TERMS AND CONDITIONS
1 DEFINITIONS
1.1 “Account” means a Company account created by a Customer which allows the Customer to access and use the Services.
1.2 “Agreement” means these Terms and Conditions, together with the Order Form and Company Privacy Policy.
1.3 “Application” means the Company’s mobile application “Garden Manager”.
1.4 “Company” means Electric Owl Solutions Ltd., a Nova Scotia company with offices located at Volta Labs, 1505 Barrington Street, Unit 100, Halifax NS, Canada B3J 3K5
1.5 “Customer” means any person or company who accesses and uses the Services. A person or company becomes a Customer and agrees to the terms of this Agreement by: i) clicking a box indicating acceptance, ii) executing an Order Form, or iii) using the Application or Services.
1.6 “Effective Date” means the date the Customer is first able to access and use the Services.
1.7 “Fees” has the meaning given to it in Section 6.1. The current standard Company fees are posted at gardenmanager.com/pricing/ at all times but individual Order Forms may vary from the posted fees and from Customer to Customer.
1.8 “Intellectual Property Rights” means patent rights (including, patent applications and disclosures), copyrights, trade secrets, trade-marks, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.9 “Order Form” means the Company Order Form, displayed and completed on the Site or Application, to be used by the Customer to subscribe for the Services.
1.10 “Services” means the services provided by the Company to the Customer through the use of its Site or Application as more particularly selected by the Customer on the Order Form. For clarity, the Services include any free or discounted services provided by the Company to the Customer.
1.11 “Site” means the Company website hosted at https://www.gardenmanager.com.
2 SAAS SERVICES AND SUPPORT
2.1 Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Customer with the Services.
2.2 Subject to the terms hereof, the Company will provide the Customer with reasonable technical support services in accordance with the Company’s standard practice. The Company reserves the right to change its standard practice at any time and without notice.
2.3 The Company may install updates and upgrades to the Site or Application from time to time without further notice to the Customer. These updates are designed to technically improve and/or enhance the Services. The Customer agrees that the Company may automatically deliver such updates and upgrades to the Customer as part of the use of the Services.
3 ACCOUNT REGISTRATION
3.1 As part of the registration process, the Customer will create an Account. The Customer will be required to identify an administrative user name and password for the Account. The Company reserves the right to refuse registration of, or cancel user names or passwords it deems inappropriate. The Customer represents, covenants, and warrants that the Customer will provide the Company with complete and accurate registration information (including, but not limited to a user name (“User Name”), e-mail address and a password you will use to access your Account), and to keep the Customer’s registration information accurate and up-to-date. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your Account.
3.2 The Customer shall never use another user's Account without such other user's prior express permission. The Customer will immediately notify the Company in writing of any unauthorized use of the their Account, or other Account related security breach of which the Customer is aware.
3.3 The Customer will not sell, trade or otherwise transfer its User Name, any rights that run with the Account, or any information therein to another party or charge anyone for access to any portion of the Services, or any information therein.
3.4 The Customer is prohibited from registering or creating an Account for any entity or individual other than the Customer, unless the Customer is expressly authorized to create Accounts on behalf of the entity or individual.
3.5 The Customer acknowledges and agrees that the Company may send the Customer information and notices regarding the Services by email or through other means. The Customer acknowledges and agrees that the Company shall have no liability associated with or arising from the Customer’s failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services.
4 RESTRICTIONS AND RESPONSIBILITIES
4.1 The Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or Software (except to the extent expressly permitted by the Company or authorized within the Services); use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to the Customer for use on Customer premises or devices, the Company hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
4.2 The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Company’s standard published policies then in effect and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Customer’s use of Services. Although the Company has no obligation to monitor the Customer’s use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4.3 The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without the Customer’s knowledge or consent.
4.4 The following is a partial list of prohibited activities on or through the Services: (1) using a robot, spider, script, automated process, or manual process to “scrape” the Site or Application’s listings or content; (2) taking any action that imposes an unreasonable or disproportionately large load on the Company’s hardware or software infrastructure; (3) attempting to reverse engineer, decompile, disassemble or otherwise obtain the source code to the Site or Application; (4) engaging in or promoting any illegal activities; (5) engaging in any activity that markets another business or attracts Customers to a competitor; (6) posting violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the Services; (7) transmit, install, upload or otherwise transfer to the Site or Application any unauthorized advertisement or communication, including but not limited to spam, and phishing emails; (8) transmit, install, upload or otherwise transfer to the Site or Application any content that violates or infringes the intellectual property rights of others (including but not limited to copyrights, trademarks, trade secrets, patents and publicity rights); (9) transmit, install, upload or otherwise transfer any virus, malware, or other item to the Site or Application that in any way affects the use or enjoyment of the Services; or (10) any other behavior that the Company, in its sole discretion, determines to be harmful or adverse to the Company, Customers or Services.
5 CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 The Customer understands that the Company has disclosed or may disclose business, technical or financial information of the Company (hereinafter referred to as “Proprietary Information”). Proprietary Information of the Company includes, without limitation, non-public information regarding features, functionality and performance of the Services. The Customer agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Company agrees that the foregoing shall not apply with respect to any information that the Customer can prove: (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Company, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Company or (e) is required to be disclosed by law.
5.2 The Company shall own and retain all right, title and interest in and to: (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, (c) all Intellectual Property Rights related to any of the foregoing, and (d) any non-public data provided by the Customer to the Company to enable the provision of the Services (“Customer Data”), as well as any data that is based on or derived from the Customer Data and provided to the Customer as part of the Services.
5.3 Notwithstanding anything to the contrary, the Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Company will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
6 PAYMENT OF FEES
6.1 The Customer will pay the Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Fees are based on the Services subscribed to by the Customer in the Order Form, and not actual usage. The Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time upon fifteen (15) days prior notice to the Customer (which may be sent by email). If the Customer believes that the Company has billed the Customer incorrectly, the Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department. Fees are non-refundable.
6.2 The Customer will provide the Company with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or the Customer otherwise provides the Company with credit card information, the Customer authorizes the Company to bill the Customer: (a) at the time that the Customer orders the Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Service Term. If the Company, in its discretion, permits the Customer to make payments using a method other than a credit card, the Company will invoice the Customer at the time of the initial Order Form and thereafter on a yearly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of the Customer’s receipt of the Company’s invoice.
6.3 Late payments shall be subject to a finance charge of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. The Customer shall be responsible for all taxes associated with the Services.
6.4 The Company uses a third-party payment processor (the “Payment Processor”) to facilitate payment of the Fees and the Company is not a party to the transaction. The processing of payments or credits, as applicable, in connection with the Fees are subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to this Agreement. The Company disclaims all liability associated with any errors that occur during such payment.
7 TERM AND TERMINATION
7.1 Subject to earlier termination as provided below, or as otherwise provided in the Order Form, this Agreement is on an annual basis and will automatically renew each year (collectively, the “Term”), unless either party requests termination at least thirty (30) days in advance of the end of the Term.
7.2 In addition to any other remedies it may have, the Company may terminate this Agreement immediately and without notice if the Customer materially breaches any of the terms or conditions of this Agreement. The Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7.3 The Customer may qualify for a free trial period during which they can use and test the Services without paying Fees (the “Trial Period”). Certain Services may not be available during the Trial Period. This Agreement shall apply during the term of the Trial Period and will automatically convert to a regular subscription upon the expiration of the Trial Period, pursuant to the terms of the Order Form, as described in Section 7.1 above, unless the Customer terminates the Trial Period before it expires.
8 WARRANTY AND DISCLAIMER
8.1 The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, the Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9 LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, THE COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THE COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY THE CUSTOMER TO THE COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10 MISCELLANEOUS
10.1 The Company may make changes to the terms of this Agreement from time to time, in its sole discretion. If the Company makes changes, the Company will provide notice of such changes, such as by sending an email notification, providing notice through the Services, or posting the amended terms to the Services. Unless the Company says otherwise in the notice, the amended terms will be effective immediately, and the Customer’s continued access to and use of the Services will confirm acceptance of the changes. If the Customer does not agree to the amended terms, the Customer must stop accessing and using the Services.
10.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.3 This Agreement is not assignable, transferable or sublicensable by the Customer except with the Company’s prior written consent. The Company may transfer and assign any of its rights and obligations under this Agreement without consent.
10.4 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
10.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever.
10.6 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.7 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.8 This Agreement shall be governed by the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein without regard to its conflict of laws provisions. The parties hereby attorn to the jurisdiction of the courts of the Province of Nova Scotia.
10.8
11 Contact Us:
If you have any questions, concerns or suggestions regarding the Services, please contact us at:
Email:happiness@gardenmanager.com
Attention:Chief Happiness Officer
These Terms of Service last updated on March 9, 2020.