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Terms and Conditions/
Terms of Use

Last updated August 30, 2019

Please read these Terms of Service (this “Agreement”) carefully. Your use of the Site (as defined below), including any NYBG products, software, data feeds and services made available to you on, from or through the Site and its respective sub-domains (together with all components, features or downloads related thereto, collectively the “Services”), constitutes your consent to this Agreement. If you do not agree with the terms of this Agreement, please do not use the Site.

This Agreement is between you and The New York Botanical Garden (“NYBG” or “we” or “us”) concerning your use of (including any access to) NYBG’s sites, including those currently located at www.nybg.org and www.nybgshop.org (together with any Content (as defined below), Services or other materials available therein, any successor site(s) thereto, and any NYBG mobile software application(s) (together with any successor application(s) thereto (the “App”)), collectively, the “Site”). Your use of the Site is governed by this Agreement regardless of how you access the Site (including through a mobile device, computer, television or other platform, device or hardware). This Agreement hereby incorporates by this reference any additional terms and conditions posted by NYBG through the Site, or otherwise made available to you by NYBG.

BY USING THE SITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT.

THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 20 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.

  1. Changes.We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.

Your use of the Site following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed, and you should periodically review the most up-to-date version of this Agreement. We may, at any time and without liability, modify or discontinue all or part of the Site (including access to the Site via any third party links); charge, modify or waive any fees required to use the Site; or offer opportunities to some or all Site users.

  1. Information Submitted Through the Site.Your submission of information through the Site is governed by NYBG’s Privacy Policy, located at nybg.org/about/privacy-policy/ (the “Privacy Policy”). You represent and warrant that any information you provide in connection with the Site is and will remain accurate and complete, and that you will maintain and update such information as needed.
  2. Jurisdictional Issues.The Site is controlled or operated (or both) from the United States, and is not intended to subject NYBG to any non-U.S. jurisdiction or law. The Site may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Site is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Site’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
  3. Rules of Conduct. In connection with the Site, you must not:
  • Post, transmit or otherwise make available through or in connection with the Site any materials that are or may be: (a) threatening, harassing, abusive, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
  • Post, transmit or otherwise make available through or in connection with the Site any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
  • Use the Site for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
  • Harvest or collect information about users of the Site.
  • Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available, including by hacking or defacing any portion of the Site; or violate any requirement, procedure or policy of such servers or networks.
  • Restrict or inhibit any other person from accessing the Site.
  • Reproduce, copy, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, publish, perform, upload, post, distribute or otherwise exploit any portion of (or any use of) the Site except as expressly authorized herein, without NYBG’s express prior written consent.
  • Reverse engineer, decompile or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law.
  • Remove any copyright, trademark or other proprietary rights notice from the Site.
  • Frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service, without NYBG’s express prior written consent.
  • Systematically download and store Site content.
  • Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Site content, or reproduce or circumvent the navigational structure or presentation of the Site, without NYBG’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Site’s root directory, NYBG grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. NYBG reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
  1. Offerings.The Site may make available listings, descriptions and images of goods or services or related coupons, specials, or discounts, including tickets to visit NYBG or attend NYBG events, merchandise in the NYBG Shop, placement in an NYBG class, Memberships to NYBG (collectively, “Offerings”), as well as references and links to Offerings. Such Offerings may be made available by NYBG or by third parties, and may be made available for any purpose, including general information purposes. The availability through the Site of any listing, description, or image of an Offering does not necessarily imply our endorsement of such Offering or affiliation with the provider of such Offering. We make no representations as to the completeness, accuracy, reliability, validity or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Offering (including the validity of any coupon, special, or discount) are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Offerings, including the applicable colors, however the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the purchase, possession and use of any Offering.
  2. Transactions.We may make available the ability to purchase or otherwise obtain certain Offerings through the Site (a “Transaction”). If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your credit card information, your billing address and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY CREDIT CARD THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. Verification of information may be required prior to the acknowledgment or completion of any Transaction. By making a Transaction, you represent that the applicable Offerings will be used only in a lawful manner. To the extent an Offering may be subject to additional laws, rules or policies, you may be notified of such additional laws, rules or policies through the “shopping cart” functionality in the NYBG Store or another applicable place.

NYBG reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Offering; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Offering. You agree to pay all charges incurred by you or on your behalf through the Site, at the prices in effect when such charges are incurred, including all processing, shipping and handling charges. In addition, you are responsible for any taxes applicable to your Transactions. While it may be our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.

Offerings will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Site. All Transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Offerings pass to you upon delivery of the Offerings to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.

Refunds and exchanges will be subject to NYBG’s applicable refund and exchange policies.

  1. Registration; User Names and Passwords.You may need to register to use all or part of the Site. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not NYBG, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account at Passport; Online Ticketing, Enrole; Adult Education, Doubleknot; Children’s Education, or Planned Giving. Although NYBG will not be liable for your losses caused by any unauthorized use of your user name or password, you may be liable for the losses of NYBG or others due to such unauthorized use.
  1. Profiles and Forums. Site visitors may make available certain materials (each, a “Submission”) through or in connection with the Site, including on profile pages or on the Site’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality or through or in connection with a third party website or application. NYBG has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SITE, YOU DO SO AT YOUR OWN RISK.
  2. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, publish (including through RSS feeds), transmit, perform and display (publicly or otherwise), excerpt, create derivative works of, adapt (including the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), modify, host, index, cache, tag, encode and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including online and offline promotional purposes, such as testimonials).

In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Site or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place NYBG under any fiduciary or other obligation.

You are solely responsible for the content of your Submissions. You represent and warrant that you have all rights necessary to grant the licenses granted in this Section, and that your Submissions, and your provision thereof through and in connection with the Site, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.

  1. Monitoring.We may and expressly reserve the right (but have no obligation) to monitor, scan, intercept, review, analyze, store, alter or remove any information (including Submissions or any messages, information, content or other materials sent to you, or received by you, in connection with the Site or its features or functionalities), at any time, including while it is in transit, and before and after it is stored or made available through the Site, and to monitor, review or analyze your access to or use of the Site, in each case by manual, automated or other means, and in each case for any purpose, including such purposes as may be described in the Privacy Policy.
  2. Your Limited Rights.Subject to your compliance with this Agreement, and solely for so long as you are permitted by NYBG to use the Site, you may view one copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial, educational use. Apps are licensed (not sold) to you and other end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by NYBG to use any App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use such App on a mobile device that you own or control, solely for your personal, non-commercial and private use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device. You agree that you will not publicly display or perform, (in whole or in part) the Site, including any Content, Services or other materials made available through or in connection with the Site.
  3. NYBG’s Proprietary Rights.We and/or our licensors and suppliers own the Site, including all text, audio, graphics, music, video, data, images, software and web site appearances, design, interactive features and other materials available through or in connection with the Site (collectively, “Content”), which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include “THE NEW YORK BOTANICAL GARDEN,” “NYBG,” “THE NEW YORK BOTANICAL GARDEN SHOP,” “NYBG SHOP,” “THE HOLIDAY TRAIN SHOW,” “#PLANTLOVE,” and any associated logos. All trade names, trademarks, service marks and logos on the Site not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner. You acknowledge that any use or reproduction of Content or any trade names, trademarks, service marks or logos by you, except as expressly permitted herein, will result in irreparable damage and you hereby consent to the entry of injunctive relief against such use.
  4. Third Party Materials; Links.Certain Site functionality may make available access to information, products, services, advertisements and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.

We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by NYBG with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Site at any time. In addition, the availability of any Third Party Materials through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.

YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).

  1. Promotions. Any sweepstakes, contests, raffles, surveys, games or similar promotions (collectively, “Promotions”) made available through the Site may be governed by rules that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern.
  2. DISCLAIMER OF WARRANTIES.TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SITE AND ANY CONTENT, SERVICES, OFFERINGS, THIRD PARTY MATERIALS AND OTHER MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) NYBG DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SITE AND ANY CONTENT, SERVICES, OFFERINGS, THIRD PARTY MATERIALS AND OTHER MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH NYBG AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUBSIDIARIES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.

While we try to maintain the timeliness, integrity and security of the Site, we do not guarantee that the Site is or will remain updated, complete, correct or secure, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, contact us at nybg.org/about/contact/ with a description of such alteration and its location on the Site.

  1. LIMITATION OF LIABILITY.TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) NYBG WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, BUSINESS INTERRUPTION, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, NYBG WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT, SERVICES, OFFERINGS, THIRD PARTY MATERIALS OR OTHER MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH OR ANY DAMAGE RESULTING TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE FROM ANY DOWNLOADS; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT, SERVICES, OFFERINGS, THIRD PARTY MATERIALS OR OTHER MATERIALS, IS TO STOP USING THE SITE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF NYBG FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO NYBG TO USE THE SITE, AND (II) TWENTY DOLLARS ($20.00). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH NYBG AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
  2. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless NYBG and the Affiliated Entities, and their respective successors and assigns, from and against all claims, demands, liabilities, damages, judgments, awards, losses, deficiencies, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Site (including all Content, Offerings, Services and Submissions); and (b) any violation or alleged violation of this Agreement or the law of any jurisdiction by you.
  3. Termination. This Agreement is effective until terminated. NYBG may terminate or suspend your use of the Site at any time and without prior notice, for any or no reason, including if NYBG believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site will immediately cease, and NYBG may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 2–5, 8–11 and 13–26 shall survive any expiration or termination of this Agreement.
  4. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND NYBG, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT NYBG AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.

YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.

The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or video conference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.

  1. Filtering.We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that NYBG does not endorse any of the products or services listed on such site.
  2. Information or Complaints. If you have a question or complaint regarding the Site, please contact us at nybg.org/about/contact/. You may also contact us by writing to Marketing Department – Website, The New York Botanical Garden, 2900 Southern Boulevard, Bronx, New York 10458. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
  3. Important Note to New Jersey Consumers.If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act; (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify NYBG (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the New York governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
  4. Copyright Infringement Claims.The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send to NYBG a written notice by mail or e-mail requesting that NYBG remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to NYBG a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Office of the General Counsel as follows: By mail to Office of the General Counsel, The New York Botanical Garden, 2900 Southern Boulevard, Bronx, New York 10458; or by e-mail to copyright@nybg.org; or by phone at 718-817-8859.
    We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
  5. Miscellaneous.This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and NYBG. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and NYBG relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and NYBG relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. NYBG will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.