GROWLr Terms of Service

December 29, 2010

Introduction

Thank you for using GROWLr. By accessing the GROWLr website ("Site"), mobile device software application (the "GROWLr Software"), and any other mobile or web services or applications owned, controlled or offered by Initech LLC (collectively, the "GROWLr Services") you agree and acknowledge to be bound by these Terms of Service ("Terms"). If you do not agree to these Terms, please do not access the Site or use the Services. Initech LLC reserves the right to change these Terms at any time. We recommend that you periodically check this Site for changes.

Usage License

GROWLr grants you a limited license to access the Site and use the Services in accordance with these Terms and the instructions and guidelines posted on the Site. GROWLr reserves the rights to terminate your license to use the Site and Services at any time and for any reason or in the future charge for commercial usage.

No Warranty and Limitation of Liability

GROWLR PROVIDES THE SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. GROWLR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, INFORMATION ACCURACY, INTEGRATION, INTEROPERABILITY OR QUIET ENJOYMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

You understand and agree that you use the Site and Services at your own discretion and risk and that you will be solely responsible for any damages that arise from such use. UNDER NO CIRCUMSTANCES SHALL GROWLR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, OR ANY OTHER DAMAGES WHATSOEVER (HOWEVER ARISING, INCLUDING BY NEGLIGENCE), INCLUDING WITHOUT LIMITATION, DAMAGES RELATED TO USE, MISUSE, RELIANCE ON, INABILITY TO USE AND INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE OR SERVICES, DAMAGES INCURRED THROUGH ANY LINKS PROVIDED ON THE SITE AND THE NONPERFORMANCE THEREOF AND DAMAGES RESULTING FROM LOSS OF USE, SALES, DATA, GOODWILL OR PROFITS, WHETHER OR NOT GROWLR HAS BEEN ADVISED OF SUCH POSSIBILITY. YOUR ONLY RIGHT WITH RESPECT TO ANY DISSATISFACTION WITH THIS SITE OR SERVICES OR WITH GROWLR SHALL BE TO TERMINATE USE OF THIS SITE AND SERVICES. Some states do not allow the exclusion of liability for incidental or consequential damages, so the above exclusions may not apply to you.

BEFORE USING ANY GROWLR SERVICES, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF SERVICE. BY ACCESSING, BROWSING AND/OR USING THE GROWLR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND, BY ALL CONSENTS AND DISCLOSURES SET FORTH IN THIS DOCUMENT, ALL OF THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY FUTURE MODIFICATIONS TO THIS TERMS OF SERVICE, AND ALL GUIDELINES (COLLECTIVELY, THE "AGREEMENT"), WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN PLEASE CEASE USING THE GROWLR SERVICES IMMEDIATELY.

THE AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND GROWLR.

THE GROWLR SERVICES ARE AVAILABLE FOR INDIVIDUALS AGED 18 YEARS OR OLDER.

THE GROWLR SERVICES ARE INTENDED ONLY AS PERSONAL, LOCATION-BASED SERVICES FOR INDIVIDUAL USE AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, OR USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OR INACCURACY OF THAT APPLICATION OR THE GROWLR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE.

YOU ACKNOWLEDGE AND AGREE THAT GROWLR HAS OFFERED THE GROWLR SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH BELOW. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND GROWLR, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND GROWLR. GROWL WOULD NOT BE ABLE TO PROVIDE THE GROWLR SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.

Privacy

We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement or any Guidelines at any time. Please check this Agreement and all Guidelines periodically for changes. Your continued use of the GROWLr Services after the posting of any modifications or changes constitutes your binding acceptance of such changes. Please note that additional and/or different conditions and terms of use may apply to services or products provided through one or more of our partners, advertisers, or business associates, and you should refer to those before using such services or products. For any material changes to this Agreement or any Guidelines, you acknowledge and agree that any such amended or modified terms shall automatically be effective thirty (30) days after they are initially posted on GROWLr Services.

Intellectual Property (Trademarks & Copyrights)

GROWLr, the GROWLr logo and the GROWLr design are trademarks or trade dress of GROWLr, and may not be used without express written permission from GROWLr, other than for attribution. All other trademarks not owned by GROWLr that appear on this Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by GROWLr.

GROWLr-originated content included on the Site, such as text, graphics, logos, software and the compilation of all content on the Site, is the property of GROWLr and its licensors and protected by United States and international copyright laws. Except as set out in these Terms, no reproduction of any GROWLr-originated content is permitted without written permission from GROWLr.

It is GROWLr's policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law (including the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.

PROHIBITED USES

YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU MAY NOT AND WARRANT THAT YOU WILL NOT:

  1. use the GROWLr Services or any location information displayed within the GROWLr Services to "stalk", harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect, or store location or personal information about other;
  2. include offensive or pornographic materials in your GROWLr Services personal profile page;
  3. use the GROWLr Services for any commercial or non-private use, it being understood that the GROWLr Services are for personal, non-commercial use only;
  4. use the GROWLr Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy, and import or export control;
  5. make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the GROWLr Services. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
  6. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the GROWLr Services accounts of other Users;
  7. misrepresent the source, identity or content of information transmitted via the GROWLr Services;
  8. remove, circumvent, disable, damage or otherwise interfere with security-related features of the GROWLr Services, features that prevent or restrict use or copying of any content accessible through the GROWLr Services, or features that enforce limitations on use of the GROWLr Services;
  9. intentionally interfere with or damage operation of the GROWLr Services or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code;
  10. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
  11. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
  12. use the GROWLr Service with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, or otherwise capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management, or similar applications;
  13. use the GROWLr Service in connection with hazardous environments requiring fail-safe performance or any application in which the failure or inaccuracy of that application or the GROWLr Services could lead directly to death, personal injury, or severe physical or property damage.
  14. attempt to gain unauthorized access to the GROWLr Services, or any part of it, other accounts, computer systems or networks connected to the GROWLr Services, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the GROWLr Services or any activities conducted on the GROWLr Service;
  15. use any robot, spider, scraper or other automated means to access the GROWLr Services for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the GROWLr Services or modify the GROWLr Services in any manner or form, nor to use modified versions of the GROWLr Services, including (without limitation) for the purpose of obtaining unauthorized access to the GROWLr Services;

User Content

The GROWLr Services allow the submission of content and materials (such as pictures, recordings, reviews, ratings, ideas, notes, concepts, or creative suggestions) by you and other Users ("User Submissions"), and the hosting, sharing and/or publishing of such User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use, and authorize GROWLr to use, all intellectual property and any other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the GROWLr Services and this Agreement; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the GROWLr Services and this Agreement. For clarity, you shall retain all of your ownership rights in your User Submissions.

GROWLr assumes no responsibility whatsoever in connection with or arising from User Submissions. GROWLr assumes no responsibility for actively monitoring User Submissions for inappropriate content. If at any time GROWLr chooses, in its sole discretion, to monitor User Submissions, GROWLr nonetheless assumes no responsibility for the content of the User Submissions, no obligation to modify or remove any inappropriate User Submissions, and no responsibility for the conduct of the User submitting User Submissions. Further, GROWLr does not endorse and has no control over the content of User Submissions submitted by other Users. GROWLr makes no warranties, express or implied, as to the content of User Submissions or the accuracy and reliability of any User Submissions.

By submitting User Submissions to GROWLr, you hereby grant GROWLr an irrevocable, non-exclusive, worldwide, royalty-free license to reproduce, use, copy, sell, distribute, create derivative works from, publicly display, or publicly perform the User Submission (or any portion thereof) in perpetuity, and GROWLr may sublicense all or part of its rights under this license or assign them to third parties.

Indemnification

You agree to indemnify, defend, and hold GROWLr, its affiliated companies, and its suppliers and partners (harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys' fees, arising out of or related to (a) your use or misuse of any location information or the GROWLr Services generally, (b) any violation of the rights of any other person or entity by you, (c) any breach or violation by you of this Agreement, or (d) your use the GROWLr Services to meet another User in-person or to locate and attend any offline place or event. GROWLr reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.

Miscellaneous

This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any principles of conflicts of law.

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.

YOU AND GROWLR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE GROWLR SERVICES MUST COMMENCE WITHIN ONE (1) MONTH AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.