Last Updated and Effective as of: 11/7/19
PRO-MARK’S ORBIT, HYDRO-RAIN, AND B-HYVE WEBSITES AND MOBILE APPS
Pro-Mark, LLC and its subsidiaries Orbit Irrigation Products, LLC and Hydro-Rain, LLC (collectively, “Pro-Mark”) provides, or may provide: (1) a user account website that may be accessed at BhyveAG.com and BhyveAG.com sub-domains (each, a “Site”), and/or (2) services accessible through the Sites (“Web Apps”), and/or (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), and/or (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), all for use in conjunction with Pro-Mark’s Orbit, Hydro-Rain, and B-hyve web- and mobile-app-connected devices (“Products”) and in other ways that Pro-Mark provides or may provide. Some products and Services may be used together or in ways that may integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, Mobile Apps, Subscription Services and Customer Support.
These Terms of Service (“Terms”) govern your access to and use of the Services. Please read these terms carefully. They require the use of binding arbitration to resolve disputes rather than jury trials or class actions. The term “you,” as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account (as defined in Section 2(a)) and accepts these Terms, including Owners, Authorized Users (as those terms are defined in Section 2(b)), and the parents or guardians of Authorized Users, as applicable (as described in Section 1(b)(ii)). These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACKNOWLEDGING THE AGREEMENT OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, OR IF YOU DO NOT HAVE THE AUTHORITY, YOU WILL BE PERSONALLY LIABLE FOR ANY DAMAGES RESULTING FROM A BREACH OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU EITHER HAVE EXCLUSIVE CONTROL OR EXCLUSIVE POSSESSION OVER THE PROPERTY ON WHICH THE WEB APPS OR MOBILE APPS ARE BEING INSTALLED. YOU REPRESENT THAT YOU: (i) EITHER HAVE EXCLUSIVE CONTROL OR EXCLUSIVE POSSESSION OVER THE REAL PROPERTY ON WHICH THE PRODUCT IS BEING INSTALLED; (ii) AS THE OWNER OR THE PERSON IN POSSESSION OR CONTROL (WHETHER EXCLUSIVE, OR NOT) OF THAT REAL PROPERTY, HAVE THE RIGHT TO INSTALL THE PRODUCT ON THAT REAL PROPERTY; OR (iii) HAVE PERMISSION TO INSTALL THE PRODUCT FROM ALL PERSONS WHO OCCUPY THAT REAL PROPERTY OR WHOSE CONSENT TO INSTALL THE PRODUCT MAY OTHERWISE BE REQUIRED. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. Pro-Mark IS WILLING TO PROVIDE PRODUCTS AND SERVICES TO YOU ONLY UPON CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
Pro-Mark reserves the right to make changes to these Terms, so please review them often. We’ll post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. If you have any questions regarding these Terms, you can contact Pro-Mark by email at [email protected].
Overview, Eligibility, Customer Service, Term and Termination
(a) Overview and Relation to Other Agreements.
(i) You may use the Services only if you can form a binding contract with Pro-Mark (except subject to the provisions of clause (1)(b)(ii) below), and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Only individuals age 18 and older are permitted to act as Owners of Pro-Mark Accounts. (ii) If you are an Authorized User, you represent and warrant that you are over the age of 13, and in the event you are between the age of 13 and the age of majority in the jurisdiction where you reside, that you will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Services by individuals under the age of 13 without supervision by an adult is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Pro-Mark.
(c) Customer Service.
If you have any questions or concerns regarding the Products, the Services, or these Terms, please contact Pro-Mark by email at [email protected], or by telephone at 1 (888)493-7672.
(d) Term and Termination.
These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Pro-Mark may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Pro-Mark in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules, or you have failed to pay your service fee if any. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with Pro-Mark.
(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
(a) Your Account. To use the Services, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Pro-Mark of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Pro-Mark is not liable for any loss or damage arising from your failure to comply with the above requirements.
(b) Owner; Authorized User.
The individual who creates an Account is the “Owner” of that Account and is the Owner of the Pro-Mark Products associated with that Account. Individuals who are authorized to access an Owner’s Products and Services are “Authorized Users.” Authorized Users may have the ability to use the Services and monitor and control the Products (for example, an Authorized User can change your device settings). Authorized Users may also have the ability to view information (including personal information) and content across all of an Owner’s Products, Services, and third party connections (if any). Authorized Users are responsible for their own actions in connection with the Products and Services, but Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products, Services and Account. If you are an Owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products and Services set out above. As a result, if you are an Owner, you should authorize only those individuals that you trust to access your Account, Products, and Services.
Access to Services
(a) Access and Use.
Subject to these Terms, Pro-Mark grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by, if available (i) using the Web Apps in connection with, and solely for the purpose of, controlling and monitoring the Products you own or are authorized to control and monitor or otherwise accessing a service explicitly provided by Pro-Mark for your use (the “Permitted Purpose”), and/or (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose.
(b) Automatic Software Updates.
Pro-Mark may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software (“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 terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account and disconnect your Product from the internet, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates Pro-Mark provides. Your continued use of the Services and the Product is your agreement: (i) to these Terms with respect to the Services, and (ii) to the End User License Agreement with respect to updated Product Software.
(c) Interface to Third-Party Products and Services.
Certain materials may be displayed or performed on the Services (including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”)). The Content also includes information that you and other users provide us in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Some content may be visible to others (for example, the Service may allow you to upload, post, or otherwise share photographic content). You may also post feedback, comments, questions, or other information on the Sites. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Pro-Mark all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Pro-Mark reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Certain Restrictions.
The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Product, the Product installation, or the Services; (iii) you agree not to access the Product and Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Product, the Product installation, and Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Pro-Mark; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
(f) Open Source.
Certain items of independent, third party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
Pro-Mark cares about the integrity and security of your personal information. However, Pro-Mark cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Pro-Mark reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Pro-Mark will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
(j) Access Outside Certain Countries.
Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use outside the United States and some or all of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, Pro-Mark accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites, Pro-Mark Products or Services outside the United States. You will be bound by these Terms wherever you access or use the Sites or use the Services. Pro-Mark expressly prohibits the transfer of Products or Services to, or use of Products or Services by, any Office of Foreign Asset Control (“OFAC”) “Specially Designated National” or in any OFAC sanctioned Country.
(k) Export/Import Control.
The Products, Services, and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Products, Product Software and related technology, as may be required. You will indemnify and hold Pro-Mark harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
Agreed Usage and Limitations of Pro-Mark Services
(a) Intended Use of Pro-Mark Services.
The Services are intended to be accessed and used for non-time-critical information and control of Pro-Mark Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Pro-Mark’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Pro-Mark is not responsible for any damages allegedly caused by the failure or delay of the Services. Pro-Mark makes no warranty whatsoever with respect to the accuracy of the data.
(b) No Life-Safety or Critical Uses of the Services.
You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. Pro-Mark makes no warranty or representation that use of the Products or Services with any third-party product or service will affect or increase any level of safety or limit damages to your property. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM — PRO-MARK WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR LOCATION IN THE EVENT OF AN EMERGENCY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PRO-MARK IS NOT LIABLE FOR ANY DAMAGES TO YOUR PROPERTY. In addition, the Pro-Mark Customer Care and Support contacts cannot be considered a lifesaving solution for people at risk, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services. You expressly acknowledge and agree that Pro-Mark is not liable for your, or any third party or emergency responders, actions or failure to act in response to information acquired from the Products or Services. You acknowledge that it is your responsibility to educate yourself about how to respond to the information provided by the Products and Services and to respond according to the specifics of your situation.
(c) Reliability of Notifications.
You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable or 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR PRO-MARK PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. The information provided by Pro-Mark on what to do in an emergency is based on authoritative safety sources, but there is no way for Pro-Mark to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself about how to respond to an emergency and to respond according to the specifics of your situation.
(d) Temporary Suspension.
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Pro-Mark does not offer any specific uptime guarantee for the Services.
(e) System Requirements.
The Services will not be accessible without: (i) a working Wi-Fi network that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required for some functionality); (iv) always-on broadband Internet access with bandwidth sufficient to support the Products you use; and (v) other system elements that may be specified by Pro-Mark. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that Pro-Mark may activate local communication protocol on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with Pro-Mark Products connected to the same Pro-Mark account, and enable certain features.
(f) Water Savings and other Benefits.
Unless explicitly promising a “guarantee,” Pro-Mark does not guarantee or promise any specific level of water savings, accuracy of water data, rebates, or other monetary benefit from the use of the Products or Services or any feature of them. Actual water savings, water usage and monetary benefits vary with factors beyond Pro-Mark’s control or knowledge. From time to time, Pro-Mark may use the Services to provide you with information that is unique to you and/or your water usage and suggests an opportunity to save money if you adopt suggestions or features of the Product or Services. We do this to highlight an opportunity based on our analysis and information about you and your usage. You acknowledge that these promotions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Pro-Mark if your savings differ. You acknowledge that use of the Products or Services or any feature of them alone will not provide any monetary or other benefit to you. You expressly acknowledge and agree that use of the Products or Services or any feature of them is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
(g) Product Information.
The Services provide you information (“Product Information”) regarding your Products and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information on your property. You expressly acknowledge that Pro-Mark is not liable for your or any other third party’s response, or lack thereof, to the Product Information or lack thereof. You acknowledge that it is your responsibility to educate yourself about how to interpret and respond to the Product Information.
(h) Responsibility for Content.
All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which (or from whose account) such Content originated and Pro-Mark will not be liable for any errors or omissions in any Content. Pro-Mark cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
(i) Your Warranty Regarding Your Content and Use of Services.
You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Pro-Mark; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Pro-Mark Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
(j) Data Protection and Privacy Laws.
Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. You agree that you (and not Pro-Mark) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services.
Limitations of Pro-Mark Services Due to Third Parties.
Pro-Mark Services may rely on or interoperate with third party products and services. These third party products and services are beyond Pro-Mark’s control, but their operation may impact or be impacted by the use and reliability of the Pro-Mark Services. You acknowledge and agree that: (i) the use and availability of the Services may be dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Pro-Mark Services operate, and (iii) Pro-Mark is not responsible for damages and losses due to the operation of these third party products and services.
(b) Third Party Service Providers Used By Pro-Mark.
You acknowledge that Pro-Mark uses third party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization, and communication through Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile carriers. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
(c) Equipment, ISP, and Carrier.
(d) Third Party Products and Services that Work With Pro-Mark Services.
Pro-Mark may provide the opportunity for you to interface to Third Party Products and Services. You acknowledge that Third Party Products and Services that you connect to your account or interface with are not Pro-Mark products and services and you acknowledge and agree that Pro-Mark does not control, and that these Terms do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that Pro-Mark makes no representation or warranty about the operation, reliability, or safety of any Third Party Products or Services. Accordingly, Pro-Mark is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage, interruption of service, downtime, data loss, or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the Third Party with any questions about their products and services.
(e) App Stores.
You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or Google Play (each an “App Store”). You acknowledge that these Terms are between you and Pro-Mark and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(f) Third Party Website Links and Referrals.
The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Pro-Mark provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites or Referred Vendors is at your own risk.
(g) Authorized Users.
Pro-Mark is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage, or other harm or losses arising from or relating to their use of the Services.
(h) Release Regarding Third Parties.
Pro-Mark is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. Pro-Mark hereby disclaims and you hereby discharge, waive and release Pro-Mark and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.
Ownership and Intellectual Property
(a) Pro-Mark Property.
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, and Services (i.e., the Sites, Web Apps, and Mobile Apps) are owned by Pro-Mark or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Pro-Mark and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may only copy parts of the Services (including the Sites) on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of Pro-Mark. You must have a license from us before you can post or redistribute any portion of the Product or the Services. Other than with respect to User Submissions, Pro-Mark retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
You may choose to, or Pro-Mark may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Pro-Mark under any fiduciary or other obligation. Pro-Mark may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Pro-Mark does not waive any rights to use similar or related ideas previously known to Pro-Mark, developed by its employees, or obtained from other sources.
(c) User Submissions.
You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to access, display, or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you the Services and as directed by you. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Pro-Mark does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
(d) Product Data.
You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to access, display, reproduce, distribute, share or otherwise use any and all data from the Pro-Mark Device’s sensors and system, including but not limited to alarms, notifications, user preferences, settings, user actions, water usage data, user data, and telemetry data (including all related intellectual property rights) collected by the Product and Product Software for any and all purposes. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any water usage date and telemetry data. For clarity, the foregoing license grant to Pro-Mark does not affect your ownership of, or right to grant additional licenses to, your water usage data or telemetry data, unless otherwise agreed in writing. You further acknowledge that monetizing data is part of Pro-Mark’s business model, and helps allow Pro-Mark to provide the Pro-Mark Products and Services; as such, you consent to Pro-Mark using and monetizing your data.
You agree to defend, indemnify and hold Pro-Mark and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of: (i) your use and each Authorized User’s use of the Products or Services, (ii) your or your Authorized Users’ violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your or your Authorized Users’ violation of any law or the rights of any third party. Pro-Mark reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Pro-Mark and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Pro-Mark’s prior written consent. Pro-Mark will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
(a) THE WARRANTY FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE EULA, RESPECTIVELY.
(b) THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND PRO-MARK AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
(c) PRO-MARK AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PRO-MARK OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
(d) PRO-MARK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE PRO-MARK PLATFORM) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND PRO-MARK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
(e) WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY PRO-MARK YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
(f) PRO-MARK MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND PRO-MARK WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. PRO-MARK MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
Limitation of Liability
Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PRO-MARK BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, OR PROPERTY DAMAGE, ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF PRO-MARK KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PRO-MARK’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO PRO-MARK OR PRO-MARK’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PRO-MARK DISCLAIMS ALL LIABILITY OF ANY KIND OF PRO-MARK’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL PRO-MARK BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
Service Fees and Payment
(a) Service Fees. To use the Services, you must pay all applicable fees in connection with the Services selected by you (“Service Fees”) in accordance with these Terms.
(b) Continuous Subscriptions. If you purchase any of our Services, you expressly acknowledge and agree that: (1) Pro-Mark is authorized to charge you a monthly or annual subscription service fee depending on the billing cycle you choose (in addition to any applicable taxes) for as long as your subscription continues, and (2) your subscription is continuous until you cancel it or such Subscription Service is suspended, discontinued or terminated in accordance with these Terms.
(c) Billing. In the even Pro-Mark charges for any of the Services, we automatically bill the payment method associated with your Pro-Mark account on a monthly or annual basis (depending on the billing cycle you choose). Day one of your billing cycle is tied to the date you activate your Services by pairing them to Product, and/or installing the Product. You acknowledge that the amount billed may vary due to promotional offers, changes in your Subscription Services plan and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.
(d) Cancellations and Refunds. You may cancel your Services at any time by contacting customer support by email at [email protected], or by telephone at 1 (888)493-7672. Note that merely unpairing a Product from a Service will not trigger cancellation of the Service. In the event you cancel a Service, we will provide a prorated refund for the period of time starting the day after cancellation of the Subscription Service through the remainder of your billing cycle.
PLEASE READ THIS SECTION CAREFULLY.
(a) Agreement to Arbitrate Disputes.
Except as provided in Section 13(b), below, you and Pro-Mark agree that any dispute, claim or controversy arising out of or relating in any way to the Products and/or Services, these Terms, the Product Terms and Conditions, the Limited Warranty, the End User License Agreement and this Arbitration Agreement, shall be determined by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Pro-Mark are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your Pro-Mark Services.
(b) Arbitration Notice.
If you elect to seek arbitration, you must first send to Pro-Mark, by certified mail, a written notice of your claim (“Arbitration Notice”). The Arbitration Notice to Pro-Mark must be addressed to: Pro-Mark Legal Department, 845 Overland Road, North Salt Lake, Utah 84054 (“Arbitration Notice Address”). If Pro-Mark initiates arbitration, it will send a written Arbitration Notice to the email address used for your Pro-Mark account. An Arbitration Notice, whether sent by you or by Pro-Mark, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Pro-Mark and you do not reach an agreement to resolve the claim within 30 days after the Arbitration Notice is received, you or Pro-Mark may commence an arbitration proceeding.
(c) Filing Fees.
You may download or copy a form Arbitration Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after Pro-Mark receives Arbitration Notice at the Arbitration Notice Address that you have commenced arbitration, Pro-Mark will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
(d) American Arbitration Association.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. The arbitrator is bound by the terms of this Agreement. Except as provided in Section 13(b), below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement. Unless Pro-Mark and you agree otherwise, any arbitration hearings will take place in Salt Lake City, Utah.
(e) Telephonic/In-Person Hearing.
If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Pro-Mark’s last written settlement offer made before an arbitrator was selected (or if Pro-Mark did not make a settlement offer before an arbitrator was selected), then Pro-Mark will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
(f) Claims Only In Individual Capacity.
YOU AND PRO-MARK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and Pro-Mark agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(g) Changes to Arbitration Agreement.
If Pro-Mark makes any changes to this Arbitration Agreement in these Terms (other than a change to the address at which Pro-Mark will receive Arbitration Notices or rejections of future changes to this Arbitration Agreement), you may reject any such change by sending us written notice within 30 days of the change to Pro-Mark Legal Department, 845 Overland Road, North Salt Lake, Utah 84054. By rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement, as modified by any changes you did not reject.
Digital Millennium Copyright Act
(a) Notice of Infringement.
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) 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 (vi) 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.
(b) Copyright Agent.
Pro-Mark’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent – Attention Legal, 845 Overland Road, North Salt Lake, Utah 84054, [email protected], +1 (801) 299-5555. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Pro-Mark customer service through [email protected]. You acknowledge that if you fail to comply with all of the requirements of this Section 12, your DMCA notice may not be valid.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and (iv) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Salt Lake City, Utah , and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
(d) Restore Content.
If a counter-notice is received by the Copyright Agent, Pro-Mark may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Pro-Mark’s sole discretion.
(a) Governing Law and Jurisdiction.
These Terms are governed by the laws of the State of Utah without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Salt Lake County, Utah for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in Section 11.
(b) Protection of Confidentiality and Intellectual Property Rights.
Notwithstanding the provisions of the Arbitration Agreement in Section 11, Pro-Mark may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
If any part of these Terms becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect.
The obligations in Sections 3(d), 4, 5(h), 6, 7, 8, 9, 11, and 13 will survive any expiration or termination of these Terms
Failure or delay by us to enforce any of these Terms will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Pro-Mark’s prior written consent. These Terms may be assigned by Pro-Mark without restriction. These Terms are binding upon any permitted assignee.
(g) Electronic Communications.
You are communicating with Pro-Mark electronically when you create your Pro-Mark account, use the Services or send email to Pro-Mark. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order Product or Services from Pro-Mark’s online store, we collect and store your email address. From that point forward, your email address is used to send you information about Pro-Mark’s products and services unless you opt-out of such emails using the opt-out link in the emails.
Pro-Mark may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on www.AG.hydrorain.com. Pro-Mark is not responsible for any automatic filtering you or your network provider may apply to email notifications. Pro-Mark recommends that you add [@mybhyve.com] email addresses to your email address book to help ensure you receive email notifications from Pro-Mark.
(i) Force Majeure.
Pro-Mark will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
(j) Data Protection.