Blossom Mobile App Terms and Conditions

Blossom Mobile App Terms & Conditions


By clicking the “I AGREE” that follows these Mobile Application Terms and Conditions (these “Terms and Conditions”) or by otherwise accessing or using the Blossom mobile application (“Application”), you (“You”) agree as follows:

1. MODIFICATIONS TO THE APPLICATION TERMS AND CONDITIONS
You acknowledge and agree that The Scotts Company LLC (“Scotts”) may, in its sole discretion, amend or modify the Application and these Terms and Conditions (including any instructions, policies or guidelines referenced herein) at any time and in any manner. All such modifications shall be binding upon You when made. You may not amend or modify the Application or these Terms and Conditions under any circumstances.

2. REPRESENTATIONS, COVENANTS AND WARRANTIES
You represent, covenant and warrant to Scotts that (a) these Terms and Conditions have been executed and delivered by You and constitute a valid and binding agreement with You, enforceable against You in accordance with their terms; (b) You will not access or use the Application except as expressly permitted by these Terms and Conditions and any additional instructions, guidelines or policies issued by Scotts, including those posted in the Application; (c) You will access and use the Application in full compliance with all Applicable Laws (as defined below); and (d) all of the data and other materials You provide in obtaining the Application are accurate and truthful in all respects.

3. DISCLAIMER
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, SCOTTS MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES AND OFFERS NO OTHER CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING (1) THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF THE APPLICATION OR ANY DATA SERVICE, SOFTWARE, HARDWARE, DELIVERABLE, WORK PRODUCT OR OTHER MATERIALS RELATED TO THE APPLICATION, OR THE AVAILABILITY OF ANY OF THE FOREGOING; OR (2) WHETHER THE INFORMATION AVAILABLE ON OR TRANSMITTED BY THE APPLICATION IS TRUE, COMPLETE ACCURATE, NON-MISLEADING OR TIMELY. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT SCOTTS IS NOT RESPONSIBLE FOR ANY LAWN OR GARDEN OR OTHER DECISIONS MADE BY YOU BASED UPON DATA COLLECTED, TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION, OR WHETHER SUCH DATA IS ACCURATE OR INACCURATE. FURTHER, SCOTTS DOES NOT REPRESENT, COVENANT OR WARRANT THAT ACCESS TO OR SERVICES PROVIDED BY THE APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT THEY WILL BE FREE FROM VIRUSES OR OTHER HARMFUL CODE. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT SCOTTS IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.

4. COMPLIANCE
You shall use the Application in strict compliance with (1) these Terms and Conditions; (2) any additional instructions, guidelines or policies issued by Scotts, including those posted within the Application; (3) any applicable third-party terms, including but not limited to usage rules set forth in the iTunes Store Terms of Service (“Usage Rules”), which You agree are binding on You; and (3) all applicable laws, rules and regulations (collectively, “Applicable Laws”).

5. CONTRACTORS
Scotts may engage any third party (including Scotts’ affiliates) to perform, or support the performance of, all or any portion of the Application.

6. INTELLECTUAL PROPERTY RIGHTS; RESTRICTIONS ON USE
(a) Ownership of the Application and Related Data. As between Scotts and You (collectively, “Parties”), Scotts owns and will retain ownership of all rights, title and interest in and to the Application, including (1) all content displayed on the Application, to the extent such content is developed by Scotts or its third party licensors, including any derivative works of the Application and any such content; (2) any data presented on or by the Application or otherwise stored by Scotts and its third party providers, except for personal information and/or Submissions (defined below) that You submit to Scotts through Your use of the Application (which shall be owned by You); and (3) any intellectual property or other proprietary rights comprising any of the foregoing (collectively, “Scotts IP”). Neither these Terms and Conditions nor any disclosure made hereunder grant any license to You under any Scotts IP.

(b) Use of the Application.
You may use the Application, including any data presented on or by the Application for You, or otherwise hosted or stored by Scotts for You, only on Your own behalf for Your personal use and for lawful and appropriate purposes. You shall not use the Application or any of the data presented on or by the Application, or otherwise hosted or stored by Scotts, for any commercial purpose. You will notify Scotts immediately upon any suspected unauthorized use of the Application, whether by You or a third party, or any suspected loss of or suspected unauthorized access to passwords or other log in information used by You to access the Application. You shall be solely responsible for maintaining the confidence and security of any login information, and Scotts shall bear no liability or other responsibility associated therewith.

7. MATERIAL YOU SUBMIT
(a) Comments and Other Communications. Other than personal information which is subject to the Privacy Policy, all communications, including but not limited to comments, feedback, suggestions, ideas, original materials such as stories, artwork, computer code, and product and marketing ideas (“Communications”) and any other Communication disclosed, submitted or offered to Scotts or its affiliates on or through the Application or otherwise disclosed, submitted or offered by You to Scotts or its affiliates, shall be and remain the property of Scotts or its affiliates. Such Communications or offer of any Communications and Your acceptance of these Terms and Conditions shall constitute an assignment to Scotts of all worldwide rights, title and interests in and to all copyrights and other intellectual property rights in the Communications. As such, Scotts will own exclusively all such rights, title and interests and shall have the right to use, reproduce, create derivative works based upon, disclose, publish, distribute, display and publicly perform, any Communication and not be limited in any way in its use, commercial or otherwise, of any Communication. Further, Scotts shall be under no obligation to review the content of any Communication, maintain any Communication in confidence, pay to You any compensation or royalties for any Communication, or provide attribution to You for any Communication. Scotts shall have no obligation to use, return, or review any Communication. For this reason, Scotts asks that You not send us any Communication that You do not wish to assign to us.

(b) User Submissions.
You acknowledge that You are responsible for any material, data, information or other content (including photographs and videos) You post to the Application (including any components of the Application administered by third parties, such as tools that allow You to interact with the Application through Facebook and other social media platforms) (collectively, “Submissions,” each, a “Submission”), including the legality, reliability, appropriateness, originality, copyright, and right to grant a license to use any such material. You must not upload to, distribute, or otherwise publish through the Application anything that (i) is confidential, proprietary, false, libelous, defamatory, fraudulent, obscene, or threatening; infringing or misappropriating of third parties’ intellectual property rights, including but not limited to trademark, copyright, or patent rights, right of publicity, right of privacy, trade secret, or other proprietary rights; or harassing, abusive, illegal or otherwise objectionable, (ii) may constitute or encourage a criminal offense, violate the rights of any person or entity or otherwise give rise to liability or violate any applicable law, statute, ordinance or regulation, or (iii) may contain software viruses, spyware, Trojan horses, or similarly harmful software code, political campaigning, chain letters, mass mailings, commercial advertising, or any form of “spam.” You may not use any device, software or technique to interfere with or attempt to interfere with the proper working of the Application. You may not use a false email address or other identifying information, impersonate any person or entity, or otherwise mislead as to the source or origin of any content. You may not upload commercial content onto the Application. Posting such Submissions constitutes Your consent and grant to Scotts of an irrevocable, non-exclusive, perpetual, worldwide, royalty-free, unrestricted, and unlimited right and permission, but not the obligation, to utilize, reproduce, exploit, alter, edit, modify, distribute, publish, exhibit, digitize, broadcast, display, publicly perform, and prepare derivative works of the Submissions, Your name, likeness, voice and biographical information, and any material based thereon or derived therefrom, in any form or media now or hereafter known for any and all purposes throughout the World whatsoever, including, without limitation, advertising, marketing or commercial purposes, without any payment to or further authorization by You.

(c) Additional Terms Regarding Communications and Submissions.
You waive any right to inspect or approve any material in which Scotts may eventually use Your Communications and/or Submissions and understand that Scotts may crop, shape, or otherwise adjust any Communications or Submissions. You represent and warrant that You have the full right, power and authority to enter into, perform and comply with these Terms and Conditions, and have secured all third party consents, licenses, waivers, and permissions necessary to enter into, perform and comply with these Terms and Conditions, including, without limitation, waivers of rights of privacy, publicity and personality from any third parties whose names, likenesses, photographs, portrayals, or actual or imitated voices are depicted in the Communications and/or Submissions; that the Communications and/or Submissions are true, accurate, current and complete; that use of the Communications and/or Submissions does not violate this policy and will not cause injury to any person or entity; and that You will indemnify Scotts and its affiliates for all claims resulting from all Communications and/or Submissions. For the protection of all visitors to the Application, Scotts reserves the right to review all Communications and/or Submissions, and to edit or delete, in whole or in part, any comment, photograph or other Communications and/or Submission; provided, however, that Scotts is not obligated to do any of the foregoing. Scotts reserves the right to take any action it reasonably deems necessary to cure or prevent a violation of the Terms and Conditions, including without limitation, removal from the Application of any Communications and/or Submissions; provided, however, that a failure by Scotts to take any such action shall not be deemed a waiver of any such right.

(d) Location Data.
Certain features of the Application may enable Scotts to access and collect information about Your geographic location in order to personalize the information and services available via the Application (“Location-based Features”) for You. In order to use Location-based Features, You must give Scotts permission to use Your geo-location data through Your device, which may be obtained through various means including GPS, IP address, or cell tower location. If You elect not to allow Scotts to use Your geo-location data, or prevent the sharing of Your geo-location data with Scotts (either via the Application settings or the settings on Your device), You may not be able to utilize certain Location-based Features, or the relevance to You of the information provided by certain Location-based Features may be reduced.

(e) Sensor Data.
In order to obtain information regarding weather conditions in and around Your location, the Application may interface with third party services that collect environmental information via sensors. This may include sensors that You own and operate, as well as sensors that are owned and operated by other Application users. You acknowledge and agree that any information collected via Your sensors that is uploaded to any such third party service interfaced with the Application may be shared with other Application users on an anonymous basis. Scotts is not responsible for (i) the operation of any such third party service or associated sensors, or (ii) the accuracy, reliability, or availability of any data obtained therefrom. Scotts does not guarantee that the Application will be compatible or capable of interfacing with, or continue to be compatible or capable of interfacing with, any particular third party service.

(f) Social Media.
If You log-in to the Application via Facebook, or otherwise authorize the Application to access Your Facebook profile via the Application settings, Scotts may use Your name and profile picture from Your Facebook account for purposes of creating Your Application profile. The Application will not post to Facebook or any other social media platform without Your prior consent. Any content that You post to Facebook or any other social media platform via the Application will be subject to the terms and conditions of the social media platform to which it is posted.

8. SUSPENSION; TERMINATION
(a) Suspension. Scotts may suspend or limit Your access to the Application, if Scotts, in its sole discretion, suspects that You are in violation of, or reasonably likely to be in violation of, these Terms and Conditions or any additional instructions, guidelines or policies issued by Scotts, including those posted in the Application or on the Website.

(b) Termination by Scotts.
Scotts may terminate Your right to access and use the Application, as follows – (1) For Cause: Immediately (i) in order to comply with Applicable Laws or instructions from any governmental agency or authority; (ii) if Scotts, in its sole discretion, suspects that You are using the Application in a manner not permitted by these Terms and Conditions or any additional instructions, guidelines or policies issued by Scotts; or (iii) upon any breach of these Terms and Conditions by You; (2) For Convenience: For convenience, upon notice by Scotts to You.

(c) Effect of Termination/Survival of Selected Provisions.
Upon the termination of Your rights to use the Application, for any reason (1) You will no longer be authorized to access or use the Application or otherwise use any of the features or services offered by or through the Application; (2) Scotts may delete any data associated with You; and (3) all rights and obligations of the Parties under these Terms and Conditions shall expire, except those rights and obligations under those sections specifically designated in Section 8.3(b)(2). Notwithstanding the termination of Your rights to use the Application, the following sections of the Terms and Conditions shall survive any such expiration or termination: Sections 3, 6(a), 8(c), 9, 10, 11, 12, and 13.

9. LIABILITY
(a) Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE SCOTTS GROUP (DEFINED IN SECTION 10) SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM YOUR USE OF THE APPLICATION, OR BASED UPON ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT (INCLUDING THESE TERMS AND CONDITIONS AND ANY ADDITIONAL INSTRUCTIONS, GUIDELINES OR POLICIES ISSUED BY SCOTTS, INCLUDING THOSE POSTED IN THE APPLICATION OR ON THE WEBSITE), NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY (COLLECTIVELY, THE “EXCLUDED DAMAGES”). FOR THE AVOIDANCE OF DOUBT, THE EXCLUDED DAMAGES ALSO INCLUDE WITHOUT LIMITATION, LOSS OF SAVINGS OR REVENUE; LOSS OF PROFIT; LOSS OF USE; LOSS OF LIFE OR HEALTH; LOSS OF, OR DAMAGE TO, REAL OR PERSONAL PROPERTY; THE CLAIMS OF THIRD PARTIES; AND ANY COST OF ANY SUBSTITUTE EQUIPMENT OR SERVICES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF SCOTTS CANNOT LAWFULLY DISCLAIM LIABILITY FOR ANY OF THE EXCLUDED DAMAGES, THEN THE SCOTTS GROUP WILL BE LIABLE TO YOU, IN THE AGGREGATE FOR ALL CLAIMS ARISING HEREUNDER, FOR LIQUIDATED DAMAGES OF $10.00. IN SUCH EVENT, YOU ACKNOWLEDGE AND AGREE THAT THE EXCLUDED DAMAGES FOR ALL CLAIMS ARISING HEREUNDER CANNOT BE CALCULATED WITH REASONABLE CERTAINTY. YOU FURTHER AGREE THAT $10.00 REPRESENTS (1) A REASONABLE APPROXIMATION OF THE EXCLUDED DAMAGES THAT YOU WILL SUFFER FOR ALL CLAIMS ARISING HEREUNDER AND THAT SUCH LIQUIDATED DAMAGES DO NOT CONSTITUTE A PENALTY, AND (2) THE EXCLUSIVE REMEDY TO YOU FOR EXCLUDED DAMAGES IN CONNECTION WITH ALL CLAIMS ARISING HEREUNDER. THESE LIMITATIONS APPLY EVEN IF ANY OTHER REMEDIES AVAILABLE TO YOU FAIL OF THEIR ESSENTIAL PURPOSE.

(b) Remedies.
At its option, any member of the Scotts Group may seek all remedies available to it under law and in equity, including injunctive relief in the form of specific performance to enforce these Terms and Conditions, including any additional instructions, guidelines or policies issued by Scotts, including those posted in the Application or on the Website, and/or actions for damages.

(c) Claims.
No action arising out of, in connection with, or relating to these Terms and Conditions or the subject of these Terms and Conditions shall be brought by You more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law that would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph.

10. INDEMNITIES

You will indemnify and hold harmless Scotts, its affiliates, and its and their respective current, future or former officers, directors, equity holders, employees, agents, licensors, contractors, successors and assigns (collectively, the “Scotts Group”) on demand, from and against any and all fines, penalties, liabilities, losses, expenses, costs and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by any of the members of the Scotts Group arising out of or relating to Your use of the Application (including all services provided in connection therewith), or Your violation of these Terms and Conditions. If directed by Scotts, You shall defend the Scotts Group against (1) all claims that any information, data or other materials provided by You in connection with Your use of the Application or these Terms and Conditions, or use thereof by any member of the Scotts Group, infringes, misappropriates or otherwise violates any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of a third party; (2) all claims arising from fraud committed by, or the intentional misconduct, criminal acts or gross negligence of, You; and (3) all claims otherwise arising due to a failure by You to comply with any term or condition of these Terms and Conditions, including any additional instructions, guidelines or policies issued by Scotts, including those posted in the Application or on the Website.

11. NOTICE OF COPYRIGHT INFRINGEMENT UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)

We do not permit copyright infringing activities on this Application. We may remove any Submission of any kind if properly informed that the Submission infringes another’s copyright rights. We may terminate the ability to submit Submissions if, under appropriate circumstances, a person submitting Submissions to this Application is determined to be a repeat infringer. If You believe the Submissions or other content on the Application infringes upon Your copyright rights, please forward the following information to the Copyright Agent, identified below:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the forum in which it has been published;
  • Identification of the material that is claimed to be infringing and a description of the infringing activity and information reasonably sufficient to permit Scotts to locate the material;
  • Information reasonably sufficient to permit Scotts to contact You, such as an address, telephone number, and if available, an email address;
  • A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The Copyright Agent for notice of copyright infringement on the Site and mailing address is as follows: Attn: General Counsel, The Scotts Company LLC, 14111 Scottslawn Road, Marysville, Ohio 43041. You acknowledge that if You fail to comply with all the above requirements, Your notice may not be valid.

12. Supplement terms for use of Application with Apple Products

These terms supplement and are in addition to the terms of the Agreement for users who install the Application on an iOS product provided by Apple, Inc. (“Apple”):

(a) Acknowledgement.
Scotts and You acknowledge that the Agreement is concluded between Scotts and You only, and not with Apple, and Scotts, not Apple, is (solely to the extent provided in the Terms and Conditions) solely responsible for the Application and the content thereof. No usage rules for the Application shall apply to the extent they are in conflict with the Apple App Store Terms of Service as of the effective date.

(b) Maintenance and Support.
Scotts is solely responsible for providing any maintenance and support services with respect to the Application, as may be specified in the Terms and Conditions, or as required under applicable law. Scotts and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.

(c) Warranty.
Scotts is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed in the Terms and Conditions. In the event of any failure of the Application to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price (if any) for the Application to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and, as between Apple and Scotts, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Scotts’ sole responsibility, solely to the extent expressly provided in the Terms and Conditions.

(d) Product Claims.
Scotts and You acknowledge that Scotts, not Apple, is (solely to the extent applicable in the Terms and Conditions) responsible for addressing any claims of You or any third party relating to the Application or Your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The Terms and Conditions may not limit Scotts’ liability to You beyond what is permitted by applicable law.

(e) Intellectual Property Rights.
Scotts and You acknowledge that, in the event of any third party claim that the Application or Your possession and use of that Application infringes that third party’s intellectual property rights, Scotts, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim (solely to the extent expressly provided in the Terms and Conditions).

(f) Third Party Beneficiary.
Scotts and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms and Conditions, and that, upon the Your acceptance of the terms and conditions of the Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms and Conditions against You as a third party beneficiary thereof.

13. GENERAL (a) Other Terms.
These Terms and Conditions apply to the Application. In addition to these Terms and Conditions, The Scotts Company LLC (“Scotts”) offers certain smart watering controllers and related products (collectively, the “Products”) and provides (1) a website, www.myblossom.com (the “Site”), (2) certain applications accessible through the Site, including certain applications accessible through a user account (collectively, the “Web Apps”), (3) mobile application software that may be downloaded to your smartphone, tablet, or other supported device, and any updates to such software, including the Application (collectively, the “Mobile Apps”), (4) other software embedded in certain Products, and any updates to such software (collectively, the “Firmware”), and (5) certain services accessible through the Site, Web Apps, Mobile Apps, and Firmware (collectively, the “Blossom Cloud”), all the foregoing for use in conjunction with the Products (collectively, the “Blossom Services”). The Blossom Services are subject to the terms of service posted on the Site (the “Terms of Service”). The purchase of the Product is subject to the terms of sale (the “Terms of Sale”) and the limited warranty (the “Limited Warranty”) posted on the Site. The Firmware is subject to the end user license agreement posted on the Site (the “EULA”). Scotts collects and uses your information as described in its privacy policy as posted on the Site (the “Privacy Policy”).

(b) Waiver and Severability.
No waiver by Scotts of any term or condition set forth in these Terms and Conditions shall constitute a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Scotts to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is held to be invalid, void, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remainder of the provisions will continue in full force and effect.

(c) Force Majeure.
Scotts will be excused from performance under these Terms and Conditions for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms and Conditions, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet downtime; (5) unauthorized access to Scotts’ information technology systems by third parties; or (6) any other causes beyond the reasonable control of Scotts.

(d) Assignment.
You may not assign these Terms and Conditions (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of Scotts, which may be withheld at Scotts’ sole discretion. Any attempted assignment by You that does not comply with the terms of this section shall be null and void. Scotts may assign these Terms and Conditions, in whole or in part, to any third party in its sole discretion.

(e) Governing Law.
These Terms and Conditions are governed by the laws of the State of Ohio without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. For all disputes not otherwise subject to arbitration in accordance with these Terms, you agree to submit to the exclusive personal jurisdiction of the state and federal courts in or for Franklin County, Ohio, for the purpose of litigating all such claims or disputes, which courts shall also be the exclusive venue for the litigation such claims and disputes.

(f) Dispute Resolution.
PLEASE READ THIS SECTION CAREFULLY. YOU AGREE THAT WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. You and Scotts agree to resolve any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms and Conditions exclusively by binding arbitration. Further, you agree arbitration is final and binding, and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, to the fullest extent allowed by law. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to these Terms and Conditions. Any dispute or claim made by you against Scotts or vice versa arising out of or relating to these Terms and Conditions (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that you may take claims to small claims court if they qualify for hearing by such a court. You must first present any claim or dispute to us by contacting Scotts to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within sixty (60) days after presenting the claim or dispute to Scotts. Scotts may request arbitration against you at any time after it has notified you of a claim or dispute. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by these Terms and Conditions. The place of any arbitration shall be exclusively Franklin County, Ohio, USA, and shall be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Scotts nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect. There shall be no right or authority for any claims subject to the arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general). Scotts will pay all administrative fees and expenses for any arbitration that Scotts initiates. All other arbitration will be divided equally between you and Scotts according to rules of the American Arbitration Association. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing. You must contact Scotts within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute, or you waive the right to pursue any claim based upon such event, facts, or dispute. If you do not wish to be bound by arbitration and waive your rights to participate in a class-action, you must notify Scotts in writing within thirty (30) days of the date that you download the Application and include: (i) your name, (ii) your Blossom account number, (iii) your mailing address, and (iv) a statement that you do not wish to resolve disputes with Scotts through arbitration. You must send your notice to: The Scotts Company LLC, 14111 Scottslawn Road, Marysville, Ohio 43040, Attn: Consumer Services. If you do not notify Scotts, you agree to be bound by the arbitration and class-action waiver provisions of these Terms and Conditions. This section does not apply to actions for injunctive or other equitable relief to protect confidential information and intellectual property rights or to prevent loss of data or damage to Scotts’ servers in any court of competent jurisdiction.

Published 2017-02-20 http://myblossom.com