Effective Date: [1/24/2017]
Ball Horticultural may, in its sole discretion, change these Terms from time to time as it relates to future use of the App, by posting revised Terms on the App. By using the App after the revised Terms have been posted, you signify your acceptance and agreement to be bound by the revised Terms. You may not change these Terms in any manner. Accordingly, we urge you to review the Terms at the start of each use of the App.
IF YOU DO NOT AGREE TO THE TERMS, DO NOT EXECUTE THIS AGREEMENT, AND DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE APP, VIEW, DOWNLOAD, OR OTHERWISE USE ANY GrowIt! WEBSITE, INFORMATION OR SERVICES THEREIN.
Wherever used in these Terms, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the App. If you are accessing and using the App on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.
You may use the App only if you are a resident of Canada or the United States, have reached the age of majority where you live and you can form legally binding contracts under applicable law, or you may use the App under the supervision of your parent or guardian. You may not use the App if you live in a jurisdiction where access to or use of the App or any part of it may be illegal or prohibited. It is solely your responsibility to determine whether your use of the App is lawful, and you must comply with all applicable federal, provincial, territorial and local laws of the United States, and Canada, including laws pertaining to the sending of a commercial electronic message, when sending e-mail communications or other commercial electronic messages to recipients in Canada.
Ball Horticultural reserves the right to request proof of identification and age.
You further represent and warrant that you: (a) have not previously been suspended or removed from using the App; (b) are not a direct competitor of the App; (c) that you have full power and authority to enter into this agreement and in doing so will not violate any other agreement to which you are a party; and (d) that you understand that the use of the App is at your own risk. The Content on the App may not be appropriate or functional for use outside the United States of America or Canada and users located outside the United States/Canada use the App understanding this limitation.
License and User Conduct
Ball Horticultural grants you a limited license to access and make personal use of this App. However, you may not modify the App and/or create derivative works from the App, except with express written consent of Ball Horticultural. This App may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Ball Horticultural. Any unauthorized use of the App shall automatically terminate the license granted to you by Ball Horticultural for such use.
You agree to abide by all applicable international, federal, state and local laws and regulations in your use of this App. You agree that Ball Horticultural may terminate your use of the App in Ball Horticultural's sole discretion for any reason.
You shall be solely responsible for your actions, use of the App, and the contents of your transmissions through the App. You shall not impersonate any person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity.
This App may contain links to websites operated by a third party. The links are provided “as is.” You should be aware that you use them at your own risk. Ball Horticultural does not endorse, and Ball Horticultural is not liable for any content, products, services, software or other materials available on such other sites, even if a page or pages of the other sites are framed within this App. Ball Horticultural is not responsible for the privacy practices or the content of other sites. For your protection, please refer to the terms of service and privacy policies of the respective sites. You acknowledge, understand and agree that Ball Horticultural shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such other sites. Ball Horticultural shall not be liable for any errors or delays in the content, goods or services available on such other sites, or for any actions taken or not taken in reliance thereon.
You may submit information, pictures, videos, audio, comments, software, scripts, graphics, or any other content to the App (collectively, “Content”). You retain your rights to any Content you submit, post, or display through the App. You acknowledge that all Content accessed by you using the App is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. By submitting, posting or displaying Content through the App, you grant Ball Horticultural a perpetual, transferable, fully-paid up, worldwide, non-exclusive, royalty-free, irrevocable license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, create derivative works from, transmit, display, and distribute such Content. You represent and warrant that you have all rights to grant such license to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
Ball Horticultural also has the right to remove, at its sole discretion, any Content from the App at any time for any purpose, without any notice, and without any liability.
The services provided by Ball Horticultural through the App require the use of potentially copyrightable material such as photographs, video recordings, audio recordings, and works of authorship. Copyright owners or their authorized agents may submit a complaint of alleged copyright infringement if they have a good-faith belief that their protected works are being infringed. We will respond to all such notifications that are sent via surface mail, courier, or email to:
Ball Horticultural Company
622 Town Rd.
West Chicago, IL 60185
Please write: “Infringing Content” on the envelope or cover sheet to speed up processing of your request. To be effective, your notification to us must be in writing and include:
A physical signature of the owner of an exclusive right that is allegedly infringed, or of a person authorized to act on behalf of the owner;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receipt of such notification, we shall promptly investigate the matter, and, if appropriate, remove or disable access to the allegedly infringing material. After we remove or disable access to such material, we will notify the user who posted such material. The user may then provide our designated agent proper “counter-notification” stating his or her authority to post the allegedly infringing material, which we will forward to the alleged copyright owner.
You acknowledge that materials and content provided by Ball Horticultural and made available on the App are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights (“Intellectual Property”). You may download or print copies of portions of such materials and content made available through the App, provided that you only use such copies for your own personal, non-commercial use and do not modify or alter these copies in any way, or delete or change any copyright, trademark or patent notices therein. No right, title or interest in any downloaded or printed materials and content is transferred to you. Except as we may expressly authorize, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from the materials and content on the App. You may only use the materials and content on the App as expressly permitted in these Terms and for no other purpose.
You are required to register and, represent, warrant and covenant that you are providing us with accurate and complete 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 within the App, and to keep your registration information accurate and up-to-date. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your account.
Ball Horticultural reserves the right to refuse registration of, or cancel a User Name in its sole discretion. Registration of any User Name does not guarantee any functionality of services within the App or that your User Name will be displayed to others on the App. You are solely responsible and liable for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password. You shall never use another user's account without such other user's prior express permission. You will immediately notify Ball Horticultural in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
You are prohibited from selling, trading or otherwise transferring your User Name, any rights that run with the account, or any information therein to another party or charging anyone for access to any portion of the App, or any information therein.
You are prohibited from registering or creating an account for any entity or individual other than yourself, unless you are expressly authorized to create accounts on behalf of the entity or individual.
You acknowledge and agree that we may send you information and notices regarding our services by email or through other means. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the App. You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims of a violation of the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Ball Horticultural, its customers.
Products and Fees
Certain features and functionality within the App or tied to your User Name may require you to pay a fee using a credit card (the “Paid Services”). Ball Horticultural uses a third-party payment processor (the “Payment Processor”) to facilitate payment for the Paid Services. The processing of payments or credits, as applicable, in connection with the Paid Services are subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to these Terms. Ball Horticultural disclaims all liability associated with any errors that occur during such payment. You are responsible for paying all taxes associated with your purchase of Paid Services.
If you are purchasing Paid Services as a reoccurring subscription, such Paid Services will automatically renew at the end of its applicable term. Subscriptions are billed in advance for the applicable term and are non-refundable. You agree that Ball Horticultural may process your credit card on each monthly, annual, or other renewal term (based on the applicable billing cycle). You may elect to cancel or downgrade your Online Services at any time.
Cancellation & Refund Policy
You may cancel any monthly event payment to Ball Horticultural and all other products, services and tools that we offer to which you subscribed through your member portal at http://www.retailers.growitmobile.com. Your cancellation will be effective within 3 business days of notice. You are responsible for all fees incurred up to and including the date of cancellation, including the 3-day delayed effective cancellation date. In no event will cancellation constitute a refund of fees already paid to Ball Horticultural or any and all other products, services and tools that we offer to which you subscribe.
The following is a partial list of prohibited activities on or through the App: (1) using a robot, spider, script, automated process, or manual process to “scrape” the App's listings or content; (2) taking any action that imposes an unreasonable or disproportionately large load on Ball Horticultural's hardware or software infrastructure; (3) attempting to reverse engineer, decompile, disassemble or otherwise obtain the source code to the App; (4) engaging in or promoting any illegal activities; (5) engaging in any activity that markets another business or attracts customers from the App to a competitor; (6) posting violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the App; (7) Transmit, install, upload or otherwise transfer to the App any unauthorized advertisement or communication, including but not limited to spam, and phishing emails; (8) Transmit, install, upload or otherwise transfer to the App 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 App that in any way affects the use, enjoyment or service of any users’ or Ball Horticultural employee's computer or other medium used to access the App;
Disclaimer of Warranties
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
BALL HORTICULTURAL DOES NOT GUARANTEE AND IS NOT OBLIGATED TO GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE APP WILL BE UNINTERRUPTED, ERROR FREE, OR VIRUS FREE, OR THAT THE APP WILL MEET YOUR REQUIREMENTS. BALL HORTICULTURAL, IN OUR SOLE DISCRETION, MAY INTERRUPT THE AVAILABILITY, ACCESSIBILITY, OR USABILITY OF THE APP, WITHOUT NOTICE, AT ANY TIME, WITHOUT ANY LIABILITY.
INFORMATION OBTAINED THROUGH THE APP HAS NOT BEEN VERIFIED, AND BALL HORTICULTURAL DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT SUCH INFORMATION IS ACCURATE, COMPLETE, RELIABLE, OR OTHERWISE VALID.
BALL HORTICULTURAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY SITE CONTENT FROM BALL HORTICULTURAL, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
BALL HORTICULTURAL IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF COMMENTS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE APP TO ANYONE.
IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE APP WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.
ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE APP MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED TO US SUCH MATERIAL, SERVICE, OR TECHNOLOGY.
BALL HORTICULTURAL DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS. THEREFORE, BALL HORTICULTURAL DECLINES ALL LIABILITY FOR INACCURATE INFORMATION; FRAUD; NEGLIGENCE; WILLFUL MISCONDUCT; OR ANY OTHER INAPPROPRIATE USE OF THE APP.
Limitation of Liability; Indemnification
YOU ACKNOWLEDGE THAT YOU HAVE REACHED THE AGE OF MAJORITY WHERE YOU LIVE AND YOU CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW, OR THAT YOU ARE ONLY USING THE APP UNDER THE SUPERVISION OF YOUR PARENT OR GUARDIAN. YOU ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE THAT INFORMATION TRANSMITTED THROUGH THE INTERNET IS NEVER COMPLETELY SECURE. NEITHER BALL HORTICULTURAL, NOR ANY OF BALL HORTICULTURAL'S EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, OR LICENSORS (COLLECTIVELY, “BALL HORTICULTURAL ASSOCIATES”) SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS' FEES, OR FOR LOST DATA OR LOST PROFIT, ARISING OUT OF YOUR USE OF THE APP OR INABILITY TO GAIN ACCESS TO OR USE THE APP OR OUT OF ANY BREACH OF ANY WARRANTY, EVEN IF BALL HORTICULTURAL OR A BALL HORTICULTURAL ASSOCIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.
YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH BALL HORTICULTURAL IS TO STOP USING THE APP. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, YOU AGREE THAT BALL HORTICULTURAL'S LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED FIFTY DOLLARS ($50).
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS BALL HORTICULTURAL AND THE BALL HORTICULTURAL ASSOCIATES, FROM AND AGAINST ANY CLAIMS, DAMAGES, COSTS, AND EXPENSES, INCLUDING ALL COSTS OF LEGAL PROCEEDINGS AND ATTORNEYS' FEES, ARISING IN CONNECTION WITH USE OF THE APP BY YOU, OR IN CONNECTION WITH A VIOLATION OR BREACH OF THESE TERMS BY YOU, INCLUDING WITHOUT LIMITATION, YOUR VIOLATION OF ANY LAWS GOVERNING COMMUNICATIONS OR INTELLECTUAL PROPERTY.
YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL DISCLAIMERS IN THESE TERMS AND THE PROVISIONS OF THESE TERMS REFLECT A FAIR AND REASONABLE ALLOCATION OF RISK BETWEEN BALL HORTICULTURAL AND YOU.
Where required, Ball Horticultural may give notice to you by posting content to you through the App, by electronic mail, or by conventional mail to your address of record. You may give notice to Ball Horticultural by electronic mail or by conventional mail to the address below. If you have any questions about these Terms, the App, or your dealings with Ball Horticultural, please e-mail or write to:
Ball Horticultural Company
622 Town Rd.
West Chicago, IL 60185
Ball Horticultural welcomes your questions and comments.
Any provision of these Terms prohibited by, or unlawful or unenforceable under, any applicable law of any jurisdiction shall be ineffective as to such jurisdiction without invalidating the remaining provisions of these Terms, provided, however, that where the provisions of any such applicable law may be waived, they are hereby waived by Ball Horticultural and you to the fullest extent permitted by law, and this shall be deemed to be a valid and binding agreement enforceable in accordance with its terms. A provision whose purpose is as close as possible to that of the invalid or unenforceable provision shall be inserted to replace the invalid or unenforceable provision. The same shall apply if the parties subsequently establish that the provisions of the Terms are incomplete.
The laws of the State of Illinois shall govern the validity, performance, enforcement, interpretation and any other aspect of these Terms, without regard to principles of conflicts of laws thereunder. The parties agree to submit to the exclusive jurisdiction and venue of the courts of DuPage County, Illinois for any action arising out of these Terms.
Ball Horticultural may revise these Terms from time to time. You are bound by such revisions and for this reason should periodically review the current Terms to which you are bound.
The App is provided for lawful purposes only. You acknowledge and agree that the provisions, disclosures and disclaimers set forth in these Terms are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity. You acknowledge and agree that the App is for you and/or your entity's use only. You may not sell, license, or otherwise provide access to the App to any third party without Ball Horticultural's express written permission.
Ball Horticultural shall have the right to assign these Terms and to sublicense any and all of its rights under these Terms. These Terms, including any documents referenced herein and any additional operating rules as posted on the App, represent the entire understanding between you and Ball Horticultural regarding your relationship with Ball Horticultural and your use of the App. These Terms supersede all previous written or oral agreements between you and Ball Horticultural with respect to such subject matter. Notwithstanding any provision of these Terms, Ball Horticultural has available all remedies at law or equity to enforce these Terms.
The relationship between you and Ball Horticultural is that of independent contractors. Nothing contained in these Terms shall be construed to create a principal-agent or employer-employee relationship, or other relationship between the parties. Neither party shall represent to others that it is the agent of the other.