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TERMS & CONDITIONS

TERMS OF SERVICE

Welcome to NYC TREES websites. FARMACY NYC, LLC (d/b/a NYC TREES) and NYC TREES, and its affiliates, and their respective affiliates (collectively, "NYC TREES", "we", "us" or "our") owns and/or operates <https://nyctrees.com/>, and <info@nyctrees.com>. These websites and e-mail addresses, together with other websites, mobile sites, and mobile applications owned, operated, or controlled by NYC TREES, are referred to herein, individually and collectively, as the “Website”. NYC TREES provides the Website and our products and services to you subject to the following conditions.

THESE TERMS INCLUDE (1) A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF YOUR RIGHT TO PURSUE CLAIMS AS CLASS ACTIONS AND A WAIVER OF YOUR RIGHT TO A JURY TRIAL; (2) A LIMITATION OF YOUR RIGHT TO BRING CLAIMS AGAINST US MORE THAN 1 YEAR AFTER THE RELEVANT EVENTS OCCURRED; AND (3) THE RIGHT TO OPT OUT OF THE FOREGOING PROVISIONS.  SEE BELOW FOR DETAILS ON THESE PROVISIONS.

BINDING AGREEMENT

Please read carefully these Terms of Use, the Privacy Policy and any other terms and conditions on the Website that govern features of the Website (the "Additional Terms"), all of which collectively govern your use of, and access to, the Website and all content, data, information and materials contained therein. (The Terms of Use, the Privacy Policy, the Products Policy, the COVID-19 Policy and the Additional Terms are referred to collectively herein as the “Terms”).

BY ACCESSING, BROWSING AND/OR USING THE PAGES OR SERVICES POSTED ON THE WEBSITE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF USE, THE PRIVACY POLICY, THE PRODUCTS POLICY AND THE ADDITIONAL TERMS, AND AGREE TO BE BOUND BY ALL OF THEM, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME BY NYC TREES, IN ACCORDANCE WITH THE TERMS.  IF YOU DO NOT AGREE, DO NOT USE THE WEBSITE OR ORDER, USE, OR CONSUME ANY OF OUR PRODUCTS OR SERVICES.

These Terms set forth the entire, final and exclusive agreement between NYC TREES and you with respect to your use of, and access to, the Website and any and all content, data, information and materials contained therein and transactions completed thereon, and supersede all previous oral and written terms, representations, or understandings concerning your use of, and access to, the Website and any and all content, data, information and materials contained therein and transactions completed thereon. These Terms also apply to any other aspects of your relationship with us.  If there is a conflict amongst the provisions in the various Terms, the more specific provision governs.

NYC TREES reserves the right to modify the Terms at any time. You can find the most current version of the Terms of Use as well as the Privacy Policy by clicking on the appropriate hyperlink at the bottom of this page. The most current version of the Additional Terms can be found by clicking on the hyperlink on the appropriate webpage for that Additional Terms document. You are responsible for staying informed of any changes. IF YOU DO NOT AGREE TO THE NEW POSTED TERMS, YOUR ONLY REMEDY IS TO DISCONTINUE USE OF THE WEBSITE AND YOUR RELATIONSHIP WITH NYC TREES UNLESS OTHERWISE PROVIDED HEREIN.

NYC TREES makes reasonable efforts to provide accurate and timely information on the Website. While we believe, the information is reliable, we provide no warranty that the information is always up to date or contains all the relevant information available.

You must be 18 years or older to use, register for an account, transmit/submit/post any content, material or personally identifiable information or place an order on the Website. If you are under 18 or under the legal age to enter enforceable contracts in the jurisdiction from which you are accessing the Website, you may use the Website only with consent of a parent or guardian. By submitting information or content on the Website you represent that you meet this age restriction and NYC TREES provides you access to the Website subject to your compliance with these Terms.

PRIVACY

Please review our Privacy, which also governs your visits to the Website, to understand our privacy practices.  BY USING THIS SITE, YOU ACKNOWLEDGE THAT YOU AGREE TO THE PRIVACY POLICY, IN ADDITION TO THESE TERMS OF USE.

NYC TREES, and its affiliates, (collectively referred to as "NYC TREES," "we," "us" or "our") respects your privacy. We know you care how information about you is used and shared. This Privacy Policy (the "Policy") describes our privacy practices with respect to information collected by or submitted to us on our websites and other websites, mobile sites, and Apple or Google Applications available on those respective providers, that are otherwise owned, operated, or controlled by NYC TREES (individually and collectively referred to as the " NYC TREES Sites"). 

This Policy is subject to and made a part of the NYC TREES Terms of Use ("Terms"), which are incorporated into this Policy by reference. 

We reserve the right to modify or amend this Policy at any time with or without notice, and for any reason. Changes to this Policy shall be effective when posted on the NYC TREES Sites. In case of any material change to the Policy, we will provide notice on the NYC TREES Sites of any update to the Policy and post the updated Policy. You are responsible for reviewing this Policy each time you use or access the NYC TREES Sites. Your continued use of this NYC TREES Sites are an acknowledgment and consent to any terms contained in this Policy, as it may be amended from time to time.

 By visiting our NYC TREES Sites, you acknowledge and agree that you have read this Policy and agree to the collection, use and other processing of your information in accordance with the practices described in this Policy. If you do not agree to all or any of the terms, conditions and practices set forth herein, do not access the NYC TREES Sites or any of its pages.

This NYC TREES Sites are intended for adult use only, and we do not knowingly collect any personally identifiable information from anyone under the age of 13. 

 SITE MANAGEMENT AND PRODUCTION

The NYC TREES Sites are managed by NYC TREES, and exist for the purpose of disseminating information about NYC TREES products, and to provide a mechanism for users of our NYC TREES Sites to order our NYC TREES products and participate in our promotional activities.

 The NYC TREES Sites are hosted, and all information that you submit through NYC TREES is collected, stored, and processed, in the United States.

MOBILE APPLICATION USERS

Text Messages:  We distribute mobile coupons and other text messages to devices of guests who have requested this information via an opt-in request. To opt out of NYC TREES mobile messaging, reply “stop” to text messages sent from NYC TREES. This will opt you out of all NYC TREES text message campaigns from NYC TREES.

Push Notifications:  You may at any time opt out from further allowing NYC TREES to send you push notifications by adjusting the permissions in your mobile device.

Geo-Location:  You may at any time opt out from further allowing NYC TREES to access location data by adjusting the permissions in your mobile device.

Uninstall the NYC TREES Mobile Application:  You can stop all further collection of information by the NYC TREES mobile application by uninstalling the NYC TREES mobile application. You may use the standard uninstall process available as part of your mobile device or via the mobile application marketplace or network.

Note: If you uninstall the mobile application from your device, the NYC TREES unique identifier associated with your device will continue to be stored. If you re-install the application on the same device, NYC TREES will be able to re-associate this identifier to your previous transactions and activities.

Mobile application users:  The following provisions apply to users of NYC TREES mobile applications (each, an “Application”):

Device and Usage Information:  Device and usage information may be shared with Shopify,  Google Analytics (Google), Apple Analytics (Apple) and Crashlytics (Fabric, a Google company) for analytics and crash reporting.  Device and Usage information may also be collected by Third Party SDK’s when connecting or interacting with them.

Users of the Apple Application:  If you download and/or use our Application(s) for iPhone or iPad: These Terms & Conditions incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of these Terms & Conditions, the Application is considered the “Licensed Application” as defined in the LAEULA and NYC TREES is considered the “Application Provider” as defined in the LAEULA. If any of these Terms & Conditions conflict with the terms of the LAEULA, these Terms & Conditions shall control.

Mobile Service, Internet and Service Fees:  The use of the Application requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Application, including without limitation, administrative messages, service announcements, diagnostic data reports and Application updates from NYC TREES, your mobile carrier or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Application. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Application, including but not limited to payment of all third party fees associated therewith, including fees for information sent to or through the Application.

The Application may not work with all devices or all mobile carriers. NYC TREES makes no representations that the Application will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Application or other third-party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.

COLLECTED INFORMATION:

Like many sites, we and our third-party service providers, such as advertising and analytics providers, use cookies, web beacons and other data technologies to receive and store certain types of information when you interact with us through your computer or mobile device.  Using these technologies helps us recognize you, customize your experience and make relevant marketing messages. We gather information about individuals when they submit comments, questions or requests for information to us on this NYC TREES Sites. We use information we receive to operate and improve the content of this NYC TREES Sites, and to provide the product(s), service(s) or information, or carry out the transaction(s) that you have requested or authorized. We may share parts of the information we gather on our NYC TREES Sites or otherwise maintain such information with our affiliates, and service providers (for more information please see the USE AND SHARING INFORMATION section below). Anonymous analytical information is collected when the mobile application is used, this includes information about your interaction with the NYC TREES Sites, including the actions you take on the NYC TREES Sites. 

We also collect personally identifiable information in the following ways and for the following purposes:

Orders and Purchases: If you submit an order for an NYC TREES product on the NYC TREES Sites, you will be required to submit verifiable and accurate identity and contact information, delivery and billing address, and payment information. This personally identifiable information will be used for billing purposes and to fill product orders, to send you emails and text/SMS messages about promotions if you have opted in, and may be retained for record keeping and legal purposes along with the content of your order. We utilize industry-standard Secure Sockets Layer ("SSL") technology to allow for the encryption of all product orders submitted on our NYC TREES Sites in order to protect your credit card and other information. For additional details about our information security practices please see the SECURITY section below. If you are uncomfortable with submitting your credit card or other order information via the Internet for any reason, please feel free to contact NYC TREES.

Electronic Mail and Social Media: NYC TREES may retain the content of any e-mail or social media posting that NYC TREES receives, the email or social media account address from which it is sent, and our response. Content and other information in or related to emails sent by you to NYC TREES or postings on any of NYC TREES social media platforms, such as Facebook and Twitter may be used as testimonials or for other marketing purposes in accordance with the Terms. Please be aware that when you receive a receipt acknowledging your email or an upload to one of our social media accounts or your submission of an order or application form, it means that the message or form has been routed into the Internet, and not that it has been received by us. We also collect information automatically using technology when you visit our NYC TREES Sites or social media pages or when you open one of our emails. For additional details about the information we collect using technology, please see the COOKIES AND OTHER TRACKING DEVICES section.

Device Authentication/Fraud Detection: We, or a third party acting on our behalf and at our direction, may collect information about your device to authenticate your device and to protect you and us against fraud.  Specifically, we may collect your Device ID, GPS logs (which includes information about your location and movement) and device info logs (which includes information about your device’s operating system, model, brand, mac address).  That information will be used solely for device authentication and fraud detection purposes.

COOKIES, OTHER TRACKING DEVICES AND THIRD-PARTY SERVICE PROVIDERS

A cookie, also known as an HTTP cookie, web cookie, or browser cookie, is a small piece of data sent from a NYC TREES Site and stored in a user's web browser while the user is browsing a NYC TREES Site (“Cookie”). Every time the user loads a NYC TREES Site, the browser sends the Cookie back to the server to notify the NYC TREES Sites of the user's previous activity. Web beacons (also known as image tags, gif or web bugs) are small pieces of code used to collect advertising data, such as counting page views, promotion views or advertising responses (“Web beacons”). Our NYC TREES Sites' web server automatically collects and we may use your Cookies, Web beacons, and other similar tracking technologies (collectively “Tracking Technologies”) to collect “non-personal” information as you browse our NYC TREES Sites. Certain pages of the NYC TREES Sites, and promotional email messages, or newsletters we send, may contain Tracking Technologies that allow us to count users who have visited those pages and to determine whether messages have been opened and acted upon.

 Some of these Tracking Technologies may be placed by third party service providers to help determine the effectiveness of our advertising campaigns or email communications. These Tracking Technologies may be used by these service providers to place a persistent Cookie on your computer. Doing this allows the service provider to recognize your computer each time you visit certain pages or emails and compile anonymous information in relation to those page views. The use of Tracking Technologies by third party service providers is within their control and not ours. We do not control their NYC TREES Sites or their policies and practices regarding your information and you should be aware that different rules might apply to the collection, use or disclosure of your information by third parties in connection with their advertisements or promotions and other sites you encounter on the Internet. This Policy does not cover any use of information that a third party service provider may directly collect from you and we do not undertake to confirm, investigate, or police their practices.

 We use Tracking Technologies, web server log files and tracking code, and information we receive through the use of these Tracking Technologies to analyze trends, administer the NYC TREES Sites, track users’ movement, and gather broad demographic information for aggregate use. Information of this type may be combined with other sources of information for these purposes. Specifically, through the use of web server log files and tracking code any or all of the following information may be accessed, collected, analyzed and stored during or after your visits to our NYC TREES Sites: the name of the domain from which you access the Internet; the date and time you access our NYC TREES Sites; the pages that you visit on our NYC TREES Sites and the sequence in which you visit them; the amount of time that you spend on any given page of our NYC TREES Sites; the Internet address of a website that you visited immediately before visiting our NYC TREES Sites; the Internet address of a website from which you linked directly to our NYC TREES Sites, if any; the Internet address of a website that you visit immediately after leaving our NYC TREES Sites; the type of operating system on your computer; and the type of browser that you are using to view a NYC TREES Sites.

The practice of collecting these Tracking Technologies is a standard practice on the Internet. If you do not want us to collect your Cookies, you can set your browsers or third-party software to reject cookies. If you reject the Cookie, you may be unable to use portions of our NYC TREES Sites that require registration, some pages of the NYC TREES Sites might not function properly, and the NYC TREES Sites experience will not be capable of being tailored to you from visit to visit. Please consult your web browser's Help documentation for more information about how to turn these Cookies on and off for your browser. Cookies are placed on your computer, and accordingly we neither store Cookies on our computers nor forward them to any external parties.

 By visiting our NYC TREES Sites, you acknowledge, understand and hereby agree that you are giving us your consent to track your activities through use of these Tracking Technologies and that we may use Tracking Technologies in the emails we send you.

USE AND SHARING INFORMATION

Use of Information: We use your personal information in a variety of ways, including processing NYC TREES product orders, sending marketing and promotional emails, text messaging, processing registration as a NYC TREES member, contacting you regarding the administration of your NYC TREES membership, Promotions you have participated, responding to questions or other requests submitted through our NYC TREES Sites, improving our NYC TREES Sites, our services, and for internal business purposes, tailoring your experience on our NYC TREES Sites, and to otherwise maintain and administer our NYC TREES Sites. We may also use your personal information as disclosed at the time you provide such Personal Information through Promotions or as a NYC TREES member.

Sharing Information: We may share your information with other third parties to perform functions or services on our behalf, to jointly offer products and services, to fulfill product orders placed on our NYC TREES Sites, to process orders, and to facilitate the NYC TREES program. We do not sell, rent, or lease your personal information.

Transaction Requirements: We sometimes retain the services of other third parties to perform functions or services on our behalf. For example, we use service providers to send emails and e-messages on our behalf; and third parties to deliver and ship NYC TREES products that you order on our NYC TREES Sites. To our knowledge, these companies do not retain share, store or use personally identifiable information for any secondary purposes not otherwise disclosed in this Policy. However, we do not undertake to confirm, investigate, or police their practices.

Our Affiliates: From time to time, we may send your information to our affiliates, or other opportunities that may be of interest to you.

Joint Promotions: From time to time, we may use third parties to provide specific services or products. When users sign up for these services or order these products, we will share only the names and other information that is necessary for the third parties to provide these services or products. These third parties are not permitted to use personally identifiable information except for the purpose of providing these services or products. However, we do not undertake to confirm, investigate, or police their practices.

Business Transfers: As we continue to develop our business, we might sell or buy assets. In such transactions, user information generally is one of the transferred business assets. In the event that all or substantially all of NYC TREES assets are acquired, user information may be one of the transferred assets.

Protection of Site and Others: We may preserve and have the right to disclose any information about you or your use of the NYC TREES Sites without your prior permission if we have a good faith belief that such action is necessary to: (i) protect and defend our rights, property or safety or that or those of our affiliates or agents, other users of the NYC TREES Sites, or the public; (ii) enforce the Terms for the NYC TREES Sites; or (iii) respond to claims that any content violates the rights of third-parties. We may also disclose information as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request.

We will share aggregated demographic information with our affiliates, subsidiaries, and other third parties. This type of information is not linked to any personally identifiable information that can identify any individual person.

SECURITY

While no data transmission over the Internet is 100% secure from intrusion, we have reasonable and appropriate security measures in place to attempt to protect against the loss, misuse, and alteration of your personally identifiable information under our control. We have taken reasonable steps to confirm the information is retained in secured facilities and that reasonable measures have been implemented for protection from unauthorized access.

The NYC TREES Sites utilizes industry-standard SSL technology to allow for the encryption of potentially sensitive information submitted to us in product orders, registrations and sign-ins. We conduct financial transactions via secured transmissions but may not always secure other parts of our NYC TREES Sites.

However, no security system is impenetrable. We cannot guarantee the security of our NYC TREES Sites or databases, nor can we guarantee that information you supply will not be intercepted while being transmitted to us over the Internet. We ask that you do your part by maintaining any usernames and passwords you use to access the Internet or this NYC TREES Sites strictly confidential.

WE DO NOT SEND EMAILS ASKING YOU TO PROVIDE OR CONFIRM CREDIT CARD NUMBERS, SOCIAL SECURITY NUMBERS OR YOUR USERNAME AND PASSWORD! If you receive such email communication, please forward it immediately to the NYC TREES Privacy Administrator at info@nyctrees.com and then immediately delete the fraudulent email from your computer.

ACCESS TO, AMENDMENT, AND DEACTIVATION OF INFORMATION

You can ask to review, correct, update, or deactivate the personal information that we maintain about you, at any time by sending a written request to the postal or email address set out below, or following the instructions in any email you receive from us. We may take a reasonable period of time to respond. If you request the deactivation or change of information on our system, such information may be retained in our backup systems for a period of time subject to technology restrictions, or as a precaution against systems failures. Some information may be retained for longer periods as required by law, contract or auditing requirements.

LINKS AND USE OF SOCIAL MEDIA

The NYC TREES Sites contain links to other sites. Please be aware that NYC TREES, is not responsible for the terms of use or privacy practices of such other sites unless otherwise expressly provided by NYC TREES. We encourage our users to be aware when they leave our NYC TREES Sites and to read the privacy statements of each and every NYC TREES Site. This Policy applies solely to information collected on the NYC TREES Sites.

We sometimes use third party social media content we obtain from Twitter, Instagram, Pinterest, Facebook on our NYC TREES Sites and our social media platforms. The privacy protections provided on these third-party social media sites are not part of our Policy and may differ from the privacy protections described in this Policy. If you upload content related to our NYC TREES products on third party social media sites, that share information with the general public, user community, and/or a third-party social media NYC TREES Sites it may be used or shared by us on our NYC TREES Sites or our social media platforms to promote our NYC TREES products and services. Consequently, you should review the privacy policies of these third-party sites before using it and ensure that you understand how your content maybe used. You can adjust your privacy settings on your accounts with these third-party sites to match your preferences.

QUESTIONS

If you have any questions regarding this Policy, or want to have any personal information removed, please contact us at: info@nyctrees.com

PRODUCTS

Please see individual product pages and our Products Policy here, which is incorporated into these Terms by reference and also governs your purchase of products through the Website, for more information on the terms and conditions of sale for our NYC TREES products. Prices are in US dollars unless otherwise noted. NYC TREES reserves the right to change prices on any product or products and to discontinue any services or products provided through the Website at any time.

COPYRIGHT

All content included on the Website, such as text, graphics, logos, button icons, images, audio clips, photographs, illustrations, digital downloads, data compilations, and software, and the compilation (including the collection, selection, assembly and arrangement) of such materials is the property of NYC TREES or its licensors or content suppliers and protected by copyright, trademark and other applicable laws in the United States and other jurisdictions.

TRADEMARKS

NYC TREES, and FARMACY are registered trademarks of NYC TREES. This is not intended to be a complete list of all of NYC TREES’ trademarks, and NYC TREES owns or controls the proprietary rights in trademarks not listed here and in one or more countries. The NYC TREES domain names and the domain names of NYC TREES’ other websites are the property of NYC TREES. All NYC TREES trademarks, copyrights, trade dress and/or intellectual property used on the Website may not be used in connection with any product or service that is not offered for sale or otherwise provided by NYC TREES, or in any manner that is likely to cause confusion among customers, or in any manner that disparages or defames NYC TREES or the Website. All other trademarks, services marks, logos, designs, and trade dress, not owned by NYC TREES that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by NYC TREES.

LICENSE, LIMITATIONS ON USE AND WEBSITE ACCESS

NYC TREES grants you a limited license to access the Website for normal browsing only, and to download (for caching purposes only) or print a copy of the materials on the Website for your personal use only provided that you: (a) keep intact all copyright and other proprietary notices; (b) do not use the material in a manner that would compete with, achieve commercial gain, or damage the goodwill associated with NYC TREES; (c) do not use the material in a manner that suggests an association with any of our services, brands, or products (unless otherwise authorized in writing by NYC TREES); and (d) do not make any modifications to the material. Except as expressly provided in this paragraph, you may not download (other than page-caching), modify, copy, reproduce, republish, post, resell, upload, transmit or distribute material or any portion of it from the Website, except with express written consent of NYC TREES. The limited-use license granted herein does not include any right for resale or commercial use of the Website or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. We may grant you, at our sole discretion, a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Website provided that: (e) you do not use the NYC TREES logo or other proprietary graphic or trademark as part of the link without our express written permission; (f) the link does not portray NYC TREES or their products or services in a false, misleading, derogatory, or otherwise offensive matter; (g) you do not use the link in a manner that would compete with or damage the goodwill associated with NYC TREES; and (h) you do not use or post the link in a manner that suggests an association with any of our services, brands, or products (unless otherwise authorized in writing by NYC TREES). To request our permission to create a hyperlink to the home page of the Website, please contact us at: info@nyctrees.com, Attn: Webmaster

In addition, you agree not to:

(a)   Use or access the Website for any purpose that is unlawful or prohibited by these Terms;

(b)   Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of NYC TREES, or our subsidiaries or our affiliates without express written consent of NYC TREES;

(c)   Use any meta tags or any other "hidden text" utilizing NYC TREES trade names, trademarks, service marks or logos without the express written consent of NYC TREES;

(d)   Make any commercial or non-fair use of the copyrights, trademarks, logos, symbols, or any other mark, device, or commercial identifier of NYC TREES without the express written consent of NYC TREES;

(e)   Use or access the Website in a manner that could damage, disable, overburden, or impair any NYC TREES server or the networks connected to any NYC TREES server;

(f)   Interfere with any third party's use and enjoyment of the Website;

(g)   Attempt to gain unauthorized access to the Website, accounts, computer systems, or networks connected to any NYC TREES server through hacking, password mining, or any other means;

(h)   Sublicense any license granted in or to materials on the Website under these Terms (whether or not any of such acts are for commercial gain or advantage); or

(i)   Reverse engineer, decompile, modify, or create derivative works from any software accessible by or on the Website unless specifically authorized in writing by the owner of the software to do so.

ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED.

MOBILE APPLICATION LICENSE

Use License

If you access our mobile application(s), then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms. You shall not: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (b) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (c) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (d) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the application; (e) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (f) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (g) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (h) use the application to send automated queries to any website or to send any unsolicited commercial e-mail; or (i) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.

NYC TREES may make available for download certain application updates or upgrades to the application to update, enhance or further develop the application (“Application Updates”). The license granted herein allows you to download and use the Application Updates to update the Application on any device that you own or control. These Terms do not allow you to update devices that you do not own or control, and you may not make the Application Updates available over a network where they could be used by multiple devices or multiple computers at the same time. You may not make any copies of the Application Updates, unless such copy is authorized in writing by NYC TREES.

NYC TREES may, at its discretion, automatically download Application Updates to your device. You agree to accept these Application Updates and to pay for any costs associated with receiving them. The application and Application Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the application and Application Updates. These laws include restrictions on destinations, end users and end use.

Apple and Android Devices

The following terms apply when you use a mobile application obtained from either the Apple Store or Google Play (each an “App Distributor”) to access the Website: (a) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable App Distributor’s terms of service; (b) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in these Terms of Use or as otherwise required under applicable law, and you acknowledge that each App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (c) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable App Distributor, and the App Distributor, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the App Distributor will have no other warranty obligation whatsoever with respect to the mobile application; (d) you represent and warrant that (i) 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 (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (e) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (f) you acknowledge and agree that the App Distributors are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms, and that each App Distributor will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms of Use against you as a third-party beneficiary thereof.   

These Terms incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of these Terms of Use, our mobile application is considered the “Licensed Application” as defined in the LAEULA and NYC TREES is considered the “Application Provider” as defined in the LAEULA. If any of these Terms of Use conflict with the terms of the LAEULA, the terms of these Terms of Use shall control. You further acknowledge and agree that in no event will Apple Inc. be responsible for any claims relating to our application (including, without limitation, a third party claim that the application infringes that third party’s intellectual property rights) or your use or possession of the application, including but not limited to: (i) product liability claims; (ii) any claim that the application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge and agree that, to the maximum extent permitted by applicable law, Apple Inc. will have no warranty obligation whatsoever with respect to the application.

Mobile Service, Internet and Service Fees

Your use of our mobile application requires use of a mobile device and may require use of a wireless mobile data service, which must be obtained from your wireless carrier, and may also require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the application, including without limitation, administrative messages, service announcements, diagnostic data reports, and Application Updates, from NYC TREES, your mobile carrier or third-party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the application. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the application, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the application.

The application may not work with all devices or all mobile carriers. NYC TREES makes no representations that the application will be compatible with or provided by all mobile carriers. In the event that fees are charged for the application, or other third-party service providers charge a fee for the products or services they provide, you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.

Some functionality of the application, including location based services and functionality, may require the transmission of information from and about you and/or the application, including, without limitation, names, user names and passwords, email address, financial information (such as credit card numbers), and/or GPS location.  If you use such application functionality, you consent to the transmission of your user information to NYC TREES and/or NYC TREES’ agents and you authorize NYC TREES and/or its agents to record, process, and store such information as necessary for the Application functionality and for purposes described in our Privacy Policy above.

OPEN AREAS AND RESERVED AREAS

Most areas of the Website may be accessible without password access control ("Open Areas"). However, some areas of the Website are strictly for reserved use and access only ("Reserved Areas"). You agree not to attempt to gain unauthorized entry into the Reserved Areas.

FURTHER LIMITATIONS ON USE - RESERVED AREAS

The materials contained in the Reserved Areas include items that are proprietary and include trade secrets of NYC TREES that are not authorized for general distribution and that have substantial value due to their contents and secrecy (the "Reserved Area Materials"). In addition to the restrictions set out in other provisions of these Terms and the NYC TREES Terms of Use Agreement, you agree to:

(a)   Maintain the security and confidentiality of the Reserved Area Materials using at least the same standards you use to maintain the confidentiality of your own proprietary information and trade secrets, but in no case less than reasonable standards;

(b)   Notify NYC TREES immediately upon discovery or suspicion of compromise of the confidentiality of the any Reserved Area Materials or any use of the Reserved Areas Materials in violation of this Agreement; and

(c)   Not disclose the Reserved Area Materials or any information contained therein to any third parties, including without limitation, any employees or other agents, except as specifically authorized by NYC TREES in writing.

INFRINGEMENT

If you believe that any third party has violated these Terms or infringed any of NYC TREES rights in the Website or the materials contained on the Website, including the Reserved Area Materials, please follow the instructions below to contact our designated agent.

REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT

Users may post or communicate reviews, comments, and other content; send communications; and submit suggestions, ideas, comments, questions, or other information on or through the Website (collectively, the "Submission"). You agree not to post e-mails or submit to or publish through the Website or otherwise make available on the Website any content (including any Submission), or act in a way, which in our opinion:

(a) is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, pornographic, racist, abusive, harassing, threatening, offensive, stalking, or otherwise injurious to the legal rights (such as rights of privacy and publicity) of third parties or objectionable;

(b) includes programs which contain or consist of software viruses, worms and/or "Trojan horses" or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications;

(c) amounts to political campaigning, commercial solicitation, "pyramid" or similar scheme; surveys, chain letters, junk email, mass mailings, or any form of "spam" (commercial or otherwise);

(d) seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;

(e) infringes any intellectual property or other right of any entity or person, including violating anyone's copyrights or trademarks or their rights of publicity;

(f) violates any law or the Terms, or may be considered to violate any law or the Terms;

(g) transmits confidential or proprietary information under any contractual or other relationship (e.g., inside information, proprietary or confidential information received in the context of an employment or a non-disclosure agreement) or otherwise contains unsolicited proprietary ideas;

(h) advocates or promotes illegal activity;

(i) impersonates or misrepresents your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;

(j) advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, and/or soliciting goods or services) except as specifically authorized on the Website;

(k) solicits funds, advertisers or sponsors;

(l) involves spoofing or otherwise impersonating any person or entity, including, without limitation, any other users or any of NYC TREES’ personnel, or falsely stating or otherwise misrepresenting your identity or affiliation in any way, forging any TCP/IP packet header or any part of the header information in any e-mail or other posting, using a false e-mail address, or impersonating any person or entity;

(m) disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via the Website;

(n) copies any other pages or images on the Website except with appropriate authority;

(o) includes MP3, audio, or other media format files;

(p) amounts to "data warehousing" (i.e., using any web space made available to you as storage for large files which are only linked from other sites;

(q) disobeys any policy or regulations established from time to time regarding use of the Website or any networks connected to the Website; or

(r) contains links to other sites that contain the kind of content, which falls within the descriptions set out at in (a) to (q) above.

NYC TREES reserves the right (but not the obligation) to review, remove or edit such content or any Submission which NYC TREES in its sole discretion considers illegal, offensive, in violation of a third-party right or otherwise in violation of these Terms.  Notwithstanding the foregoing, nothing contained herein shall be construed as the right of a party to review NYC TREES’ products in a legal and nonoffensive manner. However, you acknowledge and agree that we do not regularly review posted Submissions or other content and that we are not under any obligation to control or monitor any Submissions published by you or any other Website users. NYC TREES takes no responsibility and assumes no liability for the content of any Submission made or posted by you or any third party. NYC TREES reserves the right to terminate your access to any or all of the Website and the ability to post or communicate a Submission at any time, without notice, for a violation of these Terms. NYC TREES also reserves the right at all times to disclose any information as NYC TREES deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in NYC TREES’ sole discretion. Always use caution when giving out any personally identifiable information in any Submission. NYC TREES does not control or endorse the content, messages or information found in any Submission and, therefore, NYC TREES is not liable or responsible with regards to the content of any Submissions.

If you do post or make a Submission, you hereby grant to NYC TREES a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use your Submission (including, without limitation, to modify, publicly perform, publicly display, reproduce, and distribute such Submission) solely to display on the Website in connection with the product or service subject to the review without the requirement to make payment to you or to any third party or the need to seek any third party permission. NYC TREES will not be required to treat any Submissions as confidential and will not be liable for any ideas for its business (including without limitation, product or advertising ideas) and will not incur any liability as a result of any similarities that may appear in future NYC TREES operations. You hereby grant NYC TREES and agents, servants and employees the right to use the name that you submit in connection with such Submission for its display on the Website in connection with the Submission. You represent and warrant that you own or otherwise control all of the rights to the Submission.

EMAIL AND OTHER COMMUNICATIONS AND SIGNATURES

In connection with your use of the Website, you consent to NYC TREES recording any communication, electronic or otherwise, between you and NYC TREES and retaining any Submission you make while using the Website. Please do not send any time-sensitive Submission or other communications by e-mail to NYC TREES as we cannot be responsible for responding to any such communications.

Further, visiting the Website, sending us emails, and completing online forms, or signing up for promotional programs on-line or via a mobile device all constitute electronic communications between you and NYC TREES. By engaging in these activities, you consent to receive such electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email, text message and on the Website, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE WEBSITE.  You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

CONSENT TO TELEPHONE COMMUNICATIONS AND RECORDINGS

Recording of Communications.  You acknowledge and agree that all communications between you and NYC TREES may be recorded or monitored for quality assurance or other purposes subject to applicable law.

Consent to Telephone Communications. By providing us a telephone number, you agree to these Terms and consent to receive telephone communications from us, including via automated telephone dialing systems or pre-recorded messages, and even if your number is on a national, state, or local do-not-call list. For marketing communications, consent is not required for purchase.  If you register for our text messaging program, you can expect to receive up to 6 autodialed text messages per month. You further agree that, for any number you provide to us, you are the subscriber or regular user of such number or have authority to do so from the subscriber or regular user of such number.

Opting Out of Non-Marketing Communications. To discontinue receiving non-marketing communications via text, respond “STOP” via text message to the number you received a text from. If you successfully opt out, you will be sent a confirmation message. If you have followed this procedure and do not receive a confirmation message, email info@nyctrees.com to complete the opt-out procedure. You agree the foregoing are the exclusive ways to opt out of non-marketing telephone communications from us, and that we may resume communications if the number is re-provided to us after your opt-out.  Also, these opt out procedures will only opt you out of non-marketing telephone communications from an automated telephone dialing system or that use a pre-recorded message.

Opting Out of Marketing Communications. To discontinue receiving marketing communications via text, text “STOP” to the number you received a text from. If you successfully opt out, you will be sent a confirmation message. If you have followed this procedure and do not receive a confirmation message, email info@nyctrees.com to complete the opt-out procedure. To discontinue other types of telephone marketing communications from us, please request to be placed on our do-not-call list. You agree the foregoing are the exclusive ways to opt out of marketing telephone communications from us.

STANDARD MESSAGE AND DATA RATES APPLY TO OUR TEXT COMMUNICATIONS. NOT ALL CARRIERS COVERED.

NYC TREES respects your right to privacy. You can view our Privacy Policy above. Data obtained from you in connection with this SMS service may include your cell phone number, your carrier’s name, and the date, time and content of your messages, as well as other information that you provide. You agree that we may use this information to contact you for promotional purposes and to provide the services/products you request from us. Survival.  Our right to contact you as described in these Terms survives the termination of the Terms and your relationship with NYC TREES.

INDEMNIFICATION

You agree to indemnify and hold harmless NYC TREES, its affiliates and subsidiaries, and all of their respective managers, members, directors, officers, agents, employees, suppliers, vendors, and service providers from any claims, judgments, liability, and expenses, including reasonable attorneys fees, arising out of claims for copyright infringement, defamation, invasion of privacy, or infringement of rights of publicity, that are made by any third party relating to your breach of these Terms or your use, authorized or unauthorized, of the Website. This provision does not apply to personal injury, and only indemnifies for the specific situations stated.

LINKS

You expressly acknowledge that the Website may contain links to other websites not controlled, operated or owned by NYC TREES. Unless otherwise expressly provided by NYC TREES, NYC TREES provides no endorsement or representation of any kind regarding the products, services, content or appropriateness of content of such websites. We do not make any warranties as to the security of any information (such as credit card and other sensitive information) you might give on any such linked website.  Any such website is governed by its individual Terms of Use and Privacy Policy and is not subject to these Terms.

DISCLAIMER OF WARRANTIES

THE WEBSITE, THE INFORMATION AND MATERIALS CONTAINED ARE PROVIDED BY NYC TREES ON AN "AS IS" AND "AS AVAILABLE" BASIS. NYC TREES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE WEBSITE OR THE INFORMATION, CONTENT OR MATERIALS, INCLUDED OR MADE AVAILABLE ON OR THROUGH THE WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NYC TREES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ON THE WEBSITE, AND ON THE INFORMATION AND MATERIALS PROVIDED ON OR OFFERED FOR SALE ON THE WEBSITE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. NYC TREES DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, ITS SERVERS, OR E-MAIL SENT FROM NYC TREES; ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR MATERIALS MADE AVAILABLE THROUGH THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED; OR THAT DEFECTS WILL BE CORRECTED. NYC TREES DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION ON THE WEBSITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. NYC TREES MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE WEBSITE AT ANY TIME, WITHOUT PRIOR NOTICE.

LIMITATION OF LIABILITY

NYC TREES, ITS AFFILIATES AND SUBSIDIARIES, AND ANY OF THEIR RESPECTIVE MANAGERS, SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, VENDORS, AND/OR SUPPLIERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ECONOMIC DAMAGES ARISING FROM THE USE OR PERFORMANCE OF THE WEBSITE OR THE DELAY OR INABILITY TO USE THE WEBSITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION. TO BE CLEAR, THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE WEBSITE, AND DOES NOT APPLY TO PERSONAL INJURY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF NYC TREES’ NEGLIGENT, FRAUDULENT, OR RECKLESS ACT(S), OR INTENTIONAL MISCONDUCT

TERMINATION

NYC TREES reserves the right, in its sole discretion, to terminate or suspend any password, account, access, or ability to use the Website at any time without notice. Upon such termination, all rights granted to you under this Agreement will cease immediately, and you agree that you will immediately (a) discontinue use of the applicable Website and (b) discontinue use of and destroy or return to NYC TREES any NYC TREES materials, including the Reserved Area Materials (unless otherwise agreed to in writing by NYC TREES).

INVESTIGATIONS

NYC TREES may seek to gather information from the user of the Website who is suspected of violating this Agreement, and from any other user of the Website. NYC TREES may suspend access or use by any users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate, without notice. If NYC TREES believes, in its sole discretion, that a violation of this Agreement has occurred, it may edit or modify any submission, posting or e-mails, remove the material permanently, cancel postings, warn users, suspend users and Passwords, terminate accounts or take other corrective action it deems appropriate. NYC TREES will fully cooperate with any law enforcement authorities or court order requesting or directing NYC TREES to disclose the identity of anyone posting any e-mails, or publishing or otherwise making available any materials that are believed to violate this Agreement.

YOU WAIVE AND HOLD HARMLESS NYC TREES FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY NYC TREES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER NYC TREES OR LAW ENFORCEMENT AUTHORITIES.

AGENT FOR NOTICE OF CLAIMED COPYRIGHT INFRINGEMENT

NYC TREES respects the intellectual property rights of authors. To assist copyright owners, NYC TREES has appointed an agent to receive notifications of claims or allegations of copyright infringement regarding materials available or accessible on, through, or in connection with a Website. Any person authorized to act for a copyright owner may notify us of such claims by contacting us in writing at the following address: info@nyctrees.com, Attn: Copyright Agent

Under Title 17, United States Code, Section 512(c)(3)(A), your notice of a claimed copyright infringement to our Designated Agent must be in the form of a written communication that includes the following information:

(a) Your address, telephone number and e-mail address;

(b) Identification of the copyrighted work (or works) that you claim has been infringed;

(c) A description of the material that you claim is infringing the copyrighted work;

(d) A clear description of where the infringing material is located on the Website, including its URL, so that NYC TREES can locate the material;

(e) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;

(f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and

(g) An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest.

ASSIGNMENT

 

We may assign our rights and obligations under this Agreement, without notice, to (i) any affiliate of NYC TREES, or (ii) any party or its affiliate acquiring all or substantially all of the assets or stock by merger or otherwise of NYC TREES or any affiliate of NYC TREES. This Agreement may not be assigned by you without our prior written consent.

RESOLVING DISPUTES

In the unlikely event that a problem occurs with respect to your use of the Site and these Terms, NYC TREES would like to address your concerns without requiring a formal legal case or proceeding.  Before filing a claim against NYC TREES, we ask that you try to resolve the dispute informally by contacting our Customer Service department. We will attempt to resolve the dispute informally by contacting you via email.

AGREEMENT TO ARBITRATE DISPUTES

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.

Claims Subject to Arbitration. Except as noted below, you and NYC TREES agree to resolve any controversy with or involving NYC TREES, including those arising out of NYC TREES’ business, services, products, marketing programs, interactions between you and NYC TREES, or the Terms, through final and binding arbitration. Your agreement to arbitrate such controversies is retroactive in effect and applies to all controversies regardless of whether they accrued before or after these Terms went into effect. Consistent with your agreement to resolve all controversies via arbitration, the arbitrator shall have exclusive authority to resolve all issues of arbitrability, including but not limited to issues of scope and enforceability.

Claims Excluded from Arbitration. The following claims are excluded from arbitration:

  1. Any disputes related to NYC TREES’ intellectual property rights (for example, trademark, trade secret, copyright, or patent rights).
  2. Claims within the jurisdiction of the applicable small claims court.
  3. Any claims that applicable law requires to be excluded.

About Arbitration. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. Arbitrator’s decisions are generally subject to much more limited review than a court decision.

Applicable Rules. To the extent the Terms memorialize a transaction in interstate commerce, the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Any arbitration with us will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“Consumer Rules”) of the American Arbitration Association (collectively the “AAA Rules”), as modified by the Terms, which govern in the event of a conflict. The rules and fee information are available at www.adr.org or by calling 1-800-778-7879. If your claim exceeds $150,000, the arbitration will be conducted by a panel of three arbitrators, unless all parties agree otherwise.

Costs of Arbitration. If the Consumer Rules apply, we will bear the cost of any filing fees and arbitrator’s fees for claims up to $75,000. You are responsible for all other additional costs, including expert witness fees and attorney’s fees, unless applicable law requires otherwise.  For any claims exceeding $75,000 or non-consumer claims, you will be responsible for paying administrative costs and fees as provided in the applicable arbitration rules.

Location of Arbitration and Applicable Law. Arbitration under these Terms and Conditions shall be held in New York, New York, or any other location we mutually agree to, subject to New York law. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York, to resolve your claim.

No Class, Collective, or Joint Actions. Absent our written consent, you may only resolve disputes with us on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, collective actions, class actions, private attorney general actions, and consolidated proceedings of any kind are not permitted.

Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, EVEN FOR DISPUTES NOT SUBJECT TO ARBITRATION.

Arbitrator’s Decision. All awards shall be reasoned awards and the arbitrator’s findings, reasoning, decision, and award shall be set forth in writing and shall be based upon and be consistent with the law of the jurisdiction that applies to the claims. Judgment on the arbitration award may be entered in any court having jurisdiction. In the event that the arbitration results in an award which imposes an injunction on you or on us or contains a monetary award in excess of $250,000, the award shall be reviewable on appeal initiated within 30 days of the award, and shall not be considered final until after the time for filing the notice of the appeal has expired. The appeal shall be governed by the AAA Optional Appellate Arbitration Rules; to the extent they are not inconsistent with this Agreement, and shall be conducted by a panel of three new arbitrators selected to hear the appeal under the procedure for appointment from the national roster, except that the AAA shall not unilaterally appoint the arbitrators for the appeal, unless you and we so agree. Appeals must be initiated within thirty (30) days of receipt of the underlying award, by filing a Notice of Appeal with any AAA office. The decision of the panel shall be by majority vote. Such review shall reconsider anew any aspect of the initial award requested by the appealing party. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. if the award does not impose an injunction on you or on us or contain a money award in excess of $250,000, then the award shall not be appealable and shall only be subject to such challenges as would otherwise be permissible under the FAA.

Alternative Arbitrator Selection.  Should the AAA be unavailable, unable or unwilling to accept and administer the arbitration of any claim under this agreement to arbitrate as written – in whole or in part and for any reason whatsoever or for no reason – this agreement to arbitrate shall not fail or be invalidated as a result. Rather, in that instance, the parties shall agree on a substitute arbitration organization, such as JAMS, that will enforce this agreement as written. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization or arbitrator(s) that will enforce this agreement to arbitrate as written.  Should the court decline or refuse, then and only then and within thirty (30) days of a final and non-appealable decision on the matter from such court, you and we shall each respectively pick one arbitrator, and those two arbitrators shall then, by mutual agreement and within 30 days of the selection of the second of them, select a third arbitrator. The third arbitrator so selected shall then arbitrate the Claim as the sole arbitrator, except with respect to a Claim for $150,000 or greater, in which case all three arbitrators so selected shall arbitrate the claim together, with the award and all pre-award decisions made by majority vote. In the case of any arbitration not administered by the AAA, the arbitrator(s) shall still be bound by all applicable provisions of this agreement to arbitrate and the Federal Arbitration Act. They further shall administer and conduct the arbitration under the applicable AAA Arbitration Rules, to the extent such rules may be practicably applied to an arbitration not administered by the AAA.

Your Right to Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by timely emailing info@nyctrees.com and providing the requested information as follows: (1) Your Name; (2) the URL of the Arbitration Provision; (3) Your Address; (4) Your Phone Number; and (5) a clear statement that you wish to opt out of this arbitration provision in the Terms of Use. To be effective, the Opt-Out Notice must be emailed no later than 30 days after the date the Terms of Use become effective. Please note that you will continue to be bound by any older arbitration provision you did not out opt of and any arbitration provision that otherwise governs your relationship with NYC TREES.

Severability. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced, except that if the “NO CLASS ACTIONS” provision is found unenforceable, this entire agreement to arbitrate shall be null and void (though the jury trial waiver will remain in full force and effect).

Survival. This arbitration provision survives the termination of the Terms and your relationship with us.

GOVERNING LAW AND JURISDICTION

The Website (excluding linked web sites) is controlled by NYC TREES from its offices within United States. NYC TREES makes no representations or warranties that the information, products or services contained on the Website are appropriate for use or access in locations other than the United States.

If you are using or accessing the Website from locations other than in the U.S., you are responsible for compliance with New York and United States laws, as well as local laws in countries from which you are accessing the Website, if and to the extent applicable.

In any circumstances where the Arbitration Agreement permits the parties to litigate in court, this Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. You expressly consent and agree to submit to the exclusive jurisdiction and venue in New York, in each case located in the Supreme Court of the State of New York, County of New York, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms in your country of residence or any other relevant country.

AMENDMENT

We reserve the right to make changes, modifications, amendments, and/or updates to the Website and these Terms at any time with or without prior notice and for any reason. Changes to these Terms shall be effective when posted. You are responsible for reviewing these Terms, including without limitation, the Privacy Policy and the Additional Terms, each time you use or access the Website. YOU AGREE THAT CONTINUED USE OF THE WEBSITE IS AN ACKNOWLEDGMENT AND CONSENT TO ANY AND ALL TERMS AND CONDITIONS CONTAINED IN THE TERMS, INCLUDING WITHOUT LIMITATION, THE PRIVACY POLICY AND THE ADDITIONAL TERMS, AS EACH MAY BE AMENDED FROM TIME TO TIME BY NYC TREES.

WAIVER

Our failure to exercise or enforce any right or provision of these Terms, including without limitation, the Privacy Policy and/or the Additional Terms shall not constitute a waiver of such right or provision.

SEVERABILITY

The provisions of this Terms, the Privacy Policy, and the Additional Terms expressly identified are intended to be interpreted in a manner which makes them valid, legal, and enforceable. In the event, any provision of the provisions is found to be partially or wholly invalid, illegal or unenforceable, such provisions shall be modified or restricted to the extent and in the manner necessary to render them valid, legal, and enforceable. It is expressly understood and agreed between the parties that such modification or restriction may be accomplished unilaterally by us, or alternatively, by disposition of a court of law. If such provisions cannot under any circumstances be so modified or restricted, they shall be excised from the Terms of Use without affecting the validity, legality or enforceability of any of the remaining provisions.

QUESTIONS

Questions or comments regarding the Website or these Terms, including the Privacy Policy and/or the Additional Terms, should be directed to: info@nyctrees.com, Attn: Webmaster

CORONAVIRUS / COVID-19:

By purchasing services you hereby acknowledge the contagious nature of the Coronavirus/COVID-19 and that the CDC and many other public health authorities still recommend practicing social distancing.

You further acknowledge that NYC TREES has put in place preventative measures to reduce the spread of the Coronavirus/COVID-19.

You further acknowledge that NYC TREES cannot guarantee that you will not become infected with the Coronavirus/Covid-19. You understand that the risk of becoming exposed to and/or infected by the Coronavirus/COVID-19 may result from the actions, omissions, or negligence of NYC TREES and/or others, including, but not limited to NYC TREES and any third party providers affiliated with NYC TREES.

You voluntarily seek services provided by NYC TREES and acknowledge that you are increasing your risk to exposure to the Coronavirus/COVID-19 by purchasing goods and services from NYC TREES.

You acknowledge that You must comply with all set procedures to reduce the spread during your Service appointment(s). .

You further attest that:

* You are not experiencing any symptoms of illness such as cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.

* You have not traveled internationally within the last 14 days.

* You have not traveled to a highly impacted area within the United States of America in the last 14 days.

* You do not believe you have been exposed to someone with a suspected and/or confirmed case of the Coronavirus/COVID-19.

*You have not been diagnosed with Coronavirus/Covid-19 and not yet cleared as non contagious by state or local public health authorities.

* You are following all CDC recommended guidelines as much as possible and limiting your exposure to the Coronavirus/COVID-19.

You hereby release and agree to hold NYC TREES harmless from, and waive on behalf of yourself, your heirs, and any personal representatives any and all causes of action, claims, demands, damages, costs, expenses and compensation for damage or loss to yourself and/or property that may be caused by any act, or failure to act of NYC TREES, or that may otherwise arise in any way in connection with any services received from NYC TREES. You understand that this release discharges NYC TREES, its agents, servants, employees, parents, affiliates, subsidiaries, directors, owners and principals, and all of their heirs, successors and assigns, from any and all liability or claim that you, your heirs, or any personal representatives may have against the NYC TREES with respect to any bodily injury, illness, death, medical treatment, or property damage that may arise from, or in connection to, any services received from NYC TREES. This liability waiver and release extends to NYC TREES, all owners, employees, and third party providers.

Effective Date: October 2020

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