WATERING CAN APP: TERMS OF SERVICE
You understand and agree that we may change the Terms from time to time, and that any such changes will be effective (except as otherwise described in Section 17.10 below) when we post the modified Terms on the Watering Can Service, unless otherwise required by applicable law. Your continued access and use of the Watering Can Service after we post the modified Terms will constitute your consent to be bound by the modified Terms.
2. Watering Can Service.
2.1 Nature of the Watering Can Service. The Watering Can Service consists of a desktop Web application, mobile applications, and other related tools, support and services that horticulture owners (“Plant Owners”) and providers of horticulture-related services (“Service Providers”) can use to find, communicate with and interact with each other. The Watering Can Service includes a profile and instructions for each plant, a list of potential allergens, and more as our service continues to grow. We charge fees for some aspects of the Watering Can Service, as described below in Section 9.
2.2 Watering Can does not provide Horticulture Care Services. Watering Can is a neutral venue for Service Providers and Plant Owners. Watering Can is not a Service Provider and, except for emergency phone support and other resources and support specifically described in the Watering Can Service, does not provide horticulture care services. We make no representations or warranties about the quality of boarding, horticulture sitting, house sitting, or other services provided by Service Providers (“Plant Care Services”), or about your interactions and dealings with users. Service Providers listed on Watering Can are not under the direction or control of Watering Can, and Service Providers determine in their own discretion how to provide Horticulture Care Services. Watering Can does not employ, recommend or endorse Service Providers or Plant Owners, and, to the maximum extent permitted by applicable law, we will not be responsible or liable for the performance or conduct of Service Providers or Plant Owners, whether online or offline. We conduct an initial review of Service Provider profiles and we facilitate Background Checks or Identification Verifications (each as described in Section 10, below) on Service Providers conducted by a third party, but, except where explicitly specified in the Watering Can Service (and then only to the extent specified), do not otherwise screen Service Providers or Plant Owners. You should exercise caution and use your independent judgment before engaging a Service Provider, providing Plant Care Services, or otherwise interacting with users via the Watering Can Service. Plant Owners and Service Providers are solely responsible for making decisions that are in the best interests of themselves and their horticulture.
2.3 Release. Subject to Section 16 below, Watering Can has no liability for any claims, injuries, loss, harm and/or damages arising from and/or in any way related to your interactions or dealings with other users and the acts and/or omissions of Service Providers and Plant Owners, whether online or offline. You acknowledge that the domiciles of individual Plant Owners or Service Providers may contain allergens that you may or may not be sensitive or susceptible to. While all users are encouraged to list known allergens on their profile, the presence or absence of any such allergen is to be taken at your own risk. You acknowledge and agree that, to the maximum extent permitted by the applicable law, YOUR USE AND/OR PROVISION OF PLANT CARE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
2.4 Transactions are between Plant Owners and Service Providers. The Watering Can Service may be used to find and offer Plant Care Services and to facilitate payment, but all transactions conducted via the Watering Can Service are between Plant Owners and Service Providers. Except for the limited refunds and “Reservation Protection” specified in Section 9.6, you agree that Watering Can has no liability for damages associated with Plant Care Services (which may include damage to your property and/or bodily injury to, or death of a horticulture) or resulting from any other transactions between users of the Watering Can Service.
2.5 Bookings. Plant Owners and Service Providers transact with each other on the Watering Can Service when they both agree to a “booking” that specifies the fees, time period, cancellation policy, and other terms for provision of Plant Care Services via the booking mechanism provided on the Watering Can Service (a “Booking”). A Booking may be initiated by either a Service Provider or a Plant Owner by selecting the type(s) of Plant Care Services to be provided and then following the prompts that appear on-screen. If you are a Plant Owner and you initiate a Booking, you agree to pay for the Plant Care Services described in the Booking when you click “Request” and “Pay Invoice.” If you are a Plant Owner and a Service Provider initiates a Booking, you agree to pay for the Plant Care Services described in the Booking when you click “Pay Invoice.” All requests are subject to acceptance by the receiving party. The receiving party is not obligated to accept your (or any) request and may, at their discretion, decline for any reason. You acknowledge that, once you complete a Booking, you agree to honor the price and other terms of that Booking, as acknowledged in the Booking confirmation.
2.6 Plant Owners are Solely Responsible for Evaluating Service Providers. Plant Owners are solely responsible for evaluating the suitability of Service Providers for the services they offer to provide. Though Watering Can performs a limited review of Service Provider profiles and facilitates Service Provider Background Checks or Identity Verifications conducted by a third party, any such screening is limited, and Watering Can does not warrant that any such screen is accurate, complete, conclusive or up-to-date. Similarly, Watering Can does not endorse reviews of Service Providers by other Plant Owners that may be available via the Watering Can Service, and Watering Can makes no commitments that such reviews are accurate or legitimate.
3. Certification of Compliance with Applicable Law. By accessing and using the Watering Can Service, you certify that you: (1) are at least 18 years of age or the age of majority in your jurisdiction, whichever is higher, and (2) will comply with all laws and regulations applicable to your activities conducted through, or related to, the Watering Can Service.
- For Service Providers, this means, among other things, that you certify that you are legally eligible to provide Plant Care Services in the jurisdiction where you provide Plant Care Services; that you have complied and will comply with all laws and regulations that are applicable to you; that you have obtained all business licenses, business tax registrations, and permits necessary to legally provide Plant Care Services; and that, when providing Plant Care Services, you will comply with applicable laws.
You acknowledge that Watering Can (i) is entitled to rely on these certifications from you, (ii) is not responsible to ensure that all users have complied with applicable laws and regulations, and (iii) will not be liable for a user’s failure to do so.
4. Use of the Watering Can Service; Suspension.
4.1 Your Conduct on the Watering Can Service. When you use the Watering Can Service, you agree:
- To use the Watering Can Service only in a lawful manner and only for its intended purposes.
- Not to use the Watering Can Service to arrange for the care of: (a) exotic or inherently dangerous plants; (b) any plant whose ownership or third-party care is prohibited under applicable law.
- Not to submit viruses or other malicious code to or through the Watering Can Service.
- Not to use the Watering Can Service, or engage with other users of the Watering Can Service, for purposes that violate the law.
- Not to use the Watering Can Service to arrange for the provision and purchase of services with another user, then complete transactions for those services outside of the Watering Can Service.
- Not to use the Watering Can Service for purposes of competing with Watering Can or to promote other products or services.
- Not to post reviews about Watering Can Providers that are not based on your personal experience, that are intentionally inaccurate or misleading, or that violate these Terms.
- Not to post content or materials that are pornographic, threatening, harassing, abusive, or defamatory, or that contain nudity or graphic violence, incite violence, violate intellectual property rights, or violate the law or the legal rights (for example, privacy rights) of others.
- Not to post “spam” or other unauthorized commercial communications.
- To use the Watering Can Service only for your own purposes, and not to impersonate any other person.
- Not to transfer or authorize the use of your account for the Watering Can Service by any other person, or to engage in fraudulent transactions.
- Not to provide false information in your profile on, or registration for, the Watering Can Service, or to create multiple or duplicate accounts.
- Not to interfere with our provision of, or any other user’s use of, the Watering Can Service.
- Not to solicit another user’s username and password for the Watering Can Service or any other sensitive personal information, including bank details.
4.2 Suspension and Termination. You understand and agree that we have no obligation to provide the Watering Can Service in any specific location or territory, nor to continue providing it once we have begun. We reserve the right to suspend or terminate your access to the Watering Can Service: (1) if in our discretion your conduct on the Site or Watering Can Service is inappropriate, unsafe, dishonest, or in breach of the Terms; or (2) if necessary in our discretion to protect Watering Can, its users, or the public. You may suspend or terminate your use of the Watering Can Service at any time and for any reason. If you wish to deactivate your account, please contact Watering Can. Note that if you have any outstanding payment obligations, those will survive suspension or termination of your account.
5. Registration; Account Security. In order to use some aspects of the Watering Can Service, you will be required to create a username, password, and user profile. If you elect to use the Watering Can Service, you agree to provide accurate information about yourself and keep this information up-to-date. You agree not to impersonate anyone else and not to maintain more than one account (or, if Watering Can suspends or terminates your account, not to create additional accounts). You are responsible for maintaining the confidentiality of your username and password for the Watering Can Service and are responsible for all activity under your account. You agree to notify us promptly of any unauthorized use of your account.
6. Privacy. Our collection and use of your personal information on the Watering Can Service is described in our Privacy Statement. By accessing or using the Watering Can Service, you acknowledge that you have read and understand the Privacy Statement.
7. Your Content.
7.1 Your Content. We may require or allow you (or someone else on your behalf) to submit or upload text, photographs, images, videos, reviews, information and materials to your profile on the Watering Can Service or otherwise in connection with using the Watering Can Service and/or participating in promotional campaigns we conduct on the Site (collectively, “Your Content”). For example, Service Providers are invited to create a profile page with a photograph and other information and to transmit photos of the plants under their care to Plant Owners, while Plant Owners may submit reviews of Service Providers.
7.2 License. Except for the limitations on our use and disclosure of personal information described in our Privacy Statement, to the maximum extent and duration permitted under any applicable law, you grant Watering Can an irrevocable, perpetual, non-exclusive, fully paid worldwide license to use, copy, perform, publicly display, reproduce, adapt, modify, transmit, broadcast, prepare derivative works of, and/or distribute Your Content in connection with providing and/or promoting the Watering Can Service, and to sublicense these rights to third parties.
7.3 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release Watering Can and its users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 7.2 and the other provisions of these Terms.
7.4 Your Representations and Warranties about Your Content. You represent and warrant that (1) you are the owner or licensor of Your Content, and that you have all rights, consents and permissions necessary to grant the license in Section 7.2 and make the release in Section 7.3 with respect to Your Content, (2) that you have any necessary consents and releases from individuals who appear or whose horticultures appear in Your Content; and (3) Your Content does not violate the law or these Terms.
7.5 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the Watering Can Service. Our enforcement of these Terms with respect to Your Content is at our discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
7.6 Reviews. The Watering Can Service may provide the ability to leave public and/or private reviews of users or the Users. You acknowledge that even private reviews may be shared with third parties in accordance with applicable law and our Privacy Statement and that Watering Can has no obligation to preserve or indefinitely store any reviews. If you are a Service Provider, we have no obligation to provide you with the content of any reviews about you submitted by other users of the Watering Can Service, whether before or after termination of your account for the Watering Can Service. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from the Watering Can Service at any time.
8. Phone, Text and Mobile Communications.
8.1 Messaging between Owner and Provider. This section 8.1 applies only to users in the United States. You consent to Watering Can communicating with you about the Watering Can Service by and through the Watering Can App.
8.2 Phone Number Changes. In the event you deactivate a mobile phone number provided to us, you agree to update your Watering Can account information promptly to ensure that messages are not sent to the person who acquires your old number.
9. Fees & Payment.
9.1 Currency. All fees, deductible amounts and other payments referenced on, or charged through, the Watering Can Service are listed and payable in local currency.
9.2 Fees for Plant Owners. Plant Owners may purchase Plant Care Services from a Service Provider by completing a Booking as described in Section 2.5. If you are a Plant Owner, you enter into a transaction with the Service Provider when you accept a Booking, and you agree to pay the total fees indicated in the Booking. As described in Sections 9.3 and 9.4, the total amount Plant Owners are charged for a Booking may also include a service fee payable to Watering Can. Where required by law, the amount charged will also be inclusive of applicable taxes. The Service Provider, not Watering Can, is responsible for performing the Plant Care Services.
9.3 Fees for Service Providers. Service Providers may agree to provide Plant Care Services to a Plant Owner by agreeing to a Booking as described in Section 2.5. If you are a Service Provider, you must confirm the Booking before it expires or the Plant Owner will have no obligation to complete the transaction. Once the Booking is completed by both parties, you agree to honor the price set forth in your Booking. The purchase of Plant Care Services is a transaction between the Plant Owner and the Service Provider. Watering Can’s role is to facilitate the transaction. We will (either directly or indirectly through an authorized third party) collect payment from the Plant Owner at the time of Booking and (except to the extent of any payment hold pursuant to Section 9.7) initiate payment to the Service Provider’s account 48 hours after completion of the service period indicated in the Booking. Service Providers are charged a service fee as described in Section 9.4. Where required by law, the amount charged will also be inclusive of applicable taxes.
9.4 Service Fees. We charge service fees for some aspects of the Watering Can Service. If you are a Service Provider, except where otherwise specified via the Watering Can Service, our service fee is calculated as a percentage of the fees a Plant Owner agrees to pay to you in a Booking and is collected from each Booking. Watering Can reserves the right to 20% of the fees a Plant Owner agrees to pay you. However, Watering Can reserves the right to reduce the percentage charged for services rendered for any reason, and for any length of time as it sees fit.
9.5 Late Fees and Additional Charges. If you are a Plant Owner, you acknowledge and agree that, if you fail to retrieve your plant at the end of the service period agreed in a Booking, you will be charged for additional service time (pro rata for each partial late day) at the daily rate established in the Booking. In addition, you agree to indemnify Watering Can from, and agree that we may charge your credit card or other payment method for, any additional costs and expenses we or the Service Provider incur as a result of your failure to retrieve your plant at the end of the service period agreed in a Booking.
9.6 Cancellations & Refunds.
- Reservation Protection. As more fully described on Watering Can’s Reservation Protection page, Watering Can can help you find replacement Service Providers when Service Providers cancel Bookings near the start date of the service period identified in the Booking. The availability of the Reservation Protection depends on the timing of the cancellation and the type of Plant Care Services provided; consult the Reservation Protection page for details.
- Cancellations by Service Provider. If a Service Provider cancels a Booking prior to or during the service period identified in the Booking, we will refund the fees paid by the Plant Owner for Plant Care Services not provided, as well as any service charge paid to Watering Can. If you are a Service Provider, you can appoint a substitute Service Provider (as agreed by the Plant Owner and so long as the substitute has an active account on the Watering Can Service and has agreed in writing to accept a Booking) by contacting Watering Can to modify the Booking. If you do not find a substitute and repeatedly cancel accepted Bookings without justification, Watering Can may terminate your account.
- Cancellations by Plant Owner. If a Plant Owner cancels a Booking prior to or during the service period specified in a Booking, we will refund fees in accordance with the cancellation policy selected by the Service Provider on the Watering Can Service. All Service Providers are required to select a cancellation policy prior to completing a Booking so that Plant Owners are aware of the cancellation policy prior to Booking. For more information about cancellation policies, please contact Customer Support.
- Force Majeure. The cancellation policies described herein may not apply in the event of certain emergency situations beyond the control of Service Providers and/or Plant Owners that make it impossible or impractical to perform agreed Bookings, such as evacuations resulting from earthquake, hurricane, wildfire, flood, war, riots or other similar disaster. In such cases Watering Can may, in its reasonable discretion, issue refunds under terms that vary from a Service Provider’s selected cancellation policy.
- Refunds for Failure to Perform. If we determine in our reasonable discretion that a Service Provider has failed to provide Plant Care Services as agreed with the Plant Owner or is otherwise in breach of these Terms, then we may, in our reasonable discretion, cancel a Booking and/or issue a full or partial refund to a Plant Owner.
- General Terms for Cancellations. If you wish to cancel a Booking, you should use the mechanisms available through the Watering Can Service to do so. For purposes of the policies and terms in this Section 9.6, the date of cancellation is the date that a user cancels through the Watering Can Service, regardless of any separate communications between users outside of the Watering Can Service.
- Payment Disputes; Payment Outside of the Watering Can Service. Watering Can initiates payments to Service Providers 48 hours after completion of a Booking. Once these amounts have been disbursed, any further payment disputes are between the Plant Owner and Service Provider, and Watering Can has no obligation to mediate or facilitate any resolution. Further, Watering Can has no responsibility or liability with respect to any tips, bonuses, or other payments made outside of the Watering Can Service.
9.7 Payment Holds. If you are a Service Provider, Watering Can reserves the right to issue a hold on amounts otherwise payable to you pursuant to Section 9.3 if there is a reasonable suspicion of fraudulent activity involving your account(s) or for other similarly compelling reason involving protection of Watering Can, the Watering Can community or third-party rights. We may also recommend that third party payment service providers restrict your access to funds in your account under the same circumstances.
9.8 Authorization to Charge. When you pay for Plant Care Services or for other services on the Watering Can Service, you will be required to provide us with valid, up-to-date credit card or other payment information and to maintain that payment information (or an acceptable alternative payment method) on file with your account so long as you have any outstanding, confirmed Bookings. Watering Can’s role is to facilitate payments from Plant Owners to Service Providers as limited payment agent for the Service Provider. You authorize us to charge your credit card or other payment method for fees you incur on the Watering Can Service as they become due and payable, and to charge any alternative payment method Watering Can has on record for you in the event your primary payment method is expired, invalid, or otherwise not able to be charged. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither Watering Can nor the Service Provider will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the Watering Can Service are non-refundable once paid.
9.9 Taxes. Except for taxes on Watering Can’s income and gross receipts or where Watering Can is otherwise required to collect taxes, you acknowledge that you are solely responsible to pay any applicable taxes that arise as a result of your purchase, provision, or use of Plant Care Services via the Watering Can Service. This includes, without limitation, any form of sales tax, VAT, or income tax on fees paid or received by you through the Watering Can Service.
10. Background Checks and Identity Verifications.
Watering Can may provide Service Providers with access to third party consumer reporting agencies that perform, among other things, personal identification verification services (“Identity Verification”) or criminal records checks, sex offender registry checks, motor vehicle records checks and/or identification verifications (collectively, “Background Checks”). Outside of the US and Canada, these services are limited to Identity Verification. We do not provide, and are not responsible or liable in any manner for, the Background Checks or Identity Verifications, and we do not endorse or make any representations or warranties regarding the reliability of such Background Checks or Identity Verifications or the accuracy, timeliness or completeness of any information in the Background Checks or Identity Verifications. We do not independently verify information in the Background Checks or Identity Verifications.
If you undergo a Background Check or Identity Verification via the Watering Can Service, you hereby consent to the collection, use and disclosure of the information in the Background Check or Identity Verification, and you agree to provide complete and accurate information for your Background Check or Identity Verification. You understand and agree that Watering Can may, in its sole discretion, review and rely on the information in the Background Check or Identity Verification in deciding whether to suspend or terminate or investigate a complaint about a Service Provider, but also that we are not obligated to do so, and are not responsible or liable in any way in the event that any information in any Background Check or Identity Verification is not accurate, timely or complete. If you are the subject of a Background Check or Identity Verification, you may contact the applicable third-party consumer reporting agency to dispute the accuracy, timeliness or completeness of such information. You agree that Watering Can’s rights and obligations under the Arbitration Agreement inure to the benefit of the consumer reporting agency used for Background Checks or Identity Verification in respect of any claim that would be subject to the Arbitration Agreement if brought against us. Watering Can reserves the right to suspend or terminate your access to the Watering Can Service based on information in the Background Check or Identity Verification or for any other reason, or no reason, in our sole discretion.
Plant Owners remain fully responsible to evaluate and investigate their Service Providers. Be aware of the following limitations in Background Checks: Except as otherwise expressly provided in these Terms or through the Service, Watering Can does not automatically run Background Checks on any Users. Background Checks may vary by type, breadth and depth. Records not available to third-party Background Check agencies will not be included in the results. Not all arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are available in all jurisdictions. In many jurisdictions there is a delay before arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are included in Background Checks. Juvenile records and offenses for minors may not appear in the public record and are therefore not included in the results. Dismissed cases, arrests not resulting in convictions, arrests or convictions in foreign countries and nolle prosequi (abandonment of prosecution) may not be reported. Traffic violations are not included unless a jurisdiction reports them as criminal offenses. In the jurisdictions where traffic violations are reported as criminal offenses, such traffic violations may be included in the results as misdemeanors or felonies.
11. Copyright Infringement.
Watering Can follows the procedures of the Digital Millennium Copyright Act. We will respond to claims of copyright infringement that are reported in accordance with this Section. It is our policy, in appropriate circumstances, to deactivate or terminate the access of users who repeatedly infringe or are repeatedly charged with infringing others’ copyrights or other intellectual property rights.
If you believe in good faith that your copyrighted work has been infringed by content posted on the Watering Can Service, please provide our designated copyright agent with a written notice that includes all of the following information:
- A description of the copyrighted work you believe to have been infringed;
- A description of the URL or other location on our Site of the material you believe to be infringing;
- Your name, mailing address, telephone number and email address;
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, which you make under penalty of perjury, that the above information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- An electronic or physical signature of the person authorized to act on behalf of the copyright owner.
Our designated agent for notice of copyright infringement can be reached at:
Watering Can App LLC
Attention: Copyright Notice
PO Box 720944, San Diego CA 92129
12. Third Party Services, Links. The Watering Can Service may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement of such websites or resources, or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
13. Indemnity. TO THE MAXIMUM EXTENT PERMITTED UNDER ANY APPLICABLE LAW AND EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD WATERING CAN HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, EXPENSES, DAMAGES AND/OR LIABILITIES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, THAT ARE IN ANY WAY RELATED TO YOUR: (1) transactions and interactions, online or offline, with other users of the Watering Can Service; (2) breach of these Terms; (3) disputes with other users of the Watering Can Service; (4) your misstatements, misrepresentations, or violation of applicable law; (5) property damage or personal injury to third parties caused by your plant or plants in your care; (6) Your Content; or (7) your use of any Background Check or Identify Verification information in violation of any applicable law. YOU FURTHER AGREE THAT YOU WILL COOPERATE WITH US IN THE DEFENSE OF SUCH CLAIMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THIS SECTION, AND YOU WILL NOT SETTLE ANY SUCH CLAIM OR MATTER WITHOUT OUR ADVANCE WRITTEN CONSENT.
14. Intellectual Property.
14.1 Watering Can Service. Watering Can and its licensors retain all right, title and interest in and to the Watering Can Service, the technology and software used to provide it, all electronic documentation and content available through the Watering Can Service (other than Your Content), and all intellectual property and proprietary rights in the Watering Can Service and such technology, software, documentation and content. Except for your rights to access and use the Watering Can Service set forth in these Terms, nothing in these Terms licenses or conveys any of our intellectual property or proprietary rights to anyone, including you. You agree that we will have a perpetual right to use and incorporate into the Watering Can Service any feedback or suggestions for improvement that you provide to us concerning the Watering Can Service, without any obligation of compensation.
14.2 Watering Can Trademarks. Watering Can owns all rights in and to its trademarks, service marks, brand names and logos (the “Watering Can Marks”). If you are a Service Provider, Watering Can grants you, for so long as you are in good standing on the Watering Can Service, a limited, revocable, non-exclusive, non-transferable license to use the Watering Can Marks solely: (1) in the form incorporated into goods, including customizable marketing collateral (promo cards, signage etc.), made available for purchase via the Watering Can Store and/or (2) in any other manner specifically authorized in writing via the Watering Can Service. As a condition of exercising such license, you agree that (1) all goodwill associated with your use of the Watering Can Marks inures solely to the benefit of Watering Can, and (2) such license immediately terminates upon your ceasing to be a Service Provider in good standing, whether at your own option or because Watering Can suspends or terminates your rights to use the Watering Can Service.
15. Warranty Disclaimer for the Watering Can Service. The information and materials found on the Watering Can Service, including text, graphics, information, links or other items, are provided "as is" and "as available." Reviews, profiles, advice, opinions, statements, offers, or other information or content made available through the Watering Can Service, but not directly by Watering Can, are those of their respective authors, who are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WATERING CAN DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF INFORMATION AND MATERIALS ON THE WATERING CAN SERVICE; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN WATERING CAN; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE WATERING CAN SERVICE WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WATERING CAN EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE WATERING CAN SERVICE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. IN ADDITION AND WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY SERVICE PROVIDER THAT OFFERS PLANT CARE SERVICES VIA THE WATERING CAN SERVICE.
16. Limitation of Liability.
16.1 Exclusion of Certain Types of Damages. To the maximum extent permitted under applicable law, in no event will Watering Can be liable to you for any indirect, special, incidental, or consequential damages, or for any business losses, or loss of profit, revenue, contracts, data, goodwill or other similar losses or expenses that arise out of or relate to the use of or inability to use the Watering Can Service, including without limitation damages related to any information received from the Watering Can Service, removal of your profile information or review (or other content) from the Watering Can Service, any suspension or termination of your access to the Watering Can Service, or any failure, error, omission, interruption, defect, delay in operation or transmission of the Watering Can Service, even if we are aware of the possibility of any such damages, losses or expenses. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
16.2 Limit on Our Liability to You. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL WATERING CAN’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM OR RELATING TO THE WATERING CAN SERVICE OR THESE TERMS EXCEED THE AMOUNTS PAID BY YOU TO WATERING CAN (SPECIFICALLY EXCLUDING AMOUNTS PAID TO SERVICE PROVIDERS) DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY OR, IF YOU HAVE NOT PAID WATERING CAN FOR THE USE OF ANY SERVICES, THE AMOUNT OF $100.00 USD (OR EQUIVALENT IN LOCAL CURRENCY).
16.3 No Liability for non-Watering Can Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WATERING CAN BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE WATERING CAN SERVICE, INCLUDING WITHOUT LIMITATION, PROPERTY DAMAGE, THEFT, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH THE WATERING CAN SERVICE, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE WATERING CAN SERVICE, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO ATTEMPT TO DEFRAUD OR HARM YOU.
IF YOU HAVE A DISPUTE WITH A SERVICE PROVIDER OR PLANT OWNER, YOU AGREE TO RELEASE WATERING CAN FROM ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN NO EVENT WILL WATERING CAN BE LIABLE FOR DIRECT OR INDIRECT CONSEQUENCES OF A PLANT OWNER OR SERVICE PROVIDER FAILING TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
17. Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH WATERING CAN AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. IF YOU RESIDE WITHIN THE EUROPEAN ECONOMIC AREA, THIS SECTION APPLIES ONLY TO BUSINESS CUSTOMERS (NOT “CONSUMERS”). IF YOU ARE A CONSUMER RESIDING WITHIN THE EUROPEAN ECONOMIC AREA, PLEASE SEE SECTION 18.
17.1 Arbitration Agreement; Claims. This Section 17 is referred to as the "Arbitration Agreement” in these Terms. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 17.9 below, you and Watering Can (together, the “Parties”) agree that any and all disputes or claims that arise between you and Watering Can relating to the Watering Can Service, interactions with others on the Watering Can Service, and/or these Terms (including any alleged breach of these Terms) (collectively, “Claims”), except for Excluded Claims (defined in the following sentence), will be resolved as set forth in this Arbitration Agreement. As used herein, “Excluded Claims” means (1) individual claims brought in small claims court (if your claims qualify), (2) claims arising out of or related to a violation of Section 4.1, above, (3) claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property (including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents), and (4) claims that, as a matter of applicable law, cannot be made subject to arbitration.
17.2 Agreement to Arbitrate. Unless you opt out of the Arbitration Agreement in accordance with the procedure described in Section 17.9 below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties' dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
17.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WATERING CAN AGREE THAT, UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN ACCORDANCE WITH SECTION 17.9 BELOW, EACH OF US MAY BRING CLAIMS (EXCEPT TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW) AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WATERING CAN AGREE OTHERWISE (OR TO THE EXTENT THAT THE RIGHT TO BRING A CLAIM IN A PURPORTED CLASS OR REPRESENTATIVE ACTION CANNOT BE WAIVED AS A MATTER OF LAW), THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER WATERING CAN SERVICE USERS.
17.4 Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at email@example.com or by mail at Watering Can App LLC, Attn: Legal, PO Box 720944, San Diego, CA 92129. If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
17.5 Arbitration Procedures. The Parties will try in good faith to mutually select and agree upon an arbitrator and rules and procedures to govern the arbitration. If we cannot agree, then the arbitration will be conducted in English by a neutral arbitrator in accordance with your choice of the American Arbitration Association Rules and Procedures (the “AAA Rules”) or the Rules of the International Center for Dispute Resolution (the “ICDR Rules”), as modified by this Arbitration Agreement. The rules that apply are those in effect when arbitration is demanded by either of the Parties. The JAMS Rules are available at https://www.adr.org/active-rules, and the ICDR Rules are available at https://www.icdr.org/rules_forms_fees, and both Rules are incorporated in these Terms by reference. You either acknowledge and agree that you have read and understand the Rules or waive your opportunity to read the Rules and any claim that the Rules are unfair or should not apply for any reason. If there is any inconsistency between the Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 16. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. The arbitrator shall submit a decision in writing, specifying the findings of fact and the conclusions of law on which the decision is based. Decisions by the arbitrator are binding and enforceable in court and may be overturned by a court only for very limited reasons.
The arbitration will be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 USD (or equivalent in local currency) or less, you or Watering Can may elect to have the arbitration conducted by telephone or based solely on written submissions, which election will be binding on you and Watering Can subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Watering Can, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California (or of England and Wales if you are located outside of the United States or Canada), including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different Watering Can users, but is bound by rulings in prior arbitrations involving the same Watering Can user to the extent required by applicable law. As limited by applicable law, these Terms and the applicable AAA Rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Claim, including the determination of whether a Claim is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court.
17.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be shared equally by you and Watering Can, except where prohibited by applicable law. In addition, (1) if you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Watering Can will pay your portion of such fees, and (2) if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Watering Can will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be solely responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Watering Can for all fees associated with the arbitration paid by Watering Can on your behalf that you otherwise would be obligated to pay under the AAA or ICDR Rules.
17.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
17.8 Severability. If any term, clause or provision of this Section 17 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable.
17.9 Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section 17.9. The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must mail the Opt-Out Notice to Watering Can App LLC, Attn: Legal, 8684 Roundabout Lane, San Diego CA 92129. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Watering Can Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 18.
17.10 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against Watering Can prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against Watering Can prior to the effective date of removal.
18. Governing Law and Jurisdiction.
18.1 For users in the United States and Canada, these Terms, and any dispute between you and Watering Can, will be governed by the laws of the State of California, without regard to principles of conflicts of law, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 17 (the Arbitration Agreement). Unless you and we agree otherwise, or except where prohibited by applicable law, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and Watering Can must be resolved exclusively by a state or federal court located in the State of California. You and Watering Can agree to submit to the personal jurisdiction of the courts located within San Diego, California for the purpose of litigating all such claims or disputes.
18.2 For users in the EEA (and the United Kingdom should it no longer be part of the EEA), the laws of England shall govern these terms, except that if you live in a country outside of England but within the EEA, certain mandatory applicable laws of your country will apply for your benefit and protection in addition to or instead of certain provisions of English law. Any dispute that arises between you and Watering Can must be resolved by the English courts or the courts in your country if you live in the EEA outside of England.
18.3 If you are a consumer in the European Economic Area, the European Online Dispute Resolution platform http://ec.europa.eu/consumers/odr provides information about alternative dispute resolution, which you may use if there is a dispute that cannot be resolved between you and the relevant party.
19. Miscellaneous. Nothing in these Terms will be construed as making either party the partner, joint venturer, agent, legal representative, employer, worker, or employee of the other. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. These Terms are non-exclusive and do not prohibit Service Providers from offering plant care services via other means or third parties. The invalidity, illegality or unenforceability of any term or provision of these Terms will in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. To the maximum extent possible under applicable local law, this Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.