June 6, 2016
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND HYDROPONIC, LLC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
By using the App you represent and warrant that (i) you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions hereof and (ii) you have never been convicted of a felony and that you are not required to register as a sex offender with any government entity.
Hart grants you a limited, non-exclusive license to access and use the App for your own personal, non-commercial purposes. This license is personal to you and may not be assigned or sublicensed to anyone else. Except as expressly permitted by Hart in writing, you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the App. Nor will you take any measures to interfere with or damage the App. All rights not expressly granted by Hart are reserved.
3. Non-Commercial Use
The App is for personal use only. Users may not use the App in connection with any commercial endeavors, including but not limited to (i) advertising or soliciting any user to buy or sell any products or services not offered by Hart or (ii) soliciting others to attend parties or other social functions, or networking, for commercial purposes. Users of the App may not use any information obtained from the App to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the App for any purpose. Hart may investigate and take any available legal action in response to illegal and/or unauthorized uses of the App, including collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the App.
5. Account Security
You are responsible for maintaining the confidentiality of the username and password you designate during the registration process, and you are solely responsible for all activities that occur under your username and password. You agree to immediately notify Hart of any disclosure or unauthorized use of your username or password or any other breach of security, and ensure that you log out from your account at the end of each session.
To use the App, you must register an account using your Facebook login, meaning you are authorizing us to access certain information in your Facebook account, including information you might share in common with other Hart users. By allowing us to access your Facebook account, you expressly acknowledge and agree that we may obtain and share your name and relevant information with other App users in your network or geolocation. Please take precautions to protect your password and contact us if you believe your account has been accessed by an unauthorized person.
7. Term and Termination; Account Deletion
This Agreement is effective on the date you first use Hart and continues until terminated in accordance with the provisions hereof. Hart may suspend, disable, or delete your account (or any part thereof) if Hart determines in its sole and absolute discretion that you have violated any provision of this Agreement or that your conduct or content would possibly damage Hart’s reputation or goodwill. If Hart deletes your account for the foregoing reasons, you may not re-register under a different name. Upon termination, all licenses granted by Hart hereunder will terminate. In the event of account deletion for any reason, content that you submitted may no longer be available. Hart shall not be responsible for the loss of any such content. Although it is Hart’s intention for the App to be available as much as possible, there will be occasions when the App may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Also, Hart reserves the right to remove any content or features from the App for any reason, without prior notice. Content or features removed from the App may continue to be stored by Hart, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. You also acknowledge that the Internet may be subject to breaches of security and that the submission of content or other information may not be secure.
8. Your Interaction with Other Users; Disclaimers; Limitation of Liability
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER APP USERS. YOU UNDERSTAND THAT HART CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS. HART ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. HART MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USER. HART RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
Hart is not responsible for the conduct of any Member. In no event shall Hart, its affiliates or its partners be liable (directly or indirectly) for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the App including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other Users or persons you meet through the App. You agree to take all necessary precautions in all interactions with other Users, particularly if you decide to communicate outside the App or meet in person, or if you decide to send money to another User. You understand that Hart makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the App. You should not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other Users.
IN NO EVENT SHALL HART BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, EXEMPLARY, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, DEATH, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE APP OR PERSONS YOU MEET THROUGH THE APP. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
Hydroponic, LLC reserves the right to modify the App at any time. You are responsible for providing your own access to the App. Hart has no obligation to screen or monitor any content and does not guarantee that any content available on the App complies with this Agreement or is suitable for all users. Hart provides the App on an “as is” and “as available” basis. You therefore use the App at your own risk. Hart expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Hart makes no representations or warranties of any kind including but not limited to:
• That the App will be permitted in your jurisdiction;
• That the App will be uninterrupted or error-free;
• Concerning any content submitted by any user;
• Concerning any third party’s use of content that you submit;
• That any content you submit will be made available on the App or will be stored by Hart;
• That Hart will continue to support any particular feature of the App;
• Concerning sites and resources outside of the App, even if linked to from the App
To the extent any disclaimer or limitation of liability does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the App, and no warranties shall apply after such period.
9. Code of Conduct; Prohibited Activities In using the App, you must behave in a civil and respectful manner at all times. Further, you will not:
• Harass or stalk any other person;
• Harm or exploit minors;
• Act in a deceptive manner by, among other things, impersonating any person;
• Collect information about others;
• You will not express or imply that any statements you make are endorsed by Hart without our specific prior written consent;
• You will not distribute spam, and will not use any robot, spider, site search/retrieval application, or other manual or automatic
device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation
of the Service or its contents;
• You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without
obtaining the prior consent of the owner of such proprietary rights;
• You will not interfere with or disrupt the services or the site or the servers or networks connected to the services or the site;
• You will not post, email or otherwise transmit any material 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.
Hart has the right, but not the obligation, to monitor all conduct on and content submitted to Hart or the App.
10. Content Restrictions
You are solely responsible for the content that you publish or display (hereinafter, “post”) on the Service, or transmit to other Members. You will not post on the service, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not provide inaccurate, misleading or false information to Hart or to any other user. If information provided to Hart, or another user, subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. The following is a partial list of content you may not upload, post, or transmit:
• is patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
• harasses or advocates harassment of another person;
• promotes information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
• provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
• contains sexually explicit content;
• provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
• involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”;
• promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
• solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
• engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes;
• infringes any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.);
• Your use of the Service, including but not limited to the content you post on the service, must be in accordance with any and all applicable laws and regulations.
You may not include in your user profile any telephone numbers, street addresses, last names, or email addresses. Lastly, Hart does not allow the inclusion FACE PHOTOS or HEAD SHOTS or facsimile representations (drawings, paintings, sketches, etc.) of the user’s face or generally anybody else’s face as a post or within the user profile. (However, Face photos may be shared via user messaging.) Any URL’s provided on the profile must comply with these content restrictions EXCEPT the potential use of face photos, of course.
11. Proprietary Rights
Hart owns and retains all proprietary rights in the App, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. The App contains the copyrighted material, trademarks, and other proprietary information of Hart and its licensors. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Website or through the Service, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
12. License to Hart
You grant Hart and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content. In addition, you waive any so-called “moral rights” in your content. You further grant all users of the App permission to view your content for their personal, non-commercial purposes. Any communications you send to Hart, including but not limited to suggestions on improving or adding new features to the App, Hart shall have the right to use your communications or suggestions without any compensation to you.
13. Representations and Warranties
For each piece of content that you submit, you represent and warrant that: (i) you have the all rights necessary to submit the content to Hart and grant the licenses set forth above; (ii) Hart will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the content complies with this Agreement and all applicable laws.
You will indemnify, defend, and hold harmless Hart and its affiliates, directors, officers, employees, and agents, from and against all third party actions that: (i) arise from your activities on or use of the App; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to Hart or the App violates any law or infringes any third party right, including any intellectual property or privacy rights.
15. Third Party Copyrights and Other Rights; Copyright Policy
Hart respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the materials they upload to the App do not infringe any third party copyright. Hart will promptly remove materials in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright. In addition, Hart may, in appropriate circumstances, terminate the accounts of repeat copyright infringers.
16. DMCA Takedown Notice If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:
• Your name, address, telephone number, and email address (if any).
• A description of the copyrighted work that you claim has been infringed.
• A description of where the material that you claim is infringing is located on the App, sufficient for Hart to locate the material.
• A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
• A statement by you that the information in your notice is accurate and, UNDER PENALTY OF PERJURY, you are the copyright owner or authorized to act on the copyright owner’s behalf.
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
You may submit this information via:
• Email: firstname.lastname@example.org
• Offline: Hart’s Copyright Agent (see below)
17. DMCA Counter-notification
If you believe that your material has been removed by mistake or misidentification, please provide Hart with a written counter-notification containing the following information:
o Your name, address, and telephone number.
o A description of the material that was removed and the location where it previously appeared.
o A statement UNDER PENALTY OF PERJURY that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
o A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which Hart may be found, and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person. You may submit this information via:
• Email: email@example.com
Please note that we will provide complete counter-notifications to the person making the DMCA claim. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the disabled materials. Until that time, your materials will remain disabled.
Warning: In filing a DMCA notice or counter-notification, please make sure that you have complied with all of the above requirements. If we request additional information necessary to make DMCA your notice or counter-notification complete, please provide that information promptly. If you fail to comply with all of the requirements, your notification or counter-notification may not be processed. In addition, please make sure that all of the information you provide is accurate.
UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MATERIALLY
MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR WAS REMOVED OR DISABLED BY MISTAKE OR
MISIDENTIFICATION MAY BE SUBJECT TO LIABILITY.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.
You may send a DMCA notice, a DMCA counter-notification, or any inquiries concerning intellectual property to Hart’s Copyright Agent:
You may send non-copyright complaints to: firstname.lastname@example.org
18. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL HART, ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF HART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HART’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE WEBSITE OR SERVICE OR THE TERMS OF THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
19. General Provisions
GOVERNING LAW: This Agreement shall be governed by the laws of the State of Tennessee, United States of America, without regard to principles of conflicts of law provided that the arbitration agreement shall be governed by the Federal Arbitration Act. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
ARBITRATION: The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the App shall be binding arbitration administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Hart in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against Hart any class action, class arbitration, or other representative action or proceeding.
By using the App in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Hart (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Hart (except for small-claims court actions) may be commenced only in the federal or state courts located in Davidson County, Tennessee. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES: Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by Hart in exercising any right hereunder will waive any further exercise of that right. Hart’s rights and remedies hereunder are cumulative and not exclusive.
ASSIGNMENT; NO THIRD PARTY BENEFICIARIES: This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without Hart’s prior written consent. No third party shall have any rights hereunder.
NOTICES: You consent to receive all communications including notices, agreements, disclosures, or other information from Hart electronically. Hart may provide all such communications by email or by posting them on the App. Support-related inquiries or notices of a legal nature (such as a subpoena) may be sent to us at email@example.com. Nothing herein shall limit Hart’s right to object to subpoenas, claims, or other demands.
20. AMENDMENT; ENTIRE AGREEMENT