Terms of Use

Last updated: October 25th, 2019

Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the www.scatterspoke.com website (the “Service”) operated by PlantSmiles LLC (“PlantSmiles”, “we”, “us” or “our”).

Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the Terms then you do not have permission to access the Service, and we can eliminate your access to the Service at any time. If you are entering into these Terms on behalf of a company, organization or another legal entity, you are entering into these Terms for that entity and hereby represent to PlantSmiles that you have the authority to bind such entity and its affiliates to these terms, in which case the term “you” as applicable and as used herein will refer to such entity and its affiliates, as applicable.

These Terms include an agreement to mandatory arbitration, which means that you agree to submit any dispute related to the Service, these Terms and/or our Privacy Policy to binding individual arbitration rather than proceeding in court. The dispute resolution provision also includes a class action waiver, which means that you agree to proceed with any dispute individually and not as part of a class action. More information about the arbitration and class action waiver can be found in Section 18 below.

  1. Subscriptions

Some parts of the Service are provided on a subscription basis (“Subscription(s)”). Details of the types and specifications for various Subscriptions may be found at https://app.scatterspoke.com/#/management/billing. If you sign up for a paid Subscription, you will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing Cycles are set either on a monthly or annual basis, depending on the type of subscription plan you select when purchasing a Subscription.

At the end of each Billing Cycle, your Subscription will automatically renew under the exact same conditions unless your Subscription is cancelled by either you or PlantSmiles. You may cancel your Subscription renewal either through your online account management page or by contacting PlantSmiles’ customer support team.

Please note that if you cancel your Subscription, your account will be automatically downgraded to the free version of the Service after the current Billing Cycle, and you will no longer have access to the features belonging to Subscription-level accounts. This means you may not have access to content that is not available on the free version of the Service.

A valid payment method, including credit card, is required to process the payment for your paid Subscription. You agree to provide PlantSmiles with accurate and complete billing information including full name, address, state, zip code, telephone number, and a valid payment method information. By submitting such payment information, you automatically authorize PlantSmiles to charge all Subscription fees incurred through your account to any such payment instruments.

Should automatic billing fail to occur for any reason, PlantSmiles will issue an electronic invoice indicating that you must remit manually, within a certain deadline date, the full payment corresponding to the Billing Cycle as indicated on the invoice.

  1. Fee Changes

PlantSmiles, in its sole discretion and at any time, may modify the Subscription fees for the Subscriptions. Any Subscription fee change will become effective at the end of the then-current Billing Cycle. The current Subscription fees are set forth at https://app.scatterspoke.com/#/management/billing.

PlantSmiles will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.

Your continued use of the Service after the Subscription fee change comes into effect constitutes your agreement to pay the modified Subscription fee amount.

  1. Refunds

Certain refund requests for Subscriptions may be considered by PlantSmiles on a case-by-case basis and granted in sole discretion of PlantSmiles.

  1. Privacy

You acknowledge and agree that all personal information collected by PlantSmiles is subject to our Privacy Policy https://www.scatterspoke.com/privacy.html. By using the Service, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.

  1. Scope and Restrictions on Use

Subject to these Terms, PlantSmiles grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service for your legitimate business purposes, including the content available on the Service. You agree not to:

  • copy, collect, or otherwise store information obtained from the Services using an automated software tool or manually on a mass basis;
  • use automated means to access the Service, or gain unauthorized access to the Service or to any account or computer system connected to the Service;
  • obtain, or attempt to obtain, access to areas of Service or our systems that are not intended for access by you;
  • “flood” the Service with requests or otherwise overburden, disrupt, or harm the Service or our systems;
  • restrict or inhibit other users from accessing or using the Service;
  • modify or delete any copyright, trademark, or other proprietary rights notices that appear on the Service; or
  • access or use the Service, or any content thereon, for any unlawful purpose or otherwise beyond the scope of the rights granted herein.
  1. Content

Our Service allows users to post, link, store, share and otherwise make available certain information, text, graphics, videos or other material (“Content”). You are responsible for the Content that you post on or through the Service, including its legality, reliability and appropriateness. You may not post any Content that:

  • is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy rights or right of publicity or otherwise objectionable;
  • constitutes or promotes sexually explicit or pornographic material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
  • contains any material that could give rise to any civil or criminal liability under any applicable laws, rules or regulations or that otherwise may be in conflict with these Terms;
  • infringes upon, misappropriates or otherwise violates any intellectual property rights or other rights of a third party;
  • encourages criminal conduct;
  • contains false, misleading, fraudulent or deceptive claims or content;
  • gives the impression that it emanates from, or is endorsed by, PlantSmiles or any other person or entity, if this is not the case; or
  • contains any virus, malware, spyware or other harmful content or code.

By posting Content on or through the Service, you represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity (including your employer). We reserve the right to terminate the account of anyone found to be infringing on a copyright or violating the foregoing representations and warranties.

We take no responsibility and assume no liability for Content you or any third party posts on or through the Service. PlantSmiles has the right but not the obligation to monitor and edit all publicly-accessible Content provided by users. Our systems may automatically analyze the Content that you post on the Service so that we can provide reports, products, and/or services to you.

In addition, Content found on or through this Service are the property of PlantSmiles or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content (other than your own Content), whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from PlantSmiles.

  1. Content Ownership and License

You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. However, by posting Content using the Service you grant PlantSmiles the right and license to use, modify, perform, display, reproduce, and distribute such Content on and through the Service. This license includes the right for us to copy it into our databases, make backups, analyze it on our servers, and share it with other users.

  1. Accounts

When you create an account with us, you represent and warrant that you are above the age of 18, and that the information you provide us is accurate and complete at all times. Inaccurate or incomplete information may result in the immediate termination of your account on the Service. All accounts are intended for only one individual.

You are responsible for maintaining the confidentiality of your account and password, including but not limited to, the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

You may not use as a username the name of another person or entity or that is not lawfully available for use or a name or trademark that is subject to any rights of another person or entity other than you, in each case without appropriate authorization from such third person or entity. You may not use as a username any name that is offensive, vulgar or obscene.

  1. Intellectual Property Rights

The Service and its original content, features, and functionality are, and will remain the exclusive property of, PlantSmiles and its licensors. PlantSmiles reserves all rights not granted pursuant to these Terms. The Service is protected by copyright, trademark and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of PlantSmiles.

While we appreciate your interest in the Service and our business, PlantSmiles does not accept any ideas or information of or related to the Services that you consider confidential and/or proprietary, including any feedback or feature ideas. This is to avoid the possibility of future misunderstandings when projects independently developed by or on behalf of PlantSmiles might seem to others to be similar to users’ own creative ideas, suggestions and/or materials. Except with respect to your personal information as expressly provided for in our Privacy Policy https://www.scatterspoke.com/privacy.html, all comments, suggestions, ideas, drawings, concepts or other information or materials disclosed or offered to us by you shall be deemed to be non-confidential and non-proprietary, and PlantSmiles and other users shall be free to use them without limitation.

  1. Copyright Infringement

PlantSmiles take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any Content accessible on the Service infringes your copyright, you may request removal of such Content (or access thereto) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), your written notice of alleged copyright infringement must include substantially the following:

  • your physical or electronic signature;
  • identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Service, a representative list of such works;
  • identification of the Content you believe to be infringing in a sufficiently precise manner to allow us to locate that Content;
  • adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address);
  • a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
  • a statement that the information in your written notice is accurate; and
  • a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated agent to receive DMCA notices is:

PlantSmiles LLC

Attn: John Samuelson

2630 Birch Street

Denver, CO 80207

support@scatterspoke.com

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA notice may not be effective. Please be aware that if you knowingly materially misrepresent that Content on the Service is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

  1. Links to Third-Party Websites and Materials

Our Service may contain links to third-party websites, services, or materials that are not owned or controlled by PlantSmiles. PlantSmiles has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. We do not provide any representations or warranties with respect to the offerings of any of these entities/individuals or their websites.

You acknowledge and agree that PlantSmiles shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party websites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.

  1. Termination

We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms. We reserve the right to refuse access to the Service to anyone for any reason at any time.

If you wish to terminate your account, you may simply discontinue using the Service.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

  1. Indemnification

You agree to defend, indemnify and hold harmless PlantSmiles and its licensee and licensors, and their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of (a) your use and access of the Service, by you or any person using your account and password; (b) a violation of these Terms or applicable law; or (c) any Content posted on the Service by you or any person you allow access to the Service on your behalf or through your account. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action. Your indemnification, defense, and hold harmless obligations will survive the termination of your use of the Service and/or these Terms.

  1. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PLANTSMILES OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE OR THE CONTENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, PLANTSMILES IS FOUND LIABLE FOR ANY LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, IN NO EVENT WILL PLANTSMILES’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO PLANTSMILES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. USE OF THE SERVICE IS AT YOUR SOLE RISK.

  1. Disclaimer

THE SERVICE AND THE CONTENT ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND PLANTSMILES HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER PLANTSMILES NOR ANY PERSON ASSOCIATED WITH PLANTSMILES MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE OR ANY CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER PLANTSMILES NOR ANYONE ASSOCIATED WITH PLANTSMILES REPRESENTS OR WARRANTS THAT THE SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE, CONTENT, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE OR THE CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

  1. Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you if you reside in such jurisdictions.

  1. Governing Law

These Terms shall be governed and construed in accordance with the laws of Colorado, United States, without regard to its conflict of law provisions.

  1. Arbitration Agreement

Please read this section carefully. It affects your rights and impacts the way that you and we bring claims against each other and how those claims are decided.

18.1.  Dispute Resolution. YOU AND WE AGREE THAT ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, OR FORMATION OF THESE TERMS OR YOUR USE OF THE SERVICE AND/OR CONTENT WILL BE RESOLVED EXCLUSIVELY THOUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE BROADLY INTERPRETED AND INCLUDES ANY DISPUTE, CLAIM OR CONTROVERSY BETWEEN YOU AND PLANTSMILES REGARDING ANY ASPECT OF YOUR RELATIONSHIP WITH US OR ANY CONDUCT OR FAILURE TO ACT ON OUR PART, INCLUDING CLAIMS BASED ON BREACH OF CONTRACT, TORT (FOR EXAMPLE, A NEGLIGENCE CLAIM), VIOLATION OF LAW, OR ANY CLAIMS BASED ON ANY OTHER THEORY, AND INCLUDING THOSE BASED ON EVENTS THAT OCCURRED PRIOR TO THE DATE OF THESE TERMS, WITH THE FOLLOWING EXCEPTIONS:

  • You may assert claims in your local small claims court if its rules permit it;
  • Any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court; and
  • In the event this agreement to arbitrate is for any reason held to be unenforceable, any dispute or claim against us (except for small-claims court actions) may be commenced only in a federal or state court located in Denver, Colorado and we both hereby irrevocably consent to the jurisdiction of and venue in those courts for such purposes. We both also irrevocably consent to the jurisdiction of and venue in those courts for purposes of any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (excluding its privacy or publicity rights). You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

18.2.  Prohibition of Class Actions and Non-Individualized Relief. ANY ARBITRATION WILL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). If this specific provision is found to be unenforceable, then all of Section 18, other than subsection 18.6, will be null and void and neither of us will be entitled to arbitrate our dispute.

18.3.  Arbitration Rules. All disputes arising out of or in connection with these Terms shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”) by one or more arbitrators appointed in accordance with the Rules. The Rules may be accessed at: https://iccwbo.org/. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity and must enforce the same limitations stated in these Terms as a court would.

18.4.  OPT-OUT PROCEDURE. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISIONS IN THIS SECTION 18, YOU MUST NOTIFY PLANTSMILES IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS FOR THE FIRST TIME. YOU MAY OPT OUT BY MAILING A WRITTEN NOTICE TO PLANTSMILES AT THE ADDRESS SET FORTH IN ABOVE. YOUR WRITTEN NOTIFICATION TO PLANTSMILES MUST INCLUDE YOUR NAME, MAILING ADDRESS, E-MAIL ADDRESS, AND PHONE NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH PLANTSMILES THROUGH ARBITRATION. IF YOU OPT OUT OF THE ARBITRATION PROVISIONS IN THIS SECTION 18, ALL OTHER PROVISIONS OF THESE TERMS WILL CONTINUE TO APPLY, INCLUDING THE JURY TRIAL AND CLASS ACTION WAIVER, BELOW.

18.5.  Amendment to Arbitration Provisions. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any amendment to the arbitration provisions in this Section in the future (other than an amendment to any notice address or site link provided herein), that amendment shall not apply to any claim that was filed in a legal proceeding against PlantSmiles prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims that have arisen or may arise between you and PlantSmiles. We will notify you of amendments to the arbitration provisions of this Section by posting the amended terms on https://www.scatterspoke.com/terms.html, and/or by providing notice to you by email, at least 30 days before the effective date of the amendments. If you do not agree to the amended terms, you may cancel your Subscription and cease using the Service within the 30-day period and you will not be bound by the amended terms.

18.6.  JURY TRIAL AND CLASS ACTION WAIVER. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND PLANTSMILES EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.

  1. U.S. Export Controls

The Service may be subject to United States export laws, including the including the United States Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Service to, or make the Service accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, rules, and regulations, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Service available outside the United States.

  1. Waiver and Severability

Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms will continue in full force and effect.

  1. Entire Agreement

These Terms, including our Privacy Policy https://www.scatterspoke.com/privacy  constitute the sole and entire agreement between you and PlantSmiles with respect to the subject matter hereof, and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

  1. Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. Unless material changes are made to the arbitration provisions herein, you agree that modification of these Terms does not create a renewed opportunity to opt out of arbitration (if applicable).

By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.

  1. Notice to California Residents

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

  1. Communications

The communications between you and PlantSmiles via the Service use electronic means. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

  1. Contact Us

If you have any questions about these Terms, please contact us:

  • By email: support@scatterspoke.com
  • By visiting this page on our website: www.scatterspoke.com