THIS USER AGREEMENT (INCLUDING ANY DOCUMENTS REFERENCED HEREIN, THIS “AGREEMENT”) DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH GARDEN ANSWERS, LLC. (THE “COMPANY”) OFFERS YOU AN ACCOUNT (THE “ACCOUNT”) FOR USE OF THE GARDEN ANSWERS SERVICE (THE “SERVICE”). BY COMPLETING THE REGISTRATION PROCESS ON OUR WEBSITE LOCATED AT ANY OF THE FOLLOWING DOMAINS: GARDENANSWERS.COM, OR BY DOWNLOADING MOBILE CONTENT TO A MOBILE DEVICE, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Eligible Subscribers. By accepting these terms, you confirm that you are 13 years of age or older, and have the consent of the subscriber of a participating mobile communications carrier to sign-up and use the service on behalf of the subscriber.
2. Fees and Payment Authorization. NOTE: THIS SECTION 2 APPLIES ONLY IF YOU HAVE INFORMATION DELIVERED TO YOUR CELLULAR PHONE, PAGER OR OTHER WIRELESS DEVICE OR IF YOU DOWNLOAD INFORMATION FROM YOUR CELLULAR PHONE, PAGER OR OTHER WIRELESS DEVICE. Your wireless service provider or pager company may charge you (i) a fee for the ability to receive text messages, or a per message fee for the delivery (or attempted delivery) of text messages to your cellular phone or pager, (ii) airtime or other connection fees in connection with your downloading or information or messages from or uploading of information or messages to the Service, and/or (iii) roaming fees if delivery of a text message occurs outside of certain geographical areas. Before subscribing to the Service, please check with your wireless service provider or pager company about the existence of such fees. You are responsible for paying all such fees, and for any other hardware, service or other costs you incur to access your Account, plus any applicable taxes. Users will be charged for the use of the services through Credit Card or directly on your mobile telephone invoice, as selected by you. If you select a monthly fee subscription plan, you authorize the continued billing each month until you cancel such subscription. If you cancel your account or subscription for any reason, the Company will not refund any of your fees paid to date.
3. Access to Account. When your Account is established, the Service will provide you with a password unique to your Account through which you may set your user options. You may disclose the password to other people whom you want to have access to use your Account on your behalf, but you will be fully responsible for all charges and liabilities incurred by their use. You will also be fully responsible for any charges and liabilities incurred through use of the Service or your Account by anyone who obtains this password as a result of your negligence, until you notify customer service at email@example.com. In addition, the Company may temporarily disable access to your Account if you report unauthorized use or if usage of the Account dramatically exceeds normal usage patterns within a short time period.
4. Use of Account/Service; Privacy.
4.1 You and other users of your Account must comply with all applicable laws and regulations in using the Service. You may not use the Service for any of the following purposes or in any of the following manners:
– to impersonate or harass any other person;
– to send any information of adult nature;
– to send any information that is or the disclosure of which would libelous, abusive, threatening, false, fraudulent, misleading, or obscene; that misappropriates or infringes any person’s proprietary right (including posting any links or URLs that you do not have the right to post or disclose); that violates any persons rights of privacy or publicity; or that violates any law, statute, ordinance or regulation (including applicable export control, consumer protection, unfair competition, antidiscrimination or false advertising laws, and without limiting the foregoing you specifically agree to comply with all applicable laws regarding the transmission of the technical data exported from the United States or the country in which you reside);
– to intercept any communications not intended for you;
– to release, post, distribute or execute any viruses or other harmful computer code; or
– to engage in “spamming” or similar conduct.
4.2 The Company does not control the data, information or other postings provided by other users, which is made available through the Service. You may find other user’s information to be offensive, harmful, inaccurate, or deceptive or to otherwise violate this Agreement. Please use caution and common sense when using the Service or relying on any data, information or other postings provided through the Service.
4.5. Members who use our Services agree to accept our SMS, MMS, or email messages as part of the service. We only use these communications to inform you of new membership benefits and features, to let you know of urgent problems on our site, and to present special members-only opportunities to buy products and services that are appropriate to the interests of our users. And we keep these messages to a minimum. You can elect not to receive our messages and remove yourself from our mailing list, by replying to any message with STOP.
5.1. One feature of the Service is that you may have the ability to retrieve certain contents of informative or marketing nature including but limited to news stories and reports, weather forecasts, horoscopes, press releases, stock prices, music, sounds, software, photographs, celebrity information, celebrity photographs, games, video, audio, graphics and similar information supplied by other the Service users, or the Company’s partners (collectively, “Third Party Content”). You understand that the Company has no editorial control over any Third Party Content and that the Company does not guarantee the accuracy or completeness of any Third Party Content. You agree that the Company will have no liability to you, or anyone else who uses your Account, with regard to any Third Party Content. You also understand that the Third Party Content is the proprietary material of the Company and/or the third party that supplies it, is protected by copyright and other applicable laws, and may not be reproduced, published, broadcast, rewritten, or redistributed without the written permission of the third party that supplied it, except to the extent allowed under the “fair use” provisions of the U. S. copyright laws or comparable provisions of foreign laws. You may use Third Party Content solely for your personal, private, non-commercial use. For the avoidance of doubt, your use of the Service is under license; you will not obtain any ownership interest in any of them through this Agreement or otherwise. The Company is not responsible to you for any content or materials or any other aspect of the Service that you might find objectionable.
5.2. With respect to any data, information or postings you make to or through the Service:
6. Changes to the Service or Terms. You understand that the Company may, in its discretion, from time to time change, add, or remove certain features of the Service, change the pricing, or change the terms of this Agreement by informing you of the amended terms via email to the email address you provide to us or via SMS to your phone, and that, if you are dissatisfied with any such changes to the Service or this Agreement, you may cancel your Account as provided in Section 10 within 14 days from the date of such notice. In addition, the Company reserves the right to discontinue the Service altogether for all users at any time in its discretion. Such amendments will be effective when sent. Alternatively, we may display the amended terms to you when you access your Account, in which case such terms shall be effective when posted. Otherwise, this Agreement may not be amended except in a writing signed by both parties.
7. Disclaimer of All Warranties. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES THE COMPANY OR ITS SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR THE ACCURACY, RELIABILITY OR TIMELINESS OF ANY INFORMATION OBTAINED THROUGH THE SERVICE (INCLUDING THIRD PARTY CONTENT), OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. THE COMPANY AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA OBTAINED THROUGH USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR RESULTS OBTAINED USING ANY SUCH MATERIAL OR DATA OR ANY RESULTING DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU TO THAT EXTENT, AND NOTHING IN THIS SECTION SHOULD BE CONSTRUED AS EXCLUDING OR LIMITING ANY WARRANTY BEYOND WHAT IS PERMISSIBLE UNDER APPLICABLE LAW.
8. Limitations of the Company’s Liability. THE COMPANY AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE OR USE OF THE SERVICE THROUGH YOUR ACCOUNT BY ANYONE ELSE. THE COMPANY’S TOTAL CUMULATIVE LIABILITY TO YOU AND ANY ANYONE WHO USES THE SERVICE THROUGH YOUR ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW (INCLUDING NEGLIGENCE), WILL NOT EXCEED THE AGGREGATE AMOUNT YOU PAID TO THE COMPANY IN THE PRECEDING TWELVE MONTHS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF LIABILITY. THEREFORE, THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU TO THAT EXTENT, AND NOTHING IN THIS SECTION SHOULD BE CONSTRUED AS EXCLUDING OR LIMITING THE COMPANY’S LIABILITY BEYOND WHAT IS PERMISSIBLE UNDER APPLICABLE LAW. MOREOVER, THIS SECTION DOES NOT LIMIT THE COMPANY’S OBLIGATION, IF THE COMPANY MISTAKENLY OR WRONGFULLY OVERCHARGES YOUR ACCOUNT, TO REFUND THE AMOUNT OF THE OVERCHARGE.
9. Release and Indemnification.
9.1. In the event that you have a dispute with one or more users, you release the Company (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
9.2. You agree to defend, indemnify and hold harmless the Company and our subsidiaries, affiliates, officers, directors, agents, and employees from and against any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or your violation of any law or the rights of a third party.
10. Termination of Account. You may terminate your Account, this Agreement, and your right to use the Service, at any time and for any reason or no reason, by contacting customer service at firstname.lastname@example.org. Notifying the Company in any other way of your desire to terminate your Account may result in delays in processing your request. The Company may immediately suspend or terminate your Account, and terminate this Agreement, if you breach any provision in this Agreement or if the charges to your credit card or your mobile phone bill for the fees described in Section 2 are refused for any reason. The Company reserves the right to terminate your Account and this Agreement for any other reason if the Company gives you at least thirty days advance notice. Upon any such termination of your Account, you will remain obligated to pay all outstanding fees and charges relating to your use of the Service before termination. Sections 4, 5, 7, 8, and 10 will remain in effect notwithstanding the termination of your Account or this Agreement.
11. Miscellaneous. This Agreement will be governed by the laws of the State of California as such laws apply to agreements between California residents performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. If any provision of this Agreement is invalid or unenforceable under applicable law, such provision will be deemed modified to the extent necessary to render such provision valid and enforceable and the other provisions of this Agreement will remain in full force and effect. As used in this Agreement, “including” means “including but not limited to.” This document and the pages referred to herein represent the entire agreement governing your use of the Service and supersede any prior or contemporaneous written or oral statements by the Company or its representatives or resellers. This Agreement may not be amended except as provided in Section 6.
12. Contacting Us. The Services hereunder are offered by Garden Answers, a division of Garden Answers, LLC., 13336 Landfair Rd, San Diego, CA 92130. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.