Thank you (“You” or “Your”) for your interest in using the PlantTAGG system which includes the PlantTAGG mobile app and website (the “System”) owned, operated, and provided by PlantTAGG, Inc. (the “Company”). You have indicated that you desire to participate as a System user (a “User“) and you have requested access to the proprietary features, content and functions offered by or through the System that are provided only to duly qualified Users including the ability to search, access, use, consume, input, upload and share content (the “Services“), which may include data, text, hyperlinks, graphics, videos, pictures, and audio (the “Content“). Collectively herein, the System, Services and the Content will be referred to as “PlantTAGG”.
1. TERMS OF USE.
1.1.
ACCEPTANCE OF TERMS. Your access to, and use of, PlantTAGG is conditioned upon your acceptance, without modification, of the following terms, conditions, and notices (these “User Terms”). If offered via the System, by clicking the “I Accept” button below, you agree to be bound by these User Terms. By clicking the “I Do Not Accept” button below, you will not be permitted access to PlantTAGG. If you are not presented with an opportunity to accept these terms, then your continued use of the System including the browsing of any pages in or use of PlantTAGG will be deemed to constitute your explicit acceptance of these User Terms.
1.2.
CHANGE OF TERMS. The Company may change these User Terms from time to time in the Company’s sole discretion. Accordingly, the Company encourages you to review these User Terms periodically. The Company reserves the right (but is not required) to post a notice in PlantTAGG or send you a notice via email or any other delivery method of any such change to these User Terms. The most current version of these User Terms shall be available on the home page of the Website. If you continue to use PlantTAGG after the Company changes these User Terms, then you accept all such changes.
1.3.
ADDITIONAL TERMS OF USE. Additional terms of use located within the System or the Company’s website may apply to Your use of PlantTAGG (collectively the “Additional Terms”). You agree to comply with the Additional Terms. To the extent applicable, the Additional Terms are incorporated by reference into these User Terms. If there is a conflict or ambiguity between these User Terms and any Additional Terms that apply to a particular Service, these User Terms will control. As a result, and except as qualified by this Section 1, Your access to, and use of, PlantTAGG is subject to, and You acknowledge and agree to comply in all respects with all of the terms, conditions, restrictions and notices in contained in any Additional Terms as are applicable.
1.4.
LIMITED LICENSE. Subject to these User Terms and your active Subscription as described below, the Company hereby grants you a limited, revocable, non-transferable, non-exclusive, non-sublicensable license to use PlantTAGG including future updates thereto.
2. REGISTRATION & ACCOUNT MANAGEMENT.
2.1.
USER CREDENTIALS. As a condition to using PlantTAGG, You are required to register with the Company by either using your mobile phone number, or by entering Your email address, selecting a valid password, and providing all other required registration information (collectively “Your Login Information”). You shall provide the Company with accurate, current, and complete registration information, and You shall maintain and promptly update all registration information as required by the Company. You shall also provide the Company with additional accurate, current, and complete registration information as requested from time to time. Upon registration with the Company to use PlantTAGG, You will be granted a User account (“Your Account”).
2.2.
CREDENTIAL MAINTENANCE. The Company shall have no liability associated with, or arising from Your failure to maintain accurate, current, and complete registration information, including liability arising out of Your failure to receive timely information about any Service or Your Account. The Company shall not be responsible for verifying Your registration information, including Your Login Information. You may not (i) select or use as Your Login Information a name of another person with the intent to impersonate that person or (ii) use as Your Login Information a name subject to any rights of a person other than You without appropriate authorization. The Company reserves the right to refuse registration of or cancel Your Login Information or Your Account at the Company’s discretion. You shall maintain the confidentiality and security of Your Login Information, Your Account, and Your other identification information relating to Your Account, and You shall not provide any of the foregoing to any other person or entity. The Company shall not be liable for any unauthorized access or use of Your Login Information or Your Account. You are fully responsible for all use of, and activities that occur under Your Login Information and Your Account and for any actions that take place through Your registration or access to PlantTAGG (whether conducted by You or another). You are responsible for restricting access to Your computer(s), including mobile devices, as necessary. The Company reserves the right to require You to change Your Login Information from time to time. Failure to comply with any portion of this Section 2 shall constitute a breach of this Agreement, which may result in immediate termination of Your Account.
2.3.
SOFTWARE DOWNLOAD. You acknowledge and agree that, as part of Your use of PlantTAGG, software, data, scripts, web services or other code in object, text, image or compiled form may be required to be downloaded and installed on Your mobile device (the “Downloaded Software”) which meets the Company’s technical requirements (such mobile device containing the Downloaded Software is the “Approved Device”). Your failure to permit any such download or installation, including error corrections, updates, enhancements, new features, or upgrades, shall result in immediate termination of Your right to access or use PlantTAGG. You agree not to access or use PlantTAGG by any means other than through the Downloaded Software on the Approved Device and the accompanying interface that is provided by the Downloaded Software for such use. The Downloaded Software is subject to (among other things) the terms, conditions, and limitations of any and all applicable Additional Terms. You understand that certain information may be collected by the Company about You (including Your personally identifiable information) in connection with the software download process described in this Section 2 or contemplated by Your use of PlantTAGG.
2.4. SMS TEXT MESSAGING, EMAIL AND USAGE.
(a)
When You Subscribe to PlantTAGG, the Company may send you an SMS message and/or an email to confirm Your signup.
(b)
By using PlantTAGG, you hereby agree to allow the Company to send periodic SMS text messages and email messages to you.
(c)
You can cancel the SMS service at any time. Just text “STOP” to the short code You subscribed to. After You send the SMS message “STOP”, the Company will send you an SMS message to confirm that You have been unsubscribed. After this, You will no longer receive SMS messages from the Company. If You want to join again, just sign up as You did initially and the Company will start sending SMS messages to You again.
3. SUBSCRIPTION DETAILS.
3.1.
SUBSCRIBING. Use of PlantTAGG is billed on a paid subscription basis (the “Subscription”). PlantTAGG may be made available to you for a period of evaluation prior to requiring any Subscription commitment, which period may be up to thirty (30) days (the “Evaluation Period”). Following and/or during the Evaluation Period, you will be offered the opportunity to proceed with the Subscription to continue use of PlantTAGG through either the Apple® or Google® mobile app store based on your phone type. An active Apple iTunes or Google Play account is required to process payment for your Subscription. Subscriptions are paid in advance on an annual basis, based on your initial Subscription commitment date (the “Subscription Term”).
3.2.
AUTO RENEWAL. At the end of each Subscription Term, your Subscription will automatically renew unless you cancel your Subscription or turn off auto-renew in your Apple or Google account specifically for the PlantTAGG app at least twenty-four (24) hours prior to automatic renewal.
3.3.
CANCELLATION. You may cancel your Subscription or renewal at any time through your Apple or Google account settings, in which case your Subscription will remain valid and active for the Subscription Term. Subscription cancellations during an active Subscription Term will not be subject to or result in any refund of any portion of the current (or prior period) Subscription fees regardless of circumstance.
3.4.
CHANGES. The Company, in its sole discretion and at any time, may modify the Subscription fees or the Subscription Term. Any change to the Subscription fee will become effective and applicable upon your next Subscription renewal event. In no event will changes to the Subscription fees or Subscription Term be applied retroactively.
4. TERMINATION & SUSPENSION.
4.1.
ACCOUNT CLOSURES. The Company reserves the right to close Your Account if Your Account has been inactive for a period of twelve (12) consecutive months. In addition, Your Account will be closed automatically in the event Your access to PlantTAGG is terminated for cause as described herein. If Your Account is closed, You must reenroll as a new User. The Company shall not be liable for any closure of Your Account or termination of Your access to PlantTAGG or loss of Your data. You must remove all Downloaded Software from the Approved Device (or any other device containing the Downloaded Software) if Your Account is closed.
4.2.
ACTIONS BY COMPANY. Upon Your noncompliance (or threatened noncompliance) with these User Terms or any Additional Terms or if You violate (or threaten to violate) Company’s rights or the rights of any other party hereto, the Company may Restrict, suspend, or terminate Your access to PlantTAGG and the Submissions in the Company’s sole discretion at any time and for any reason without giving You prior notice.
4.3.
NO LIABILITY. The Company shall not be liable to You or any third party for taking any of the actions in this Section 4, and the Company shall not be limited to the remedies described in this Section 4 if You violate these User Terms or the Additional Terms or threaten to violate these User Terms or the Additional Terms
5. INFORMATION PROTECTION & RESTRICTIONS.
5.1. CONFIDENTIALITY
(a)
“Confidential Information” means all information disclosed by the Company to You in connection with Your use of PlantTAGG, whether tangible or intangible or disclosed verbally, in writing, electronically, or otherwise. Confidential Information includes information relating to (i) the System and Services functionality, (ii) Content, and (iii) business rules and algorithms.
(b)
Confidential Information does not include information that You can establish in writing is (i) publicly available without violation of these User Terms or any other obligation of confidentiality or (ii) subsequently disclosed to You by a third party without restriction and the disclosure by the third party does not violate any obligation of confidentiality.
(c) You shall never:
(i)
disclose, license, transfer, sell, or make available to anyone any Confidential Information except as required by operation of law, provided that You have promptly notified the Company in writing of any legal process requiring production of such Confidential Information prior to compliance with such process and have taken all reasonable precautions, including seeking a protective order if so requested by (and at the sole cost and expense of) the Company, to ensure confidential treatment of any Confidential Information so disclosed and such production is limited to the minimum extent necessary to comply with such legal process; or
(ii)
use, copy, or reproduce any Confidential Information except as necessary in connection with the purpose for which such Confidential Information is disclosed to You and in accordance with these User Terms.
(d)
You shall treat Confidential Information with the same degree of care as You accord to Your own Confidential Information, but in no case less than reasonable care, including taking all reasonable measures to protect the secrecy of Confidential Information and protect against unauthorized acts with respect to Confidential Information. You shall promptly advise the Company if You learn of any unauthorized act with respect to the Confidential Information.
(e)
The Company shall continue to own all Confidential Information. You shall promptly delete or destroy all Confidential Information (including all compilations, manuals, documents, electronic media, and other tangible items containing, regarding, referencing, or relating to Confidential Information) upon the earlier to occur of (i) a written request by the Company or (ii) termination of Your Account (as defined below) or access to PlantTAGG.
(f)
A breach or threatened breach of this Section 5.1 by You may cause irreparable harm and injury to the Company for which money damages are inadequate. In the event of such breach or threatened breach, the Company shall be entitled to seek injunctive relief, without the requirement of posting a bond or any other security, in addition to all other available remedies.
5.2.
PRIVACY POLICY. The Company’s Privacy Policy (the “Privacy Policy”) describes the Company’s practices concerning information and data that You provide or that the Company may collect about You through PlantTAGG, and You consent to the Company’s use of such information and data in compliance with the Privacy Policy. Company’s Privacy Policy is incorporated into, and made a part of, these User Terms.
6. USER SUBMISSIONS & CONTENT USE.
6.1.
LICENSE. By posting, uploading, inputting, providing, or submitting data or materials to or through PlantTAGG including but not limited to Content, pictures, data, location information, replies, reviews, comments and/or testimonials made by You in connection with, or as part of Your use of PlantTAGG (the “Submissions”), You grant the Company and its parents, subsidiaries, affiliates, and partners irrevocable permission (including a worldwide, transferable, sublicensable, perpetual, royaltyfree, and fully paidup license) to use, distribute, edit, display, store, archive, publish, sublicense, reproduce, transmit, broadcast, repurpose, translate, and create derivative works of the Submissions, in all cases without restriction of any kind now known or arising in the future, including for the purpose or purposes of developing, manufacturing, marketing and using PlantTAGG. No compensation shall be paid to You with respect to the Submissions.
6.2.
RIGHT TO SUBMIT. By posting, uploading, inputting, providing, or submitting the Submissions, You represent and warrant that You own or otherwise control the necessary rights to such Submissions as described in these User Terms and any Additional Terms, including all the rights necessary for You to provide, post, upload, input, or submit the Submissions and grant the Company the rights granted by You in these User Terms and any Additional Terms with respect to the Submissions.
7. RESTRICTIONS & PROHIBITED USES.
You agree to use PlantTAGG only for their intended purposes. You agree that when using PlantTAGG, You shall not:
(a)
Modify, decompile, reverse engineer, recreate, disassemble, or otherwise attempt to determine the makeup or source code of PlantTAGG or attempt to make any unauthorized changes to the same;
(b)
Embarrass, defame, slander, abuse, harass, stalk, threaten, or otherwise violate the legal rights, including but not limited to rights of privacy and publicity, of others;
(c)
Publish, transmit, copy, reproduce, email, post, upload, distribute, or disseminate any inappropriate, profane, vulgar, pornographic, sexually explicit, racist, libelous, false, misleading, defamatory, infringing, obscene, indecent, offensive, hateful, disparaging, abusive, unlawful, or objectionable topic, name, material, or information;
(d)
Frame or display any part of PlantTAGG with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between the Company and any third party without the Company’s prior written consent;
(e)
Upload files that contain software or other material protected by intellectual property laws and regulations, or by rights of privacy of publicity, unless You own or control the rights thereto or have received all necessary consents;
(f)
Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of PlantTAGG;
(g)
Conduct, post, publish or forward surveys, contests, pyramid schemes, chain letters, junk mail, spam, unsolicited email, or any advertising, promotional, or unauthorized communication falsely indicating they are sourced, from or endorsed by the Company;
(h)
Falsify or delete any author attributions, legal, or other proper notices or proprietary or intellectual property designations or labels of the origin or source of content, or other material contained in a file that is uploaded;
(i)
Impersonate another person or entity or use any fake name or identity;
(j)
Allow any other person or entity to use Your identification for posting or viewing comments;
(k)
Restrict or inhibit any other user from using and enjoying PlantTAGG;
(l)
Acting alone, in concert with others or conspiring with others to violate any restrictions, prohibited uses, code of conduct or other guidelines that may be applicable to PlantTAGG;
(m)
Harvest or otherwise collect information about others, without their prior, express, and written consent;
(n)
Post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from anyone;
(o)
Use any part of PlantTAGG or the Submissions to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity.
8.
INTELLECTUAL PROPERTY. The Company has several United States patents issued and pending. PlantTAGG®, and the PlantTAGG logo are registered trademarks of PlantTAGG, Inc. and its subsidiaries and affiliates. Other Company trademarks, as well as any third-party trademarks, service marks, logos, and trade names appearing in PlantTAGG, are and shall remain the property of their respective owners. The use of any trademarks, logos, service marks, trade dress, slogans, screen shots, copyrighted designs, copyrights, patented technology or other brand features owned by the Company or any third party is prohibited without the prior written consent of Company or the applicable third party. If You are seeking permission to use trademarks, logos, service marks, trade dress, slogans, screen shots, copyrighted designs, or other brand features owned by Company, please contact Company at info@planttagg.com. The Company respects the intellectual property rights of others. If you are a copyright holder or authorized on behalf, and you believe that PlantTAGG has infringed on your intellectual property rights, please send an email to info@planttagg.com including a detailed description of the alleged infringement. You may be held accountable for damages including costs and attorney’s fees for misrepresenting that any infringement exists.
9.
REPRESENTATIONS AND WARRANTIES. You represent and warrant that You (i) have all necessary right, power, and authority to enter into these User Terms and the Additional Terms and to perform the acts available and requested of You under these User Terms and the Additional Terms, including the right and authority to post, upload, input, provide, or submit the Submissions, and (ii) shall not (a) use PlantTAGG in any manner that could damage, disable, overload, or impair PlantTAGG or interfere with any other party’s use and enjoyment of PlantTAGG, (b) obtain, or attempt to obtain, any materials, information, or other content through any means not intentionally made available or provided for through PlantTAGG, or (c) circumvent, or attempt to circumvent, any security feature of PlantTAGG. Such restrictions include without limitation any data or image scraping, harvesting or unauthorized copying from PlantTAGG.
10.
INDEMNIFICATION. You agree to indemnify and hold the Company and its parents, subsidiaries, affiliates, suppliers, partners, officers, directors, and employees harmless from any claims, losses, damages, and liabilities (including attorney’s fees) arising out of Your use or misuse of PlantTAGG, violation of these User Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which You are required to indemnify the Company and You agree to cooperate with our defense of these claims.
11.
DISCLAIMER & LIMITATION OF LIABILITY. YOUR USE OF PLANTTAGG IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONTENT OR SERVICES ACCURACY, OR NON-INFRINGEMENT. YOU HEREBY AGREE TO RELEASE THE COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, ADVISORS, PARTNERS, SPONSORS, CONTRACTORS, EMPLOYEES AND AFFILIATES FROM ALL LIABILITY DIRECTLY OR INDIRECTLY RELATING TO, ARISING FROM, OR CONNECTED TO, THE USE OF PLANTTAGG, INCLUDING BUT NOT LIMITED TO THE SUCCESS OR FAILURE YOU ACHIEVE SELECTING AND CARING FOR YOUR PLANTS BASED ON YOUR USE OF PLANTTAGG.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, ADVISORS, AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE PLANTTAGG, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL ANY ASSERTED, ASSESSED OR AWARDED TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF PLANTTAGG (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS ($100 USD) IN AGGREGATE. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN THE COMPANY AND RECEIVED BY YOU THROUGH OR ADVERTISED IN PLANTTAGG OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED THROUGH YOUR USE OF PLANTTAGG.
12.
GOVERNING LAW & DISPUTE RESOLUTION. These User Terms, the Privacy Policy and any Additional Terms shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles. For any disputes arising under or in connection with this Agreement, the Parties hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. Instead, any dispute, claim, or controversy of any kind between the Parties arising from or relating to this Agreement, its interpretation, its termination, or the use of PlantTAGG shall be resolved by binding arbitration administered by a neutral arbitrator with the American Arbitration Association in accordance with its Consumer Arbitration Rules. For all disputes arising out of or related in any way to the use of PlantTAGG, the parties agree to first attempt to negotiate and resolve the matter in good faith. If the matter cannot be resolved within sixty (60) days, the parties shall proceed to binding arbitration. The arbitration proceedings shall take place in Dallas County, Texas, unless otherwise mutually agreed upon by both parties. The award rendered by the arbitrator(s) shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The parties agree that any cause of action arising out of or related to Your use of PlantTAGG must be asserted within one (1) year after the cause of action occurs. Otherwise, any such cause of action shall be permanently disqualified and deemed invalid.
13. MISCELLANEOUS.
13.1.
SURVIVAL. Sections 5,8,9, 10, 11 and 12 shall survival termination of Your right to access or use PlantTAGG and the closing of Your Account.
13.2.
WAIVER. A provision of these User Terms may be waived only by a written instrument executed by the parties. The failure of any party at any time to require performance of any provision of these User Terms shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of these Terms shall not be construed as a continuing waiver of other breaches of the same or other provisions of these User Terms.
13.3.
SEVERABILITY. If any provision of these User Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be severable from these User Terms and shall not affect the validity and enforceability of any remaining provisions.
13.4.
APPLE & GOOGLE TERMS. These User Terms are between You and the Company only, not with Apple or Google (the “Mobile Platform Providers”), and the Mobile Platform Providers are not responsible for PlantTAGG. The Mobile Platform Providers have no obligation whatsoever to furnish any maintenance and support services with respect to PlantTAGG. In the event of any failure of PlantTAGG to conform to any applicable warranty, then You may notify the appropriate Mobile Platform Provider who may refund any applicable purchase price for PlantTAGG to you; and that, to the maximum extent permitted by applicable law, the Mobile Platform Providers have no other warranty obligation whatsoever with respect to PlantTAGG or Your use thereof. The Mobile Platform Providers are not responsible for addressing any claims by You or any third party relating to PlantTAGG or Your possession and/or use of PlantTAGG, including: (a) product liability claims; (b) any claim that PlantTAGG fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. The Mobile Platform Providers are not responsible for the investigation, defense, settlement, and discharge of any third-party claim that PlantTAGG and/or Your possession and use of PlantTAGG infringes that third-party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using PlantTAGG. The Mobile Platform Providers, including their subsidiaries, are third-party beneficiaries of these User Terms, and upon Your acceptance of these Terms, the Mobile Platform Providers will have the right (and will be deemed to have accepted the right) to enforce these User Terms against You as a third-party beneficiary of these User Terms.
13.5.
CONTACT. If you have any questions about these Terms of Use, please contact us at info@planttagg.com