Gardenaway Inc.’s Terms of Service and Use
Updated as of March 26, 2019
These Terms of Service and Use (“Terms”) govern your access to and use of Gardenaway Inc.’s (hereinafter referred as “Gardenaway” and “we” or “us” or “our”) website and applications (collectively, the “Service”). Please read these Terms carefully and contact us if you have any questions. By creating an account under these Terms, or by accessing or using the Service, you agree to be bound by these Terms and our Privacy Policy.
1. Our Service
a) General
Gardenaway connects merchant garden nurseries and other gardening stores (each a “Merchant”), plant product brands (each a “Brand”) and consumers (each a “Consumer”) through the exchange of interactive garden plans that can be copied, shared, and changed.
The Service allows Merchants and Brands to create “Design Books” to create and share garden plans and plant products with Consumers. Consumers may use the Service to modify the garden plans for free (each a “Free Plan”) within certain constraints as determined by Gardenaway, or purchase, for a fee, customizable plan options which lift certain Free Plan constraints.
b) Business Subscription Services
As part of and in addition to the Services, Merchants and Brands may purchase subscriptions (each, a “Subscription”) for access to enhanced services (“Business Subscription Services”), which provide greater functionality to the design and e-commerce of the Design Books. Business Subscription Services include the listing of a Merchant or a Brand’s name, products and services offered on Gardenaway’s website and enables our end-user customers to design gardens using our proprietary software.
i. Merchant Listing
For each Subscription purchased as a Merchant (each, a “Merchant Subscription”), we will list the location of a Merchant’s single retail location within a specific geographical territory. The Merchant Listing will display your garden center if it falls within a specified distance or area from the location of the Consumer (as disclosed by the end-user). The specified distance or area is set out in material published by us.
Gardenaway reserves the right, in its sole discretion, to increase or decrease the specified distance or area in geographic markets where deemed necessary or advisable in order to improve its Consumers’ experience. For each retail location that you wish to have listed, you must purchase an additional Subscription.
c) Consumer Custom Services
In addition to access to the Free Plans, Consumers have the option to purchase, for a fee, the following custom plan options:
i. A fully customizable garden plan (each, a “Custom Plan”);
ii. Conversion of a pre-existing Free Plan into a Custom Plan, removing the restraints previously imposed on that Free Plan to allow for greater customization; and
iii. Access to a pre-existing Custom Plan (created by another user), which can be customized like a regular Custom Plan, (collectively, the “Consumer Custom Services”).
d) Changes to Services
We reserve the right, at our sole discretion, to amend or modify the Service (including the Business Subscription Services and Consumer Custom Services), extend or reduce functionality or availability of the Service or make any changes we deem necessary or appropriate or to terminate the Service, at any time and without notice to you.
2. Using the Service
a) Who can use the Service
i. Consumers
Consumers can use the Service only if you can legally form a binding contract with Gardenaway, and only in compliance with these Terms and all applicable laws. When you create your Gardenaway account, you must provide us with accurate and complete information.
Any use or access by anyone under the age of majority in the province, territory, state or country in which you reside is not permitted Using the Service can include downloading software to your computer, phone, tablet or other device. You agree that we can automatically update that software, and these Terms will apply to any updates.
You agree that your use of the Service will not violate any applicable law or regulation in the province, territory, state or country from which you are accessing the Service.
ii. Merchants and Brands – Commercial Purposes
To use the Service for commercial purposes, Merchants and Brands must create a Gardenaway account and must provide us with accurate and complete information. Merchants must be a retailer or design and/or install service located in the United States or Canada, or any other jurisdiction as approved by Gardenaway, that supplies a range of plants suitable for residential or commercial gardens in the geographic location served by you.
If you open an account on behalf of a company, organization or other entity, (a) “you” includes you and that entity and (b) you promise that you are authorised to grant all permissions and licences provided in these Terms and bind the entity to these Terms, and you agree to these Terms on the entity’s behalf. Part of our Service may include software that is downloaded to your computer, phone, tablet or other device. You agree that we can update that software automatically and that these Terms will apply to any updates.
You agree that your use of the Service will not violate any applicable law or regulation in the province, territory, state or country from which you are accessing the Service.
b) Our License to you
Subject to these Terms and our Privacy Policy, we grant you a limited, non-exclusive, non-transferable and revocable licence to use our Service.
3. Submitting Content
a) Your responsibilities when posting content
You are solely responsible for the information and content (including, without limitation, text, links, publications, garden plans, newsletters, data, databases, tools, images, graphics, photographs, pictures, videos, postings, multimedia clips, product names) that you upload, publish or display (hereinafter, “post“) on or through the Service (collectively the “User Content“).
You are responsible for ensuring that any material you provide to or through the Service or post, including but not limited to text, photographs, video, and audio, does not violate the copyright, trademark, trade secret, or any other personal, moral, or proprietary rights of any third party or is posted with the permission of the owner(s) of such rights and you agree to indemnify and defend us from third party claims as provided for in these terms of use. For greater certainty, Gardenaway does not provide any representations, warranties or guarantees with respect to your User Content, its quality or its accuracy.
b) How Gardenaway and others can use your content
You grant Gardenaway and our users a non-exclusive, royalty-free, transferable, sublicensable, worldwide licence to use, store, display, reproduce, save, modify, create derivative works, perform and distribute your User Content on the Service solely for the purposes of operating, developing, providing and using the Service. Nothing in these Terms restricts other legal rights Gardenaway may have to User Content, for example under other licences. For greater certainty, your User Content made public may be posted and shared by Gardenaway and our users on social media platforms (ie. Facebook, Twitter, Instagram, Pinterest, etc.).You have the option to mark your User Content as “private”, which will prevent such User Content from being viewed or shared by Gardenaway’s users.
You understand and agree that Gardenaway may, but is not obligated to, conduct a content review of the Service and that it may, at its sole discretion and without notice, delete or remove any User Content, including but not limited to User Content that violates these Terms, that may be misleading, offensive or illegal, or that may violate the rights, harm, or threaten the safety of other users of the Service.
We will do regular backups of User Content however this service is not guaranteed (see Section 13). For this reason, you are solely responsible to maintain at your own cost and expense a back-up copy of your User Content that you contribute to the Service. We will not replace or provide a copy of any User Content you post or store on the Service or provide to us.
c) How you can use others’ content and the Service
With the exception of Content (as defined herein) shared by other users to you through the Service, and subject to Section 11, you may not reproduce, re-publish or re-disseminate any Content that you did not contribute or the Services in any manner or form without the prior written consent of Gardenaway or the third party to which the intellectual property rights belong. You may not sell or modify any Content or the Services or reproduce, display, publicly perform, transmit, modify, adapt, sell license, distribute, use or exploit any item of Content that you did not contribute. If you wish to do so, you must have the express prior written permission of the Content’s contributor.
d) How long we keep your content for
Following termination or deactivation of your Gardenaway account, or if you remove any User Content from the Service, Gardenaway will make reasonable efforts to remove all of your User Content that has been posted to the Service. Notwithstanding the forgoing, Gardenaway is not responsible for any User Content that has been publicly shared with third parties in accordance with these Terms(including User Content shared on social media platforms) and cannot guarantee that such shared User Content will be deleted and removed following the termination or deactivation of your Gardenaway account, or if you remove any User Content from the Service. Gardenaway may continue to use your Personal Information (as defined herein) in accordance with the terms of its Privacy Policy, as may be amended from time to time and incorporated herein by reference, following the termination or deactivation of your Gardenaway account..
4. Rules of Conduct
You agree that you will not post, upload, make accessible or transmit on or through the Service any of the following:
(a) For the merchant, information about any plant or material that is not either in your inventory or is not procurable by you within a commercially reasonable period of time;
(b) material that contains or links to any viruses or any computer code, worms, Trojan horses, corrupted data or other harmful, disruptive or destructive files or programs;
(c) content that is infringing, obscene, offensive, harassing, hateful, defamatory, abusive, defamatory, harassing, harmful, hateful, fraudulent, invasive or privacy or publicity rights, or degrades or intimidates an individual or group of individuals on the basis or race, ethnicity, gender, religion, sexual orientation, age or disability;
(d) information that promotes, encourages or solicits illegal activity including providing instructions on how to conduct illegal activity of any kind;
(e) content that infringes any trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
(f) includes anyone’s personal information to which you do not have the right to disclose, or gain or attempt to gain unauthorized access to other computer systems via this Service.
For greater certainty, you agree to (1) provide accurate, current and complete information about you as may be prompted by any registration forms on the Service; (2) maintain the security of your password and identification; and (3) maintain and promptly update your registration data and any other information you provide to us, to keep it accurate, current and complete. You further acknowledge and covenant that you shall be fully responsible for all use of your account and for any actions that take place using your account.
5. Fees and Payments of Subscription and Custom Services
a) Merchant and Brand Subscriptions
Payments for the Subscription are due on the first day of each Subscription Term (as defined below), in United States Dollars (“U.S. Dollars”), according to the fee schedule published by us on Gardenaway’s website from time to time (“Fee Schedule”).
b) Consumer Custom Service
Payments for Consumer Custom Services are due at the time the Consumer purchases Consumer Custom Service. The fee for each Consumer Custom Service is in U.S. Dollars and is also published in the Fee Schedule.
c) Changes to the Fee Schedule and Your Responsibilities
We reserve the right to change the Fee Schedule at any time without notice. You may pay for the Subscription using Visa or MasterCard credit cards. We currently use the secure third-party payment processor Stripe. By submitting an order through us, you authorize Stripe, our designated payment processor, to charge the purchase amount to the account that you specify. All supplied sensitive/credit information is transmitted via Secure Socket Layer (“SSL”) technology and then encrypted into our payment gateway providers database, only to be accessible by those authorized with special access rights to such systems, and who are required to keep the information confidential. After a transaction, your credit card information will not be stored on our servers.
You are responsible for any and all federal goods and services tax, provincial sales tax or harmonized sales tax, in addition to any foreign taxes, duties or other governmental, state or local taxes or fees, when and where applicable in connection with your purchase. If you do not pay any and all sales and other tax or fee relative to a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable,
6. Business Subscription Services Term
Subscriptions for Business Subscription Services may be purchased on either a monthly or annual basis (each, a “Subscription Term”). Your Subscription shall renew automatically on the day immediately following the last day of each Subscription Term unless terminated at any time prior to such renewal date.
Gardenaway reserves the right to terminate your Subscription and use of the Service and Business Subscription Services, temporarily or permanently, with or without notice:
(a) at any time without cause at the end of your prepaid monthly term; or
(b) at any time if you have breached these Terms of, with or without refund.
You may terminate your Subscription with or without cause at any time. If you choose to terminate your Subscription prior to the end of your Subscription Term, you will still be able to access the Business Subscription Service until the end of the Subscription Term. No refunds will be paid to you for any days that remain outstanding in your Subscription Term following termination.
We will use reasonable efforts to remove all links to your websites within a reasonable period from the termination date of your Subscription. We will not refund any fees paid to us in connection with the Consumers or your Business Subscription Services except as expressly provided above.
7. Termination of the Service
Gardenaway may terminate or suspend your right to access or use this Service for any reason with appropriate notice. We may terminate or suspend your access immediately and without notice if we have good reason, including any violation of these Terms. Upon termination, you continue to be bound by Sections 3, 4 and 13 of these Terms.
8. Privacy of User Information and Security
In the course of your use of the Service, you may be asked for personally identifiable information (“Personal Information”). You further consent to Gardenaway’s collection and use and disclosure of your Personal Information in accordance with the Gardenaway Privacy Policy as may be amended from time to time and incorporated herein by reference. You are solely responsible for the accuracy and content of your user information.
Pursuant to Section 2, if you have been given the option to open an account on the Service that provides you with access to password-protected areas of the Gardenaway’s website and you elect to do so, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form, and choose a password and username. While we work to protect the security of your content and account, Gardenaway cannot guarantee that unauthorised third parties will not be able to breach our security measures. Please keep your password secure
You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. For accounts created on behalf of a company, organisation or other entity, you are responsible for ensuring that only authorised individuals have access to the account. You agree to notify Gardenaway immediately of any unauthorized use of your account or any other breach of security of which you become aware. Gardenaway is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge.
Gardenaway reserves the right to communicate with you, electronically or otherwise, concerning the use of the Service. You consent to Gardenaway’s use of any contact information that you provide in accordance with the terms of its Privacy Policy.
9. Links to Third-Party Websites
We and our users may provide links to other websites or resources maintained by third parties.The content in any linked websites is not under our control so we are not responsible for the content, including any further links in associated third-party websites. You acknowledge and agree that we are not responsible for the availability or security of such external sites or resources, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You agree that we 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 external sites or resources.
We reserve the right to terminate a link to a third-party website at any time. The fact that we provide a link to a third-party website does not mean that we endorse, adopt, authorize or sponsor that website. It also does not mean that we are affiliated with the third-party website’s owners or sponsors.
11. Proprietary and Intellectual Property Rights
All content on or available through the Service, including plant data, garden plans, articles, discussion forums, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement, name references or other material contained in advertisements or search results, provided to or accessed by you via the Service, and other materials related to the Service including, without limitation, the “look and feel” of the Gardenaway’s website (collectively the “Content”) are our proprietary property, our users or our licensors with all rights reserved. Therefore, you are only permitted to use this Content as expressly authorized by these Terms or by the relevant advertiser, as appropriate. Except as expressly provided for in these Terms, no Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission, except that the foregoing does not apply to your User Content that you legally post on the Site.
You are granted a limited license to access and use the Service and the Content and to download, modify, use, distribute and share garden plans for use by you or your customers (if applicable) provided that you do not remove any of our identifying logos or trademarks. For greater certainty, you may post and/or share the Content on social media platforms (i.e. Facebook, Twitter, Instagram, Pinterest, etc.), provided you do not remove any identifying logos or trademarks or otherwise modify the Content. You may not create derivative works of the Content without expressly being authorized to do so in writing by us or the relevant party. You do not acquire ownership rights to any content, document, or other materials viewed through the Service that is not content that you have posted or uploaded on the Service. Some of the Content on the Service is the copyrighted work of third parties. Except for your User Content, you may not upload or republish Content on any Internet, Intranet or Extranet website or incorporate the information in any other database or compilation. Any use of the Service and its Content other than as specifically authorized herein and without our prior written permission is strictly prohibited, and any such use will terminate the license granted herein. Any and all unauthorized use may also violate applicable laws including copyright and trademark laws and communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to our intellectual property rights, whether by estoppels, implication or otherwise. This license is revocable at any time without notice and with or without cause.
12. Use of Trademarks
“Smart Garden Plans” and certain product or feature names mentioned on the Service are our trademarks. Other product and company names mentioned on the Service may be trademarks and/or service marks of their respective owners.
We grant you the right to display the link to Gardenaway’s website (www.smartgardenplans.com) on your website(s) and the non-exclusive right to display publicly our trademark “Smart Garden Plans” in the form authorized by us. Any goodwill associated with our trademarks automatically vests in us. You grant us the right to display the link to your website on Gardenaway’s website and the non-exclusive right to display publicly your trademark in the form presented by you to us. Any goodwill associated with your trademarks automatically vests in you.
13. Disclaimers
You expressly agree that your use of the Service is at your own risk. The Service is provided on an “as is” and “as available” basis and without any representations, warranties or conditions of any kind, express or implied. We, and our directors, employees, agents, suppliers, partners and advertisers, and content providers assume no responsibility for the timeliness, reliability, deletion, misdelivery, or failure to store any of your User Content. We do not guarantee the accuracy, completeness, or usefulness of any information or content contained on the Service about the Service or of any information contained in any third-party websites linked to this Service. We do not warrant that the use of the Service by you or end-user customers will be uninterrupted, always available, error-free or will meet your requirements, that any defects or errors will be corrected, that any communications made using the Service will be absolutely secure or always free from viruses or other harmful code.
GARDENAWAY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. WE MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE, OR THAT THE SERVICE WILL MEET ANY OF YOUR REQUIREMENTS.
No advice or information, whether oral or written, obtained by you from us or through the Service shall create any warranty not expressly made herein.
14. Indemnification
You agree to indemnify and hold Gardenaway, our directors, officers, employees, agents or sub-contractors, subsidiaries and affiliates or any related companies, licensors, suppliers, successors and assigns harmless from any claim or demand for damages, liabilities, injuries, costs, fees and expenses, including but not limited to reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Service, the violation of these Terms of use by you, or the infringement by you, or other user of the Service using your computer, of any intellectual property or other right of any person or entity arising out your content, your provision or failure to provide any products or services to any person including without limitation claims by third parties under warranties given by you or claims that the products or services provided by you are defective or not suitable for the end-users use or application.
15. Limitation on Liability
Except in jurisdictions where such provisions are restricted, in no event shall Gardenaway, our directors, officers, employees, agents or sub-contractors, subsidiaries and affiliates or any related companies, licensors, suppliers, successors and assigns be liable to you or any third person or entity for any injury, loss, claim, damage, act of god, accident, delay or any indirect, consequential, exemplary, incidental, special or punitive damages of any kind, including for any lost profits or lost data, whether based in contract, tort or otherwise, arising out of or are in any way connected with your purchase of a Subscription or use of the Service, or for any information or services obtained through the Service, even if Gardenaway has been made aware or has been advised of the possibility of such damages. For greater certainty, Gardenaway is not responsible to Consumers for the quality or performance of any plant and/or other products purchased from Merchants and Brands through the Service or any claims arising out of or are in any way connected to the purchase of those products. Notwithstanding anything to the contrary contained herein, our sole liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid by you to us for the Service, but in no case will our liability to you exceed one hundred dollars Canadian ($100 CAD).
16. Governing Law
These Terms shall be interpreted, construed and governed in accordance with the laws of the Province of Ontario, Canada, including its conflicts of law rules, and the federal laws of Canada applicable therein. For the purpose of all legal proceedings, these Terms will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have jurisdiction to entertain any action arising under these Terms, except for matters that can be tried only before a Federal Court in which case jurisdiction and venue shall be in Ontario. The Parties to these Terms each hereby attorn to the jurisdiction of the courts of the Province of Ontario and of the Federal Court in accordance with the foregoing and waive any objection to venue or any claim of inconvenient forum. Notwithstanding the foregoing, however, we shall have the right to commence and prosecute any legal or equitable action or proceeding before any non-Canadian court of competent jurisdiction to obtain injunctive or other relief in the event that, in our opinion, such action is necessary or desirable.
17. Dispute and Arbitration
In the event of any controversy, complaint, claim, differences or any type of disputes whatsoever (“Dispute”) between Gardenaway and you arising out of or in connection with your use of the Service, both parties shall first attempt, promptly and in good faith, to resolve any such Dispute. The good faith negotiation shall commence by each party communicating its position and a proposal on how the parties should resolve the Dispute. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails.
If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such Dispute to binding arbitration. The Arbitration Tribunal shall consist of one (1) Arbitrator. The decision arrived at by the Arbitrator shall be final and binding pursuant to the National Arbitration Rules of the Alternative Dispute Resolution Institute of Canada, Inc. or pursuant to the Arbitration Act (1991), S.O. 1991. Ch. 17 in the event of a domestic arbitration, or in accordance with the International Commercial Arbitration Act, R.S.O. 1990, Ch. I.11 in the event of an international Dispute. Judgment upon the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking injunctive relief from a court of competent jurisdiction. The place of the arbitration shall be in Ottawa, Ontario. The language of the arbitration shall be English. The arbitration award shall be given in writing and shall be final, binding on the parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all matters related thereto.
YOU AND WE AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OR THE SERVICE SHALL BE A FINAL AND BINDING ARBITRATION, with the exception where either party has infringed upon or violated or threatened to infringe upon or violate, in any manner whatsoever, the other party’s patent(s), copyright, trademark(s) or trade secret rights, such that the non-infringing party may seek injunctive or other appropriate relief.
Judgment upon the award rendered may be entered into any court having competent jurisdiction, or application may be made to such court for a judicial recognition of the award or an order of enforcement thereof, as the case may be.
18. Severability
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and the remainder of these Terms shall continue in full force and effect.
19. Notices
All notices to Gardenaway shall be made via email to “info [at] gardenaway.com”. We may broadcast notices or messages through the Service and on the Gardenaway’s website to inform you of any changes to these Terms, to the Service, or regarding any other associated matters. Gardenaway shall not be liable for any delay or failure in delivery of any such notices, or performance of the Service, caused by circumstances beyond its reasonable control. By using the Service, you agree to be bound by any such revisions to these Terms and should therefore periodically visit this page to determine the then current Terms to which you are bound.
20. Assignment
These Terms, and any rights and licences granted hereunder, may not be transferred or assigned by you, but may be assigned by Gardenaway without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
21. No Waiver
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Gardenaway’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
22. Miscellaneous
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision unless expressly acknowledged and agreed to by Gardenaway in writing. We agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. In the event that a jurisdiction prohibits the shortening of the time period in which a cause of action must be brought forward, the applicable time period shall be the minimum allowed by law. The section titles in these Terms are solely used for the convenience of the parties and have no legal or contractual significance.
23. Entire Agreement
These Terms constitute the entire agreement between Gardenaway and you and they supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Service, the content, products, or services provided by or through the Service. These Terms shall survive the termination of your account.
Gardenaway cares about your privacy. For further information, please see the Gardenaway’s Privacy Policy.