TERMS OF SERVICE FOR ONLINE CONSULTATIONS
You and the Service Provider enter an agreement pursuant to, and in accordance with, these terms and conditions and agree as follows:
1. DEFINITIONS
Unless the context requires otherwise and unless explicitly defined elsewhere in this Agreement, capitalised terms and expressions in this Agreement are defined terms and expressions which shall have the following meaning:
(a) “Agreement” means these terms and conditions together with the contents of the Application Form (upon submission by You);
(b) “Application Form” means the application form provided to You by the Service Provider to register for the Consultation;
(c) “Commencement Date” means the date on which the Service Provider has confirmed the Consultation by email after You have submitted the Application Form;
(d) “Confidential Information” means, in relation to a Party, all information (whether the information is in oral or written form or is recorded in any other medium):
(i) about or pertaining to the business of that Party, its affiliates, or their respective clients, suppliers, or business associates (including but not limited to information on products, technology, IT operations, intellectual property rights, know-how, financial information, and personal data), which is disclosed to the other Party, its affiliates or their respective personnel or contractors (or personnel of a contractor), or which is acquired by or otherwise comes to the knowledge of the other Party) in connection with the Consultation;
(ii) the contents of this Agreement;
(iii) all information identified by a Party as confidential; and
(iv) all other information of which the other Party knows or should reasonably know to be of a confidential nature;
(e) “Parties” means You and the Service Provider;
(f) “Party” means either of the Parties;
(g) “Service Provider” means Garden Butterfly having its registered business address located in Los Angeles county; and
(h) “You” or “Your” means any (natural or legal) person who has agreed to, and is therefore bound by, this Agreement.
2. CONSULTATION
2.1 The assignment for which You have engaged the Service Provider is an online meeting for a maximum duration of 90 minutes, or 30 minutes, as designated and chosen in the payment option, during which the Service Provider provides consultation (hereinafter referred to as; the “Consultation”). The Consultation will take place on Zoom unless the Parties agree otherwise.
2.2 The scope of the Consultation does not include:
(a) additional (online) meetings, calls, emails, or other forms of communication;
(b) results in relation to or outcomes from the Consultation; and/or
(c) other services.
2.3 You are prohibited from having any other party join, view, listen in on, or in any way participate in, the Consultation.
3. ADDITIONAL SERVICES
3.1 For any additional services, including but not limited to additional (online) consultations, calls, emails, or other forms of communication, the Service Provider will charge an additional fee. The Service Provider is not obliged to honour any request for additional services and may require that, for that purpose, a separate written agreement should be entered into.
3.2 If, during or after the Consultation, additional or new services are agreed upon between the Service Provider and You, this Agreement shall apply to such services unless a new written agreement is agreed between the Parties.
4. DISCLAIMERS, REPRESENTATIONS AND WARRANTIES
4.1 All information, materials, and content provided in connection with the Consultation are offered “as is” and “as available,” without warranties of any kind. The Service Provider does not guarantee that the Consultation or its content will be free from errors, omissions, or technical issues.
4.2 All information shared during this Consultation is intended for general educational and informational purposes only. It does not constitute personalized design advice, a professional assessment of any specific garden or landscape, or the establishment of a formal professional/contractor/designer-client relationship. Outcomes are not guaranteed, and implementation of any ideas discussed is solely at your discretion and responsibility. For site-specific guidance or immediate landscape or garden assistance, please consult a licensed professional in your area.
4.3 The Service Provider only performs the Services on the basis of a best-efforts obligation. The Service Provider is not responsible for: (i) the effectiveness of the Consultation; (ii) any results in relation to or outcomes from the Consultation; or (iii) any decisions made by You or any other third party based on the Consultation and/or any results in relation to or outcomes from the Consultation. The Service Provider does not represent, warrant, or guarantee the effectiveness of the Consultation or the results in relation to or outcomes from the Consultation. The Service Provider’s comments about the effectiveness of the Consultation and/or result(s) and/or outcome(s) are expressions of opinion only.
4.4 You acknowledge that the Service Provider cannot make any such representations, warranties, or guarantees mentioned in this clause 4 and that You cannot hold the Service Provider liable in relation to: (i) errors or omissions; (ii) the effectiveness of the Consultation; (iii) any results in relation to or outcomes from the Consultation; or (iv) any decisions made by You or any other third party based on the Consultation and/or any results in relation to or outcomes from the Consultation.
4.5 The Service Provider will use commercially reasonable efforts to protect data and files, but no system is entirely secure. You understand that unauthorized access may occur and that use of the Site is at your own risk.
5. FEE
5.1 As consideration for the Consultation, you agree to pay the Service Provider a one-time fee of either $150.00 or $50.00 USD, depending on the consultation option selected at the time of booking (hereinafter referred to as the “Consultation Fee”).
5.2 As consideration for any Digital Product, you agree to pay a one-time fee based on the Digital Product option selected at the time of purchase.
5.3 Unless otherwise agreed in writing, fees for all other services provided by the Service Provider will be billed based on time spent, at an hourly rate of $100.00 USD.
5.4 If the Service Provider incurs expenses on your behalf, these will be charged separately.
5.5 Prices for Digital Products and Consultations may change at any time. The Service Provider does not offer price protection or refunds for price reductions or promotional offers. If a Consultation or Digital Product becomes unavailable after purchase but before delivery, your sole remedy is a refund. If technical issues caused by the Service Provider prevent or unreasonably delay delivery, your exclusive remedy will be either a replacement or refund, as determined by the Service Provider.
5.6 All amounts stated in this Agreement are exclusive of applicable sales or value-added taxes. If such taxes apply, you agree to pay them in addition to the Consultation Fee.
6. BILLING
6.1 You agree to pay the Consultation Fee in full at the time of booking through the Service Provider’s Stan Store.
6.2 If You fail to tender full and/or timely payment of the Consultation Fee or if the payment of the (full) Consultation Fee is cancelled or charged back, the Consultation will be automatically cancelled.
6.3 Unless otherwise agreed, the Service Provider will invoice You for additional services performed and expenses incurred at the end of a matter, with a payment term of two days, starting from the date of the invoice.
6.4 All payments under this Agreement are processed via PayPal, and you are responsible for any applicable transaction fees. The Service Provider is not liable for issues caused by third-party platforms or services, including PayPal or your internet provider. Any such issues are governed by your agreement with those providers.
7. REFUND POLICY & WAIVER COOLING-OFF PERIOD
7.1 You waive any statutory “cooling-off,” “withdrawal,” or other cancellation rights to the extent they conflict with the refund policy in this clause.
7.2 You may reschedule your Consultation once, free of charge, by providing at least 48 hours’ notice via email to info@gardenbutterflyla.com. Include “Reschedule Consultation” in the subject line. No further rescheduling will be permitted.
7.3 If you cancel a Consultation less than 48 hours prior to the scheduled Consultation, or fail to attend the Consultation within a 10-minute grace period, You will not be entitled to a refund. The grace period does not extend the Consultation duration.
7.4 The Service Provider reserves the right to cancel the Consultation by giving You notice by email at any time. The Service Provider shall refund You the Consultation Fee. The Service Provider’s liability when it cancels a Consultation shall be limited to a refund of the Consultation Fee.
7.5 If You miss a Consultation, You will not be refunded
7.6 Refunds, if granted, may be subject to an administration fee.
7.7 You are not entitled to a refund if you breach any payment or other obligations under this Agreement.
8. LIMITATION OF LIABILITY
8.1 Without prejudice to clause 8.4, the Service Provider’s aggregate liability is limited to direct damages and the Consultation Fee, excluding sales taxes, value-added taxes, and any other taxes, actually paid by You to the Service Provider and actually received by the Service Provider under this Agreement.
8.2 Without prejudice to clause 8.4, the Service Provider is not liable for indirect damages or loss, including, but not limited to, consequential, incidental, special, or exemplary damages, or any loss of revenue, profits, savings, business opportunities, use, data, goodwill, or any loss due to business interruption.
8.3 You waive any right or remedy in equity, including, but not limited to, the right to seek specific injunctive, performance or other equitable relief, in connection with the Consultation or this Agreement.
8.4 Nothing in this clause 8 shall operate to limit liabilities in the event of fraud, wilful misconduct, gross negligence or any (other) liabilities that cannot be limited under applicable law.
9. INDEMNITY
You indemnify and hold harmless the Service Provider against all claims from third parties – including, but not limited to, shareholders, directors, supervisory directors, and staff of the Service Provider, as well as affiliated legal entities and companies, and other parties involved in the organisation of the Service Provider – that arise from or are related to the Consultation and/or the execution of this Agreement. You also indemnify the Service Provider against claims from third parties in which the Service Provider is regarded as Your co-perpetrator.
10. TERM & TERMINATION
10.1 This Agreement is effective as per Commencement Date and continue until either:
(a) the Consultation is completed and any payments due under this Agreement have been paid to the relevant Party in full; or
(b) You or the Service Provider terminate(s) this Agreement in accordance with this clause 10.
10.2 If You later retain the Service Provider to perform further or additional services, this Agreement will be revived unless a new written agreement is agreed upon between the Parties.
10.3 Either Party shall be entitled to terminate this Agreement by email to the other Party at any time, with or without reason, with immediate effect and thus without observing a notice period, and without being liable or any compensation being due.
10.4 If this Agreement is terminated, which termination can only occur on the basis of and in accordance with the relevant provisions of this Agreement, then:
(a) all rights and obligations of the Parties under this Agreement shall end and become ineffective, except for:
(i) the rights and obligations accrued before that date;
(ii) any rights and (payment) obligations of or pursuant to clauses 5 (Fee), 6 (Billing), and 7 (Refund policy) if and to the extent any payments are still outstanding, provided that You are not due and the Service Provider does not owe You any refunds or other payments if the Service Provider terminates this Agreement due to a violation or breach of clause 11 (Non-disparagement and prohibited use), 12 (Confidentiality) and/or 13 (Intellectual property rights); and
(iii) any rights and obligations of or pursuant to clauses 11 through 22, which will remain in full force and effect after termination of this Agreement;
(b) such termination shall be without prejudice to any rights a Party may have vis à vis the other Party in connection with a breach of any provision of or obligation under this Agreement occurring prior to their termination; and
(c) any future Consultations will be cancelled immediately.
11. NON-DISPARAGEMENT AND PROHIBITED USE
11.1 You agree not to disparage the Service Provider’s brand, products, services or persons working for or employed by the Service Provider.
11.2 You agree that You will not make any unsubstantiated claims that will ruin the business reputation of the Service Provider.
11.3 You shall not use any information or materials in relation to the Consultation, the Service Provider, and/or this Agreement in any way that:
(a) is illegal, infringes or violates the rights of anyone;
(b) is offensive, obscene, defamatory, abusive, profane, hateful, vulgar, obscene, libellous, pornographic, political, threatening, derogatory, upsetting, insulting, misleading, discriminatory, sexist, racist or harmful to anyone in any way;
(c) disparages or discredits a Party;
(d) encourages or advocates conduct that constitutes a criminal offence, giving rise to (civil) liability or otherwise violates any law;
(e) is likely to cause confusion among third parties;
(f) portrays or insinuates any endorsement or sponsorship of a Party or its products or services by the other Party or in any other way portrays or insinuates that a Party supplies or approves of the other Party or its products or services; or
(g) portrays or insinuates any special relationship between the Parties.
12. CONFIDENTIALITY
12.1 You shall use Confidential Information solely for the purposes of the Consultation and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information for other purposes without the prior consent of the Service Provider given by email.
12.2 You acknowledge that the Confidential Information of the Service Provider, its affiliates, and third parties is strategic, commercially sensitive, and valuable and that the improper disclosure or use thereof will cause serious damage and loss to the Service Provider.
12.3 The restrictions in this clause 12 shall not apply if and to the extent the information is or becomes available to the general public other than by disclosure by You in violation of this Agreement.
12.4 You shall have no obligation with respect to Confidential Information to the extent, but only to the extent, that such information is required or requested to be disclosed by applicable laws, provided that You, to the extent practicable and permitted, promptly notify the Service Provider of such request or requirement.
12.5 For the purposes of this clause 12, disclosures relating to Confidential Information that are specific shall not be deemed to be within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain, in Your possession, or received from a third party. In addition, any combination of features shall not be deemed to be within the exceptions merely because the individual features are in the public domain, in Your possession, or received from a third party unless the combination itself and its principle of operation are in the public domain, in Your possession or received from a third party.
12.6 You shall notify the Service Provider as soon as reasonably practicable of any unauthorized use, or attempted use, of the Service Provider’s Confidential Information, and provide all information necessary to assist the Service Provider in any investigation it considers necessary, including for the purposes of mitigating damages, any claim, or the prevention of a recurrence. Additionally, You undertake Your best efforts to prevent a recurrence to the extent this is within Your control.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 This Agreement does not give You any ownership rights, intellectual property rights, license or interest in any information or materials provided to You by or on behalf of the Service Provider, including, but not limited to, electronic files, data, websites, training, testing, and examination materials, as well as other materials such as analyses, designs, reports, and documentation, including, but not limited to, preparatory materials for these materials, or any other intellectual property or know-how.
13.2 Any intellectual property rights remain exclusively vested in the Service Provider, its licensors, or its suppliers. The Service Provider shall not be obliged to assign or license to You any intellectual property rights pursuant to this Agreement. You shall not acquire nor claim any right to, title to, or interest in or to such intellectual property rights by reason of this Agreement, and nothing in this Agreement shall be construed as constituting such right, title, or interest. You shall not at any time do anything to impair the rights of the Service Provider to its intellectual property rights.
13.3 You provide the Service Provider with a non-revocable, royalty-free, non-exclusive license to use any materials, content and information created and/or provided by You in relation to the Consultation and/or the Service Provider in any public communication and any communication purposes with third parties, including, but not limited to, for the purpose of marketing, advertising, and promotion.
14. DATA PROTECTION
The Service Provider only uses Your personal data for the purposes set out in this Agreement. The Service Provider shall ensure it complies with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data. For more information on how Your personal data is collected, used and stored by the Service Provider, please refer to the Service Provider’s privacy policy which You can find here: https://www.gardenbutterflyla.com/contact.
15. COMMUNICATION
15.1 Any notice, request, consent, claim, demand, or other communication between the Parties in connection with the Consultation or this Agreement must be sent by email in English to the following email addresses set out for each of the Parties below:
(a) to the Service Provider:
Name: Garden Butterfly
Attention: Brandy Williams, President
Email: info@gardenbutterflyla.com
(b) to You: the contact information provided by You in the Application Form,
or such other address as a Party may notify to the other Party.
15.2 Unless another means of communication is explicitly provided for in this Agreement, You shall not use any other means of communication, such as text messages, direct messages on social media platforms, (registered) postal mail, or phone calls, to communicate with the Service Provider unless the Service Provider has explicitly agreed to such other means of communication.
15.3 This Agreement may expressly state that certain communications may be conducted through other specified means of communication. Such specified means of communication shall only be used for the purposes designated by this Agreement.
15.4 The Service Provider shall endeavour to respond to emails within 72 hours on Business Days, which is a target and not a guaranteed service level. The Service Provider shall not be liable for failure to respond to emails within the aforementioned timeframe or the consequences arising therefrom, and any such failure shall not constitute a breach of this Agreement.
16. ELECTRONIC SIGNATURE
This Agreement constitutes an electronic contract between You and the Service Provider with the full force and effect of a handwritten signature. The Parties enter into this Agreement by submission of the Application Form by You by way of clicking on the “Submit/Book appointment/Book a Call” button on the Application Form and only after the Service Provider has confirmed the Consultation by email.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties relating to the Consultation and supersede any earlier agreements between the Parties with respect to the subject made hereof, whether in writing (which includes email) or oral.
18. AMENDMENTS & MODICATIONS
This Agreement may be changed, modified, or amended by the Service Provider at any time and at the Service Provider’s sole discretion by sending notice of such modification to You by email, effective as of the date of the email. Your participation in a Consultation following the effective date of such change will constitute Your acceptance of such changes, modifications, and/or amendments. If any such changes, modifications, and/or amendments are unacceptable to You, Your only recourse is to terminate this Agreement in accordance with clause 10.3.
19. ASSIGNMENT
You may not assign or transfer the Consultation or any of Your rights or obligations under this Agreement unless agreed between the Parties by written agreement or email.
20. ENFORCEABILITY
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. Any such invalid or unenforceable provision shall be replaced or be deemed to be replaced with a provision that is valid and enforceable and reflects as closely as possible the intent of the invalid or unenforceable provision.
21. NO WAIVER
No failure or delay by the Service Provider in exercising any right or remedy under or in connection with this Agreement shall impair any right or remedy or operate or be construed as a waiver of any right or remedy.
22. CHOICE OF LAW
This Agreement and any non-contractual obligations arising out of or in connection with this Agreement shall be governed by the laws of the State of California, the United States of America.
23. DISPUTE RESOLUTION & ARBITRATION
23.1 Without prejudice to clause 23.2, all disputes arising out of or in connection with this Agreement or the Consultation, or further agreements resulting therefrom, shall be settled in accordance with the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be Los Angeles, California, United States of America. The proceedings shall be conducted in the English language. No award or procedural order made in the arbitration shall be published.
23.2 If:
(a) You are registered in the United States of America; or
(b) a dispute is not subject to arbitration under clause 23.1 for whatever reason,
that dispute shall be settled in the competent courts located in Los Angeles, California, and both Parties irrevocably consent to the exclusive jurisdiction and location of the competent courts in Los Angeles, California, United States of America, for the adjudication of all non-arbitral claims.
24. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICTS OF LAW. YOU FURTHER SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN LOS ANGELES, CALIFORNIA. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
25. These Terms of Use may be revised from time to time by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Terms
