Terms of Use

For use within the United States only.

Last Updated

September 16, 2023

IMPORTANT: THESE TERMS OF USE CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 8D. BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND GARDENIQ ARE EACH GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT OR IN CLASS ACTIONS OF ANY KIND. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

Introduction

Please read these Terms of Use (“Terms”) carefully. By using the Service (defined below) or signing up for an account, you are agreeing to these Terms, which will result in a legal agreement between you and GardenIQ LLC (hereinafter, “GardenIQ,” “we,” or “us”). You may enter into these Terms on behalf of yourself or on behalf of a legal entity. If you enter into these Terms on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to these Terms. All references to “you” and “your” in these Terms mean the person accepting these Terms as an individual or the legal entity for which the representative is acting. Capitalized terms in these Terms will have definitions as set forth in the applicable section where they are defined. GardenIQ offers an online customer data and marketing platform (hereinafter “GardenIQ App” or “Software”) that allows you to manage your customers, contacts, create, send, and manage marketing campaigns created on the GardenIQ App. Marketing campaigns may include but are not limited to, email, SMS, MMS, surveys, website banners, and pop-ups (each a “Campaign,” and collectively, “Campaigns”).

These Terms, including our Privacy Policy and Data Processing Agreement (collectively, the “Agreement”) define the terms and conditions under which you are allowed to use the Service in accordance with the Agreement and describe how we will treat your account and the data we collect and process about you, your end users, and your contacts and customers while you are an Account User. If you do not agree to these Terms, you must immediately discontinue your use of the Service and your access to and use of the Service is unauthorized. Additional terms and conditions apply to some Services offered on the GardenIQ Site, GardenIQ App, or through other channels. Those terms and conditions can be found where the relevant Service is offered on the GardenIQ Site, GardenIQ App, or otherwise and are incorporated into these Terms of Use by reference.

This Agreement is revised periodically and may include changes from earlier versions. By using the GardenIQ App, you agree to the most recent version of this Agreement, which is always available to you online at https://www.gardeniq.io/legal/terms-of-use. If you have any questions, please contact us as described below.

WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS

While there are important points throughout these Terms of Use, please note the warranty disclaimers and limitations on GardenIQ's liability explained in Section 7.

UPDATES

We may update these Terms of Use from time to time by notifying you of such changes by any reasonable means, including by posting a revised Terms of Use through the GardenIQ Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms of Use incorporating such changes or otherwise notified you of such changes. You agree that it is your responsibility to regularly check https://www.gardeniq.io for any updated Terms of Use. In addition, by continuing to use or access any of the GardenIQ Site or otherwise engaging with GardenIQ after we post any changes, you accept the updated Terms of Use. The “Last Updated” legend above indicates when these Terms of Use were last changed.

If you have any questions about our Terms, please contact us at legal@gardeniq.io.

Defined Terms in these Terms of Use

Account User means a customer of the Service or a representative of an entity that is a customer of the Service.
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Affiliate means a corporation or other business entity in the United States in which GardenIQ or Account User owns or controls, directly or indirectly, an equity interest representing the right to elect the majority of the directors or persons performing similar functions or, if the law of the applicable jurisdiction does not permit such majority interest, then the maximum allowable under such law.

App Provider means any third-party website or distribution platform through which you can access the GardenIQ App. You acknowledge and agree that: (i) these Terms are between us, and not with the App Provider, and that we are responsible for the Service, not the App Provider; (ii) the App Provider has no obligation to furnish maintenance and support services or handle any warranty claims; (iii) the App Provider is not responsible for addressing any claims you or any third party have relating to the GardenIQ App; and (iv) the App Provider is a third party beneficiary of these Terms as related to your use of the GardenIQ App, and the App Provider will have the right to enforce these Terms as related to your use of the GardenIQ App against you.

Campaign means marketing campaigns created via the GardenIQ App. Marketing campaigns may include but are not limited to, email, SMS, MMS, notifications, surveys, website banners, and pop-ups.

Contact means any person that you, an Account User, may contact through our Service. A Contact is anyone on an Account User’s distribution list uploaded to the GardenIQ App or Service, or is anyone who has otherwise interacted with an Account User via the Service. For example, if you are an Account User, a subscriber to your email marketing campaigns or an anonymous shopper to your website would be considered a Contact.

Content means merchandise information, product descriptions, reviews, comments, messages, reviews, communications, feedback, submissions, suggestions, questions, and other information, data, content, and materials (including page headers, images, text, illustrations, formats, logos, hashtags, designs, icons, photographs, software programs, music clips or downloads, video clips, and written and other materials.)

Control means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term “Controlled” shall be construed accordingly.

Customer Data means any personal data that GardenIQ processes on behalf of the Account User via the Service.

Customer Profile means contacts that you are able to engage through the Service via a Campaign, whether through a Paid Monthly Plan, Service Add-On Plan, or Free Limited Plan. Subscribed, unsubscribed, and non-subscribed contacts count towards your Customer Profile. Cleaned, merged, and archived contacts do not count towards your Customer Profiles, nor do contacts whose opt-in confirmation is pending. You may elect to archive contacts at any time, but any Customer Profile changes for an archived contact (whether initiated by you, the contact, or an integration/merger) will automatically unarchive that contact. You cannot engage in any activity through the Service with archived contacts unless and until they are unarchived. If a contact is unarchived, it will immediately count towards your Customer Profiles for your current billing cycle and any future billing cycles unless and until archived again.

Data Protection Laws means all data protection laws and regulations applicable to a party’s processing of Customer Data under the Agreement.

Documentation means information explaining how the software operates or how to use it, such as FAQs, Help Center, and Knowledge Hub.

Events means each metric attributed to a known contact or an anonymous contact. Events include but are not limited to, website metrics, notification metrics, email metrics, SMS/MMS metrics, link metrics, content metrics, banner metrics, segment metrics, automation metrics, survey metrics, etc.

Ideas means ideas, concepts, feedback, and know-how that you make available in connection with the GardenIQ Site.

GardenIQ means GardenIQ, LLC, and any subsidiaries GardenIQ, LLC (including any subsidiaries that GardenIQ, LLC may form or acquire in the future), and their affiliates, directors, officers, employees, and agents. We also refer to GardenIQ as “we”, “us”, and “our.”

GardenIQ App means the official “GardenIQ App” or “Software”, which can be accessed via GardenIQ Site or through any App Provider.

GardenIQ Partners means GardenIQ's suppliers, vendors, contractors, and licensors.

GardenIQ Site means https://www.gardeniq.io, the GardenIQ Apps, and all related functionality, Services, and Content offered by or for GardenIQ on or through https://www.gardeniq.io and the GardenIQ Apps or the systems, servers, and networks used to make the GardenIQ Site available.

GardenIQ Workspace means a site where an Account User or Workspace Seat, login with a username and password to access the Service.

Harvest℠ means the JavaScript tracking snippet installed on your website to enable several of the Service’s data tracking and marketing features.

Make available means post, transit, publish, upload, distribute, transmit, display, provide, or otherwise submit or make available (including through any part of the GardenIQ Site administrated by third-party social media platforms (e.g., Facebook or Instagram) that allow interaction with the GardenIQ Site through the tools offered by such social media platforms).

Materials means Content that GardenIQ Account Users make available on or through the GardenIQ Site or GardenIQ App.

Proprietary Rights means any copyright, patent, trade secret, know-how, trademark, servicemark, trade name, rights of publicity, or other intellectual property or proprietary rights.

Security Incident means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, or alteration of, or unauthorized disclosure of or access to, Customer Data on systems managed or otherwise controlled by GardenIQ.

Sensitive Data means (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, credit, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; or (f) other information that falls within the definition of “special categories of data” under applicable Data Protection Laws.

Service means (i) the GardenIQ App which is offered through our GardenIQ Site, an App Provider, and any other website or mobile application owned, operated, or controlled by us, and made available to you as set forth in an Order Form that references this Agreement, (ii) any free services provided by GardenIQ to you, in its sole discretion, in connection with this Agreement, and (iii) any support services provided by GardenIQ to you in accordance with our then-current Documentation, an Order Form that references this Agreement, or both.

SMS/MMS Phone Number means a phone number used to send one-way text messaging via a Campaign. SMS/MMS Phone Number is owned and operated by GardenIQ. We reserve the right to revoke Account User’s use of a SMS/MMS Phone Number at any time. If your Service uses a SMS/MMS Phone Number and SMS/MMS sending for the account is paused or suspended for thirty (30) days or more for any reason (including but not limited to compliance matters, failed or overdue payment issues), GardenIQ may reclaim the SMS/MMS Phone Number from the Account User and terminate any future use of the SMS/MMS Phone Number by the Account User.

Tax or Taxes means all applicable taxes, including but not limited to indirect taxes such as goods and services tax (“GST”), value added tax (“VAT”), sales tax, fees, duties, levies, or other similar taxes. Unless otherwise stated, any consideration, amount payable, prices, fees, payment terms and/or any other amounts are exclusive of Taxes. Taxes are based on the location where you have established your business based on the information provided to GardenIQ, or if you are an individual, where you permanently reside. This location will be defined as your ‘Sold To’ address. GardenIQ reserves the right to cross reference this location against other available evidence to validate whether your location is accurate. If your location is inaccurate, GardenIQ reserves the right to charge you any outstanding Taxes. In the event that any amount payable by you to GardenIQ is subject to Taxes, GardenIQ shall collect the full amount of those Taxes from you and said collection shall not reduce or somehow impact the amount to which GardenIQ is entitled. You will reimburse and indemnify GardenIQ for any Taxes, interest, and penalties that GardenIQ may be compelled to pay on account of your non-payment. You must pay any applicable Taxes. In the event that any payments and/or amount payable by you to GardenIQ is subject to (i) any withholding or similar tax; (ii) any Taxes not collected by GardenIQ; or (iii) any other Taxes or other government levy of whatever nature, the full amount of that tax or levy shall be solely your responsibility and shall not reduce the amount to which GardenIQ is entitled under the Agreement. You will indemnify and hold GardenIQ harmless against any and all claims by any competent tax authority related to any such withholding or similar taxes and any penalties and/or interest thereon.

Team means GardenIQ employees, officers, directors, independent contractors, and representatives.

Terms of Use means these Terms of Use and all other terms and policies posted by GardenIQ on the GardenIQ Site or GardenIQ App (and any updates by GardenIQ to these Terms of Use and those terms and policies).

Workspace Seats means Account User’s employees, representatives, consultants, contractors, or agents who are authorized to use the Service, for the sole benefit of the Account User, and have been supplied user identifications and passwords by Account User or on Account User’s behalf.

You or your means any user of any GardenIQ Site or GardenIQ App and any person who has notice of these Terms of Use.

2. Account User Terms

A. Account User Eligibility

In order to use the Service, you must be at least eighteen (18) years old and able to enter into contracts; complete the account registration process; agree to these Terms and the other terms and conditions linked in these Terms that form part of the Agreement; provide true, complete, and up-to-date contact and billing information; not be based in Cuba, Iran, North Korea, Syria, Russia, the Crimea, Donetsk ("DNR"), and Luhansk ("LNR") regions of Ukraine or any other territory that is subject to a government embargo; and not be included in lists maintained by the United States or other applicable jurisdictions prohibiting transactions with and the export of US products to certain entities, people and jurisdictions.

By using the Service, you represent and warrant that you meet all the requirements listed above, and that you will not use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

GardenIQ reserves the right to refuse service, close accounts of any Account User, and change eligibility requirements at any time.

B. Term

When you sign up for an account and agree to these Terms, the Agreement between you and GardenIQ is formed and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have an account on the GardenIQ Site or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. If you sign up as an Account User on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

C. Order Form

You may order the Services through an online registration or order form approved and authorized by GardenIQ (each an “Order Form”). Any order for the Services made pursuant to an Order Form is subject to the terms of this Agreement. An Order Form may contain additional or different terms, conditions, and information regarding the Services you are ordering as authorized and agreed to by GardenIQ. In the event of any conflict or inconsistency between this Agreement and any Order Form authorized and agreed to by GardenIQ, this Agreement controls and governs over the Order Form, to the extent necessary to resolve the particular conflict or inconsistency only. GardenIQ will provide the Services set forth in your Order Form and standard updates to the Services that we make generally available at no additional cost to similarly situated customers in the same geographic region during the applicable Initial Subscription Term or then-current Renewal Term.

D. Changes

We may change any of the Terms of Use by posting revised Terms of Use on our GardenIQ Site. Unless you terminate your account, the new Terms of Use will be effective immediately upon posting on the effective date indicated in the new Terms of Use, as applicable, and apply to any continued or new use of the Service. GardenIQ may, in its sole discretion, change or modify the Service, Service Add-ons, or any features of the Service at any time, and we may discontinue the Service, Service Add-ons, or any features of the Service at any time.

E. Account and Password

You are responsible for keeping your account name and password confidential. You are also responsible for any account that you have access to and any activity occurring in such an account (other than activity that GardenIQ is directly responsible for that is not performed in accordance with your instructions), whether or not you authorized that activity. You will immediately notify us of any unauthorized access or use of your accounts. We are not responsible for any losses due to stolen or hacked passwords. We do not have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. Furthermore, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate. We may contact you or any authorized user, or login added to your account, based on the information provided in your account.

F. Closing Your Account

You or GardenIQ may terminate the Agreement at any time and for any reason. You may do so by terminating your Account on the GardenIQ Site or we may do so by giving notice to you that we are terminating the Agreement. We may suspend the Service to you at any time, with or without cause. We will not refund or reimburse you in any situation. If your account is inactive for 12 or more months, we may terminate your account and you will not be entitled to a refund for any prepaid amounts or reimbursement for any unused Paid Monthly Plan or Service Add-On Plan. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns and Contacts. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.

G. Account Disputes

We are not knowledgeable about the inner workings of your organization or the nature of your personal relationships. You will not request access to or information about an account that is not yours, and you will resolve any account-related disputes directly with the other party. We decide who owns an account based on a number of factors, including the content in that account, and the contact and profile information listed for that account. In cases where differing contact and profile information is present or we are unable to reasonably determine ownership, we will require you to resolve the matter through proper channels outside of GardenIQ.

When a dispute is identified, we may suspend any account associated with the dispute, including disabling login to the GardenIQ App and all Services, to protect the security and privacy of the data held within the account until the dispute is properly resolved.

3. Payment Terms

A. Paid Monthly Plans

If you sign up for a paid monthly plan (“Paid Monthly Plan”), you will be required to self-select your projected customer profiles, as described in the definition section above, from the options posted on our GardenIQ Site, based on your anticipated use of the Service. Each Paid Monthly Plan offers different pricing and feature options and has varying usage limits. Once you select your Paid Monthly Plan, GardenIQ will never automatically upgrade or downgrade your Paid Monthly Plan. You will receive an account notification to purchase additional feature usage or upgrade your account, your account features will be suspended once you reach your account limits. If you exceed your Paid Monthly Plan usage limits (either by exceeding your customer profiles, events, or monthly email/notification limits, or all three), you will incur additional charges for the prior billing cycle based on your current Paid Monthly Plan, which will be detailed on your bill and in your account. Before paying for your Paid Monthly Plan for the first time, you will have an opportunity to preview the additional charges which would apply to your Paid Monthly Plan should you incur them by exceeding your self-selected usage limits. If you decide to proceed, and you incur additional charges, you agree to pay them on or before the next Due By Date, as described below. You will always have the option to upgrade to a higher tier at any time. If you upgrade during a billing cycle, you may elect to upgrade your customer profile limit, your website events limit, or your monthly email/notification limits; or all three. If you elect to upgrade your customer profile limits, you will automatically increase your email limits. Upgrading either your email limits or event limits operate separately from upgrading your customer profile limits. In any event, your monthly charge for that billing cycle will be calculated based on the number of days in that billing cycle during which you were at each of the lower tier and the higher tier (including any applicable additional charges for the higher tier). You will also have the option to downgrade to a lower tier at any time, but if you elect to downgrade during a billing cycle, your downgrade will not be effective until the end of that billing cycle, and you will still be charged for that entire billing cycle at the higher tier (including any applicable additional charges for the higher tier).

When you sign up for a Paid Monthly Plan, you agree to monthly recurring billing, starting on the date you sign up. Billing occurs on the same day each month, based on the date that you first started paying for any recurring monthly plan. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Due By Date”). If any part of a month is included in the Term, then payment is required for the full month. If you exceed your self-selected usage limits for your Paid Monthly Plan, then you’ll have to pay additional charges (as described above) for the prior billing cycle on or before the next Due By Date, even if the Term ends or you downgrade to a Free Limited Plan before that payment is otherwise due. Billing for Paid Monthly Plans may be paused, and you may choose to close your account permanently at any time. You agree to make all payments owed for your Paid Monthly Plan in accordance with these Terms.

B. Free Limited Plan

All Account Users have access to basic marketing functionality under the free marketing plan (“Free Limited Plan”), for no more than 365 days. Account Users under the Free Limited Plan include one Workspace Seat and only have access to SMS/MMS Service Add-On Plans; all other Service Add-On Plans are not compatible. If you use the Service under the Free Limited Plan and you want to exceed the limits of the Free Limited Plan, you’ll be required to select and pay for a Paid Monthly Plan. Paid Monthly Plans are described in Section 3.A above. If you exceed the limits of your Free Limited Plan, or otherwise upgrade your account to a Paid Monthly Plan, you’ll only be provided one complimentary downgrade to the Free Limited Plan (provided your email/notification sending volume, customer profiles, and other feature usage drops down to the Free Limited Plan usage limits in effect at the time of downgrade). If you go over the limits for the Free Limited Plan more than once, you’ll no longer qualify for the Free Limited Plan, even if you are within 365 days of establishing your account or your future email/notification sending volume, customer profiles, and other feature usage are within the limits of the Free Limited Plan.

C. 1 Month Promotional Free Trial Membership

From time to time at our discretion, we may offer a promotional, free trial period of 1 month for a Paid Monthly Plan (“Trial Period”). To activate the Trial Period, you will be required to (1) enroll for the eligible Paid Monthly Plan of your choice, and (2) provide valid payment information to us at the time of enrollment. Free trial offer does not include add-on or one-time fees, such as a Service Add-On Plan. Upon the expiration of the Trial Period, you will be charged on a monthly basis at the then-current rate for the Paid Monthly Plan you have selected until you cancel, change to a different Paid Monthly Plan, or change to a Free Limited Plan. Prior to the expiration of the Trial Period, we will notify you of the upcoming expiration of your Trial Period. If the payment method we have on file for you is declined, you must provide to us a new, valid payment method for the Paid Monthly Plan or we reserve the right, without further notice, to immediately suspend or cancel your continued use of the Paid Monthly Plan.

To be eligible for the Trial Period, you must be a new GardenIQ Account User and sign up for a Paid Monthly Plan using the “Free for 1 Month” option (or other similar wording). The 1 Month Promotional Free Trial Membership offer cannot be combined with any other GardenIQ offer(s) and is available for a limited time. Offer is provided through a 100% discount to your recurring monthly GardenIQ plan charges for the first monthly bill immediately following fulfilling the eligibility criteria. You can pause your subscription or delete your GardenIQ account at any time via the Settings section in the Account & Billing area. Pausing your Paid Monthly Plan or deleting your GardenIQ account will become effective immediately. You can downgrade your Paid Monthly Plan in the Billing Section of your account. Downgrading your Paid Monthly Plan will become effective at the end of the monthly billing period. You will not receive a refund for previously billed charges. Terms, conditions, pricing, special features, and service and support options subject to change without notice.

D. Service Add-On Plan

You may buy additional SMS/MMS, Emails, Customer Profiles, Website Events, Banners, Surveys, etc., to use the Services (“Service Add-On Plan”), as explained on our GardenIQ Site. You will have an opportunity to review current rates for a Service Add-On Plan in your account prior to purchase. If you choose to buy a Service Add-On Plan compatible with your Free Limited Plan or Paid Monthly Plan, you’ll have access to the features of the Service included in the Plan and other than the monthly payment requirement, all of these Terms will still apply to you. SMS/MMS Service Add-On Plan roll over each month and expire 12 months after purchase. All other Service Add-On Plans expire at the close of each month, you will not be entitled to a refund for any prepaid amounts or reimbursement for any unused Service Add-On Plan. Each Service Add-On Plan has no cash value, cannot be refunded or redeemed for cash, and represents a limited license to use the Service for the specified volume and type of service.

E. Customer Profiles and Archiving

You may have several types of contacts in your GardenIQ account, but only contacts that you are able to engage through the Service via a Campaign, whether through a Paid Monthly Plan, Service Add-On Plan, or Free Limited Plan, is considered a Customer Profile. Subscribed, unsubscribed, and non-subscribed contacts count towards your Customer Profile. Cleaned, merged, and archived contacts do not count towards your Customer Profiles, nor do contacts whose opt-in confirmation is pending. You may elect to archive contacts at any time, but any Customer Profile changes for an archived contact (whether initiated by you, the contact, or an integration/merger) will automatically unarchive that contact. You cannot engage in any activity through the Service with archived contacts unless and until they are unarchived. If a contact is unarchived, it will immediately count towards your Customer Profiles for your current billing cycle and any future billing cycles unless and until archived again.

F. Harvest℠ Website

You have the option to add Harvest℠ to your website to monitor, gather data, analytics, visitor traffic, website actions, and website metrics, among other things (classified as Events). Free Limited Plan and all Paid Monthly Plans have access to Harvest℠ functionality. You agree to monthly recurring billing in advance, starting on the date you sign up for Harvest℠. Thereafter, billing occurs on the same day each month, based on the date that you first started paying for any additional service (e.g., Harvest℠). Note that your first payment for your use of Harvest℠ may be prorated if you first started the service and it does not align with other recurring monthly services you may have; thereafter, your payment dates will align, and you will be billed for the full billing cycle each month.

When you connect your website with Harvest℠, you agree to allow GardenIQ to collect Customer Data, automatically, through the JavaScript tracking snippet installed on your website at the time of connection and/or re-authorization. This JavaScript tracking snippet is necessary to enable several of GardenIQ's data tracking and marketing features. Some of these features work by allowing you to track the activity of your subscribed Contacts on your website through the use of cookies or similar technologies, such as pixels.
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If you choose to enable automations or features utilizing Harvest℠ once your website is connected, you represent and warrant that (1) you have permission from your subscribed Contacts to track activity via cookies, pixels, and other similar technologies, and to transfer information related to this tracking to GardenIQ, and (2) your website adequately discloses your tracking practices and use of cookies, pixels, and similar technologies in a privacy policy, cookie statement, or other disclosure.

If you wish to deactivate Harvest℠, you may do so within your Garden IQ account, and cancellation will be effective on the last date of the current billing cycle for which you have paid.

G. Dedicated IP Addresses

In certain circumstances, Account Users may have the option to purchase access to a dedicated IP address or specifically designated shared IP address (collectively, a “Dedicated IP Address”) for email/notification sending purposes. GardenIQ, in its sole discretion, may determine whether to provision access to a Dedicated IP Address. Dedicated IP Addresses used to provide the Service are owned and operated by GardenIQ and we reserve the right to revoke an Account User’s use of a Dedicated IP Address at any time. If your account uses a Dedicated IP Address and email sending for the account is paused or suspended for 30 days or more for any reason (including but not limited to compliance matters, failed or overdue payment issues, or voluntarily pausing your Paid Monthly Plan), GardenIQ may reclaim the Dedicated IP Address from the account and terminate any future use of the Dedicated IP Address by the Account User.
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When a dispute is identified, we may suspend any account associated with the dispute, including disabling login to the GardenIQ App and all Services, to protect the security and privacy of the data held within the account until the dispute is properly resolved.

H. Debit and Credit Cards

As long as you are an Account User with a Paid Monthly Plan or are otherwise utilizing paid features of the Service or have an outstanding balance with us, you’ll provide us with valid debit or credit card (“card”) information and authorize us to deduct your charges against that card. You’ll replace the information for any card that expires with information for a valid one. If your card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new card. Anyone using a card represents and warrants that they are authorized to use that card, and that any and all charges may be billed to that card and will not be rejected. If we’re unable to process your card order for any reason, we’ll try to contact you by email and may suspend your account until your payment can be processed.

I. Refunds

You will not be entitled to a refund or credit from us under any circumstance. However, we may, at our sole discretion, offer a refund, discount or credit.

J. Charges for Service Add-On Plans

If you use a Service Add-On Plan that has a charge, then you’ll be billed that additional amount with each billing cycle for as long as the Service Add-On Plan is active. Your billing cycle for a Service Add-On Plan may differ from your billing cycle for your Monthly Plan or other features of the Service, and certain Service Add-On Plans may require upfront payment for their entire billing cycle. If you use a Service Add-On Plan in a manner that is intended to avoid our billing thresholds of the next tier Paid Monthly Plan, then we may charge you at the comparable Paid Monthly Plan rate or terminate your account.

K. Billing Changes

We may change any of our fees, including our charges for Monthly Paid Plans and any Service Add-On Plans, at any time by posting a new pricing structure to our GardenIQ Site, in your account, and/or sending you a notification by email. Quoted fees do not include sales or other transaction-based taxes of any kind.

L. Payment of Taxes and Withholding

Unless otherwise expressly specified by Garden IQ, as required by applicable Law, all prices shown by Garden IQ for the Services are exclusive of Taxes. Where applicable, Taxes will be charged on the invoices issued by Garden IQ in accordance with applicable Laws. Garden IQ, in its sole discretion, will (i) calculate the amount of Taxes due, and (ii) change such amounts without notice to you. Account User will pay Taxes in connection with this Agreement unless the necessary tax exemption information is provided to Garden IQ or a valid tax exemption certificate is provided to Garden IQ via email to taxexempt@gardeniq.io and approved by Garden IQ. Any exemption from paying Taxes will be on a going-forward basis, upon approval. If the appropriate tax authority determines, at any time, that Account User is not exempt from paying Taxes, Account User will continue paying such Taxes to Garden IQ.

4. Account User Rights

A. Proprietary Rights and Feedback

GardenIQ, its affiliates, its licensors, and suppliers (as applicable) own and shall retain ownership of all Proprietary Rights in the GardenIQ App, GardenIQ Site and Service, and any underlying or other technology and intellectual property embodied or contained in, used to provide or support, or otherwise associated or provided in connection with, the GardenIQ App, GardenIQ Site and Service, including all Proprietary Rights related thereto, and all trade names, trademarks, service marks, trade dress, logos, icons, insignia, symbols, interface and other designs, domain names and corporate names, and the like (whether registered or unregistered) (hereinafter “GardenIQ Marks”) associated or displayed with the GardenIQ App, GardenIQ Site and Service, together with the goodwill associated with any of the foregoing GardenIQ Marks (all of the foregoing, collectively “GardenIQ Property”). You may not frame or utilize framing techniques to enclose any GardenIQ Marks, or other proprietary materials or information (including images, text, page layout, or form) of GardenIQ without our express prior written consent. You may not use any meta tags or any other “hidden text” utilizing GardenIQ Marks without our express prior written consent. No rights to use the GardenIQ Marks are provided to you herein. You will respect our Proprietary Rights in the GardenIQ App, GardenIQ Site and Service.

You shall retain all right, title, and interest in and to the material, content, data, and information (including your personal information and the personal information of others) you submit to GardenIQ in the course of using the Service or which GardenIQ otherwise retrieves or accesses at your direction or with your permission (collectively, your “Content”). Subject to these Terms, you grant us permission to use or disclose your Content (including any personal information therein) only as necessary to provide the Service to you and/or as otherwise permitted by these Terms, including as further provided under Section 4B, below. You represent and warrant that: (i) you own or have otherwise obtained all necessary rights, releases, and permissions to submit all your Content to the Service and to grant the rights you have granted to us in these Terms, and (ii) your Content, the submission of your Content and the use of your Content as you authorize in these Terms will not violate (1) any applicable law, (2) any third-party intellectual property, privacy, publicity, or other rights, or (3) any of your or third-party policies or terms governing your Content.

You may provide or we may ask you to provide suggestions, comments, input or other feedback (“Feedback”) regarding the Service. If you provide us with any Feedback, then you grant us a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback as we see fit. Any Feedback you choose to provide is given entirely voluntarily. You understand that you will not receive any compensation for your Feedback, and that we may use any Feedback you provide to improve the Service or to develop new features and services.

GardenIQ reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any Proprietary Rights or other right, title, or interest in or to any GardenIQ Property or other intellectual property provided in connection with this Agreement or the GardenIQ App, GardenIQ Site and Service.

B. Privacy

Your privacy is important to us. Please read Privacy Policy for information regarding how we collect, use, and disclose your personal information and the privacy rights available to you when you use and interact with the Service. For the purposes of privacy and data protection laws, for much of the personal information we process when providing the Service, we act as your processor or service provider in accordance with our Data Processing Agreement. There are certain instances where we process personal information, including Content and other data from our Account Users, where we act as a controller to provide and develop the Service and for other important business purposes (e.g., for billing, administrative, security, and product improvement purposes).

C. Right to Review Content, Campaigns, and Websites

We may view, copy, and internally distribute Content from your Campaigns, your websites, your Third-Party Integrations (as defined below) and your account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service, among other uses permitted by these Terms. For instance, we use these Tools to find Account Users who violate these Terms or applicable laws and to study data internally to make the Service smarter and create better experiences for Account Users and their Contacts. We may aggregate and anonymize data, including data from the Content of your Campaigns, websites, and Third-Party Integrations to create statistical information. We own all such aggregated and anonymized data and may use it, including, but not limited to, operating, analyzing, improving, or marketing our products and services and sharing such data externally for research, marketing, or other lawful purposes.

D. Confidential Information

Each Party hereto shall protect the other Party’s Confidential Information using a standard of care no less restrictive than it uses for its own similar Confidential Information, but in no event less than reasonable care. Except as authorized by the disclosing Party or as required by law, the recipient shall not disclose any of the disclosing Party’s Confidential Information to any person other than the recipient’s own employees, consultants, subcontractors and agents, to the extent reasonably necessary to perform under this Agreement. The recipient will not use, and will not permit its affiliates, employees, subcontractors, consultants or agents to use any of the disclosing Party’s Confidential Information for any purposes other than those contemplated by this Agreement. Upon expiration or termination of this Agreement, the recipient (and its applicable affiliates, employees, subcontractors, consultants and agents) shall return or destroy all such Confidential Information, retain no copies, and erase all media containing such Confidential Information (other than reasonable archival data which will continue to be bound by the terms of this Agreement). The recipient’s obligations to protect the disclosing Party’s Confidential Information shall survive expiration or termination of this Agreement. Disclosures of the other Party’s Confidential Information compelled by subpoena or other legal process (“subpoena”) shall not breach this Section 4D, provided that (unless prohibited by law) the recipient promptly advises the disclosing Party, and cooperates with the disclosing Party’s efforts to obtain a protective order or other reasonable and lawful measures (at the disclosing Party’s expense) to protect the disclosing Party’s Confidential Information, if legally permitted. Confidential Information excludes: (i) information in the public domain, (ii) information generally known in either Party’s industry, or (iii) information independently developed or lawfully acquired (in either case, without breach of any legal or contractual obligation). Unless otherwise agreed in writing, the obligations under this Section 4D (Confidential Information) shall survive the termination or expiration of this Agreement.

5. Garden IQ App Rules and Abuse Policy

A. General Rules

By agreeing to these Terms, you promise to follow these rules:

You will not send spam!
You will not use purchased, rented, or third-party lists of email addresses.
You’ll comply with Section 6 below.

GardenIQ does not allow accounts that promote or incite harm toward others or that promote discriminatory, hateful, or harassing Content. To this end, we may suspend or terminate your account if you send a Campaign, create or manage a Site, or otherwise distribute any Content that we determine, in our sole discretion, contains either of the following:

A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.

We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:

an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.

GardenIQ also does not allow the distribution of Content that is, in our sole discretion, materially false, inaccurate, or misleading in a way that could deceive or confuse others about important events, topics, or circumstances.

If you violate any of these rules, then we may issue a warning to, suspend, or terminate your account.

B. Reporting Abuse

If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a GardenIQ Account User, please report it to our Legal Team. (Every email Campaign sent through the Service has an embedded campaign tracking ID in the email header, making it easy to report suspected spam.) If you think anyone has posted material that violates any protected marks or copyrights, then you can notify our Legal Team.

C. Bandwidth Abuse / Throttling

You may only use our bandwidth for your Content, Campaigns, and Harvest℠ websites. We provide image and data hosting only for your use of the Service, so you may not host images or data on our servers for anything else. We may throttle your sending or connection through our Service at our discretion.

D. Compliance with Laws & Regulations

You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLBA, Data Protection Laws, anti-corruption and anti-bribery laws and regulations, United States and any other applicable economic sanctions, and export control laws and regulations (“Global Trade Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, we will not be liable if the Service does not meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children's Online Privacy Protection Act, or any other applicable laws.

If you collect any personal information pertaining to a minor and store such information within your GardenIQ account, you represent and warrant that you have obtained valid consent for such activities according to the applicable laws of the jurisdiction in which the minor lives.

You agree, represent, and warrant to GardenIQ that:

You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that (a) satisfies the requirements of applicable Data Protection Laws, (b) describes your use of the Service, and (c) abides by our Privacy Policy.
You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to GardenIQ and to enable such data to be lawfully collected, processed, and shared by GardenIQ for the purposes of providing the Service or as otherwise directed by you.
You will comply with all laws and regulations applicable to the Campaigns sent through the Service, including those relating to (a) acquiring consents (where required) to lawfully send Campaigns, (b) the Content of Campaigns, and (c) your Campaign deployment practices.
You will provide all notices and obtain all necessary consents required by applicable Data Protection Laws to enable GardenIQ to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users in accordance with and as described in our Privacy Policy.
To the extent GardenIQ processes your Content protected by Data Protection Laws as a processor on your behalf, you and GardenIQ shall be subject to and comply with the GardenIQ Data Processing Agreement ("DPA"), which is incorporated into and forms an integral part of these Terms. The DPA sets out our obligations with respect to data protection and security when processing your Content on your behalf in connection with the Service.

E. Account User Compliance

Account User represents and warrants that (i) it has complied, and will continue to comply, with all applicable laws, including Data Protection Laws, in respect of its processing of Customer Data and any processing instructions it issues to GardenIQ; and (ii) it has provided, and will continue to provide, all notice and has obtained, and will continue to obtain, all consents and rights necessary under Data Protection Laws for GardenIQ to process Customer Data for the purposes described in the Agreement. Account User shall have sole responsibility for the accuracy, quality, and legality of Customer Data and the means by which Account User acquired Customer Data. Without prejudice to the generality of the foregoing, Account User agrees that it shall be responsible for complying with all laws (including Data Protection Laws) applicable to any Campaigns (as defined in the Agreement) or other content created, sent, or managed through the Service, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices.

F. Lawfulness of Account User’s Instructions

Account User will ensure that GardenIQ's processing of the Customer Data in accordance with Account User’s instructions will not cause GardenIQ to violate any applicable law, regulation, or rule, including, without limitation, Data Protection Laws. GardenIQ shall promptly notify Account User in writing, unless prohibited from doing so under Data Protection Laws, if it becomes aware or believes that any data processing instruction from Account User violates Data Protection Laws. Where Account User acts as a processor on behalf of a third-party controller (or other intermediary to the ultimate controller), Account User warrants that its processing instructions as set out in this Agreement and the DPA, including its authorizations to GardenIQ for the appointment of Sub-processors in accordance with the DPA, have been authorized by the relevant controller. Account User shall serve as the sole point of contact for GardenIQ and GardenIQ need not interact directly with (including to provide notifications to or seek authorization from) any third-party controller other than through regular provision of the Service to the extent required under the Agreement. Account User shall be responsible for forwarding any notifications received under the DPA to the relevant controller, where appropriate.

G. Global Trade Compliance

You will not use, export, re-export, import, sell, release, or transfer the GardenIQ App or the software that supports the App (“Software”) directly or indirectly, except as authorized by United States law, the laws of the jurisdiction where the GardenIQ App and Software are made available, and any other applicable laws and regulations. In particular, but without limitation, the GardenIQ App, Software, source code, and technology may not be exported, or re-exported, transferred, or released (a) into any U.S. embargoed countries (Cuba, Iran, North Korea, Syria and the Crimea, Donetsk (“DNR”), and Luhansk (“LNR”) regions of Ukraine) and Russia; or (b) to anyone included in the U.S. Treasury Department’s list of Specially Designated Nationals or on any other applicable restricted party lists. By using the GardenIQ App and the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the GardenIQ App and Software for any purposes prohibited by United States law.

In addition, you certify that neither you nor any principals, officers, directors, or any person or entity (including any beneficiaries, owners, affiliated and/or associated parties) you know to be involved with the use of the Software and the Services are not: (a) on any sanctions lists in the countries where the Software and Services are available, (b) doing business in any of the U.S. embargoed countries, and (c) a military end user as defined in 15 C.F.R § 744.

It is important to note that this Section 5G is not meant to provide a comprehensive summary of the Global Trade Laws and Regulations that govern GardenIQ, the Service, the GardenIQ App, or the Software. You’re downloading and using the Software at your own risk, and it is your responsibility to consult with a legal advisor to make sure your use of the Service and the Software complies with applicable laws.

6. Prohibited Data, Content, and Actions

A. Prohibited Data

Account User will not provide (or cause to be provided) any Sensitive Data to GardenIQ for processing under the Agreement, and GardenIQ will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident or otherwise.

B. Prohibited Content

Please do not use GardenIQ to distribute anything offensive, to promote anything illegal, or to harass anyone. You may not use GardenIQ to create, send, display, advertise, or sell (as applicable):

Illegal goods or services
Emails that violate the CAN-SPAM act or other anti-spam laws
Pornography/sexually explicit content
Campaigns promoting or supporting terrorism or violent extremism
Counterfeit products or products that infringe the intellectual property rights of others, including trademark, copyright, design or patent rights
Products claiming to prevent, treat, or cure COVID-19 that are not approved or authorized for emergency use by regulatory or public health agencies, such as the FDA in the U.S.
Products that are in demand due to COVID-19 with excessive pricing, price gouging, or deceptive pricing practices or in demand due to COVID-19 and prohibited by applicable law

Some industries have higher-than-average abuse complaints, which can jeopardize deliverability. In order to maintain the reliability of our platform, we may, in our sole discretion, not allow businesses that offer these types of services, products, or content:

Escort services, mail-order bride/spouse finders, international marriage brokers, and other similar websites and services
Hookup, swinger, or sexual encounter websites or services
Pharmaceutical products
Work-at-home scams, make money online, and lead generation opportunities
Gambling services or products
Multi-level marketing
Affiliate marketing
Credit repair and get out of debt opportunities
List brokers or list rental services
Selling “Likes” or followers for a social media platform
Cryptocurrencies, virtual currencies, and any digital assets related to an Initial Coin Offering

C. Content Subject to Additional Scrutiny

Certain types of content may cause higher-than-average abuse rates. For that reason, we may closely review accounts that offer the following services, products, or content:

Online trading, day trading tips, or stock market related content
Daily horoscope reports
Mortgages and loans
Nutritional, herbal, and vitamin supplements
Adult entertainment/novelty items
Online dating services and applications (dating websites or services with a sexual emphasis or sexually explicit content – including images depicting nudity – are not permitted)
Real estate
Services that support programmatically sending mail on behalf of third parties without creating or reviewing the content
Products in demand due to COVID-19 and regulated by applicable law

If we identify abuse, in our sole discretion, we may suspend, throttle, or disable the account.

D. Prohibited Actions

We work hard to maintain the positive reputation of our platform. You may not:

Send Spam. Spam can be in the form of bulk emails or one to one commercial emails.
You must be able to point to an opt-in form or show other evidence of consent for any commercial or marketing email you send.
Include in your Campaigns, Websites, Ads, or account or sell in your Store any material that was not created by you, provided for you to use, or that would violate anyone’s rights. That includes text, photos, graphics, and other content.
Use any misleading or incorrect names, addresses, email addresses, subject lines, or other information in the Service or in any Campaigns created, managed, or sent using our Service.
Share your password to the GardenIQ Workspace.
Decipher, decompile, disassemble, or reverse engineer any of the Software.
Use any of the Software to create a competing product.
Send marketing emails that do not contain a GardenIQ App unsubscribe mechanism or send emails that use an external unsubscribe process.
Set up multiple accounts for any person or entity in order to send similar content, unless you’re part of a franchise or agency.
Import or incorporate any of this information into any account, audience, emails, or otherwise upload to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information.
Send Campaigns that will be delivered to recipients as text, SMS, or MMS messages unless using a feature designed for that purpose.
Upload or send email Campaigns to purchased, rented, third-party, co-reg, publicly available data, or partner lists of any kind.
Send or forward personal mail.
Send content created in the GardenIQ App through another service.
Host images on our servers for any purpose other than for your use of the Service.
Host Content on our servers for any purpose other than for your use of the Service.
Except as permitted under this Agreement, take any action intended to avoid our billing thresholds.
Sell or offer to sell any counterfeit products or products that infringe the intellectual property rights of others, including trademark, copyright, design or patent rights.

7. Account User Liability

A. Limitation of Liability

To the maximum extent permitted by law, you acknowledge and agree that (i) you assume full responsibility for any loss that results from your use of the Service and Software, including any downloads from the GardenIQ Site; (ii) GardenIQ will not be liable for any indirect, punitive, special, or consequential damages, including any loss of data, profits, revenues, business opportunities, goodwill, or anticipated savings under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages; and (iii) in any calendar month, the total liability of GardenIQ and our third-party providers, licensors, distributors, or suppliers to you arising out of or relating to this Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month. For the avoidance of doubt, in no instance will GardenIQ be liable for any losses or damages you suffer if you use the Service or Software in violation of these Terms, regardless of whether we terminate or suspend your account due to such violation.

B. No Warranties

Except as expressly stated in these Terms, the Service is provided as-is and we do not provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but is not limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Service, which are, to the fullest extent permitted by law, excluded from the Agreement. Since Account Users use the Service for a variety of reasons, we cannot guarantee that it’ll meet your specific needs.

C. Indemnity

You agree to indemnify and hold us and our Team harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses in connection with any claims you make that are not allowed under these Terms due to a “Limitation of Liability” or other provision. (Indemnity is an agreement to compensate someone for a loss.) You also agree to indemnify and hold us harmless from any losses, damages, judgments, fines, and costs, including legal fees and expenses, in connection with any claims arising out of or relating to (i) your Content, Campaigns, or Harvest℠ websites, (ii) your use of the Service, (iii) your violation of any laws or regulations, (iv) third-party claims that you or someone using your password did something that, if true, would violate any terms of the Agreement, (v) any misrepresentations made by you, or (vi) a breach of any representations or warranties you’ve made to us.

D. Equitable Relief

Your violation of these Terms may cause irreparable harm to GardenIQ and our Team. Therefore, we have the right to seek injunctive relief or other equitable relief if you violate these Terms.

E. Subpoena Fees

If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and our time spent retrieving the records, preparing documents, and participating in a deposition.

F. Disclaimers

GardenIQ is not responsible for the behavior of any third parties, agencies, linked websites, or other Account Users, including third-party applications, products, or services for use in connection with the Service (each, a “Third-Party Integration”). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.

8. Other Applicable Terms

A. Notice to U.S. Government End Users

The Software and the Site, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:

only as Commercial Items,
with the same rights as all other end users, and
according to the Terms.

Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is GardenIQ LLC, PO Box 128, Kings Mills, Ohio 45034-9998.

B. Assignments

You may not assign any of your rights under the Agreement to anyone else. We may assign the Agreement and any of our rights and obligations hereunder to any other individual or entity at our discretion.

C. Choice of Law

The State of Delaware laws and the Federal Arbitration Act will govern all disputes arising out of or relating to the Service and the Agreement, regardless of conflict of laws rules.

D. Dispute Resolution

You and GardenIQ agree that, except as provided below, any dispute, claim or controversy arising out of or relating in any way to the Service or this Agreement (a “Claim”) will be determined by binding arbitration, instead of in courts of general jurisdiction.

Either you or GardenIQ can seek to have a Claim resolved through arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision, and that you and GardenIQ are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of the Agreement and/or the termination of your Service.

If you elect to seek arbitration, you must first send to GardenIQ a written Notice of your Claim (“Notice of Claim”). The Notice of Claim to GardenIQ should be sent in care of our registered agent Corporate Statutory Services, Inc. 255 E Fifth St. Ste. 2400 Cincinnati, Ohio 45202. The Notice of Claim should include both the mailing address and email address you would like GardenIQ to use to contact you. If GardenIQ elects to seek arbitration, it will send, by certified mail, a written Notice of Claim to your address on file. A Notice of Claim, whether sent by you or by GardenIQ, must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific amount of damages or other relief sought.

You and GardenIQ agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and GardenIQ therefore agree that, after a Notice of Claim is sent but before either you or GardenIQ commence arbitration, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Claim covered by the Agreement. If you are represented by counsel, your counsel may participate in the conference as well, but you agree to fully participate in the conference. Likewise, if GardenIQ is represented by counsel, its counsel may participate in the conference as well, but GardenIQ agrees to have a company representative fully participate in the conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

If we do not reach an agreement to resolve the Claim within sixty (60) days after the Notice of Claim is received, you or GardenIQ may commence an arbitration proceeding by filing a Demand for Arbitration. You agree that you may not commence any arbitration unless you and GardenIQ are unable to resolve the claim within 60 days after we receive your completed Notice of Claim and you have made a good faith effort to resolve your claim directly with GardenIQ during that time. After 60 days, a party may commence an arbitration proceeding by contacting the American Arbitration Association (“AAA”). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration will be conducted by the AAA before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879, except as modified by these Term. Unless GardenIQ and you agree otherwise, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim.

The arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the State of Delaware or the state of your residence and will be selected by the parties from the AAA’s National Roster of arbitrators. The arbitrator will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates meeting this criteria; (b) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. The arbitrator is bound by these Terms. Except as otherwise provided below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.

You and GardenIQ agree that an administrative conference with the AAA shall be conducted in each arbitration proceeding, and you and a GardenIQ company representative shall appear at the administrative conference via telephone. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference.

The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. GardenIQ will not seek to recover its attorneys’ fees and costs in arbitration from you unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Judgment on any award may be entered in any court having jurisdiction. This agreement to arbitrate shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of these Terms.

The arbitrator shall determine all issues of liability on the merits of any Claim asserted by you or GardenIQ and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or GardenIQ prevail on a Claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual Claims in arbitration. Before a court of competent jurisdiction issues any public injunctive relief, it shall review the factual findings of the arbitration award on which any injunction would issue with no deference to the arbitrator.

Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. You are required to pay AAA’s initial filing fee, but GardenIQ will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in Kent County, Delaware. If the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and Garden IQ will not reimburse your initial filing fee. You and GardenIQ agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or GardenIQ, and you and GardenIQ waive any objection to such fee modification.

You and GardenIQ agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, if you have elected arbitration, unless both you and GardenIQ agree otherwise, the arbitrator may not consolidate any other person's Claims with your Claims and may not otherwise preside over any form of a representative or class proceeding. If GardenIQ believes that any Claim you have filed in arbitration or in court is inconsistent with the limitations in this paragraph, then you agree that GardenIQ may seek an order from a court determining whether your Claim is within the scope of the Class Action Waiver. If this Class Action Waiver is found to be unenforceable, then the entirety of this Dispute Resolution Section shall be null and void.

E. Force Majeure

We will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.

F. Survivability

Even if the Agreement is terminated, the following sections will continue to apply: Proprietary Rights, Feedback, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Dispute Resolution, Choice of Law, Severability, and Entire Agreement.

G. Severability

If it turns out that a section of these Terms is not enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.

H. Interpretation

The headers and sidebar text are provided only to make these Terms easier to read and understand. The fact that we wrote these Terms will not affect the way the Agreement is interpreted.

I. Waiver

If we do not immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.

J. No Changes in Terms at Request of Account User

We cannot change these Terms for any one Account User or group.

K. Further Actions

You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.

L. Notification of Security Incident

If we become aware of a security incident related to our systems or databases that contain personal information of you or your contacts, we’ll notify you if required by law. In that event, we’ll also provide you with information about that incident so that you can evaluate the consequences to you and any legal or regulatory requirements that may apply to you, unless we’re prevented from doing so by legal, security or confidentiality obligations. Notifying you of a security incident or cooperating with you to respond to one will not be deemed an acknowledgement or assumption of any liability or fault of GardenIQ for such incident.

M. Beta Services

From time to time, (i) we may invite you to try products or features related to our Service that are not generally available to all of our Account Users or the public or (ii) we may release products or features related to our Service that are identified in the App as beta, preview, pilot, limited release, or by a similar designation (collectively, “Beta Services”). Beta Services may be provided for evaluation or testing purposes only, and, therefore, may contain bugs or errors, and may not be as reliable as other features of the Service. The Beta Services are provided as-is. Your use of such features may include additional rules or restrictions that we may place on their use. We may discontinue Beta Services at any time in our sole discretion, and we may decide not to make Beta Services generally available. For the avoidance of doubt, Beta Services are a part of the Service, and, therefore, are subject to the terms of the Agreement, including, without limitation, Sections 7 and 8D.

N. Notices

Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our GardenIQ Site. Please note that, for purposes of providing notice, we may use any email or physical address within your account, including contact information associated with an account’s primary contact, billing contact, owner profile, or any other profile or seat associated with the account. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, GardenIQ LLC, PO Box 128 Kings Mills, Ohio 45034-9998, or any addresses as we may later post on the GardenIQ Site.

O. Entire Agreement

These Terms make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings.

Contact Information

Please contact us if you have any questions or comments about our Terms of Use. You can reach us via email at legal@gardeniq.io or via postal mail at the following address:

GardenIQ, LLC
Attention: Legal
1985 King Avenue
Suite 128
Kings Mills, Ohio 45034-9998

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