Online Terms and Conditions

Terms and Conditions of Use

These Terms and Conditions of Use (the "Agreement") are a legal agreement between you (“you”) and Horticultural Asset Management, Inc. (“Company”). This Agreement describes the terms and conditions applicable to your use of our website located at http://www.moneygrowsontrees.com (or any successor website or location (the “Site”), the services offered via the Site, including, but not limited to, services related to horticultural asset assessment and provision of horticultural asset management information (the “Services”) and your use of any content, material or other information made available to you via the Site or the Services

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE OR ANY SERVICES. By using the Site or any Services, you signify your assent to this Agreement as well as all provisions, disclaimers and disclosures on the Site. If you do not agree to all of this Agreement, DO NOT USE THE SITE OR THE SERVICES. Company may revise and update this Agreement at any time. Your continued use of the Site or the Services will mean you accept those changes. You may not amend or change this Agreement unless Company agrees in writing. This Agreement is effective upon your acceptance hereof by clicking YES.

Your Use of the Site and Services.

You may use the Site and the Services, subject to the terms and conditions of this Agreement. You are solely responsible for your usage of the Site and the Services. You specifically agree that you may not use the Site or the Services for anything other than a lawful and legitimate purpose. Examples of prohibited uses of the Site and the Services include, but are not limited to: (a) deceptive and unfair trade practices; (b) introduction of viruses, worms or other programming routines that are intended to disrupt or interfere with the intended operation of the Site or the Services; (c) promotion of any unlawful activity or purpose, including any activity that could give rise to criminal or civil liability; (d) unauthorized alteration of any data or information; or (e) any activity that infringes on the copyright, patent, trademark or other rights of any person or entity. In addition to the foregoing,you may not use the Site or the Services in any way which (i) does not comply with the terms of this Agreement, as amended by Company from time to time, or any other terms, rules, or guidelines provided by Company on the Site concerning your use of the Site or the Services, (ii) may subject Company to unfavorable regulatory action, violate any law, infringe upon the rights of third parties, or subject Company to liability for any reason, (iii) might adversely affect Company’s public image, reputation or goodwill, or (iv) violates Company’s Privacy Statement, as amended from time to time, which is hereby made a part hereof by reference, located at the bottom of this page.

Except for the rights and licenses expressly provided herein, all rights, title and interest in the Site and the Services, including all corrections, enhancements and modifications thereof, are reserved by Company. You may not possess the Site or the Services or install the Site or the Services at any third-party site. You agree (i) not to reverse engineer, disassemble or decompile the Site or the Services or any part thereof; (ii) to take all reasonable steps to insure that the Site and the Services, and the trade secrets, confidential and proprietary information contained therein, are not disclosed to any person other than your employees, licensees or agents who have a need for access in order to use them; (iii) not to remove the copyright, trade secret or other proprietary protection legends or notices which appear on the Site or the Services; and (iv) that you shall promptly notify Company of and shall otherwise cooperate with Company in preventing any unauthorized use or copying of the Site or the Services by your employees, agents, customers or others.

Company reserves the right to provide maintenance and upgrades to its systems. Company will attempt to schedule downtime during hours of low usage such as 2:00 am Eastern time to 5:00 am Eastern time, but under certain conditions Company may have to work on the system at other times.

Suspension or Termination of Use of the Site, the Services and the Agreement.

You may terminate this Agreement at any time, subject to the terms of this Agreement. Notwithstanding anything else herein to the contrary, without limiting Company’s other remedies in law or equity, Company may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your ability to access the Site or the Services and/or terminate this Agreement, without notice or liability therefore, for any reason whatsoever (in Company’s sole determination), including but not limited to if (a) you breach this Agreement or any other agreement between Company and you (including but not limited to Company’s Privacy Statement); (b) Company is unable to verify or authenticate any information you provide to it (which it has no duty to do but may pursue in its sole and absolute discretion);or (c) Company believes, in its sole and absolute discretion, that your actions may cause, result in or carry a risk of legal liability for you, Company or any third party. If Company terminates this Agreement pursuant to the terms hereof, unless otherwise provided, a prorated portion of fees paid by you to Company in advance, if any, will be refunded. Upon termination of this Agreement, any provision of this Agreement that by its terms imposes continuing obligations on the parties shall survive the termination of this Agreement.

Your Information; Password Protection.

You represent that the information provided by you in the Assessor Information Form is accurate, complete and current, and you agree to update that information promptly if there is any change. If this Agreement is being accepted by any individual for you, then you represent that such individual has the authority to execute this Agreement on your behalf. The information that you provide in the Assessor Information Form, together with any other information obtained from you or through your use of the Site or the Services are collectively referred to as “Your Information.” You acknowledge that by providing any of Your Information to Company, you authorize Company to use Your Information for the purpose of facilitating your use of the Site and the Services, including, without limitation, registering you to use the Services, billing you for your use of the Services, producing written individualized horticultural asset full assessment report and summary assessment reports (each an “Assessment Report” or “Summary Report”), personalizing communications to you, and generally to improve the Site and the Services. In addition, Your Information is subject to Company’s Privacy Policy, which may be found at the bottom of this page.

You are responsible for keeping your password secret and confidential. You agree that you are responsible for any communications, transactions or use of the Site or the Services that are made using your password, together with any fees, charges, liability or other obligation that may result from such use. You are responsible for changing your password if you believe that your password has been stolen or might otherwise be misused. You may not assign your password or any of your rights under this Agreement without the prior written consent of Company, and any attempted assignment without such consent shall be void. Company will fully cooperate with law enforcement authorities in the detection and prosecution of any illegal activity.

Fees; Billing.

Prices for the Services are provided on the Site. Price and availability of the Services are subject to change without notice. If price and/or availability of Services change in a manner that materially and adversely (with regard to you or your business) affects the functionality of the Site or the Services, then, upon notice to Company, you may terminate this Agreement, and a prorated portion of fees paid by you to Company in advance, if any, will be refunded. If this Agreement is terminated for any reason, you are responsible for any charges on your account incurred through the date of termination (defined as the date the non-terminating party receives notice of termination). You are responsible for paying all sales, use, excise, ad valorem and other taxes (excluding taxes based on the income of Company) arising out of your use of or access to the Site and the Services. All payments must be made by credit card or other method agreed to by you and Company, in United States dollars and are due upon completion of your order (or as otherwise provided on the Site). If Company (or its designated agent) does not receive payment when due, Company may immediately suspend your use of the Services. Any amounts payable to Company hereunder that are not paid when due shall thereafter bear interest at the rate of 1.5% per month or the maximum amount permitted by applicable law, whichever is greater. If any payment due Company is collected at law or through an attorney at law or under advice therefrom or through a collection agency, you will pay all costs of collection, including, without limitation, all court costs and reasonable attorney’s fees. Please contact Company’s billing department at P.O. Box 40487, Raleigh, NC 27629, 1-866-937-6864 if you have any questions regarding billing or payment of fees.

Content.

You acknowledge and agree that all right, title and interest in and to the information, data, code, text, hardware, software, pictures, drawings, schemata, photographs, graphics, videos, music and other material contained on the Site, provided in connection with the Services (including the Assessment Report or Summary Report) or used in connection with the provision of Services (excluding Your Information, collectively the “Content”), including, without limitation, any trade secrets, copyrights, trademarks, patents or other intellectual or proprietary rights in or to the Content, belong to Company and its content providers, and you will not assert any claims to the contrary. You acknowledge that Content on the Site, provided in connection with the Services or used in connection with the provision of Services, may change at any time, without any obligation on the part of Company to notify you of such changes. You may not (i) edit, alter, modify or prepare any derivative works of the Content or any portion thereof, (ii) remove or alter any credits, notices (including, without limitation, copyright, trademark and service mark notices), or logos which are included on the Site, any Assessment Report or Summary Report or as a part of the Services, (iii) resell, sublicense or otherwise transfer, distribute or make available to others all or any portion of the Content (except Assessment Reports and Summary Reports) in any form, (iv) reproduce, upload, post, transmit, download or distribute any part of the Content, except that if you are a landscape professional who has performed an assessment for a customer, you may distribute the applicable Assessment Report or Summary Report to the customer for whom the report was created , (v) store or archive any portion of the Content, or (vi) create a database using the Content.

User Materials.

As part of the Services, you may create or provide information, messages, data and other materials in electronic format that will be stored, uploaded, posted, e-mailed or otherwise transmitted on or through the Site or via the Services (collectively “User Materials”). You represent that you have obtained all necessary third party rights, including, without limitation, copyrights, for any User Materials that belong to third parties. It is your responsibility to determine if it is necessary for you to obtain, and for obtaining, any licenses required to use third party information or content that is part of the User Materials. You agree not to use the Services for, and the User Material will not contain, any infringing, illegal, sexually explicit, hateful, vulgar, threatening, abusive, harassing, defamatory, or racially, ethnically, or otherwise objectionable material, including, without limitation, any materials that could give rise to any liability to Company or which might adversely affect Company’s public image, reputation or goodwill.

YOU WILL BE RESPONSIBLE FOR MAKING BACK-UP AND ARCHIVAL COPIES OF ALL USER MATERIALS. IN NO EVENT WILL COMPANY BE RESPONSIBLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS, CORRUPTION OR ALTERATION OF USER MATERIALS, OR FOR ANY LOSS ARISING OUT OF ANY BREACH OF ANY SECURITY, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, DIRECT, INDIRECT OR OTHER DAMAGES OF ANY KIND.

Links.

You agree that Company does not undertake to and is not responsible for reviewing other websites to which the Site may be linked from time to time. Access to any other websites linked to the Site is at your own discretion and risk.

Disclaimer of Warranty.

THE SITE, THE SERVICES AND ANY ASSESSMENT REPORTS AND SUMMARY REPORTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. VALUES AND OTHER DOLLAR AMOUNTS LISTED THEREIN, INCLUDING, WITHOUT LIMITATION, WITH REGARD TO REPLACEMENT COSTS OF HORTICULTURAL ASSETS, ARE ESTIMATES ONLY AND ARE NOT GUARANTEES OF THE ACTUAL VALUE OF ANY PROPERTY. ACTUAL VALUES MAY DIFFER SIGNIFICANTLY FROM SUCH ESTIMATES. THE COMPANY, ITS PRINCIPALS AND AFFILIATES, DO NOT GUARANTEE THAT ANY ESTIMATE PROVIDED VIA THE SITE, THE SERVICES OR ANY ASSESSMENT REPORT OR SUMMARY REPORT WILL BE TRUE, ACCURATE OR ACCEPTED BY ANY THIRD PARTY. COMPANY, ITS PRINCIPALS, AGENTS AND AFFILIATES DO NOT GUARANTEE THE ACCURACY OF PLANT IDENTIFICATIONS PROVIDED (IF ANY) AS A PART OF THE SERVICES. PLANT IDENTIFICATIONS ARE PROVIDED ON A COMMERCIALLY REASONABLE EFFORTS BASIS AND BASED ON EXISTING PLANT AND ENVIRONMENTAL CONDITIONS.

THE USE OF THE SERVICES, THE SITE AND ANY ASSESSMENT REPORT OR SUMMARY REPORT IS PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND COMPANY HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY NEITHER WARRANTS THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT CONTAINED IN OR PROVIDED THROUGH THE SITE, THE SERVICES OR ANY ASSESSMENT REPORT OR SUMMARY REPORT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY. ANY USE OF THE SERVICES, THE SITE OR ANY ASSESSMENT REPORT OR SUMMARY REPORT IS AT YOUR OWN RISK.

NO INFORMATION OBTAINED OR INCLUDED IN ASSESSMENT REPORT OR SUMMARY REPORT OR OTHERWISE OBTAINED BY YOU FROM COMPANY IS INTENDED TO SUPPLY LEGAL, FINANCIAL, REGULATORY COMPLIANCE, TAX OR OTHER FORMS OF ADVICE. USE OF THE SERVICES IS NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY OR OTHER PROFESSIONAL ADVISOR. YOU ARE RESPONSIBLE FOR CHECKING THE RESULTS OF ANY INFORMATION OBTAINED FROM COMPANY, AND COMPANY IS NOT RESPONSIBLE FOR ANY FINANCIAL, REGULATORY COMPLIANCE, TAX, LEGAL OR OTHER DECISIONS YOU MAKE AND WHICH ARISE OUT OF OR ARE CONNECTED WITH INFORMATION PROVIDED TO YOU BY COMPANY. BY RECEIVING SUCH INFORMATION, YOU AGREE THAT YOU BEAR FULL RESPONSIBILITY FOR ALL SUCH DECISIONS MADE BY YOU.

Limitation of Liability.

COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITE, THE SERVICES OR ANY ASSESSMENT REPORT OR SUMMARY REPORT (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS OR DATA OR BUSINESS INTERRUPTION), WHETHER ARISING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, DATA OR E-MAILS, ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF COMPANY TO YOU FOR ANY CLAIM WHATSOEVER, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR FOR ANY CLAIM MADE AGAINST COMPANY BY ANY OTHER PARTY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, EXCEED TWO HUNDRED AND FIFTY DOLLARS ($250).

Trademarks.

“Horticultural Asset Management,” “Money Grow$ on Trees And We Can Prove It!” and “HS²” and all other trademarks, service marks, trade names and logos of Company appearing on the Site or any Assessment Report or Summary Report or used in connection with the Services are the property of Company or its licensors. All uses of such marks shall inure to the benefit of Company, and the use of Company’s marks in conjunction with any other logos or marks shall not create a unitary or composite mark. All other trademarks, trade names, service marks, logos, product names, and Company names appearing on this site or in connection with the Services are the property of their respective owners.

Indemnification.

You agree to defend, indemnify and hold harmless Company, its officers, directors, employees, contractors, customers, suppliers and licensors, from and against any and all costs, fees, loss, claim or liability (including without limitation all attorneys’ fees and expenses) which they may incur in connection with (a) your breach of this Agreement or any other rules or guidelines provided to you by Company, (b) any use of the Services or any Assessment Report or Summary Report, including, but not limited to, use of the Services to provide or sell any product or service, (c) any User Materials, or (d) your use of the Content.

Legal Compliance; Authority; Binding Nature.

You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site, the Content, any Assessment Report or Summary Report and the Services. You agree, represent and warrant that (i) you understand the terms and conditions of this Agreement and that it constitutes a valid, binding obligation, and (ii) you have full power, authority and legal capacity to enter into this Agreement and follow its obligations.

Choice of Law; Miscellaneous.

This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the choice of law provisions thereof. Any dispute or claim arising out of, or in connection with, this Agreement shall be brought and heard either in the North Carolina state courts located in Wake County, North Carolina, or the federal district court for the Eastern District of North Carolina located in Raleigh, North Carolina. You consent to the in personam jurisdiction and venue of such courts. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by telefacsimile or by first class mail, and shall be deemed effectively given upon receipt.

This Agreement and the rights granted hereunder may not be assigned or transferred by you, in whole or in part without Company’s prior written consent. Any successor in interest or assign must agree to the terms and conditions of this Agreement. Without limiting the foregoing, you may not provide any other person access to the Services. If any provision of this Agreement is held invalid, such invalidity shall not affect any other provisions of this Agreement. Headings are inserted for reference only and shall not be construed as a part of this Agreement. No failure or delay on the part of Company to exercise any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude any other or further exercise thereof or of any other right. This Agreement, Company’s Privacy Policy (see link below) and the other rules and guidelines posted on the Site represent the entire understanding and agreement between you and Company concerning your use of the Site, the Content, Assessment Guides and the Services, and supersedes any prior representations, understandings or agreements.