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Terms of Service
Effective Date Of Current Policy: September 1, 2019
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Gardyn Inc. (together with our affiliates, “Gardyn”, “we”, or “us”) provides a produce-growing experience through the Gardyn plant growing devices, plants and related products (the “Gardyn Products”), services, subscriptions, content and features related to the Gardyn devices, websites (the “Gardyn Site(s)”) and through mobile, desktop, or device applications (including iOS and Android applications (“Apps”)) and Gardyn-controlled social media pages (including on Facebook, Instagram, LinkedIn and Twitter). To make these Terms easier to read, the Gardyn Subscriptions, Sites and Apps, along with Gardyn-controlled social media pages are collectively called the “Gardyn Service” or “the Services”. By purchasing a Gardyn Product, or registering as a member or by visiting, browsing, or using the Gardyn Service in any way, you (”you” or the “user”) accept and agree to be bound by these Terms of Service (“Terms”) which, together with Gardyn’s Privacy Policy, Return Policy, Limited Home Use Warranty and Subscription Terms, which are discussed below and incorporated herein, forms a binding agreement between you and Gardyn.
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 20 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND GARDYN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. If you do not wish to be bound by these Terms, you may not purchase a Gardyn Product, nor access or use the Gardyn Service. Certain elements of the Gardyn Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the Gardyn Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
- Who May Use the Gardyn Service
- License to Use the Gardyn Service
- Privacy
- Subscription Requirements Registration
- Subscription Structure and Fees
- Sale of Products
- Term and Termination; Account Deletion
- User Content
- Rights and Terms for Apps
- a) Rights in App Granted. Subject to your compliance with these Terms, Gardyn grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Gardyn reserves all rights in and to the App not expressly granted to you under these Terms.
- b) Accessing App from an App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that: These Terms are between you and Gardyn, and not with the App Provider, and Gardyn (not the App Provider), is solely responsible for the App. The App Provider has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Gardyn. The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Gardyn will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof. You 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; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances. You must also comply with all applicable third party terms of service when using the App.
- General Prohibitions and Gardyn’s Enforcement Rights
- Member Interactions, Dealings with Third Parties
- Indemnification
- Third Party Software and applications
- Third Party Links and Content
- No Warranties
- Limitation of Liability
- Safety Warnings
- The Gardyn Home Device and Services are designed for nutritional, educational and entertainment purposes in the framework of a family household in an indoor location only.
- The Device should be assembled and used only as directed in the manual and in the Application, including but not limited to the following instructions. No electrical or electronic part should be opened and/or modified or damaged. Only the original equipment from the OEM should be used.
- There should always be enough water in the reservoir for the pump always to be completely immersed in water. If this is not the case, water should be added to cover the pump and the pump should be stopped in manual mode in the meantime.
- The Device should be firmly attached to the wall with the two safety straps included in the device, at the top of the columns and under the wood board.
- The Device should be used in a dry location inside the house. Apart from the pump and its cord, no electrical or electronic part of the Device should be in contact with water or any other liquid. In case water or any liquid falls on the power supply or the LED lights or any other electronic/electrical part, the Device should be immediately unplugged, and the affectedparts replaced.
- Never put water in the tank in excess of the Max level indicator. Always maintain the integrity of the reservoir and do not damage the reservoir structure in order to avoid any leakage.
- Insert the yCubes properly in the yPods, and the yPods properly in the columns to avoid any spillage of water when the pump is on.
- Gardyn declines any responsibility for any water spillage in filling or using the Device, and any damage resulting therefrom.
- The Device should not be used by children without adult supervision. No pet or other animal should be left near the Device without proper supervision.
- When growing plants, always use potable water and the nutrients provided by Gardyn. Do not add or pour or spray any substance that could become toxic in the reservoir, on the plastic parts or on the plants.
- Always ensure a minimum of 15 minutes of watering per day to avoid leaving water in the tank and possible resulting growth of algae or bacteria. Do not leave standing water in your tank if your Device is unplugged, turned off, or if the watering feature is disabled. Always close all the slots and openings of the Device to avoid light reaching the inside of the Device and again promoting algae growth.
- Check the water function of your Device regularly to ensure proper flow of water. If the flow of water is not sufficient, anaerobic conditions can develop. Gardyn does not accept any responsibility for any noxious biological growth that might arise from anaerobic conditions.
- Keep your Gardyn Home in a place that is safe, dry and protected from pests, bugs and fungi. Clean the various parts of the Device on a regular basis to avoid any proliferation of pests.
- Do not consume parts of plants that would not be edible or about which you may have doubts or any allergy.
- If you have any doubt on the quality or the edible nature of a plant or plant thereof, abstain from consuming it and throw it away.
- The consumption of produce grown on a Device is your own responsibility. Gardyn declines any responsibility in the consumption of plants grown on the Gardyn Device.
- Some of the materials provided by Gardyn, such as HydroBoost etc., can be harmful if improperly used. Please follow the instructions closely and keep these products out of reach of children and pets. These products are not meant for consumption on their own. If ingested, contact your local Poison Control Center. If these products come into contact with your skin or eyes and cause irritation, please wash thoroughly and visit a doctor if necessary.
- Intellectual Property
- Copyright / DMCA Policy
- ARBITRATION CLAUSE & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW. a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Gardyn agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the Gardyn entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and Gardyn are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
- b) Exceptions and Opt-out. As limited exceptions to Section 20(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of Gardyn’s Legal Department at the Gardyn address set out below within thirty (30) days following the date you first agree to these Terms.
- c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Gardyn will pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than U.S. $10,000, unless the arbitrator finds your Dispute to be frivolous. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- e) Class Action Waiver. YOU AND GARDYN AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.
- f) Effect of Changes on Arbitration. Notwithstanding the provisions of Section 25 “Modification”, if Gardyn changes any of the terms of this Section 20 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of Gardyn’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Gardyn in accordance with the terms of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- g) Severability. With the exception of any of the provisions in Section 20(e) above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
- Contracting Entities, Governing Law and Jurisdiction
- Interpretation; Severability; Waiver; Remedies
- Successors; Assignment; No Third Party Beneficiaries
- Notices
- Modification
- Entire Agreement
- Force Majeure
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