Terms of Service

NOTICE FOR SOFTWARE AVAILABLE ON THE PLANTSMART.COM WEBSITE

The software that is made available for downloading from this website (the "Software") is owned by PlantSense Inc. This Software is protected by copyright laws, and is being made available solely for use by you in accordance with the following Software License Agreement terms and conditions. Any use, reproduction or redistribution of the Software that is not in accordance with the Software License Agreement is expressly prohibited by law, and may result in civil and criminal penalties.

SOFTWARE LICENSE AGREEMENT

PLANTSENSE IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT ("Agreement"). This is a legal agreement between you (either an individual end-user or an entity) and PlantSense. By using this software, you are agreeing to be bound by the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement, promptly return the software and other items that are part of this product in their original package with your sales receipt to your point of purchase for a full refund, or if you have downloaded this software from a PlantSense website, then you must stop using the software and destroy any copies of the software in your possession or control.

1. Grant of Agreement. Subject to the terms and conditions of this Agreement, PlantSense and its suppliers grant to you a nonexclusive license to use one copy of the software program and any documentation accompanying this Agreement ("Software") on one computer only with the PlantSense product you have purchased. No other rights are granted. The Software is in use if it is loaded on the computer's permanent or temporary memory. For backup purposes only, you may make one copy of the Software. You must include on the backup copy all copyright and other notices included on the Software as supplied by PlantSense. Installation on a network server for the sole purpose of your internal distribution of the Software is permitted only if you have purchased an individual Software license for each networked computer to which the Software is distributed.

2. Restrictions. The Software contains copyrighted material, trade secrets, and other proprietary materials of PlantSense and its licensors. You agree that in order to protect those proprietary materials, except as expressly permitted by applicable law, neither you nor a third party acting on your behalf will: (i) decompile, disassemble or reverse engineer the Software; (ii) modify or create derivative works of the Software; (iii) use the Software in any manner to provide service bureau, commercial time-sharing or other computer services to third parties; (iv) transmit the Software or provide its functionality, in whole or in part, over the Internet or other network (except as expressly permitted above); or (v) sell, distribute, rent, lease, sublicense or otherwise transfer the Software to a third party, except upon a permanent transfer of the PlantSense product using the Software; provided that: (a) all Software updates are included in the transfer, (b) you do not retain a copy of the Software, and (c) the transferee agrees to be bound by the terms and conditions in this Agreement.

3. Ownership. The Software is licensed, not sold, to you for use only under the terms and conditions of this Agreement, and PlantSense reserves all rights not expressly granted to you in this Agreement. PlantSense and/or its licensors retain title to the Software, and all intellectual property rights therein.

4. Termination. This Agreement is effective until terminated. Upon any violation of any of the provisions of this Agreement, rights to use the Software shall automatically terminate and the Software must be returned to PlantSense or all copies of the Software destroyed. You may also terminate this Agreement at any time by destroying all copies of the Software in your possession or control. If PlantSense makes a request via public announcement or press release to stop using the copies of the Software, you will comply immediately with this request. The provisions of paragraphs 3, 7, 8 and 12 will survive any termination of this Agreement.

5. Limited Product Warranty. PlantSense warrants to you that the Software will substantially conform to its published documentation and the media containing the Software shall be free from defects in material, each for a period of ninety (90) days from the date of purchase. PlantSense's limited warranty is nontransferable and is limited to the original purchaser. This warranty gives you specific legal rights, and you may also have other rights which vary under local laws.

6. Remedies. PlantSense's entire liability and your exclusive remedy for any breach of warranty shall be, at PlantSense's option, to: (a) repair or replace the Software or media, provided that the Software or media is returned to the point of purchase or such other place as PlantSense may direct, with a copy of the sales receipt, or (b) refund the price paid. Any replacement Software or media will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. These remedies are void if failure of the Software or media has resulted from accident, abuse, or misapplication.

7. DISCLAIMER OF WARRANTY. THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES. PLANTSENSE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS WITH RESPECT TO THE SOFTWARE OR MEDIA, AND ANY WARRANTIES OF NON-INTERFERENCE OR ACCURACY OF INFORMATIONAL CONTENT. NO PLANTSENSE DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSION, OR ADDITION TO THIS WARRANTY. Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.

8. LIMITATION OF LIABILITY. IN NO EVENT WILL PLANTSENSE OR ITS SUPPLIERS BE LIABLE FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING IN ANY WAY OUT OF THE SALE OF, USE OF, OR INABILITY TO USE ANY PLANTSENSE PRODUCT OR SERVICE, EVEN IF PLANTSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL PLANTSENSE'S AND ITS SUPPLIERS' TOTAL LIABILITY EXCEED THE ACTUAL MONEY PAID FOR THE PLANTSENSE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. The above limitations will not apply in case of personal injury where and to the extent that applicable law requires such liability.

9. U.S. Government Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988) FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.

10. Export Law Assurances. You agree and certify that neither the Software nor any other technical data received from PlantSense will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If you have rightfully obtained the Software outside of the United States, you agree that you will not re-export the Software nor any other technical data received from PlantSense, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Software.

11. Agents and Third Party Purchasers. If you are acquiring the Software on behalf of another person or entity, you represent and warrant that you have the authority to bind the party or entity for which you are acquiring the Software to the terms and conditions of this Agreement.

12. General Terms and Conditions. This Software License Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, without regard to or application of its choice of law rules or principles. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter. PlantSense may, in its sole discretion, modify portions of this Agreement at any time. PlantSense may notify you of any changes by posting notice of such modifications on PlantSense's website(s) or sending notice via e-mail, postal mail or other means. Your continued use of the Software following notice of such modifications shall be deemed to be your acceptance of any such modifications to the Agreement. If you do not agree to any such modifications, you must immediately stop using the Software and destroy all copies of the Software in your possession or control.

The Software is protected by United States copyright law and international treaty. Unauthorized reproduction or distribution of the Software is subject to civil and criminal penalties.

NOTICE SPECIFIC TO INFORMATION AVAILABLE ON THE PLANTSMART WEBSITE

This website is hosted by PlantSense Inc. under a business partnership with Black & Decker (U.S.) Inc. ("Black & Decker"). The information on this website is provided for informational purposes only and is subject to change without notice. It is provided "AS IS" and without any warranty. Any risk arising out of the use of the information on this website shall remain with the reader. IN NO EVENT SHALL PLANTSENSE OR BLACK & DECKER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), ARISING OUT OF OR IN CONNECTION WITH THE AVAILABILITY, PERFORMANCE OR USE OF THE INFORMATION CONTAINED ON THIS WEBSITE, EVEN IF PLANTSENSE HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES.

You agree to indemnify, defend, release and hold PlantSense, Black & Decker and their respective officers, directors, suppliers, service providers, co-branders or other partners, agents and employees, and those of its affiliates, harmless from all claims, demand, damages, fees and costs of any nature, including reasonable fees of attorneys and other professionals, due to or arising out of anything you submit, transmit through or upload to the website, your use of the website, your connection to the website, your violation of these Terms of Service, Black & Decker's Standard Terms and Conditions of Sale and/or Invoice Terms and Conditions, or your violation of any intellectual property rights of PlantSense, Black & Decker or any third party. In the event you provide registration or other information that is untrue, inaccurate, fraudulent, or out of date, you agree to indemnify PlantSense and Black & Decker for and hold them harmless from and against any and all liability, damages, loss or expense (including reasonable fees of attorneys and other professionals) they may incur, including but not limited to loss of business profits, taxes, penalties or sanctions, interest, fees, costs and expenses of any nature arising from or related to any claim, demand, action or proceeding alleged or initiated against PlantSense and/or Black & Decker by any third party based upon the information you provide or your use of the website.

LINKS TO OTHER WEBSITES Links to other websites are available on this website and these links allow you to leave this website. The linked sites are not under the control of PlantSense or Black & Decker (other than with respect to the link to any website owned by Black & Decker or its parent company (the "B&D Sites") or a subsidiary of either of them) and neither PlantSense nor Black & Decker (other than with respect to the B&D Sites) is responsible for the contents of any linked site or links within a linked site. These links are provided as a convenience only and do not imply any endorsement or recommendation by PlantSense or Black & Decker (other than with respect to the B&D Sites).

Warranty and Customer Service. Warranty claims and customer service requests will be directed to and managed by Black & Decker:

http://www.blackanddecker.com/CustomerCenter/Warranty.aspx

TRADEMARKS AND COPYRIGHT NOTICE

The contents of this website are owned by The Black & Decker Corporation and/or Plantsense, Inc. (including but not limited to articles, other text, photographs, images, illustrations, graphics, video material, audio material, software, logos, titles, characters, names, graphics and button icons), and are protected by copyright, trademark and other laws of the United States. Other trademarks, service marks, product names and company names or logos appearing on this website that are not owned by Black & Decker or Plantsense are the property of their respective owners and may not be used without their express permission.

Notices and Procedures for Making Claims of Copyright Infringement

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to PlantSense.

PlantSense will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying with the DMCA, PlantSense will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing.

If you believe that your work has been copied in any way that constitutes copyright infringement, please provide all of the following information:

a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
a description of the copyrighted work that you claim has been infringed;
a description of the material that you claim is infringing or is the subject of infringing activity, that it is to be removed or access to it disabled and information reasonably sufficient to enable PlantSense to locate the material on the website;
your name, address, telephone number, email address and all other information reasonably sufficient to enable PlantSense to contact you;
a statement by you that you have a good faith belief that use of the material as described by you is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the information in your notification is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

IMPORTANT NOTE: THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING PLANTSENSE THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS PRODUCT-RELATED QUESTIONS AND REQUESTS, OR QUESTIONS ON PRIVACY, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.

Termination. PlantSense, in its sole discretion, may suspend or terminate your access, registration/membership or use for any reason, but especially if PlantSense believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. PlantSense may also, in its sole discretion and at any time, discontinue providing the website, or any part thereof, with or without notice. PlantSense may suspend, terminate and/or bar further access to the website at any time without prior notice to you. PlantSense shall not be liable to you or any third party for any suspension or termination of your access to or use of the website.

General Information. PlantSense administers and operates the following website from its location in San Francisco, CA. Although the website may be accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the website are available to all persons or in all geographic locations, or are appropriate or available for use in your jurisdiction. PlantSense reserves the right to limit the provision and quantity of any feature, product or service to any person or geographic area in its sole discretion. Any offer for any feature, product or service made on the website is void where prohibited. These Terms of Service and any other agreements, whether or not referenced herein, govern all purchases. Your activities and use of the website supersede any prior agreements between you and PlantSense and/or Black & Decker. You also may be subject to additional terms and conditions contained in invoices, purchase orders, terms and conditions of purchase/sale, shipping manifests, bills of lading or terms and contracts that may apply when you use affiliate services, third party content or third party software. These Terms of Service, your use of the website and any other agreement pertaining to this relationship and your use of the website shall be governed by the laws of the State of Maryland without regard to choice of law provisions, nor shall the 1980 United Nations Convention on Contracts for the International Sale of Goods apply. You agree to submit to the personal and exclusive jurisdiction of the pertinent state or federal courts located within or with jurisdiction over the City of Baltimore, State of Maryland, regardless of the fact that the website is accessible outside the United States. Notwithstanding the foregoing, PlantSense and/or Black & Decker may seek equitable relief, including preliminary and permanent injunction, in any court of competent jurisdiction to prevent or enjoin misappropriation, misuse, unauthorized disclosure or infringement of any intellectual property rights. The failure of PlantSense and/or Black & Decker to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, You must file any claim or cause of action arising out of or related to your use of the website or the Terms of Service within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.

All rights not expressly granted herein are reserved.