GARDENAWAY Terms of Use Agreement

Last updated: March 20, 2009

 

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Welcome to GARDENAWAY, your online garden design community and resource.  GARDENAWAY aims to create a friendly and safe online gardening community where you can learn from the vast knowledge, ideas, designs, photos or videos posted by gardeners in your neighbourhood or around the world.

Whether you visit GARDENAWAY occasionally to browse or you become an active participant in the online garden design community, we want to make your experience a positive and rewarding one.

Acknowledgement and Acceptance of Terms of Use Agreement

Welcome to the GARDENAWAY inc. Website (this 'Site').  The use of this Site and related services (collectively, the 'Service'), is governed by this Terms of Use Agreement (this 'Agreement' or 'Terms of Use').

By using this Site, you acknowledge that,

• you are at least thirteen (13) years old
• you have read this Agreement and the disclaimers and caveats contained in this Site, and
• you accept and will be bound by the terms thereof and by all applicable laws.

If you do not agree to the terms of the Agreement, you should not use this Site and any violation of this Agreement will automatically result in a termination of your permission to use the Service.  The term 'Company' or 'GARDENAWAY' or 'us' or 'we' refers to GARDENAWAY inc., the owner of this web site.  GARDENAWAY reserves the right to change this Agreement at any time without notice and by using this Site subsequent to any revision of the Agreement; you agree to be bound by such changes.

We will post any changes to this Agreement on this Site.  We encourage you to periodically review the Terms of Use and familiarize yourself with the most current version.

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Notice to Minors

You must be at least 18 years old to register for services on this site or to provide any information about yourself through this site.

Registration for services by any person under the age of 18 is strictly prohibited.

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Description of Service

The Service provides plant data, blogs, gardening and gardening design information via the Internet.  You acknowledge and agree that your use of the Service and all links, of content provided by GARDENAWAY, will fully comply with the user conduct rules set forth above and the other terms and conditions set forth in these Terms of Use.

Free Basic Membership

Basic user membership is free and does not require renewal.  We reserve the right to refuse Service in our sole discretion which may be exercised arbitrarily.

Your Conduct

Your use of the Service is subject to all applicable local, provincial, state, national, and international laws and regulations. You agree:

You understand that the Service and the Site are available for your personal, non-commercial use only. In addition, you agree not to use or attempt to use the Service or the Site to:

• in any unlawful manner or in any other manner that could damage, disable, overburden disrupt, overwhelm, attack, modify or interfere with the Service or its associated software, hardware and/or servers in any way, and you agree not to impede or interfere with others' use of the Service;
• alter or tamper with any information or materials on or associated with the Service;
• collect information from or otherwise interact with the Service or the Site;
• impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity

Attempts to gain unauthorized access to other computer systems are prohibited.

Proprietary and Intellectual Property Rights to Content

All content on the Site and available through the Service, including plant data, blogs, applications, software, name references or other material contained in advertisements or search results, provided to or accessed by you via the Service, and other materials related to the Site including, without limitation, the 'look and feel' of the Site (the 'Content') are the proprietary property of GARDENAWAY or its licensors with all rights reserved.  Therefore you are only permitted to use this Content as expressly authorized by this Agreement or by the relevant advertiser, as appropriate.  No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without GARDENAWAY's prior written permission.

Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Content and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact.  You may not create derivative works of the Content without expressly being authorized to do so in writing by GARDENAWAY or the relevant party.  You do not acquire ownership rights to any content, document, or other materials viewed through this Site.  Some of the content on the site is the copyrighted work of third parties.  Such license is subject to these Terms of Use and does not permit use of any data mining, robots that do not comply with robots.txt, scraping or similar data gathering or extraction methods.

Any use of the Site or the Content other than as specifically authorized herein, without the prior written permission of GARDENAWAY, is strictly prohibited and will terminate the license granted herein.  Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes.  Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppels, implication or otherwise. This license is revocable at any time without notice and with or without cause.

Links

GARDENAWAY may provide links to other web sites or resources. You acknowledge and agree that GARDENAWAY is not responsible for the availability or security of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You agree that GARDENAWAY shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.

Feedback and Suggestions

GARDENAWAY is interested in your feedback and suggestions on how we can better serve you.  Your input is appreciated and will be considered by GARDENAWAY as potential enhancements to the Service.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service ('Submissions'), provided by you to GARDENAWAY are non-confidential and shall become the sole property of GARDENAWAY.  GARDENAWAY shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

Disclaimer of Warranties

You expressly agree that use of the Service is at your sole risk. The Service is provided on an 'as is' and 'as available' basis. GARDENAWAY does not guarantee the accuracy, completeness, or usefulness of any information on the service.  GARDENAWAY does not warrant that your use of the service will be secure, uninterrupted, always available, error-free or will meet your requirements, or that any defects will be corrected.

You understand and expressly agree that

• Use of GARDENAWAY's Service is at your sole risk,
• Any material and/or data downloaded or otherwise obtained through the use of GARDENAWAY's Service is at your own discretion and risk,
• Under no circumstances will GARDENAWAY be responsible for any loss or damage resulting from anyone's use or reliance on information or other content provided in the Service, and
• You will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data or loss or damage to your person or your property in connection with your use of the Service.

Except as expressly set forth on our Site, GARDENAWAY disclaims all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or title.  GARDENAWAY makes no warranty or representation regarding the results that may be obtained from the use of GARDENAWAY's Service, regarding the accuracy or reliability of any information obtained through GARDENAWAY's Service, regarding any transactions entered into through GARDENAWAY's Service, that defects will be corrected, or that GARDENAWAY's Service will meet any of your requirements, be uninterrupted, timely, secure, or error free.

The links to third party sites on this web site are for your convenience only and the inclusion of such links within this web site does not imply any endorsement, guarantee, warranty or representation by GARDENAWAY. For your convenience, GARDENAWAY may make available on this site or in its Site Content or Service certain materials for use and download. GARDENAWAY does not make any warranty with regard to download speed or performance quality of such materials. GARDENAWAY makes no warranty regarding any transactions entered into through the Service.

No advice or information, whether oral or written, obtained by you from GARDENAWAY or through the Service shall create any warranty not expressly made herein.

Limitation of Liability

GARDENAWAY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR OTHERWISE, USE, DATA OR OTHER INTANGIBLES, OR PROPERTY, EVEN IF GARDENAWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

UNDER NO CIRCUMSTANCES WILL GARDENAWAY'S AGGREGATE LIABILITY, ON ANY FORM OF ACT WHATSOEVER IN CONNECTION WITH THIS AGREEMENT EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT, GARDENAWAY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES RESULTING FROM ANY CORRESPONDENCE OR BUSINESS DEALINGS WITH THIRD-PARTY ADVERTISERS OR RESULTING FROM THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICE.  GARDENAWAY IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT POSTED ON THE SITE OR IN CONNECTION WITH THE SERVICE, WHETHER POSTED OR CAUSED BY GARDENAWAY, BY THIRD PARTIES OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SITE OR THE SERVICE.

ALTHOUGH WE PROVIDE RULES FOR USER CONDUCT, WE ARE NOT RESPONSIBLE FOR ANY OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL OR OTHERWISE OBJECTIONABLE CONTENT YOU MAY ENCOUNTER ON THE SITE OR IN CONNECTION WITH ANY THIRD PARTY APPLICATIONS, SOFTWARE OR CONTENT.

Limitations

You agree not to resell the Service. GARDENAWAY retains the right, at GARDENAWAY's sole discretion, to determine whether or not your conduct is consistent with the letter and spirit of this Agreement and may terminate your Service if your conduct is found to be inconsistent with this Agreement.

Indemnification

YOU AGREE TO INDEMNIFY AND HOLD GARDENAWAY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SERVICE, THE VIOLATION OF THIS AGREEMENT BY YOU, OR THE INFRINGEMENT BY YOU, OR OTHER USER OF THE SERVICE USING YOUR COMPUTER, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY.

Notice

GARDENAWAY may broadcast notices or messages through the Service to inform you of changes to this Agreement, the Service, or other matters of importance; such broadcasts shall constitute notice to you.

Remedy

If you are dissatisfied with this site, or any portion thereof, your exclusive remedy shall be to cease using the site.

Laws

THIS AGREEMENT SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO, CANADA, WITHOUT REFERENCE TO ITS LAWS RELATING TO CONFLICTS OF LAW. VENUE FOR ALL DISPUTES ARISING UNDER THIS AGREEMENT SHALL LIE EXCLUSIVELY IN A PROVINCIAL COURT IN ONTARIO, CANADA.  IN ADDITION, BOTH PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS.  NOTWITHSTANDING THE FOREGOING, HOWEVER, GARDENAWAY SHALL HAVE THE RIGHT TO COMMENCE AND PROSECUTE ANY LEGAL OR EQUITABLE ACTION OR PROCEEDING BEFORE ANY NON-CANADIAN COURT OF COMPETENT JURISDICTION TO OBTAIN INJUNCTIVE OR OTHER RELIEF IN THE EVENT THAT, IN THE OPINION OF GARDENAWAY, SUCH ACTION IS NECESSARY OR DESIRABLE.

Disputes and Arbitration

Before commencing any arbitration in the manner set out below, you and GARDENAWAY shall first attempt to resolve any dispute or differences between us by way of good faith negotiation.  The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. You and we shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails.

YOU AND GARDENAWAY AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF USE OR THIS SITE SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief.  Arbitration shall be final, binding and finally resolved, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. pursuant to The Arbitration Act (1991) S.O. 1991 Chapter 17 if a domestic arbitration and otherwise pursuant to the International Commercial Arbitration Act, R.S.O. 1990, Chap. I.11.  Judgment on upon the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof.

The Arbitration Tribunal shall consist of one (1) arbitrator. The place of the arbitration shall be in Ottawa, Ontario.  The language of the arbitration shall be English.  The arbitration award shall be given in writing and shall be final, binding on the parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all matters related thereto.

Judgment upon the award rendered may be entered into any court having competent jurisdiction, or application may be made to such court for a judicial recognition of the award or an order of enforcement thereof, as the case may be.  To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED.  In no event shall any claim, action or proceeding by you related in any way to this Site be instituted more than two (2) years after the cause of action arose.

International Use

GARDENAWAY makes no representation of any kind that all content, materials, and services on the Site are appropriate or available for use in all geographic locations; especially some locations outside Canada and the United States, and accessing such from certain locations may be illegal and prohibited.  Those accessing the Site from such locations act on their own initiative and we are not responsible for their compliance with applicable laws.

Miscellaneous

GARDENAWAY's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless expressly acknowledged and agreed to by GARDENAWAY in writing. You and GARDENAWAY agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.  Some jurisdictions may prohibit the shortening of the time period in which a cause of action must be brought.  In all such jurisdictions, the applicable time period shall be the minimum allowed by law.

The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.  If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.  This Agreement constitutes the entire and only agreement between us and you; supersedes all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the Site, the content, products, or services provided by or through the Site, and the subject matter of this Agreement.

Privacy

GARDENAWAY cares about your privacy. For further information, please see the GARDENAWAY Privacy Policy.

GARDENAWAY Privacy Policy

Last updated: March 16, 2009

We care about your privacy and we are committed to ensuring that your privacy is respected and protected.

This privacy policy (this 'Policy') applies to gardenaway.com (the 'Site'), which is owned and operated by GARDENAWAY Inc.

Your use of the Site constitutes agreement to applicable laws and the terms and conditions contained on the Site, in this Policy, and in the Terms of Use Agreement.  Except as provided below, we do not collect any personally identifiable information about you while you use the Site.  Please read this Policy very carefully.  In addition to reviewing this privacy policy, please read our  Terms of Use Agreement .

This Policy does not cover information collected on sites linked to from this Site.  GARDENAWAY reserves the right to change this Policy at any time without notice and by using this Site subsequent to any revision of the Policy; you agree to be bound by such changes.  We will post any changes to this Policy on this Site.  We encourage you to periodically review this Policy and familiarize yourself with the most current version.

We will use any information collected in accordance with the privacy policy in effect at the time the information is collected.

The Information We Collect

Aggregate Information (non-personally identifiable)

We share aggregated demographic information about our user base with our partners and advertisers so that they can better meet the needs and interests of our users.  This information does not identify individual users.

Lawful Requests

We may be required to disclose user information pursuant to lawful requests, such as subpoenas or court orders, or in compliance with applicable laws.  We do not reveal information until we have a good faith belief that an information request by law enforcement or private litigants meets applicable legal standards.  Additionally, we may share account or other information when we believe it is necessary to comply with law, to protect our interests or property, to prevent fraud or other illegal activity perpetrated through the GARDENAWAY Service or using the GARDENAWAY name, or to prevent imminent bodily harm. This may include sharing information with other companies, lawyers, agents or government agencies.

Log Files

As is true of most web sites, we gather certain information automatically and store it in log files.  This information includes internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and the route that a user has taken through the web pages ('clickstream data').  We use this information, which does not identify individual users, to analyze trends, to administer the site, to track users' movements around the site and to gather demographic information about our user base as a whole.

Cookies and Web Beacons

We use cookies on this site. A cookie is a small text file that is stored on a user's computer for record-keeping purposes.  We use both session ID cookies and persistent cookies.  We use session ID cookies to make it easier for you to navigate our site.  A session ID cookie expires when you close your browser.  A persistent cookie remains on your hard drive for an extended period and enables us to make your visit to  our website easier by recognizing you when you return and helping to provide you with a customized experience.

We use cookies to control the display of ads, to track usage patterns, to deliver content, and to record registration.  These cookies can also be used to provide information about numbers of visitors, the average time spent on a particular page and generally the performance of the web site.

You have the ability to accept or decline cookies by modifying the settings in your browser.  If you choose to disable cookies, you may still use our site; however, you may have limited access to some areas within our site.

Some of our web pages, emails, and other online content may contain electronic images known as web beacons.  These web beacons allow us to count users who have visited our web pages, seen our ads, or opened our email.  Unlike cookies, web beacons cannot be declined when delivered via a regular web page.  However, web beacons can be refused when delivered via email by disabling HTML images or refusing HTML emails (select Text only) in your email software.

Some of our business partners use cookies on our site.  We have no access to or control over these cookies.  This privacy statement covers the use of cookies by this Site only and does not cover the use of cookies or any other tracking technologies by any advertisers. Google uses the DoubleClick DART cookie to serve ads on our site.  The use of the 'DART cookie' enables Google to serve you ads based on your visit to GARDENAWAY as well as your visits to other sites on the Internet. You may opt out of the use of the 'DART cookie' by visiting DoubleClick 'Opting Out'.

We reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or to comply with a judicial proceeding, court order, or legal process served on our Site.  See above 'Lawful Requests'.

Legal Disclaimer

We reserve the right to disclose your personally identifiable information as required by law and when we believe that disclosure is necessary to protect our rights and/or to comply with a judicial proceeding, court order, or legal process served on our Site.   See above 'Lawful Requests'.

Links to Other Sites

This Site contains links to other sites that are not owned or controlled by GARDENAWAY.  Please be aware that we, GARDENAWAY, are not responsible for the privacy practices of such other sites.  We encourage you to be aware when you leave our Site and to read the privacy statements of each and every web site that collects personally identifiable information.  This privacy statement applies only to information collected by GARDENAWAY.

CHILDREN AND PARENTS

Children Under Age 13

GARDENAWAY does not knowingly collect or solicit personal information from anyone under the age of 13.  If you are under 13, please do not send any information about yourself to us, including your name, address, telephone number, or email address.  No one under age 13 may provide any personal information to GARDENAWAY.  In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible.  If you believe that we might have any information from or about a child under 13, please Contact Us.

Children Between the Ages of 13 and 18

We recommend that minors over the age of 13 ask their parents for permission before sending any information about themselves to anyone over the Internet.

Terms of Use, Notices and Revisions

Your use of GARDENAWAY, and any disputes arising from it, is subject to this Privacy Policy as well as our Terms of Use Agreement and all of its dispute resolution provisions including arbitration, limitation on damages and choice of law.  We reserve the right to change our Privacy Policy and our Terms of Use at any time.  Non-material changes and clarifications will take effect immediately, and material changes will take effect within 30 days of their posting on this site.

If we make changes, we will post them and will indicate at the top of this page the policy's new effective date.  If we make material changes to this policy, we will notify you here or through notice on our home page.  We encourage you to refer to this policy on an ongoing basis so that you understand our current privacy policy.  Unless stated otherwise, our current privacy policy applies to all information that we have about you.