VERTIGROW INC. Terms of Service

These Terms of Service (“Terms”) govern your (“you”/”your”/”Customer”) use of //vertigrow.io/ (the “Website”) and the Vertigrow proprietary Platform (defined below) which is made available by Vertigrow Inc. (“Vertigrow”/“we”/”us).  Your access to and use of the Website, Services is conditional on your acceptance of and compliance with these Terms as well as our privacy policy //vertigrow.io/privacy-policy/ (“Privacy Policy”) which governs our use of your personal information. 

1.     Definitions

For the purposes of these Terms, in addition to the capitalized terms defined elsewhere in these Terms, the following terms shall have the meanings ascribed to them as follows:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.   

“Control”, for purposes of these Terms, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

“Customer Data” means all electronic data or information submitted by you to the Platform and your authorized Users through the Service;

“User” means individual or entity who is authorized by Vertigrow to use the Service, and who has been supplied a user account and password for the Service;

“Fees” means the fees as specified in section 7 of these Terms;

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; and

“User Guide” means the online user guide for the Service, accessible via //vertigrow.io/knowledge-base/, as updated by Vertigrow from time to time.

2.     Service Description

a. We operate the Website and the Vertigrow proprietary platform for farm management, including managing orders, solutions for vertical farms, production and backend daily tasks (the “Platform”). The main features of our Platform let you: (i) provide software solutions for vertical farms and (ii) provide automation hardware solutions for vertical farms if you are a registered user (the “Services”).

 

3.     Grant of License

a.     Provision of Service. Conditioned on the provisions in this section 3 and the other terms and conditions of these Terms, including User registration and payment of the applicable fees as required, Vertigrow grants you a non-exclusive, non-transferable license to use the Services for your internal business purposes.

b.     User Accounts.  User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.

c.     Customer Affiliates.  Customer Affiliates may use the Service subject to these Terms.  Customer shall cause each Customer Affiliate to comply with the terms and conditions of these Terms to the full extent as if such Affiliate were a party hereto, and any act or omission relating to these Terms by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under these Terms, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to these Terms shall be deemed an act or omission of such party.

4.     Use of the Service.

a. Vertigrow Responsibilities.  Vertigrow shall: (i) in addition to its confidentiality obligations hereunder, not  use  or modify the Customer Data (except for the purposes of performing its obligations or exercising its rights under these Terms) or disclose the Customer Data to anyone other than you and the applicable Users(s); (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer's Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Vertigrow shall give at least eight (8) hours notice via the Service and which Provider shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Eastern Time Friday to 3:00 a.m. Eastern Time Monday); or (b) any unavailability caused by circumstances beyond Vertigrow reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Vertigrow employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Vertigrow’s possession or reasonable control, and denial of service attacks.

b. Your Responsibilities.  You are responsible for all activities that occur in User accounts and for Users’ compliance with these Terms and the User Guide.  You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Vertigrow promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.

c. Passwords. You are responsible for safeguarding the password that you use to access the Services and you are responsible for any activities or actions under your password. You agree to keep your password secure. We cannot, and will not, be liable for any loss or damage arising from your failure to comply with these requirements.

d. Audit Rights. Vertigrow shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and your compliance with these Terms. We also reserve the right at all times access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of our users and the public.

 

 

5.     The Website

a. The Website may contain links to third-party websites or resources. If you use the search-feature on the Website, the search results will provide links to sources where you can purchase and/or download that application. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources (including the applications you selected).

b. Links to third party websites or resources do not imply any endorsement by us of the content, products, or services available from such websites or resources. You have sole responsibility for and assume all risk arising from your use of any such websites or resources. You further acknowledge that your use of those third party sites and services will be subject to the user terms and policies of each individual site, including terms relating to privacy and order fulfillment when you purchase any goods or services from a third party website linked to from the Website.

6.     Restrictions

a. You may not do any of the following while accessing the Website or using the Services:

i. Contravene any applicable laws relating to acceptable online conduct, behavior and content usage;

ii. Engage in any illegal, offensive or unauthorized conduct including:

A. Hacking, accessing, tampering with, or using non-public areas of the Services, our computer systems, or the technical delivery systems of our providers and partners;

B. Promoting bigotry, threaten, discriminate against or impersonate other Vertigrow users (based on race, sex, religion, nationality, disability, sexual orientation, age or otherwise);

C. Posting any sexual or explicit content;

D. Probing, scanning, or testing the vulnerability of any system or network or breaching or circumventing any security or authentication measures;

E. Interfering with, or disrupting, (or attempting to interfere or disrupt), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services.

iii. Removing or modifying any copyright, trade mark or other proprietary notice on the Website;

iv. Use automated devices (such as robots and spiders) to scrape or index the Website or its Content;

v. Record or mine information about other users of the Website and Services;

vi. Create or post shill reviews for your own business, products and services or those of any other user of the Website and Services.

b. You shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or User Guide; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.

c. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iii) use the Service to send or store Malicious Code; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

7.     Fees and Payment

a. Fees. Fees due for your access to the Service for the subscription term shall be reflective of your selection on the Website. Applicable fees due and payable in advance. There are no charges for set-up or basic support.

b. Payment & Charges. Your access to and use of the Services is subject to your payment of the applicable fees due for the Services selected by you ("Fees") set out on the Website and all other applicable amounts, charges and taxes indicated to you when you purchase Services (or otherwise notified to you by Vertigrow from time to time) when you use the Service or noted on and viewable in Your account profile. Unless otherwise stated, all invoiced amounts are due upon receipt and processed immediately using the credit card on file for you. Receipts for purchased Services will be delivered to you electronically. You shall: (i) keep the billing, credit card and payment information you provide to Vertigrow or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, we may suspend the Services; (ii) promptly advise Vertigrow if your credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for your failure to pay any Fees billed to you by VertiGrow  caused by your failure to provide Vertigrow  with up to date billing information. To offset its additional processing costs, Vertigrow may charge you for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to you will be indicated to you on your invoice or receipt and you shall pay all such charges. 

c. Taxes. Unless otherwise stated, Vertigrow fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes  (collectively, "Taxes").  You are responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Vertigrow’s net income or property.  Where Vertigrow has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by you.

d. Suspension of Service. If your account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Vertigrow reserves the right to suspend the Service provided to you until such amounts are paid in full.

e. Refunds. Vertigrow does not refund any Fees paid under any circumstance. You are responsible for paying any balance due up to and including the effective date of termination or expiry. You acknowledge that we may charge any unpaid fees to the credit card provided by you for payment.

 

8.     Term and Termination of the Service.

a. Term of Services. The subscription term of the Service shall be reflective of your selection on the Website at the time of sign-up, either (a) a subscription term of one (1) month which shall automatically be renewed on a monthly basis; or (b) a subscription term of one (1) year term which shall be automatically renewed on a yearly basis.

b. Termination for Convenience. Vertigrow may terminate your access to the Service upon thirty days (30) written notice.

c. Notice of Non-Renewal . Either Party may provide written notice of non-renewal to the other party at least thirty (30) days prior to the end of the applicable initial Term or any renewal Term thereof.  

d. Downgrade of the Applicable Subscription Term. Where you have selected to downgrade from a paid monthly subscription to the Services to the free monthly subscription to the Services, you shall notify Vertigrow fifteen (15) days before the end of the then current term or renewal term via the Platform. The change to update your subscription fee to the free subscription term will take effect the next business day and Vertigrow shall prorate the billing for the remainder of the then current term.

e. Termination for Cause.  Vertigrow may terminate the subscription to the Services or access to the Website for cause: (i) upon thirty (30) days written notice of a material breach to you of your obligations if such breach remains uncured at the expiration of such period; or (ii) you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Suspension of Service. Where Vertigrow believes in good faith that you have breached your obligations under this Agreement, Vertigrow may immediately suspend your access to the Services.

f. Return of Customer Data. After Termination, you may make a request in writing for a copy of your Customer Data. Vertigrow will provide you with Customer Data in a standard format.  

g. Outstanding Fees. Termination shall not relieve you of the obligation to pay any fees accrued or payable to Vertigrow prior to the effective date of termination.

h. Surviving Provisions. The following provisions shall survive any termination or expiration of these Terms: Section 7, 8g and 9 through 13.

 

9.     Proprietary Rights.

a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Vertigrow reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth in these Terms.

b. Customer Data. As between Vertigrow and you, you exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under these Terms. Vertigrow shall not access Customer's User accounts, including Customer Data, except to respond to service or technical problems, to audit your use of the Services or at your request or as necessary for the operation of the Service or billing.  You hereby grants Vertigrow a non-exclusive license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Service.  You further grant Vertigrow the right to copy the Customer Data for the purpose of creating aggregated and de-identified data to be used for to improve the Service (“Aggregated Statistics”). For clarity, Vertigrow shall own the Aggregated Statistics unencumbered.

c. Suggestions. Vertigrow shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.

10.     Disclaimer of Representations and Warranties.

THE WEBSITE, SERVICES AND ALL MATERIALS PROVIDED THEREIN ARE PROVIDED "AS IS." VERTIGROW SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.  ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH MATERIAL.  VERTIGROW DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE WEBSITE OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE WEBSITE AND VERTIGROW SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY.  VERTIGROW WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THE SERVICE.

11.     LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES SHALL VERTIGROW BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THIS WEBSITE OR THE SERVICE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE WEBSITE OR THE SERVICE, OR (V) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR THE SERVICES OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE OR THE SERVICES.  THESE LIMITATIONS SHALL APPLY EVEN IF VERTIGROW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, VERTIGROW’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY CANADIAN DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID VERTIGROW IN THE PRIOR 12 MONTHS (IF ANY) THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

12.    INDEMNIFICATION.

YOU SHALL INDEMNIFY AND HOLD VERTIGROW AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), INCURRED IN CONNECTION WITH ANY MATERIALS SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH THE SERVICE AND/OR ANY VIOLATION BY YOU OF THESE TERMS OF USE

13.     General Provisions.

a. Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).  Notwithstanding the foregoing, the Vertigrow may assign this Terms in its entirety without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets.  Any attempt by a party to assign its rights or obligations under these Terms in breach of this section shall be void and of no effect.  Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

b. Governing Law. These Terms shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles.  No choice of laws rules of any jurisdiction shall apply to these Terms. 

c. Export. You acknowledge and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and you shall comply with all export and import control regulations of such countries.  You shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.

d. Availability & Updates. Vertigrow may alter, suspend, or discontinue this Website or the Services at any time and for any reason or no reason, without notice. The Website or the Services may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons.  Vertigrow may periodically add or update the information and materials on this Website without notice.  

e. Security. Information sent or received over the Internet is generally unsecure and Vertigrow cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of personal or other information.   You are responsible for safeguarding the password that you use to access the Service and you are responsible for any activities or actions under your password. You agree to keep your password secure.  Vertigrow will not be liable for any loss or damage arising from your failure to comply with these requirements.

f. Entire Agreement. These Terms and our Privacy Policy are the entire and exclusive agreement between Vertigrow and you regarding the Website and Services and these Terms supersede and replace any prior agreements between Vertigrow and you regarding the Website and Services. We may revise these Terms from time to time and the most current version will always be at //vertigrow.io/terms-of-service/. If the revision, in our sole discretion, is material we will notify you via an update or e-mail to the email associated with your account. By continuing to access or use the Website and Services after those revisions become effective, you agree to be bound by the revised Terms.

If you have any questions about these Terms, please contact us at: hello@vertigrow.io 

Effective Date: February 28, 2023.