Pluck, Inc.
Terms of Use
Last Revised 2022-02-07
These terms of use govern the services offered from time to time (“Services“) by Pluck, Inc. (hereinafter, “Company”; “we” or “our“), including through access to and use of our website (the “Website“) and through any applications and software provided to you to access our services, including mobile applications, updates or patches, utilities and tools or APIs (the “Software” and, collectively with the Website, the “Platform“) to you (“Customer” or “you“), so please carefully read them before using the Platform and Services. These terms of use, together with our Privacy Policy (the “Privacy Policy”) all Order Forms, which are hereby incorporated into this Agreement by reference, establish the legal terms and conditions of the agreement between us governing your use and our provision of the Platform and Services (the “Agreement”). If you are using the Platform and Services on behalf of an organization, you are agreeing to this Agreement for that organization and representing that you have the capacity and authority to bind that organization to this Agreement. In that case, “you” and “your” will refer to that organization. You may use the Platform and Services only in compliance with this Agreement. You may use the Platform and Services only if you have the power to form a contract with the Company and are not barred from doing so under any applicable constitutions, laws, ordinances, principles of common law, codes, regulations, statutes or treaties and all applicable orders, rulings, instructions, requirements, directives or requests of any courts, regulators or other governmental authorities (“Law”). You may not use the Services if you are under 18 years of age. By agreeing to this Agreement, you are representing to us that you are over 18.IMPORTANT WARNING
PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. For more details, go to Section 12.10(b).1. Definitions and Construction. Capitalized terms in these terms of use have the meanings indicated in Section 13 or otherwise in these terms of use unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms. In these terms of use, unless a clear contrary intention appears (a) ”Section” refers to sections of these terms of use; (b) ”including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, (c) where any word or phrase is given a definite meaning, any part of speech or other grammatical form of that word or phrase has a corresponding meaning, (d) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating that period will be excluded and, if the last day of that period is not a business day, the period will end on the next business day, and (e) any reference to a consent, determination or other exercise of discretion by Company, unless expressly provided to the contrary, means a determination or exercise of discretion in Company’s sole and absolute discretion.2. Services. Subject to the terms of this Agreement and the Order Forms, Company will provide Customer with the services offered Company through the Platform from time to time with respect to the landscaping and care of plants on Customer’s property (the “Services”). Company does not guarantee that any particular Service will be available at all times, in all countries and/or geographic locations, or at any given time or that Company will continue to offer any particular Service for any particular length of time. Company reserves the right to change and update Services without notice to Customer.3. Customer Responsibilities.
3.1 Access Credentials. Customer is responsible for safeguarding the username, password and other access credentials that Customer uses to access the Platform and Services (“Access Credentials”) and Customer agrees not to disclose Customer’s Access Credentials to any third party. Customer is responsible for any activity using Customer’s Access Credentials, whether or not Customer authorized that activity. Customer will immediately notify Company of any unauthorized use of Customer’s account and of any actual or potential disclosure of Customer’s Access Credentials. Customer acknowledges that if Customer wishes to protect Customer’s transmission of data or files to Company, it is Customer’s responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and Customer agrees that Company will have no liability if it fails to protect Customer’s transmission.
3.2 Suspension of Services. Company may in its sole discretion immediately suspend Customer’s right to use the Platform at any time in its discretion, including if:
(a) Company believes that Customer has breached this Agreement, after 15 days’ written notice and opportunity to cure;
(b) Company believes that Customer has breached Section 7; or
(c) Customer or any third party has accessed the Services in violation of Section 3.1, or there has otherwise been unauthorized use of Customer’s Access Credentials.4. Payment Terms.
4.1 Fees. The Fees for use of these Services are set forth from time to time on the Fees Schedule, provided that the Fees set forth on any Order Form will not be changed during the term of that Order Form.
4.2 Payment. Customer agrees to pay any and all Fees in accordance with the Order Forms. All Fees are due in advance of the time period during which Services are provided.
4.3 Payment Methods. Company accepts the forms of payment set forth on the Platform from time to time (each, a “Payment Method”). Customer must provide and verify at least one Payment Method to use the Services. Customer authorizes Company to store, and contract with a third party to store, Payment Method information for future use as provided in this Agreement. To the extent permitted by applicable Law, Company may use certain third-party vendors and service providers to process payments and manage Customer’s Payment Method information. By providing Payment Method information, Customer represents and warrants that (a) Customer is legally authorized to provide that information to Company, (b) Customer is legally authorized to perform payments using the Payment Method(s); and (c) that action does not violate the terms and conditions applicable to Customer’s use of those Payment Method(s) or applicable Law. When Customer authorizes a payment using a Payment Method, Customer represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method.
4.4 Taxes. Listed Fees for the Services do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to Company’s invoice as a separate charge to be paid by Customer.
4.5 Fees Charged by Third-party Sites and Vendors. Company may provide links to other websites. Some of these websites may charge separate fees, which are not included in any Fees that Customer may pay to Company. Any separate charges or obligations that Customer incurs in its dealings with third parties are Customer’s responsibility. Customer is responsible for any internet service provider, telephone, wireless and other connection fees that Customer may incur when using Services.5. Intellectual Property Rights; Data.
5.1 Platform. Company and Company’s licensors own and will retain all right, title and interest in all Intellectual Property Rights embodied or fixed in, or otherwise pertaining to, the Platform. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, nonexclusive, nontransferable license to use the Platform and the Specifications only during the Term and only to enable Company to provide Customer with the Services. Other than the foregoing grant of rights, Company does not grant, and Customer does not receive or possess, any right or interest in any of Company’s Intellectual Property Rights, or any other type of right or interest, whether an economic, property or moral rights interest in the Platform. Customer acknowledges that Company may from time to time upgrade or otherwise change the Platform or the Specifications in its sole discretion. Company will use commercially reasonable efforts to notify Customer of any such changes that may affect the Services or the way in which Customer connects to the Platform. Customer is responsible for satisfying itself that it can successfully interface with the Platform under the Specifications, and Customer understands that Company may change those Specifications from time to time and that Customer may not be aware when changes have been made or are about to be made. Company will make reasonable attempts to communicate to Customer any Specifications change that have high potential to impact access to Platform. Customer is prohibited from copying or otherwise reproducing or attempting to reproduce the Platform. Customer agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Platform.
5.2 Data. Subject to the terms and conditions of this Agreement, Customer hereby grants Company a limited, worldwide, nonexclusive, royalty free license during the Term to use, copy, store and transform Customer Content and Customer Data, including modifying or editing, combining with other materials, and creating derivative works of the Customer Content and Customer Data with other Content and data, solely in order to provide use of the Platform and Services as provided under this Agreement and subject to its terms. As between Customer and Company, Company agrees that Customer owns all right, title and interest, including all Intellectual Property Rights, in and to the Customer Content and Customer Data, and any changes, modifications or corrections to them. For purposes of this Agreement (a) “Customer Data” means any data of Customer processed or stored using the Platform or Services, and (b) “Customer Content” means any Content provided to Company by or on behalf of Customer as part of the Services. Company also may aggregate Customer Data and Customer Content with that of other customers for the purpose of analyzing and improving Company’s services to all customers and reporting the results of Company’s operations to Company’s equityholders and potential investors in Company, purchasers or part or all of Company’s business, or business partners or potential business partners of Company, so long as Company does not in the process disclose to any third parties Customer Data or Customer Content in a manner that is readily personally identifiable to Customer.
5.3 Reservation of Rights. Each party does not grant, and hereby expressly reserves onto itself, all rights not granted in this Agreement.
5.4 Injunctive Relief. The parties agree that any breach of this Section 5 is likely to cause irreparable injury for which the non-breaching party would have no adequate remedy at law. Therefore, in the event of such a breach or threatened breach, the non-breaching party will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it and breaching party agrees to waive any requirement for the securing or posting of any bond in connection with any non-breaching party effort to seek injunctive relief in accordance with this.
5.5 Software, Utilities and Tools. Services may require or allow Customer to download Software from Company or its licensors onto Customer’s smartphone, tablet, computer or other device. Company grants to Customer a nonexclusive, limited license to use Software solely for the purpose stated by Company at the time the Software is made available to Customer. If an end user license agreement is provided to Customer with the Software, Customer’s use of the Software is subject to the terms of that license agreement. Customer may not sublicense, or charge others to use or access Software. Customer may not translate, reverse engineer, reverse compile or decompile, disassemble or make derivative works from Software. Customer may not modify Software or use it in any way not expressly authorized in writing by Company. Customer understands that Company’s introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Services may vary depending on Customer’s computer and other equipment. From time to time, Company may provide Customer with updates or modifications to Software. Customer understand that certain updates and modifications may be required in order to continue use the Software and Services.6. Contributing User Generated Content (UGC) to Services.
6.1 Customer Responsibility. Company does not prescreen all UGC and does not endorse or approve any UGC that Customer and other customers may contribute to Platform. Customer is solely responsible for Customer’s UGC and may be held liable for UGC that Customer posts. Customer bears the entire risk of the completeness, accuracy and/or usefulness of UGC found on Platform.
6.2 Intellectual Property Rights. Company respects the Intellectual Property Rights of others. Customer must have the legal right to Upload UGC through the Platform. Customer may not Upload any UGC on the Platform that infringes the Intellectual Property Rights or any other rights of a third party nor may Customer Upload UGC in violation of Law or this Agreement. Customer may Upload only UGC that Customer is permitted to Upload by the owner or by Law.
6.3 Treatment of UGC. Company reserves the right (but has no obligation except as required by Law) without notice to remove, block, edit, move or disable UGC for any reason, including when Company determines that UGC violates this Agreement, Law or the Intellectual Property Rights or other rights of Company or a third person. The decision to remove UGC at any time is in Company’s sole discretion. To the maximum extent permitted by Law, Company does not assume any responsibility or liability for UGC or for removal of, UGC or any failure to or delay in removing, UGC or other content.
6.4 Take Down Procedure. If any person believes that person’s Intellectual Property Rights have been infringed by someone else on the Platform, that person may contact Company by emailing the following information to [email protected]:
(a) a description of the Intellectual Property Rights and an explanation as to how they have been infringed;
(b) a description of where the infringing material is located;
(c) the complaining person’s address, phone number and email address;
(d) a statement by the complaining person, made under penalty of perjury, that (i) the complaining person has a good faith belief that the disputed use of material in which that person owns Intellectual Property Rights is not authorized, and (ii) the information provided is accurate, correct, and that the complaining person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(e) a physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
6.5 UGC License Grant. If Customer uses the Platform to transmit UGC to other customers, except as expressly communicated by Customer to the recipient in writing at the time of transmittal, then Customer grants those customers the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute the UGC transmitted on or through the Platform without further notice, attribution or compensation to Customer.7. Rules of Conduct.
7.1 Rules. The Platform will include a Customer page on which Customer and Customer’s designated landscaper
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