© 2019 Electric Owl Solutions Ltd.

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Master Subscription Agreement, Terms, Privacy and Conditions of Service

Welcome to Electric Owl Solutions. We’re glad you’re here, and we hope you enjoy everything we have to offer!

Please read these Terms carefully because they are a binding agreement between You and Electric Owl Solutions Ltd., (“Electric Owl Solutions”, “GardenManager.com”, “EOS” or “We”).

These Terms govern your use of the websites that link to these Terms. In these Terms, the word “Sites” refers to each of these websites and the services offered on those Sites. You automatically agree to these Terms and to our subscription policies simply by using or logging into the Sites.

Please note that we offer many services. Your use of Electric Owl Solutions products or services are provided by Electric Owl Solutions Ltd pursuant to a separate manually or digitally-executed agreement. Those additional terms become part of your agreement with us, if you use the services or log into the Sites.

 

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF ELECTRIC OWL SOLUTIONS SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF ELECTRIC OWL SOLUTIONS SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. ELECTRIC OWL SOLUTIONS’s direct competitors are prohibited from accessing the Services, except with ELECTRIC OWL SOLUTIONS’s prior written consent. This Agreement was last updated on October 5, 2019. It is effective between Customer and ELECTRIC OWL SOLUTIONS as of the date of Customer’s accepting this Agreement.

DEFINITIONS

  • “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

  • “Agreement” means this Master Subscription Agreement. “Beta Services” means ELECTRIC OWL SOLUTIONS services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

  • “Content” means information obtained by ELECTRIC OWL SOLUTIONS from publicly available sources or its third-party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

  • “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

  • “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

  • “Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-ELECTRIC OWL SOLUTIONS Applications.

  • “Free Services” means Services that ELECTRIC OWL SOLUTIONS makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

  • “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and ELECTRIC OWL SOLUTIONS or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

  • “Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial. “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by ELECTRIC OWL SOLUTIONS, including associated ELECTRIC OWL SOLUTIONS offline or mobile components, as described in the Documentation.

  • “Services” exclude Content and Non-ELECTRIC OWL SOLUTIONS Applications.

  • “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by ELECTRIC OWL SOLUTIONS without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, ELECTRIC OWL SOLUTIONS at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

 

A. Your Accounts

You may be required to create an account and specify a password in order to use certain services or features on the Sites. To create an account, you must be at least 18 years old and you must provide truthful and accurate information about yourself. Don’t try to impersonate anyone else when you create your account. If your information changes at any time, please update your account to reflect those changes.

In some cases, an account may be assigned to you by an administrator, such as your employer or educational institution. If you are using or logging into an account assigned to you by an administrator, additional terms may apply to your use of the Sites. Moreover, your administrator may be able to access or disable your account without our involvement.

You may not share your account with anyone else. Please keep your password confidential and try not to use it on other websites. If you believe that your account has been compromised at any time, please notify your system administrator.

B. Your Use of the Sites

Please do not use the Sites in a way that violates any laws, infringes on anyone’s rights, is offensive, or interferes with the Sites or any features on the Sites (including any technological measures we employ to enforce these Terms).

It should be common sense, so we won’t bore you with a list of things you shouldn’t do. But if we (in our sole discretion) determine that you have acted inappropriately, we reserve the right to take down Content, terminate your account, prohibit you from using the Sites, and take appropriate legal actions. 

When you use a Site or send communications to us through a Site, you are communicating with us electronically. You consent to receive electronically any communications related to your use of a Site. We may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us. Please note that by submitting Content, creating a user account or otherwise providing us with your email address, postal address or phone number, you are agreeing that we or our agents may contact you at that address or number in a manner consistent with our Privacy Statement.

Any personal data stored within the system is viewed as private, including your organizations contacts, accounts, documents or financial information is yours to use and yours alone. The business will not voluntarily disclose, share, or sell user information to third parties.

C. Our Warranties and Disclaimers

We provide our Services using a commercially reasonable level of care and promise to do our best to make sure you enjoy the Services. But there are certain things that we don’t promise about our Services.

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, NEITHER ELECTRIC OWL SOLUTIONS LTD. NOR ITS AGENTS OR SERVICE PROVIDERS (THE “SERVICES ENTITIES”) MAKE ANY SPECIFIC PROMISES ABOUT THE SITES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SITES, THE SPECIFIC FUNCTION OF THE SITES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SITES “AS IS”.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

D. Liability for our Services

EXCEPT WHERE PROHIBITED, THE SERVICES ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SITES OR ANY THIRD PARTY’S USE OF THE SITES. THESE EXCLUSIONS INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF THE SERVICES ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED.

E. Free Trial.

If Customer registers on ELECTRIC OWL SOLUTIONS’s or an Affiliate’s website for a free trial, ELECTRIC OWL SOLUTIONS will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by ELECTRIC OWL SOLUTIONS in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

 

ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY ELECTRIC OWL SOLUTIONS” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ELECTRIC OWL SOLUTIONS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ELECTRIC OWL SOLUTIONS’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, ELECTRIC OWL SOLUTIONS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ELECTRIC OWL SOLUTIONS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

F. Free Services

ELECTRIC OWL SOLUTIONS may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that ELECTRIC OWL SOLUTIONS, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that ELECTRIC OWL SOLUTIONS will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if ELECTRIC OWL SOLUTIONS terminates Customer’s account, except as required by law ELECTRIC OWL SOLUTIONS will provide Customer a reasonable opportunity to retrieve its Customer Data. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY ELECTRIC OWL SOLUTIONS” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ELECTRIC OWL SOLUTIONS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ELECTRIC OWL SOLUTIONS’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, ELECTRIC OWL SOLUTIONS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ELECTRIC OWL SOLUTIONS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

G. Content Posted by Others

We are not responsible for, and do not endorse, Content posted by any other person. Accordingly, we may not be held liable, directly or indirectly, for any loss or damage caused to you in connection with any Content posted by another member.

H. Subscriptions

Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ELECTRIC OWL SOLUTIONS regarding future functionality or features.

I. Usage Limits Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, ELECTRIC OWL SOLUTIONS may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding ELECTRIC OWL SOLUTIONS’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon ELECTRIC OWL SOLUTIONS’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

J. Customer Responsibilities

Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-ELECTRIC OWL SOLUTIONS Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify ELECTRIC OWL SOLUTIONS promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-ELECTRIC OWL SOLUTIONS Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in ELECTRIC OWL SOLUTIONS’s judgment threatens the security, integrity or availability of ELECTRIC OWL SOLUTIONS’s services, may result in ELECTRIC OWL SOLUTIONS’s immediate suspension of the Services, however ELECTRIC OWL SOLUTIONS will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

 

K. Usage Restrictions

Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-ELECTRIC OWL SOLUTIONS Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-ELECTRIC OWL SOLUTIONS Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of ELECTRIC OWL SOLUTIONS intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

 

L. Community

Your account is for your use only and cannot be shared or used by anyone else. You are solely responsible for maintaining the confidentiality of your username and password and are entirely responsible for any and all activities under your Success Community account. You agree to notify Electric Owl Solutions immediately of any unauthorized use or any other breach of security involving your username and password or account. Electric Owl Solutions will not be liable for any loss incurred as a result of an unauthorized use of a username/password or account.

I

F YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER CONTENT PUBLICLY AVAILABLE IN A COMMUNITY OR OTHERWISE ON OR THROUGH THE SITES, YOU DO SO AT YOUR OWN RISK.

 

The personal information (such as name, company information, addresses, email, phone numbers, photos etc.) that may be collected during the course of registering, logging into or while using the Site, may be used or shared with our group companies or our agents for the purpose of improving quality of our services.

 

M. Intellectual Property

If you believe any Content on the Services infringes your copyrights, you may request that remove the Content from the Services (or disable access to that Content) by following the instructions on this page.

You can find our Trademark and Copyright Usage Guidelines on this page and our Permission to Use Trademark and/or Copyrighted Work Form on this page.

 

N. Social Networks

The Service may include features that operate in conjunction with certain third-party social networking websites that you visit such as Facebook, Instagram, YouTube, Vimeo, and Twitter (“Social Network Features”). While your use of the Social Network Features is governed by these Terms, your access and use of third-party social networking sites and the services provided through the Services is governed by the terms of service and other agreements posted on these sites. You are responsible for ensuring that your use of those sites complies with any applicable terms of service or other agreements.

 

O. Modifications and Termination

We reserve the right to modify our Sites at any time, with or without notice to you. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Sites at any time.

 

P. FEES AND PAYMENT

Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

 

Customer will provide ELECTRIC OWL SOLUTIONS with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to ELECTRIC OWL SOLUTIONS. If Customer provides credit card information to ELECTRIC OWL SOLUTIONS, Customer authorizes ELECTRIC OWL SOLUTIONS to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, ELECTRIC OWL SOLUTIONS will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to ELECTRIC OWL SOLUTIONS and notifying ELECTRIC OWL SOLUTIONS of any changes to such information. If any invoiced amount is not received by ELECTRIC OWL SOLUTIONS by the due date, then without limiting ELECTRIC OWL SOLUTIONS’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) ELECTRIC OWL SOLUTIONS may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.

If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized ELECTRIC OWL SOLUTIONS to charge to Customer’s credit card), ELECTRIC OWL SOLUTIONS may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, ELECTRIC OWL SOLUTIONS will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.

ELECTRIC OWL SOLUTIONS's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If ELECTRIC OWL SOLUTIONS has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, ELECTRIC OWL SOLUTIONS will invoice Customer and Customer will pay that amount unless Customer provides ELECTRIC OWL SOLUTIONS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ELECTRIC OWL SOLUTIONS is solely responsible for taxes assessable against it based on its income, property and employees.

Q. PROPRIETARY RIGHTS AND LICENSES

Subject to the limited rights expressly granted hereunder, ELECTRIC OWL SOLUTIONS, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation. Customer grants ELECTRIC OWL SOLUTIONS, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-ELECTRIC OWL SOLUTIONS Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for ELECTRIC OWL SOLUTIONS to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-ELECTRIC OWL SOLUTIONS Application with a Service, Customer grants ELECTRIC OWL SOLUTIONS permission to allow the Non-ELECTRIC OWL SOLUTIONS Application and its provider to access Customer Data and information about Customer’s usage of the Non-ELECTRIC OWL SOLUTIONS Application as appropriate for the interoperation of that Non-ELECTRIC OWL SOLUTIONS Application with the Service. Subject to the limited licenses granted herein, ELECTRIC OWL SOLUTIONS acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-ELECTRIC OWL SOLUTIONS Application or such program code.

License by Customer to Use Feedback. Customer grants to ELECTRIC OWL SOLUTIONS and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of ELECTRIC OWL SOLUTIONS’s or its Affiliates’ services.

You the Customer agree to indemnify, release, and hold us harmless from any all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of any Content you share.

Keep in mind that if you send us any information, ideas, suggestions, or other communications to us, those communications will not be confidential. Moreover, unless we tell you otherwise, we reserve the right to reproduce, use, disclose, and distribute such communications without any obligation to you.

We may provide opportunities for you to post text, photographs, videos, or other content (collectively, “Content”) on the Sites. You can only post Content if you own all the rights to that Content, or if another rights holder has given you permission.

R. CONFIDENTIALITY

Confidential Information of Customer includes Customer Data; Confidential Information of ELECTRIC OWL SOLUTIONS includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional ELECTRIC OWL SOLUTIONS services.

As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, ELECTRIC OWL SOLUTIONS may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-ELECTRIC OWL SOLUTIONS Application Provider to the extent necessary to perform ELECTRIC OWL SOLUTIONS’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

S. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

Each party represents that it has validly entered into this Agreement and has the legal power to do so. ELECTRIC OWL SOLUTIONS Warranties. ELECTRIC OWL SOLUTIONS warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) ELECTRIC OWL SOLUTIONS will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-ELECTRIC OWL SOLUTIONS Applications” section above, ELECTRIC OWL SOLUTIONS will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

T. MUTUAL INDEMNIFICATION

This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

ELECTRIC OWL SOLUTIONS will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by ELECTRIC OWL SOLUTIONS in writing of, a Claim Against Customer, provided Customer (a) promptly gives ELECTRIC OWL SOLUTIONS written notice of the Claim Against Customer, (b) gives ELECTRIC OWL SOLUTIONS sole control of the defense and settlement of the Claim Against Customer (except that ELECTRIC OWL SOLUTIONS may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives ELECTRIC OWL SOLUTIONS all reasonable assistance, at ELECTRIC OWL SOLUTIONS’s expense. If ELECTRIC OWL SOLUTIONS receives information about an infringement or misappropriation claim related to a Service, ELECTRIC OWL SOLUTIONS may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching ELECTRIC OWL SOLUTIONS’s warranties under “ELECTRIC OWL SOLUTIONS Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by ELECTRIC OWL SOLUTIONS, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Non-ELECTRIC OWL SOLUTIONS Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.

 

Customer will defend ELECTRIC OWL SOLUTIONS and its Affiliates against any claim, demand, suit or proceeding made or brought against ELECTRIC OWL SOLUTIONS by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-ELECTRIC OWL SOLUTIONS Application provided by Customer, or (c) the combination of a Non-ELECTRIC OWL SOLUTIONS Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against ELECTRIC OWL SOLUTIONS”), and will indemnify ELECTRIC OWL SOLUTIONS from any damages, attorney fees and costs finally awarded against ELECTRIC OWL SOLUTIONS as a result of, or for any amounts paid by ELECTRIC OWL SOLUTIONS under a settlement approved by Customer in writing of, a Claim Against ELECTRIC OWL SOLUTIONS, provided ELECTRIC OWL SOLUTIONS (a) promptly gives Customer written notice of the Claim Against ELECTRIC OWL SOLUTIONS, (b) gives Customer sole control of the defense and settlement of the Claim Against ELECTRIC OWL SOLUTIONS (except that Customer may not settle any Claim Against ELECTRIC OWL SOLUTIONS unless it unconditionally releases ELECTRIC OWL SOLUTIONS of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against ELECTRIC OWL SOLUTIONS arises from ELECTRIC OWL SOLUTIONS’s breach of this Agreement, the Documentation or applicable Order Forms.

 

U. LIMITATION OF LIABILITY

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

 

Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

V. TERM AND TERMINATION

This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at ELECTRIC OWL SOLUTIONS’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

If this Agreement is terminated by Customer in accordance with the “Termination” section above, ELECTRIC OWL SOLUTIONS will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by ELECTRIC OWL SOLUTIONS in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to ELECTRIC OWL SOLUTIONS for the period prior to the effective date of termination.

Surviving Provisions, The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-ELECTRIC OWL SOLUTIONS Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as ELECTRIC OWL SOLUTIONS retains possession of Customer Data.

 

W. Additional Details

We may modify these Terms at any time so be sure to check back regularly. By continuing to use or log in to a Site after these Terms have changed, you indicate your agreement to the revised Terms. If you do not agree to the changes, you should stop using or logging in to the Sites.

The Sites may contain links to third-party websites. That doesn’t mean that we control or endorse those websites, or any goods or services sold on those websites. Similarly, the Sites may contain ads from third-parties. We do not control or endorse any products being advertised.

If you do not comply with these Terms, and we don’t take action right away, this doesn’t mean we’re OK with what you did, or we are giving up any rights that we may have (such as taking action in the future).

These Terms are governed by and construed in accordance with the laws of Nova Scotia, without regard to its conflict of laws rules. You expressly agree that the exclusive jurisdiction for any claim or dispute under these Terms and or your use of the Services resides in the courts located in Halifax, Nova Scotia, and you further expressly agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or action. If it turns out that a particular provision in these Terms is not enforceable, that will not affect any other provision.

Electric Owl Solutions accepts and responds to any requests such as disclosure, correction, addition, or deletion and veto of use or provision of personal information (the “Disclosure Requests”) from the person who provided his/her personal information.

Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

This Agreement is the entire agreement between ELECTRIC OWL SOLUTIONS and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

There are no third-party beneficiaries under this Agreement.

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, ELECTRIC OWL SOLUTIONS will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Contact for inquiries regarding Personal Information Handling: EOS@GardenManager.com 

These terms were last updated on October 5, 2019