Last Updated: December 3, 2018
Welcome, and thank you for your interest in Grobo Inc. (“Grobo,” “we,” or “us”) and our websites at www.grobo.io, (the “Websites”) and our mobile applications (the “App”) along with our related websites, networks, applications, and other services provided by us (collectively, our “Service”). These Terms of Service are a legally binding contract between you and Grobo regarding your use of the Website and Service. These terms of service apply to individuals who purchase our Products, individuals who create an account on the Websites, individuals who use the Services, and individuals who merely view the content on the Websites (collectively “Users”).
These Terms provide that all disputes between you and Grobo will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 18 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Grobo.
1. Grobo Service Overview. Grobo is a wireless device that can grow plants according to custom environmental settings (the “Product”). Grobo uses sensors, pumps, and lights to grow a variety of plants. The Grobo online service allows you to operate the Product, upload and use your own growing recipes with the Product, and use grow settings we make available in our online catalog. You must be connected to the online Service in order to use the Product.
2. Eligibility. You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations and YOU WILL NOT USE THE SERVICE FOR ANY ILLEGAL PURPOSE, INCLUDING GROWING RESTRICTED OR PROHIBITED SUBSTANCES IN YOUR JURISDICTION. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
4. Payment. Access to the Basic service and/or certain non-Basic features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees and payments will be made through our third party payment processors. All fees are in Canadian or U.S. dollars, depending on your location, and are non-refundable. If Grobo changes the fees for the Service, including by adding additional fees or charges, Grobo will provide you advance notice of those changes. If you do not accept the changes, your sole remedy is to terminate your use of the Products and Service, and Grobo may discontinue providing the Service to you. Grobo will charge the payment method you specify at the time of purchase (your “Payment Method”). You authorize Grobo to charge all sums as described in these Terms, for the Service you select, to that Payment Method. If you pay any fees with a credit card, Grobo may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize Grobo to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. If you use the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect. Any refund authorized by Grobo will be paid your Payment Method.
5. User Content.
5.1. User Content. Certain features of the Service may permit users to upload content to the Service, including messages, settings, specifications, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service, except as modified by your own action or actions to grant a license in accordance with Section 5.2 or 5.3. This means that Users and not Grobo are entirely responsible for all such material uploaded, posted, emailed, transmitted or otherwise made available by using the Service.
5.2. License Grants.
5.2.1. Public Posts: By posting or publishing User Content to a public area of the Service, you grant Grobo a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute that User Content, in whole or in part, in any media formats and through any media channels now known or later developed. The content of public posts may also be incorporated into aggregated data sets by Grobo without restriction.
5.2.2. Private Posts: By posting and or uploading User Content to a private area of the Service (e.g., a design for use with your Product), you grant Grobo a worldwide, non-exclusive, royalty-free, fully paid right and license to: (a) host, store, transfer, display, perform, reproduce, and modify that User Content for the full period of time that you maintain your account on the Service to enable your use of that User Content with your Product; and (b) access and create aggregated data sets and analytics derived from your User Content to combine the same with third party data in order to create new content accessible through the Service. For greater certainty, your privately posted User Content will not be made available on any public area by Grobo and aggregated data derived from your User Content will not identify you or be your unmodified source data. However, new recipes which are in part based on your User Content may be made public by Grobo.
5.2.3. Grobo may allow you to require payment from other users of the Service in exchange for use of your User Content. Such an arrangement will be conditional on your acceptance of additional license terms in a separate document or agreement.
5.2.4. Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
5.3 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
5.3.1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Grobo and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Grobo, the Service, and these Terms; and
5.3.2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Grobo to violate any law or regulation.
5.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content, including the accuracy, integrity or quality of such content. Grobo may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Grobo with respect to User Content. We expressly disclaim any and all liability in connection with User Content, including without limitation, liability for any errors or omissions in any materials or any defects or errors in any printing or manufacturing, or for any loss or damage of any kind incurred as a result of the viewing or use of any materials posted, emailed, transmitted or otherwise made available via the Service. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Grobo does not permit copyright-infringing activities on the Service.
6. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
6.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law, including but not limited to growing any restricted substance;
6.2. use the Service to design or manufacture any dangerous or illegal material or do anything to encourage criminal behaviour or that gives rise to civil liability or is otherwise objectionable;
6.3. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right or violating the personality, publicity or privacy rights of any individual;
6.4. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
6.5. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit unlicensed use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
6.6. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
6.7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
6.8. sell, lease, license, rent, assign, distribute, host or otherwise transfer or commercially exploit the access granted under these Terms or any Materials (as defined in Section 11) or any right or ability to view, access, or use any Material;
6.9. post, upload or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any users or viewers of the Website or that compromises a user’s privacy;
6.10. modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any software provided as part of the Website, except to the extent the foregoing restrictions are expressly prohibited by applicable law
6.11. take action to copy the Service by copying the source code or the user interface, in whole or in part, in order to compete with Grobo’s Service; or
6.12. attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
7. Third-Party Services and Linked Websites. Grobo may provide tools through the Service that enable you to export information, including User Content, to third party services, including through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
8. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically.
In addition, Grobo may in its sole discretion suspend or terminate your access to the Service, or portions of the Service, during an investigation of a violation of these Terms. Grobo’s determination that a violation has occurred will be in its sole and absolute discretion. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
If Grobo has reason to believe that you are purchasing and/or using the Service in breach of any applicable law or regulation, Grobo reserves the right, in its sole discretion to (a) suspend or discontinue your access to the Service and/or any customer support; (b) cancel any warranty; (c) cancel your order Product order; and/or (d) prohibit you from ordering any Products. Grobo will not issue any refunds for suspended or terminated access to the Service under this Section.
9.2. Terms & Conditions for Online Offers to Purchase. If you offer to purchase a Product from us, your offer is subject to the Terms & Conditions for Online Offers to Purchase (“Terms & Conditions”). Please read the Terms & Conditions carefully for information regarding the terms under which we accept offers to purchase Products. The Terms & Conditions are incorporated by this reference into, and made a part of, these Terms.
10. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
11. Ownership; Proprietary Rights. Except for any User Content, the Website, App and Service and all the content, materials and information contained therein is owned and operated by Grobo. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Grobo and are protected by intellectual property and other laws. All Materials included in the Service are the property of Grobo or our third-party licensors. Except as expressly authorized by Grobo, you may not make use of the Materials. Grobo reserves all rights to the Materials not granted expressly in these Terms. Subject to the terms of the agreement, Grobo hereby grants you a license to access and use the website for your personal use. Nothing in these Terms gives you the right to use the Grobo names, trademarks, logos, domain names, or other distinctive brand features without our express written consent. Any future release, update or other addition to the functionality of the Websites and Service shall be subject to these terms.
12. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Grobo an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
13. You are responsible for your use of the Service, and you will defend and indemnify Grobo and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Grobo Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; or (e) your intentional or unintentional violation of any applicable law, rule or regulation. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
14. Disclaimers; No Warranties.THE PRODUCTS ARE SUBJECT TO THE TERMS OF THE GROBO WARRANTY AND RETURNS DOCUMENT FOUND HERE. THE APP, SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE GROBO ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY, MERCHATABILITY OR MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE GROBO ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY OR CONDITION REGARDING ANY OF THE GROBO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
15. Limitation of Liability. IN NO EVENT WILL THE GROBO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE APP, SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GROBO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
THE AGGREGATE LIABILITY OF THE GROBO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED AND SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO GROBO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Governing Law. These Terms are governed by the laws of the Province of Ontario without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Grobo agree to submit to the personal and exclusive jurisdiction of the provincial courts and federal courts located within Kitchener, Ontario for the purpose of litigating any dispute. We operate the Service from our offices in Kitchener, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18. Dispute Resolution and Arbitration. In the interest of resolving disputes between you and Grobo in the most expedient and cost effective manner, you and Grobo agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal 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 can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GROBO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Except as otherwise provided in this Agreement, if any dispute arises under this Agreement, it will be settled by binding arbitration in accordance with the provisions of this Section 18. If any dispute arises between the Parties relating to the application, interpretation, implementation or validity of this agreement, the Parties agree to resolve the dispute by arbitration using the Canadian Arbitration Association Expedited Arbitration Rules. The parties agree that the Canadian Arbitration Association Expedited Arbitration Rules give the parties a fair opportunity to present their case and respond to the case of the other side. The arbitration shall be held in Ottawa, Ontario and shall proceed in accordance with the provisions of the Arbitration Act, 1991 (Ontario). Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. If Section 18 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.
20. Contact Information. The Service is offered by Grobo, Inc., located at Grobo, Inc., 500 Dotzert Court Unit 2; Waterloo, ON; N2L 6A7; Canada. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
21. Information sent or received over the Internet is generally unsecure and Grobo cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of personal or other information. You are responsible for safeguarding the password that you use to access the Service and you are responsible for any activities or actions under your password. You agree to keep your password secure. Grobo will not be liable for any loss or damage arising from your failure to comply with these requirements.
22. Notice Regarding Apple. If you are using our mobile applications on an iOS device, the terms of this Section 22 apply. You acknowledge that these Terms are between you and Grobo only, not with Apple, and Apple is not responsible for the Service or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claim by you or any third party relating to the Service or your possession or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Service or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of Section 22 of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section 22 of these Terms against you. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
23. English Language. It is the express wish of the parties that this agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.