These Terms of Service (hereinafter, these "Terms") govern your access to and use of HERB’s (a) websites, portals, mobile applications (the “Mobile Apps”), channels and software that link to or otherwise reference these Terms, including herb.co, and (b) social media pages and channels (collectively, the “Websites”), including any services, features, media, functions, content, tools and links contained or offered therein (collectively, the “Services”). Please ensure that you read these Terms carefully, as it is a legally binding contract between the applicable HERB entity that owns the applicable Website or provides the applicable Services that you may be accessing or using, on the one hand, and you and your successors and heirs, and (if applicable) the corporate entity that you represent (in these Terms, you shall be referred to as "you" or "your"), on the other hand. By accessing or using any of the Websites, you are agreeing to be legally bound by these Terms. If you do not accept and agree to these Terms, you may not access or use any of the Websites or Services or create an account or user profile. For purposes of these Terms, “HERB”, “us”, “we” or “our” shall mean, as applicable, Flora Media, Inc. and its affiliated entities which: (i) are, directly or indirectly, majority-owned by Flora Media, Inc.; and (ii) own the applicable Website or provides the applicable Services that you may be accessing or using.
These Terms are subject to occasional changes from time to time, and should we make any material changes, we will notify you by sending you an e-mail communication to the last e-mail address you provided to us and/or by prominently posting a notice of the changes on the Websites. Any changes to these Terms will be effective upon the earlier of our dispatch of an e-mail notice to you (if applicable) or our posting of notice of the changes on the Websites. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is no longer valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. If your e-mail address is not up to date or is not working, the posting of notice of changes to these Terms on the Websites shall constitute effective notice of the changes described therein. Continued use of any of the Websites or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Certain areas of the Websites and Services (and your access to or use therein) may have different terms, conditions, policies, rules and guidelines, which govern your access to and use of such Websites and Services (as applicable, the “Additional Terms”). The Additional Terms will be posted (via a link) on the applicable Website or Services and may be modified from time to time. If there is a conflict between these Terms and any Additional Terms for a specific Website or Service, the applicable Additional Terms shall govern and take precedence over these Terms with respect to your use of or access to that Website or Service.
The Websites and Services are intended solely and only available to individuals who are at least eighteen (18) years of age, who can willingly and knowingly enter into legally binding contracts under applicable law. Please note that certain of the Websites and Services require you to be at least twenty-one (21) years of age to access and use such Websites and Services. Please check the applicable Additional Terms for such Websites and Services for further information. Without limiting the foregoing, the Websites and Services are not available to minors or suspended members or users. If you are registering as a business entity, you further represent that you have the authority to bind the business to these Terms and any other related or pertinent agreements. If you do not have such authority, you will be held individually liable for all actions taken under your user ID. You further represent that any party you invite to participate in any of the Services or related functions with you is also of legal age as described above.
2. USING THE SERVICES
2.1 License Grant.
Subject to your compliance with these Terms and the applicable Additional Terms, HERB grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and make personal and non-commercial use of the Websites and Services. All rights not expressly granted to you in these Terms or any Additional Terms are reserved and retained by HERB.
2.2 Mobile app License.
Subject to your compliance with the Terms, Company grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use copies of the Mobile Apps on a single mobile device or computer that you own or control and to run such copies of the Mobile Apps solely for your own personal or internal business purposes. Furthermore, with respect to any Mobile Apps accessed through or downloaded from the Apple App Store (each an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.3 Certain Restrictions.
You understand and agree that you are solely responsible for compliance with any and all laws, rules and regulations that may apply to your use of the Websites or Services. In connection with your access or use of any of the Websites or Services, you may not and will not: upload, post, transmit, broadcast or otherwise make available any offensive content, including any user content that is unlawful, libelous, defamatory or otherwise objectionable; breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status; manipulate the price of any item or interfere with any other user's listings, reviews, and products; distribute, promote, advertise, or post spam, unsolicited or bulk electronic communications, chain letters, pyramid schemes or any related content; interfere with or disrupt any Website processes, servers or networks supporting the Websites and/or HERB or impose an unreasonable or disproportionately large load on our infrastructure; impair or harm any of our computer or related systems or transmit software viruses, worms, or other damaging files; use any robot, spider, scraper, survey, monitor or other automated or similar means to access any web page or other asset contained in the Websites, Services or Website Content for any purpose; provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the United States Immigration and Nationality Act; access the Websites or Services in order to build a similar or competitive Website or Service; send electronic transmissions (including but not limited to interactive monetary offers, audio-video communications, email, search queries, chat and other Internet activities) as interstate communications; circumvent any technical measures we use to provide Services; or assist any third party with any of the foregoing. HERB has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
3. USER REGISTRATION AND ACCOUNTS
3.1 Registering Your Account.
In order to access or use some of the Websites or Services, you must first register and create an individual profile for yourself or a business for such Website or Service (each a "User Profile"). By creating a User Profile, you agree that:
- You will not register a username (or email address) that (a) is already being used by someone else; (b) may impersonate another person; (c) belongs to another person; (d) violates the intellectual property or other right of any person or entity; or (e) is offensive.
- You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete.
- You are solely responsible for all activities that occur under your account, password, and username - whether or not you authorized the activity
- You are solely responsible for maintaining the confidentiality of your password and for restricting access to your account so that others may not access any password protected portion of the Websites or Services using your name, username, or password;
- You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security;
- You will not post libelous content or create false or misleading reviews or posts; and
- You will not sell, transfer, or assign your account or any account rights.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, offensive, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account, User Profile and access to and use of the Websites and Services, at our sole discretion and without advance notice or liability.
We may offer you the ability to set preferences relating to your User Profile, but changes to your settings may not become effective immediately or be error free, and options may change from time-to-time.
HERB does not review each User Profile to determine if they were created by an appropriate party. In addition, HERB is not responsible for any unauthorized User Profiles that may appear on the Services. If you believe that a User Profile listed on one of the Websites is unauthorized, fake, fraudulent or otherwise improper or misleading, please send an email to [email protected]
3.2 Registering an Account through Social Media.
HERB may also provide users with the ability to login to the Websites or Services with your login credentials from certain social networking websites (e.g., Facebook, Instagram). If you login or otherwise associate your User Account with your login credentials from a social networking or similar website, we may use any information about you that is from or otherwise posted on your social networking account, in accordance with the terms and conditions and related legal and user policies of the relevant social networking website. If you elect to share your information with any number of social networking websites, we will then share your information with the websites you name, in accordance with your election, and per their terms and conditions.
You represent that you are entitled to disclose your login credentials from a social networking website to HERB and/or grant HERB access to such login credentials (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable social networking website and without obligating HERB to pay any fees or making HERB subject to any usage limitations imposed by such social networking websites.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL NETWORKING WEBSITES ASSOCIATED WITH YOUR SOCIAL NETWORKING ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SOCIAL NETWORKING WEBSITES, AND HERB DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH SOCIAL NETWORKING WEBSITES IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH SOCIAL NETWORKING ACCOUNTS. HERB makes no effort to review any content from any social networking website for any purpose, including but not limited to, for accuracy, legality or non-infringement, and HERB is not responsible for such content.
4. RESPONSIBILITY FOR CONTENT
4.1 Types of Content.
For purposes of these Terms, (a) "Content" means all text, images, photos, audio, video, graphics, reviews, location data, and all other forms of data, communication or media, (b) "Your Content" means Content that you submit, or transmit to, through or in connection with the Websites or Services, such as ratings, reviews, photos, videos, media, messages, social media posts or Services, comments and information that you publicly display or displayed in your User Profile, (c) "User Content" means Content that users submit or transmit to, through, or in connection with the Websites or Services, including any electronic data or information with respect to their customers, (d) "HERB Content" means Content that we create or otherwise owned by us and make available in connection with the Websites or Services, (e)"Third Party Content" means Content that originates from parties other than HERB or users of any of the Websites or Services, which is made available in connection with the Websites or Services and not otherwise owned by us, and (f) "Website Content" means all of the Content that is made available in connection with the Websites or Services, including Your Content, User Content, Third Party Content and Third Party Material (as defined below), and HERB Content.
4.2 No Obligation to Pre-Screen or Store Content.
You acknowledge that HERB has no obligation to pre-screen Content (including, but not limited to, User Content), although HERB reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that HERB pre-screens, refuses or removes any Content, you acknowledge that HERB will do so for HERB’s benefit, not yours. Without limiting the foregoing, HERB shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Unless expressly agreed to by HERB in writing elsewhere, HERB has no obligation to store any of Your Content that you make available on the Website or Services. HERB has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Website or Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that HERB retains the right to create reasonable limits on HERB’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by HERB in its sole discretion.
5. OWNERSHIP; PROPRIATERY RIGHTS
5.1 Our Ownership.
We own the HERB Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, including, but not limited to, our compilation of User Content and other Website Content, computer code, products, software, data, aggregate user review ratings and all other elements and components of the Websites but excluding Your Content, User Content and Third Party Material. We also own the patents, patent applications, copyrights, trademarks, service marks, trade names, trade secrets and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the HERB Content, the Websites and the Services, which are protected by copyright, trade secret, patent, trademark laws and all other applicable intellectual property and proprietary rights and laws. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Websites and the HERB Content are retained by us.
5.2 Ownership of Your Content; License to Your Content.
HERB does not claim ownership of Your Content. However, when you post or publish Your Content on or in the Website or Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
You grant HERB a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Website and Services to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Website or Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not HERB, are responsible for all of Your Content that you upload, post, e-mail, transmit or otherwise make available on the Website or Services.
5.3 License to Your Data.
You hereby grant HERB the right and license to use any data, images or information that is pushed or otherwise transferred to us through any of our APIs by you or by any third-party on your behalf (“Licensed Data”) for any purpose relating to any of the businesses of HERB or for any purpose relating to the Websites or Services, including in connection with displaying any data, images or information on the Websites. You acknowledge and agree that we shall have the right to reformat, improve, modify, adapt, derive, redisplay and/or reprocess any of the Licensed Data and that we shall exclusively own all derivative works, graphical layouts, compilations, improvements, modifications, adaptations, analyses and interpretations of the Licensed Data. Interpretations or translations of any of the Licensed Data prepared by HERB shall be owned exclusively by us.
5.4 Review/Feedback Policy.
An important part of the HERB community is the feedback system. Users have the ability to leave reviews and comments, and we want that process to be as open as possible. Part of that openness is acknowledging that certain behaviors are not acceptable. HERB retains the right to remove any content posted on or submitted through any of its Websites or Services. However, the only User Content likely to be removed is that which violates these Terms or the rules or guidelines on the applicable Website or Service regarding reviews, comments, feedbacks and other User Content (the “Review Policies”). Please note, the Review Policies of each Website or Service may differ. Please consult the relevant Website or Service to learn about its applicable Review Policy.
You agree that submission of any ideas, suggestions, documents, and/or proposals to HERB through its feedback system (“Feedback”) is at your own risk and that HERB has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to HERB a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Website and Services.
Please note, HERB is under no obligation to enforce these Terms or any of the Review Policies on your behalf against another user. While HERB encourages you to let us know if you believe another user has violated these Terms or any of the Review Policies, we reserve the right to investigate and take appropriate action at our sole discretion.
6. INTERACTIONS WITH OTHER USERS
6.1 User Responsibility.
You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that HERB reserves the right, but has no obligation, to intercede in such disputes. You agree that HERB will not be responsible for any liability incurred as the result of such interactions.
6.2 Content Provided by Other Users.
The Website and Services may contain User Content provided by other Users. HERB is not responsible for and does not control User Content. HERB has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
7. THIRD PARTY SERVICES
7.1 Third Party Materials.
The Website or Services might display, include or make available Third Party Content (including data, information, articles, applications or other products, services and/or materials) or contain links to third party websites, services, and advertisements for third party Offers (as defined below) (collectively, the “Third Party Materials”). You acknowledge and agree that HERB is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. HERB does not assume and will not have any liability or responsibility to you or any other person or user for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk. When you link to a Third Party Material, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Material.
The Website or Services might display, include or make available coupons, promotional codes, giveaways, samples, and other offers from listed dispensaries or other third parties (collectively, the “Offers”). Offers constitute “Third Party Materials” under these Terms. HERB displays these Offers on the Website and Services as a form of advertisement for the listing dispensary or other third party (the “Offeror”) only. All Offers are made directly by the applicable Offeror, and may be subject to additional terms, conditions, or restrictions of the Offeror or under applicable law, whether or not such terms, conditions or restrictions are expressly included on the Website or Services. The Offeror, and not HERB, is solely responsible for: (a) redemption of the Offer; (b) compliance of all aspects of the Offer with applicable law (including, without limitation, the advertisement, redemption, and terms, conditions and restrictions related thereto); (c) all goods and services it provides to you in connection with the Offer; and (d) all injuries, illnesses, damages, claims, liabilities and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of an Offer or not.
7.2 App Stores.
You acknowledge and agree that the availability of the Mobile App and the Services is dependent on the third party from whom you received the Mobile App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and HERB and not with the App Store. HERB, not the App Store, is solely responsible for the Website and the Services, including the Mobile App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Mobile App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Websites or Services, including the Mobile App. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Website and the Services, including the Mobile App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
8. COPYRIGHT INFRINGEMENT
It is HERB’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to HERB by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website or Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Websites or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for HERB’s Copyright Agent for notice of claims of copyright infringement is as follows:
Flora Media, Inc.
325 Front Street West, Floor 4, Toronto, ON Canada M5V 2Y1
9. FEES AND PURCHASE TERMS
9.1 General Purpose of Terms: Not Sale of Software.
The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of HERB’s Software, and, furthermore, any use of HERB’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
You agree to pay all fees or charges to you in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide HERB with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing HERB with your credit card number or PayPal account and associated payment information, you authorize HERB to immediately charge you for all fees due and payable to HERB hereunder and that no additional notice or consent is required. You agree to immediately notify HERB of any change in your billing address or the credit card or PayPal account used for payment hereunder. HERB reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or Services or by e-mail delivery to you. You may be charged local tax, if applicable.
9.3 Purchasing Products.
9.4 Product Descriptions.
Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products are subject to change without notice, and our current prices can be found on the Services. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products on the Services at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Services. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.
Title and risk of loss for any purchases pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to [email protected]
If for any reason you are not satisfied with a purchase you make on the Services, please return it in accordance with the terms of our return policy or limited warranty, available at https://shop.herb.co/pages/shipping.
You agree to indemnify and hold HERB (and its owners, directors, managers, officers, partners, employees, independent contractors and agents and successors and assigns of itself or its affiliates) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of or otherwise relating to (i) your use or misuse of the Websites or Services, (ii) Your Content, (iii) your violation of these Terms or any Additional Terms; or (iv) your violation of applicable laws or regulations. HERB reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us or any other indemnitee hereunder and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of HERB. HERB will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11. DISCLAIMER OF WARRANTIES
You expressly acknowledge, understand and agree that:
- YOUR ACCESS TO AND USE OF THE WEBSITES AND SERVICES IS AT YOUR OWN RISK. THE WEBSITES AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. HERB AND THEIR AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS AND AGENTS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY OTHER POTENTIAL OR ACUAL WARRANTY OF ANY KIND.
- HERB AND ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS AND AGENTS MAKE NO GUARANTEE OR WARRANTY THAT: (1) THE WEBSITES AND SERVICES WILL SATISFY YOUR NEEDS AND REQUIREMENTS OR WILL BE COMPATIBLE WITH YOUR EQUIPMENT; (2) THE WEBSITES AND SERVICES, AND ALL AFFILIATED WEBSITES, FEATURES, SERVICES, COMMUNICATIONS AND APPLICATIONS, WILL BE COMPREHENSIVE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR BE FREE FROM LOSS, DESTRUCTION, CORRUPTION, ONLINE ATTACK, VIRUSES, WORMS, OR OTHER INVASIVE, HARMFUL, OR CORRUPTED OR OTHER RELATED INTRUSIONS; (3) THE INFORMATION, DATA OR RESULTS REALIZED OR OBTAINED FROM YOUR USE OF THE WEBSITES WILL BE ACCURATE, UP TO DATE, SATISFACTORY OR RELIABLE OR FIT OR USEFUL FOR ANY SPECIFIC PURPOSE; (4) THE QUALITY OR VALUE OF ANY PROPERTIES, SERVICES, PRODUCTS, INFORMATION OR OTHER MATERIALS PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITES AND SERVICES WILL MEET YOUR EXPECTATIONS; (5) THAT ANY OFFER MADE OR MESSAGE SENT WILL BE SUCCESSFULLY TRANSMITTED, RECEIVED AND PROCESSED; AND (6) ANY ERRORS IN THE GUIDELINES, SOFTWARE OR PROTOCOLS WILL BE CORRECTED OR RESOLVED.
- ANY PRODUCT OR PROGRAM DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITES AND SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE AND FULLY LIABLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, LOSS OF DATA, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH PRODUCT, MATERIAL, APPLICATION, FEATURE OR OTHER PROGRAM.
- NO ADVICE OR INFORMATION, INCLUDING MEDICAL ADVICE, STRATEGY, GUIDELINES OR RELATED CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HERB OR FROM THE WEBSITES, SERVICES OR RELEVANT SOCIAL MEDIA PAGES SHALL CREATE ANY WARRANTY, GUARANTEE OR STRATEGY NOT EXPRESSLY STATED IN THESE TERMS.
- VETTING BY HERB OF EACH AND EVERY DOCUMENT, PHOTOGRAPH, VIDEO, REVIEW, RELATED MEDIA, POSTING OR OTHER COMMUNICATION, IN ADDITION TO ANY OTHER CONTENT POSTED VIA THE WEBSITES OR SERVICES, MAY NOT BE POSSIBLE OR REALISTICALLY PRACTICABLE. AS A RESULT, HERB CANNOT AND DOES NOT CONTROL ANY LISTING REVIEWS, COMMENTS, PHOTOGRAPHS, OPINIONS, POSTINGS OR OTHER CONTENT OR MATERIAL POSTED VIA THE WEBSITES OR SERVICES AND, AS SUCH, DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY, SAFETY, LEGALITY, MORALITY, AND/OR AUTHENTICITY OF SUCH CONTENT, THE TRUTH OR ACCURACY OF USERS CONTENT, THE ABILITY OF LISTINGS TO CONFIRM PRODUCT AVAILABILITY OR PRICING, OR THE ABILITY OF USERS TO CONFIRM EXPERIENCES FROM USING OR PURCHASING SPECIFIC PRODUCTS DISCUSSED OR SOLD ON THE WEBSITES OR SERVICES.
- YOU ACKNOWLEDGE AND AGREE THAT HERB PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD HERB PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
- YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE HERB SERVICES AND WEBSITE. YOU UNDERSTAND THAT HERB DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE HERB SERVICES AND WEBSITE.
12. LIMITATION OF LIABILITY
You expressly acknowledge, understand and agree that:
- HERB IS UNABLE TO GUARANTEE CONSISTENT, CONTINUOUS OR SECURE ACCESS TO ITS WEBSITES, APPLICATIONS, SERVICES, PROGRAMS, CONTENT AND NETWORK, AND OPERATION OF THE WEBSITES AND SERVICES MAY BE INTERFERED WITH OR DELAYED BY NUMEROUS POTENTIAL FACTORS OUTSIDE OF HERB’S CONTROL. YOU ACKNOWLEDGE, EXPRESSLY UNDERSTAND AND AGREE THAT HERB AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, LICENSEES, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF OPPORTUNITY, REPUTATION, PROFITS, GOODWILL, USE, VALUATION, TAX BENEFIT, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HERB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE WEBSITE AND/OR NETWORK; (2) THE COST TO PROCURE SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES, E-MAILS, REVIEWS, POSTINGS, COMMENTS OR OTHER COMMUNICATIONS RECEIVED, OR TRANSACTIONS ENTERED INTO VIA THE WEBSITES OR OTHER AFFILIATED OR RELATED WEBSITES OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITES; (5) THE FAILURE OF THE NETWORK OR WEBSITES TO TIMELY PROCESS AN OFFER; OR (6) ANY OTHER MATTER RELATING TO THE WEBSITES, ANY HERB AFFILIATED OR RELATED SERVICES, FEATURES OR APPLICATIONS, OR ANY OTHER HERB OWNED OR OPERATED ENTITY. FURTHER, HERB IS NOT A PARTY TO ANY SUCH TRANSACTIONS MADE BETWEEN LISTING CLIENTS AND USERS, AND HERB SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DEFAULTS, COSTS, INFORMATION, THE CONTENTS OF ANY DOCUMENTS, OR FOR ANY OTHER INTERACTIONS, BETWEEN OR AMONG USERS, INCLUDING USERS, LISTINGS, PHYSICIANS, AND ALL RELATED PARTIES, IN ANY WAY ASSOCIATED WITH THE WEBSITES OR SERVICES.
- REGARDLESS OF THE AFOREMENTIONED, IF HERB IS FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (1) THE AMOUNT OF FEES IN DISPUTE NOT TO EXCEED THE TOTAL FEES, WHICH YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY; OR (2) $100.
- SOME STATES, COUNTIES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR OTHER RELATED DAMAGES OR LOSSES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13. TERM AND TERMINATION
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Website and Services, unless terminated earlier in accordance with the Terms.
13.2 Prior Use.
Notwithstanding the foregoing, if you used the Website and Services prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Website and Services (whichever is earlier) and will remain in full force and effect while you use the Website and Services, unless earlier terminated in accordance with the Terms.
13.3 Additional Termination Rights.
Either party may terminate this Agreement or suspend its performance under this Agreement at any time upon notice to the other party if the other party breaches any material term hereof and fails to cure such breach in accordance with the following cure procedure. If a party wishes to terminate this Agreement due to the other party breaching a material term of this Agreement, then the nonbreaching party shall serve written notice on the other party specifying the breach and requiring it to be rectified. If the material breach has not been remedied within thirty (30) days of the original notice of default or such other period as may be agreed, then the notifying party will have the right to terminate this Agreement by a further written notice, with immediate effect. HERB may also decommission the Services and terminate at any time upon thirty (30) days’ notice.
13.4 Effect of Termination.
Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. HERB will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability./p>
13.5 No Subsequent Registration.
If your registration(s) with or ability to access the Website and Services, or any other HERB community is discontinued by HERB due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Website and Services or any HERB community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Website and Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, HERB reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
14. INTERNATIONAL USERS
The Website and Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that HERB intends to announce such Services or Content in your country. The Website and Services are controlled and offered by HERB from its facilities in the United States of America. HERB makes no representations that the Website and Services are appropriate or available for use in other locations. Those who access or use the Website and Services from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with HERB and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with HERB, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or HERB may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH HERB, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST HERB ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE HERB IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT
15.2 Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, HERB will pay them for you. In addition, HERB will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, HERB will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and HERB. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial.
YOU AND HERB HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and HERB are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 0 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in the Federal or state courts of Scottsdale, Arizona.
15.6 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address at Flora Media, Inc., 325 Front Street West, Floor 4, Toronto, Ontario M5V 2Y1, or email address at [email protected] within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your HERB username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with HERB.
Notwithstanding any provision in this Agreement to the contrary, we agree that if HERB makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to HERB.
16. GENERAL PROVISIONS
16.1 Electronic Communications.
By accessing or using the Websites or Services, you consent to receiving certain communications from us electronically. We will communicate with you in a variety of ways, including, without limitation, by e-mail, text, in-app push notices, or by posting notices and messages on the Websites or through any of the Services. By accessing or using the Websites or Services, you willingly and knowingly agree that all contracts, notices, disclosures, agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
16.2 Privacy Statement.
16.3 Choice Of Law; Venue; No Jury Trial.
The laws of the State of California, excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these Terms or any of the Websites or Services. All claims arising out of or relating to these Terms or any of the Websites or Services will be litigated exclusively in the federal or state courts of Los Angeles County, California, and you and HERB consent to personal jurisdiction in those courts.
16.4 Entire Agreement.
16.5 Reservation of Rights.
The failure of HERB to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of HERB. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
16.6 Third Party Beneficiary.
These Terms do not and are not intended to confer any rights or remedies upon any person other than you and HERB.
16.7 Support or Maintenance.
You acknowledge and agree that HERB will have no obligation to provide you with any support or maintenance in connection with the Websites or Services.
You hereby release and forever discharge HERB (and its owners, directors, managers, officers, partners, employees, independent contractors and agents and successors and assigns of itself or its affiliates) from, and hereby waive and relinquish your rights with respect to, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Websites or Services or Third Party Materials. If you are a California resident or resident of a state with a similar applicable law, you hereby waive California civil code section 1542 in connection with the foregoing (or such other similar applicable law in your state), which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
16.9 United States Export & Foreign Assets Control Regulations.
We do not represent that the materials in the Website or Services are appropriate or available for use in any particular location. Those who choose to access the Website or Services do so on their own initiative and are responsible for compliance with all applicable laws. You represent and warrant that You are not (a) located in or a national or resident of any country that is subject to U.S. trade sanctions, or (b) a person or entity on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or acting on behalf of any person or entity on such list.
If any of the conditions contained within these Terms shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining conditions set forth herein.
16.11 Contact Us.
For questions about the HERB Websites or any of the Services we provide, please feel free to contact our Customer Service department at [email protected]