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 (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. In additional to the Terms of Service, this Firmware End User License Agreement (this “License”) sets forth the terms upon which the Firmware is provided to you. By using the Firmware that is embedded in the Product, you agree to the terms of this License between you and Scotts.
1. Scotts hereby grants to you a limited and non-exclusive license (without the right to sublicense) to execute one (1) copy of the Firmware, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes. The Firmware is licensed, not sold, to you for use only under the terms of this License. Scotts reserves all rights not expressly granted to you. Scotts may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Firmware (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Firmware and you agree to promptly install any Updates Scotts provides. Scotts is not responsible for providing maintenance or support services with respect to the Firmware.
2. You may not use the Firmware on additional computers or phones, and do not have the right to distribute the Firmware. You may not rent, lease, lend, timeshare, sell or sublicense the Firmware. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Firmware, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Firmware). The Firmware is subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or import the Firmware. Subject to the Terms of Service, Scotts may enable the Products and Blossom Services to interface with certain other products and services provided by third parties (each, an “Integration”). You agree not to use or create Integrations that interface with the Firmware that are not expressly authorized by Scotts for use with the Products and the Blossom Services.
3. All intellectual property rights in the Firmware are owned by Scotts, its affiliates, or their licensors and are protected by law, including, but not limited to, copyright, trade secret, and trademark law, as well as other applicable laws. The structure, organization, and code of the Firmware are the valuable trade secrets and confidential information of Scotts, its affiliates, or their licensors. You shall not remove any product identification, copyright notices or proprietary restrictions from the Firmware.
4. You agree Scotts may collect and use technical data and related information, including, but not limited to, technical information about your Product, system, application software, and peripherals, that is gathered periodically to facilitate the provision of Firmware updates, support, and other services to you (if any) related to the Products or the Blossom Services (collectively, “Technical Data”). You grant Scotts a perpetual, nonexclusive, royalty free, irrevocable license to your Technical Data for the foregoing purposes, and agree that Scotts may use this information, as long as it is in a form that does not personally identify you, to improve its Products or Services or to provide services or technologies to you.
3. This License is effective until terminated by you or Scotts. Your rights under this License will terminate automatically without notice from Scotts if you fail to comply with any term of this License or you violate any provision of the Terms of Service. Upon termination of the License, all your rights under this License shall terminate and you shall cease all use of the Firmware.
4. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE FIRMWARE IS AT YOUR SOLE RISK. THE FIRMWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND SCOTTS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO FIRMWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SCOTTS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE FIRMWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE FIRMWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE FIRMWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE FIRMWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SCOTTS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
5. IN NO EVENT SHALL SCOTTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE FIRMWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SCOTTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SCOTTS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF TEN DOLLARS ($10.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6. You agree to indemnify and hold Scotts, its affiliates, and each of their respective officers, directors, employees and licensors harmless from any claim, liability, damages, or costs (including but not limited to reasonable attorney’s fees) asserted by a third party due to or arising out of or related to your (a) violation of the terms and conditions of this License, (b) violation of any laws, regulations or third party rights, or (c) negligent act, omission, or willful misconduct in connection with the Firmware.
7. This License is 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 this License, 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.
8. Certain components of the Firmware may be subject to open source licenses (“Open Source Software”). Open Source Software is not subject to the terms and conditions of this License. Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this License limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
9. 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 this License 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 this License. Any dispute or claim made by you against Scotts or vice versa arising out of or relating to this License (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 this License. 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 use the Firmware 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 this License. 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.
10. This License is the entire agreement between you and Scotts relating to the license of the Firmware. If any provision of this License is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provision of the License will remain in force and effect. Neither the rights nor the obligations arising under this License are assignable by you, and any such attempted assignment shall be void and without effect.