Terms of Sale
The Scotts Company LLC (“Scotts”) offers certain smart watering controllers and related products (collectively, the “Products”). These terms of sale (the “Terms of Sale”) apply to all Products offered by Scotts or its resellers. You agree to these Terms of Sale by purchasing a Product.
PLEASE READ THIS DOCUMENT CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS WITH RESPECT TO THE PURCHASE OF BLOSSOM PRODUCTS. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ORDER/KEEP YOUR PRODUCT.
1. Scotts provides (a) a website, www.myblossom.com (the “Site”), (b) certain applications accessible through the Site, including certain applications accessible through a user account (collectively, the “Web Apps”), (c) 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”), (d) other software embedded in certain Products, and any updates to such software (collectively, the “Firmware”), and (e) 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”).
3. 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”). Scotts makes no representation or warranty as to the use of your Interface Data by any entity or entities providing the Integration authorized by you or the security of such Interface Data in possession of a third party. You further agree that your use of any Integration is at your own risk, and Scotts is not responsible for the availability or accuracy of, or any damage or loss caused by, any Integration used by you. Your use of Integrations may also be subject to other terms and conditions provided by the applicable third party providing the applicable products and services used in connection with the Integration. You agree not to use Integrations that are not expressly authorized by Scotts for use with the Products and the Blossom Services.
4. In addition to these Terms of Sale, the purchase of the Products are subject to the limited warranty provided with the respective Products and/or posted on the Site (the “Limited Warranty”) at http://myblossom.com/legal/smart-irrigation-controller-and-system-limited-warranty. SCOTTS MAKES NO OTHER WARRANTIES FOR THE PRODUCTS, AND MAKES NO WARRANTIES WHATSOEVER FOR THE BLOSSOM SERVICES, MAINTENANCE, OR SUPPORT. THE PRODUCTS, BLOSSOM SERVICES, MAINTENANCE AND/OR SUPPORT IS PROVIDED BY SCOTTS “AS IS” AND “AS AVAILABLE.” SOME STATES DO NOT ALLOW LIMITATIONS OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
5. Scotts does not make any representation, warranty, or otherwise guarantee or promise any level of water savings or other monetary benefit from the use of the Products or the Blossom Services or any feature of the Products or the Blossom Services. Actual water savings and monetary benefits, if any, can vary based on many factors, and are beyond Scotts’ control and design. From time to time, Scotts may use the Blossom Services to provide you with information that is unique to you and your water usage, and may suggest an action that may reduce your water usage if you adopt such suggestions or utilize certain features of the Product or the Blossom Services. You agree that these suggestions are merely promotions and are not a guarantee of any actual savings, and you acknowledge your savings, if any, may differ. You release Scotts from any claim for monetary or other relief based on Scotts’ promotions.
6. Telephone communications with Scotts, including calls with any of our agents or independent contractors, are routinely monitored and/or recorded. You expressly consent, on behalf of yourself and other users of your phone number, to being monitored or recorded. By providing Scotts with a phone number (including mobile) as your contact number, you expressly authorize us to contact you regarding your account for non-telemarketing communications, via text message or telephone, including the use of prerecorded or auto-dialed calls, using that number.
7. TO THE FULLEST EXTENT ALLOWED BY LAW, SCOTTS, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE LICENSORS AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR BLOSSOM SERVICES. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER IN AN ACTION FOR BREACH OF CONTRACT, NEGLIGENCE, OTHER TORT, OR ANY OTHER THEORY, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SCOTTS HAS BEEN ADVISED OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. SCOTTS’ LIABILITY, AND THE LIABILITY OF SCOTTS’ AFFILIATES, EMPLOYEES, LICENSORS, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE PRODUCT BY THE ORIGINAL RETAIL PURCHASER. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. Your purchase is for your own use, not for resale or export. Your purchase may not be sold, leased, or transferred to restricted countries, restricted end users, or for restricted end uses according to U.S. export and sanctions laws.
9. Your purchase is subject to Scotts’ return policy posted on the Site and available at http://myblossom.com/legal/return-policy.
10. This is a binding legal agreement between you and Scotts, and it may not be altered, supplemented, or amended by any other document, except an amendment signed by you and Scotts’ authorized representative. These Terms of Sale 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 of Sale, 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.
11. 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 these Terms of Sale. Any dispute or claim made by you against Scotts or vice versa arising out of or relating to these Terms of Sale (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 of Sale. 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 purchase the Product 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 of Sale. 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.