By clicking the "I AGREE" button that follows these Mobile Application Terms and Conditions (these "Terms and Conditions") or by otherwise accessing or using the Ortho Problem Solver mobile application ("Application"), you ("You") agree as follows:
MODIFICATIONS TO THE APPLICATION TERMS AND CONDITIONS
You acknowledge and agree that The Scotts Miracle-Gro Company ("Scotts-Miracle-Gro") may, in its sole discretion, amend or modify the Application and these Terms and Conditions (including any instructions, policies or guidelines referenced herein) at any time and in any manner. All such modifications shall be binding upon You when made. You may not amend or modify the Application or these Terms and Conditions under any circumstances.
2. REPRESENTATIONS, COVENANTS AND WARRANTIES
2.1. Representations, Covenants and Warranties
You represent, covenant and warrant to Scotts Miracle-Gro that (1) these Terms and Conditions have been executed and delivered by You and constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (2) You will not access or use the Application except as expressly permitted by these Terms and Conditions and any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted in the Application; (3) You will access and use the Application in full compliance with all Applicable Laws (as defined in Section 3); and (4) all of the data and other materials You provide in obtaining the Application are accurate and truthful in all respects.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, SCOTTS MIRACLE-GRO MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION IS TRUE, COMPLETE ACCURATE, NON-MISLEADING OR TIMELY. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT SCOTTS MIRACLE-GRO IS NOT RESPONSIBLE FOR ANY LAWN OR GARDEN OR OTHER DECISIONS MADE BY YOU BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION, OR WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, SCOTTS MIRACLE-GRO DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT THEY WILL BE FREE FROM VIRUSES OR OTHER HARMFUL CODE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT SCOTTS MIRACLE-GRO IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.
You shall use the Application in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted within the Application; and (3) all applicable laws, rules and regulations (collectively, "Applicable Laws").
Scotts Miracle-Gro may engage any third party (including Scotts Miracle Gro's affiliates) to perform, or support the performance of, all or any portion of the Application.
5. INTELLECTUAL PROPERTY RIGHTS RESTRICTIONS ON USE
5.1. Ownership of the Application and Related Data
As between Scotts Miracle-Gro and You (collectively, "Parties"), Scotts Miracle-Gro owns and will retain ownership of all rights, title and interest in and to the Application, including (1) all content displayed on the Application, to the extent such content is developed by Scotts Miracle-Gro or its third party licensors, including any derivative works of the Application and any such content; (2) any data presented on or by the Application or otherwise stored by Scotts Miracle-Gro and its third party providers, except for personal information that You submit to Scotts Miracle-Gro through Your use of the Application (which shall be owned by You); and (3) any intellectual property or other proprietary rights comprising any of the foregoing (collectively, "Scotts Miracle-Gro IP"). Neither these Terms and Conditions nor any disclosure made hereunder grant any license to You under any Scotts Miracle-Gro IP.
5.2. Use of the Application
You may use the Application, including any data presented on or by the Application for You, or otherwise hosted or stored by Scotts Miracle-Gro for You, only on Your own behalf for Your personal use and for lawful and appropriate purposes. You shall not use the Application or any of the data presented on or by the Application, or otherwise hosted or stored by Scotts Miracle-Gro, for any commercial purpose. You will notify Scotts' Miracle Gro immediately upon any suspected unauthorized use of the Application, whether by You or a third party, or any suspected loss of or suspected unauthorized access to passwords or other log in information used by You to access the Application. You shall be solely responsible for maintaining the confidence and security of any login information, and Scotts Miracle Gro shall bear no liability or other responsibility associated therewith.
6. PRIVACY NOTICE
7. SUSPENSION; TERMINATION
Scotts Miracle-Gro may suspend or limit Your access to the Application , if Scotts Miracle-Gro, in its sole discretion, suspects that You are in violation of, or reasonably likely to be in violation of, these Terms and Conditions or any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted in the Application or on the Website.
7.2. Termination by Scotts Miracle-Gro
Scotts Miracle-Gro may terminate Your right to access and use the Application, as follows:
(a)For Cause Immediately (1) in order to comply with Applicable Laws or instructions from any governmental agency or authority; (2) if Scotts Miracle-Gro, in its sole discretion, suspects that You are using the Application in a manner not permitted by these Terms and Conditions or any additional instructions, guidelines or policies issued by Scotts Miracle-Gro; or (3) upon any breach of these Terms and Conditions by You.
(b)For Convenience. For convenience, upon notice by Scotts Miracle-Gro to You.
7.3. Effect of Termination/Survival of Selected Provisions
(a)Effect of Termination . Upon the termination of Your rights to use the Application, for any reason (1) You will no longer be authorized to access or use the Application or otherwise use any of the features or services offered by or through the Application; (2) Scotts Miracle-Gro may delete any data associated with You; and (3) all rights and obligations of the Parties under these Terms and Conditions shall expire, except those rights and obligations under those sections specifically designated in Section7.3(b).
(b) Survival . Notwithstanding the termination of Your rights to use the Application, the following sections of the Terms and Conditions shall survive any such expiration or termination: Sections 2.2, 5.1, 7.3, 8, 9, and 10.
8.1 Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE SCOTTS MIRACLE-GRO GROUP (AS DEFINED IN SECTION 9 SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE APPLICATION, OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT (INCLUDING THESE TERMS AND CONDITIONS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY SCOTTS MIRACLE-GRO, INCLUDING THOSE POSTED IN THE APPLICATION OR ON THE WEBSITE), NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE "EXCLUDED DAMAGES"). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH; LOSS OF, OR DAMAGE TO, REAL OR PERSONAL PROPERTY; THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF SCOTTS MIRACLE-GRO CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE EXCLUDED DAMAGES, THEN THE SCOTTS MIRACLE-GRO GROUP WILL BE LIABLE TO YOU, IN THE AGGREGATE FOR ALL CLAIMS ARISING HEREUNDER, FOR LIQUIDATED DAMAGES OF $10.00. IN SUCH EVENT, YOU ACKNOWLEDGE AND AGREE THAT THE EXCLUDED DAMAGES FOR ALL CLAIMS ARISING HEREUNDER CANNOT BE CALCULATED WITH REASONABLE CERTAINTY. YOU FURTHER AGREE THAT $10.00 REPRESENTS (1) A REASONABLE APPROXIMATION OF THE EXCLUDED DAMAGES THAT YOU WILL SUFFER FOR ALL CLAIMS ARISING HEREUNDER AND THAT SUCH LIQUIDATED DAMAGES DO NOT CONSTITUTE A PENALTY, AND (2) THE EXCLUSIVE REMEDY TO YOU FOR EXCLUDED DAMAGES IN CONNECTION WITH ALL CLAIMS ARISING HEREUNDER. THESE LIMITATIONS APPLY EVEN IF ANY OTHER REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE.
At its option, any member of the Scotts Miracle-Gro Group may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions, including any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted in the Application or on the Website, and/or actions for damages.
No action arising out of, in connection with, or relating to these Terms and Conditions or the subject of these Terms and Conditions shall be brought by You more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law that would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.
You will indemnify and hold harmless Scotts Miracle-Gro, its affiliates, and its and their respective current, future or former officers, directors, equity holders, employees, agents, licensors, contractors, successors and assigns (collectively, the "Scotts Miracle-Gro Group") on demand, from and against any and all fines, penalties, liabilities, losses, expenses, costs and other damages of any kind whatsoever (including attorneys' and experts' fees), incurred by any of the members of the Scotts Miracle-Gro Group arising out of or relating to your use of the Application (including all services provided in connection therewith), or your violation of these Terms and Conditions. If directed by Scotts Miracle-Gro, You shall defend the Scotts Miracle-Gro Group against (1) all claims that any information, data or other materials provided by You in connection with your use of the Application or these Terms and Conditions, or use thereof by any member of the Scotts Miracle-Gro Group, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party ; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, You; and (3) all claims otherwise arising due to a failure by You to comply with any term or condition of these Terms and Conditions, including any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted in the Application or on the Website.
All rights and obligations of You or the Scotts Miracle-Gro Group relating to these Terms and Conditions, including any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted in the Application or on the Website, shall be governed by and construed in accordance with the laws of the State of Ohio without giving effect to any choice-of-law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.
10.2.Waiver and Severability
No waiver by Scotts Miracle-Gro of any term or condition set forth in these Terms and Conditions shall constitute a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Scotts Miracle-Gro to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is held to be invalid, void, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remainder of the provisions will continue in full force and effect.
At its option, Scotts Miracle-Gro may seek all remedies available to it in these Terms and Conditions, under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions and any additional instructions, guidelines or policies issued by Scotts Miracle-Gro (including those posted on the Website).
These Terms and Conditions any additional instructions, guidelines or policies issued by Scotts Miracle-Gro, including those posted in the Application or on the Website constitute the entire agreement of the Parties with regard to Your use of the Application, and all matters addressed herein, and all prior and contemporaneous agreements, letters, proposals, discussions and other documents regarding the Application and the matters herein are superseded and merged into these Terms and Conditions.
Scotts Miracle-Gro will be excused from performance under these Terms and Conditions for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms and Conditions, in whole or in part, as a result of a Force Majeure Event. For purposes of this Section 10.5, "Force Majeure Event" means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to Scotts Miracle-Gro's information technology systems by third parties; or (6) any other causes beyond the reasonable control of Scotts Miracle-Gro.
You may not assign these Terms and Conditions (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of Scotts Miracle-Gro, which may be withheld at Scotts Miracle-Gro's sole discretion. Any attempted assignment by You that does not comply with the terms of this Section 10.6 shall be null and void. Scotts Miracle-Gro may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.