserves the right to cancel a Transaction in the event of unexpected circumstances during its completion, with a commitment to refund any payment you have already remitted for that specific Transaction. If you wish to cancel a Transaction, please initiate the process by sending a message to us through our Contact Us web page. It’s important to note that upon cancellation, your right to use the Services will terminate immediately.
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7. Content Ownership, Responsibility and Removal.
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(a) Definitions. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; (ii) “User Content” means any Content that users who have created Profiles provide to be made available through the Services; and (iii) “Deliverables” means any work product that Besanti specifically creates for users who have purchased Services, including a landscape design plan, installation plan, maintenance plan, and any other physical or digital materials provided by Besanti to users in connection with Besanti Services.
(b) Our Content Ownership. Besanti does not claim any ownership rights in your User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Besanti and its licensors exclusively own all right, title, and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
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(c) Rights in User Content Granted by You. By making User Content available through the Services, you hereby grant to Besanti a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, distribute copies of, publicly display, and publicly perform your User Content in connection with operating, promoting, including through advertising, and providing the Services, and delivering any Deliverables to you.
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(d) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content nor any use of your User Content by Besanti on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
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(e) Rights in Content Granted by Besanti. Subject to your compliance with these Terms, Besanti grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to access and use the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
(f) Rights to Use Deliverables. Subject to your compliance with these Terms, you may use the Deliverables provided by Besanti to you in any manner in connection with the purposes for the individual or business that they are created for, but you agree that you will not (a) sell the Deliverables or (b) license the Deliverables to any third party for commercial gain. We reserve the right to post any Deliverables to our public gallery on the Site.
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8. General Prohibitions and Besanti’s Enforcement Rights. You agree not to do any of the following:
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(a) Post, upload, publish, submit, or transmit any User Content that: (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading, or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
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(b) Use, display, mirror, or frame the Services or any individual element within the Services, Besanti’s name, any Besanti trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Besanti’s express written consent;
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(c) Access, tamper with, or use non-public areas of the Services, Besanti’s computer systems, or the technical delivery systems of Besanti’s providers;
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(d) Attempt to probe, scan, or test the vulnerability of any Besanti system or network or breach any security or authentication measures;
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(e) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Besanti or any of Besanti’s providers or any other third party (including another user) to protect the Services or Content;
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(f) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like) other than the software and/or search agents provided by Besanti or other generally available third-party web browsers;
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(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
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(h) Use any meta tags or other hidden text or metadata utilizing a Besanti trademark, logo URL, or product name without Besanti’s express written consent;
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(i) Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive, or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services or Content; Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(l) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(m) Impersonate or misrepresent your affiliation with any person or entity;
(n) Violate any applicable law or regulation; or
(o) Encourage or enable any other individual to do any of the foregoing.
Although Besanti is not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content or User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
9. DMCA/Copyright Policy. Besanti respects copyright law and expects its users to do the same. It is Besanti’s policy to terminate in appropriate circumstances account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Besanti’s Copyright Policy below for further information.
10. Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products, or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
11. Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. However, in the event you have already purchased a Package and we terminate, upon any termination, discontinuation, or cancellation of the Services or your Profile, the following Sections will survive: 7(a), 7(b), 7(c), 7(g), 12, 14, 15, 16, and 17.
12. Warranty Disclaimers. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any Content, Services, or Deliverables.
13. Indemnity. You will indemnify, defend, and hold harmless Besanti and its officers, directors, employees, and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Deliverables, (ii) your User Content, or (iii) your violation of these Terms.
14. Limitation of Liability.
(a) NEITHER BESANTI NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BESANTI OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) IN NO EVENT WILL BESANTI’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR PAYABLE BY YOU TO BESANTI FOR USE OF THE SERVICES.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BESANTI AND YOU.
15. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Besanti are not required to arbitrate will be the state and federal courts located in the Central District of California, and you and Besanti each waive any objection to jurisdiction and venue in such courts.
16. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. You and Besanti agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Besanti are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions and Opt-out. As limited exceptions to Section 16(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by contacting us through our Contact Us page or via US Mail, c/o ZenBusiness Inc. at 2520 Venture Oaks Way, Ste 120 Sacramento, CA 95833 within thirty (30) days following the date you first agree to these Terms.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in Los Angeles County, California, both parties agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.
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All submissions to the arbitrator, the proceedings, and the award shall be confidential. The arbitration shall be conducted on an expedited basis with minimal discovery. The arbitrator’s award shall be final and binding. The courts of the State of California and/or the United States District Court for the Central District of California shall have exclusive jurisdiction and venue over (i) any action concerning the enforcement of an arbitration award, or (ii) if arbitration is not permitted by law, then any Claim you have arising out of or relating to these Terms of Use. You agree to unconditionally and irrevocably submit to the exclusive jurisdiction and venue of such courts and you will not object to such jurisdiction and venue on the grounds of lack of personal jurisdiction, inconvenient forum, or otherwise.
(d) Arbitration Costs. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules.
(e) Class Action Waiver. YOU AND BESANTI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 3 “Changes to Terms or Services” above, if Besanti changes any of the terms of this Section 16 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including via our Contact Us page) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Besanti’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Besanti in accordance with the terms of this Section 16 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
(g) Severability. With the exception of any of the provisions in Section 16(e) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
17. Mobile Marketing Program Terms & Conditions.
Besanti is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in this Program, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section above. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Besanti in other contexts.
(a) User Opt In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive direct, automated, autodialed, or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Besanti. While you consent to receive messages, including those sent using an autodialer or other automated system, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
(b) User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE, or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Besanti and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
(c) Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, payment, delivery, updates, and sale of Services and related communications required for the fulfillment of these Services. Messages may include reminders for appointments and other time-sensitive aspects of the Services.
(d) Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Besanti.
(e) Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us via the form on our Contact Us web page. Please note that the use of this form is not an acceptable method of opting out of the program. Opt outs MUST be submitted in accordance with the procedures set forth above.
(f) MMS Disclosure: The Program will send SMS terminating messages (TMs) if your mobile device does not support MMS messaging.
(g) Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage, or other changes made by your wireless carrier or any other third parties. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of our control. Carriers are not liable for delayed or undelivered mobile messages.
(h) Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
(i) Eligibility and Change in Phone Number: By opting into the Program or by otherwise providing your phone number to Besanti, you warrant that you are 18 years of age or older. You further warrant that you are the current subscriber or authorized user of the phone number you have provided. You agree that you will not initiate messages to the mobile phone of any other person or entity without authorization. If you change, forfeit, or deactivate the phone number you have provided to Besanti, you agree to notify Besanti immediately. Failure to do so constitutes a material breach of these SMS Terms and Besanti’s Terms of Use. Besanti is not liable for delayed or undelivered messages.
(j) Prohibited Content: You acknowledge and agree to not send any prohibited Content via the Program. Prohibited Content includes but is not limited to:
– Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
– Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
– Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
– Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
– Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
– Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
(k) Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Besanti, or between you and any third-party service provider acting on behalf of Besanti to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be subject to Section 16 Dispute Resolution above.
(l) Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Besanti in direct response to mobile messages or requests from you (including but are not limited to response to keywords, opt-in, help, or stop requests and Service delivery notifications, including shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
(m) Miscellaneous: You warrant and represent to Besanti that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time without prior notice. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
18. General Terms.
(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Besanti and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Besanti and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Besanti’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Besanti may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
(b) Notices. Any notices or other communications provided by Besanti under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Besanti’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Besanti. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
19. Contact Information. If you have any questions about these Terms or the Services, please contact Besanti using the form on our Contact Us page.
BESANTI COPYRIGHT POLICY
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Notification of Copyright Infringement
Besanti Landscapes, LLC (“Besanti”) respects the intellectual property rights of others and expects its users to do the same.
It is Besanti’s policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe the copyrights of others.
In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Besanti will respond expeditiously to claims of copyright infringement committed using the Besanti website or other online network accessible through a mobile device or other type of device (the “Sites”) that are reported to Besanti’s Registered Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Sites by completing the following DMCA Notice of Alleged Infringement and delivering it to Besanti’s Registered Agent. Upon receipt of the Notice as described below, Besanti will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Sites.
DMCA Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Site(s) where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Besanti’s Registered Agent:
Besanti Landscapes, LLC
c/o ZenBusiness Inc.
2520 Venture Oaks Way
Ste 120
Sacramento, CA 95833
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RETURN AND REFUND POLICY
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Once you place an order, you agree to and acknowledge the following terms:
1. Return Policy.
Besanti is a woman-owned small business that is committed to helping you create your ideal landscape with plants you love and restoring native habitats. We have carefully vetted experienced partner growers with native plant expertise to help ensure every tree and plant selected for delivery is of the highest quality and ready to thrive.
If you encounter an issue with a Product or delivery, please notify us within 24 hours. We can be contacted via phone, email, and our Contact Us web page and will work to address your needs as promptly as possible.
Plants and trees are perishable Products. It is your sole responsibility to examine each Product at the time of delivery. You may refuse delivery of a perishable Product at the time of delivery, where it can be reloaded onto the delivery vehicle and returned directly to the grower. In the event that a Product is refused at the time of delivery and we receive confirmation from the grower that it has been returned to the delivery vehicle or nursery, we will work with you to issue a replacement of the refused Product.
Due to the nature of these perishable Products, they CANNOT BE RETURNED OR REFUNDED without authorization from our customer service team. Any Product that has been removed from its original container, planted, or otherwise incurred physical adjustment following delivery WILL NOT be eligible for a return. Missing leaves or minor, naturally occurring variations to plants do not constitute damage.
Healthy plants and trees might arrive in seasonally dormant form depending on the species and time of year. Be aware that some California native plants may be dormant winter or summer. In this situation, you may see normal patterns of fewer leaves, potential discoloration, or no leaves at all, depending on the species. Planting during this time promotes healthy root growth and will help your plants thrive. Dormancy does not constitute grounds for return.
In the unlikely event that the wrong item is delivered, we will manage the replacement at no additional cost; contact our customer experience team with information on the issue and send images of the incorrect item(s) to arrange a replacement.
2. Canceling or editing an order after it has been placed.
We understand there may be circumstances in which you need to cancel or edit your order. Immediately after checkout, all orders move expeditiously in our systems in an effort to deliver our Products as promptly as possible. As such, any item changes, order adjustments, or cancellations must be done within 24 hours of the order being placed.
Because our growers and partners must maintain accurate inventory to conduct business day to day, canceled orders can mean they miss out on fulfilling other orders. As such, after 24 hours of the order being placed, a 50% restocking fee (based on the total order value) will be applied on all order cancellations. Once your order is out for delivery, no changes can be made and the order cannot be canceled.
3. Delivery methods and timing.
The quality of our Products is monitored at every point from order to delivery. In order to ensure our clients receive the absolute best quality Products, our growers carefully plan each order to optimize for healthy plant delivery, including appropriate vehicles and delivery routes.
The majority of our deliveries take place within 7-10 business days of order placement. We will notify you of the anticipated delivery date and time window with as much advance notice as possible. Please be mindful that if there is a national holiday or your order includes plants from multiple growers or is especially large, it may affect the delivery schedule.
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Orders are delivered curbside. Please make appropriate arrangements for receiving, moving, and planting your plants, as delivery drivers will not be able to assist. Large nursery containers may be very heavy and require multiple people to move.
4. Condition of Sale
After you submit your order and the checkout process is completed, your order is taken from inventory and your credit card is charged immediately. Orders will be delivered without requiring a signature. If you or a representative are not present at the time of delivery, delivery drivers will leave the Products curbside and unsupervised unless prior arrangements are made with our customer service team.
5. Size of nursery containers.
Our plants and trees are grown in the industry-standard for trade gallons. Be advised that these sizes are smaller than conventional gallon measures.
Plants and trees sold in 24” boxes or larger are oversized (250+ lbs) and require a larger truck with a lift gate. Upon arrival, delivery drivers will unload orders within close proximity of the truck and in the safest location possible (either to your driveway or curbside). They are not responsible for moving trees beyond that point. Please be prepared with the proper equipment and resources to relocate box trees to their desired location on your property. Box plants and trees may require more time to deliver depending on scheduling and availability.
6. Growth rates.
Any listed growth rates represent published information from horticulture experts and assume the plant is in optimal growing conditions. As with any live goods, we cannot make predictions about the rate at which plants and trees will grow, fruit, or flower. We encourage our clients to review the provided information about each plant and consult trustworthy resources to nurture each plant upon receipt of delivery.