In order to use certain features of the Platform, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate and you will provide any required proof of your identity which we may reasonably request from time to time; (b) you will maintain the accuracy of such information; (c) in using your Account, you will act in full and complete compliance with any and all laws of your state relating to the use of cannabis; and (d) you will only maintain one Account. You may delete your Account at any time, for any reason, by following the instructions on the Platform. Company may suspend or terminate your Account at any time in accordance with Section 17.
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Your Account is for your sole and personal use only and you may not provide authorization to any third-party or entity to use your Account, and you may not use your Account for the benefit of third-parties. When using your Account, you hereby agree to comply with those laws and regulations applicable to you in the city, state, country, or national jurisdiction in which you reside while accessing your Account. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Account Verification and Authentication.
You hereby agree that Company may verify the registration information associated with your Account and authenticate such information (including, if applicable, with any cannabis dispensary you choose to join or conduct transactions with through the Platform).
Access to the Platform
Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Platform solely for your own personal, noncommercial use.
When using the Platform on your mobile, laptop, desktop or other device (your “Device”), you acknowledge and agree that you are responsible for (i) maintaining Internet access for your Device through a Wi-Fi or LTE data communication network and (ii) any Internet connection and telecommunications fees and charges that you incur.
Company is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Platform, including, but not limited to screen display operation features of your Device.
Access to the Platform may be suspended temporarily and without notice (a) in the event of system failure, (b) for maintenance or repair, (c) where we reasonably suspect there has been a breach of these Terms, (d) for reasons reasonably beyond our control, or (e) as otherwise explained in these Terms.
Certain Restrictions and Acknowledgements.
The rights granted to you in these Terms are subject to the following restrictions and acknowledgements:
You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform, whether in whole or in part, or any content displayed on the Platform;
You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform;
You shall not access the Platform in order to build a similar or competitive website, product, or service;
Except as expressly stated herein, no part of the Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Platform shall be subject to these Terms. All copyright and other proprietary notices on the Platform (or on any content displayed on the Platform) must be retained on all copies thereof;
You will only use the Platform for lawful purposes; you will not use the Platform for sending or storing any unlawful material or for deceptive or fraudulent purposes;
You will not use the Platform to cause nuisance, annoyance or inconvenience;
You will use the Platform only for your personal use and you will not use the Platform, or any content accessible through the Platform, for any commercial purposes, including but not limited to contacting, advertising to, soliciting or selling to, any third-party businesses, nor to any consumers or other users of the Platform, or linking to or promoting any third-party websites, products, or services, unless Company has given you permission to do so in writing;
You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Sites except for your personal, noncommercial use;
You will not use the Platform in any way that could damage, disable, overburden or impair any Company server, or the networks connected to any Company server;
You will not attempt to gain unauthorized access to any part of the Platform and/or to any service, account, resource, computer system and/or network connected to any Company server;
You will not deep-link to the Platform or access the Platform manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy or monitor any portion of the Platform or any content on the Platform, unless Company has given you permission to do so in writing;
You will not conduct any systematic retrieval of data or other content from the Platform;
you will not try to harm other users or Company, or the Platform in any way whatsoever;
You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Platform;
You will not create multiple Accounts or otherwise manipulate the Platform to order cannabis products in excess of the legal limit; and
You will not abuse our promotional or credit code system by redeeming multiple coupons at once.
Company reserves the right, at any time, to modify, suspend, or discontinue the Platform (in whole or in part) or your Account, with or without notice to you. You agree that Company will not be liable to you or to any third-party for any modification, suspension, or discontinuation of the Platform, any part thereof or your Account.
No Support or Maintenance.
You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Platform.
Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Platform and its content are owned by Company or Company’s Partners or suppliers. Neither these Terms (nor your access to the Platform) transfers to you or any third-party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its Partners and suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. Without limiting the foregoing, you hereby agree that you will not: (a) reference or use the name, logos, service names or marks, trademarks, or copyrights, of Company, or of any of Company’s Partners or suppliers, alone or in combination with other letters, words and/or symbols, for any commercial purposes whatsoever; and (b) take any action that would impair, limit, or jeopardize any of our intellectual property rights or cause any confusion with respect to the marks, names and titles of any goods or services offered by Company or Company’s Partners or suppliers.
Payment and Delivery Terms.
You understand that: (i) the prices for items displayed through the Platform may differ from the prices offered or published by the businesses selling those products (even for the same items) and/or from prices available at other third-party websites, such prices may not be the lowest prices at which the items are sold, and that prices may include discounts, promotions or other price modifications at our sole discretion; (ii) Company has no obligation to itemize its costs, profits or margins when publishing such prices; and (iii) Company reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes, including without limitation state, local, sales, and other taxes, on your use of the Platform provided under these Terms (other than taxes based on Company’s income). Where applicable, payment will be processed by Company, using the preferred payment method designated in your Account. You acknowledge and agree that all sales made through the Platform, including on the Partner Sites, are made solely by Company (and not any of our Partners) as an e-commerce provider. However, sales made by Company on Partner Sites, are made on behalf of our Partners, and Company is not responsible for products or services purchased through Partner Sites. See Section 12.2 below for more information on your rights with respect to Partner Sites.
Company uses authorized third parties for the purpose of processing your transactions, including fraud prevention, vendor direct shipping, and credit card authorization. By submitting your payment card to us, or bank account information to your lending institution, you grant us the right to store and process your information with such third parties. You agree that Company will not be responsible for any failures of such third parties to adequately protect your information.
Charges paid by you for completed and delivered orders are final and non-refundable. Company has no obligation to provide refunds or credits, but may grant them, in each case in Company’s sole discretion. We do not warrant that any descriptions, images, or other information relating to items displayed via the Platform are entirely accurate, up-to-date, complete, or error-free.
Company, at its sole discretion, may make promotional offers with different features and different rates to any of our users, including without limitation referral codes (collectively “Promotional Offers”). These Promotional Offers, unless made to you directly, shall have no bearing whatsoever on your individual offers or transactions. Additionally, to the extent permitted by applicable law, Promotional Offers: (i) must be used only for their intended purpose, in accordance with any applicable rules and in a lawful manner; (ii) may not be transferred, replicated, sold, or combined unless authorized in writing by Company; (iii) may be valid only for certain items, or may expire after a certain period of time even if before actual use or redemption; (iv) may be changed, canceled, or retracted by Company at any time for any reason; (v) have no monetary value and are not valid for any cash or credit; and (vi) are void where prohibited by law. We encourage you to check back at the applicable Site periodically if you are interested in learning more about how we charge for the services available through the Platform.
Company may charge various fees as shown on the Platform during checkout in connection with the services available through the Platform, including without limitation, delivery fees, cancellation fees, compliance fees, and other fees. We may change any and all such fees, or add additional fees, as we deem necessary or appropriate for our business at any time.
You agree, represent and warrant that you will only access the Platform and order products through the Platform if you are 21 years of age or older, unless you have a valid medical marijuana license exception. You also agree that, upon delivery of any products, you will provide valid government-issued identification proving your age to the driver delivering the products and, if applicable a medical marijuana card. The recipient must not be intoxicated when receiving delivery of such products. Delivery drivers reserve the right to refuse delivery if you are not 21 years of older, if you cannot provide a valid government-issued ID, if the name on your ID does not match the name on your order, if the driver in his or her sole discretion believes the delivery to be unsafe or illegal for any reason, you are outside of the Delivery Area, or if you are visibly intoxicated. If the delivery driver is unable to complete the delivery of products for one or more of these reasons, you are subject to a non-refundable $20 re-stocking fee.
Mobile Messaging Terms and Conditions.
By accepting these Terms, you consent and agree to accept and receive communications from us and/or any associated Partner Site with which you interact to the contact addresses and/or phone numbers you provide to us in connection with your Account, including without limitation via automated emails, SMS text messages, cellular or telephone calls, and push notifications (if applicable). You understand and agree that if you request services through the Platform, we may share the information that you provide, including, but not limited to, your full name, birth date, address, email address, and telephone number, with our Partners so that they may respond to your request. If you wish to opt-out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself.
Definition. “Confidential Information”
means any and all information regarding our business, including, without limitation, financial information, production, innovation, sales and marketing plans and/or strategies, reports, data, all products, patents, trademarks, copyrights, trade secrets, processes, techniques, scientific information, marketing, and other information, whenever conceived, originated, discovered or developed by us, and whether or not in written or tangible form; provided, however, “Confidential Information” shall not include information: (a) that rightfully is or becomes generally available to the public on a non-confidential basis, including by means of a third-party, provided that any such third-party is not in breach of an obligation of confidentiality with respect to such information; (b) that was independently developed without reference or access to our Confidential Information and in a manner not otherwise in violation or breach of these Terms; (c) that was rightfully known to you prior to receipt from Company as documented by written evidence; or (d) becomes known to you from a third-party not in breach of an obligation of confidentiality with respect to such information. For the avoidance of doubt, all of our APIs, documentation, code, software, technologies, processes, data, and all other non-public information regarding the Platform is deemed to be Confidential Information of Company.
You hereby agree to take all reasonable precautions to protect the confidentiality of our Confidential Information and further agree not to disclose such Confidential Information to anyone except as strictly necessary for the purposes contemplated by these Terms. If you are required pursuant to a legal proceeding or other legal or regulatory requirement to disclose any of our Confidential Information, you will give us reasonable prior notice in order to contest or limit such disclosure, and if still required to disclose, only disclose what is legally required.
“User Content” means any and all information and content that a user submits to, or uses with, the Platform (e.g., content in the user’s profile, postings, or feedback). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third-party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 10.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy, or the rights of a third-party. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. To the extent that you are asked to rate and post reviews of other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by these Terms. Ratings and Reviews are not endorsed by Company and do not represent the views of Company or its affiliates. Company does not assume liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Sites, you agree that: (i) you will base any Rating or Review on first-hand experience with the business in question; (ii) you will not provide a Rating or Review for any business for which you have an ownership interest, employment relationship, or other affiliation or for any of that company’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free items, or other benefits from a business; and (iv) your review will comply with the terms of these Terms. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates these Terms for any reason in our sole discretion, we may exclude such Rating, Review, and any associated User Content without notice.
Non-Confidential and Non-Proprietary.
Acceptable Use Policy.
The following terms constitute our “Acceptable Use Policy”:
You agree not to use the Platform to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third-party, including without limitation advertising of illegal services or sales of any items which are contraband or otherwise illegal or restricted by the laws of your state of residence.
b. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Platform unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Platform to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Platform, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Platform (or to other computer systems or networks connected to or used together with the Platform), whether through password mining or any other means; (vi) harass, stalk, threaten any other user, or interfere with any other user’s use and enjoyment of the Platform; or (vi) use software or automated agents or scripts to produce multiple accounts on the Platform, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Platform (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or are acting or provide content that otherwise could create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 17, and/or reporting you to law enforcement authorities.
You agree to indemnify and hold Company (and its officers, employees, and agents) harmless from any and all losses, damages, expenses, costs (including attorneys’ fees), rights, claims, or actions of any kind including injury or death, due to or arising out of: (a) your use or misuse of the Platform or any products purchased through the Platform, (b) your violation of these Terms, (c) your violation of applicable laws or regulations whether or not specifically referenced in these Terms, including without limitation federal and state laws applicable to the distribution, transportation, cultivation, possession, and use of cannabis, (d) your User Content, and (e) your violation of any third-party rights including without limitation with respect to any Third-Party Integrations and Ads (defined below). Company 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. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Third-Party Integrations and Ads; Partner Sites; Other Users
Third-Party Integrations & Ads.
The Platform may contain links or other integrations with third-party websites and services, third-party providers, and/or display advertisements for third-party advertisers (collectively, “Third-Party Integrations & Ads”) which you agree to receive by accessing the Platform and which may allow you to communicate, enter into transactions for goods and services, or participate in certain promotional offers with such third-parties if you choose to do so. Such Third-Party Integrations & Ads are not under the control of Company, and Company is not responsible for any Third-Party Integrations & Ads. Company provides access to these Third-Party Integrations & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Integrations & Ads. Company is not a party to any transaction that you may enter through any Third-Party Integrations or Ads. You use all Third-Party Integrations & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you utilize any of the Third-Party Integrations & Ads, 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 Integrations & Ads. COMPANY WILL NOT EVALUATE THE QUALITY, SUITABILITY, LEGALITY OR CAPABILITIES OF THIRD-PARTY INTEGRATIONS & ADS WHICH YOU CHOOSE TO USE, EVEN IF INITIATED THROUGH THE PLATFORM, INCLUDING WITHOUT LIMITATION THIRD-PARTY PROVIDERS; AND THEREFORE, BY USING THE PLATFORM, YOU MAY BE EXPOSED TO THIRD-PARTY INTEGRATIONS & ADS WHICH ARE POTENTIALLY DANGEROUS, OFFENSIVE, OBJECTIONABLE, OR HARMFUL TO MINORS. YOU ACKNOWLEDGE THAT YOUR USE OF THIRD-PARTY INTEGRATIONS & ADS MAY INVOLVE THIRD-PARTY PROVIDERS THAT DO NOT HAVE PROFESSIONAL LICENSES OR PERMITS, THAT YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK, AND THAT FULL RESPONSIBILITY FOR ALL DECISIONS YOU MAKE (AND RESULTING IMPLICATIONS) REGARDING YOUR USE OF THE PLATFORM (OR THIRD-PARTY INTEGRATIONS & ADS) RESTS WITH YOU ALONE. COMPANY WILL NOT: (A) BE A PARTY TO ANY DISPUTES; (B) PARTICIPATE IN ANY NEGOTIATIONS; OR (C) MANAGE PAYMENTS, BETWEEN YOU AND ANY THIRD-PARTIES, EVEN IF INTRODUCED TO YOU THROUGH THE PLATFORM OR ANY THIRD-PARTY INTEGRATIONS & ADS.
Your use of the Platform through a Partner Site is governed by these Terms, but you understand and acknowledge that our Partners are independent, non-affiliated entities for whom we provide website hosting and e-commerce services only, and such Partners are not under the control of Company.
Company does not review, approve, warrant, recommend, evaluate the quality or suitability, endorse, or make any representations with respect to any Partner, or any Partner’s products or services. Company is not a party to any transaction that you may enter through any Partner Site or otherwise with any Partner (Company merely provides e-commerce services to our Partners), and you must direct any and all questions, complaints, and feedback regarding any such Partner products or services to the applicable Partner. You are responsible for abiding by any additional terms provided by our Partners and applicable law when purchasing products or services from our Partner Sites. You may not sell, distribute, or resell any products you purchase or otherwise receive from the Platform. You use all Partner Sites (including Partner products and services) at your own risk and should apply a suitable level of caution and discretion in doing so. COMPANY WILL NOT BE A PARTY TO ANY DISPUTES OR PARTICIPATE IN ANY NEGOTIATIONS ARISING FROM YOUR ENGAGEMENT WITH ANY OF OUR PARTNERS. COMPANY IS NOT LIABLE FOR ANY PRODUCTS OR SERVICES RECOMMENDED OR RECEIVED VIA PARTNER SITES OR OTHERWISE RECOMMENDED OR RECEIVED FROM PARTNERS.
Each Platform user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Platform users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Platform user, we are under no obligation to become involved.
All cannabis products, accessories and other products or services available on the Bento Sites (collectively, our “Company Products”), as noted above, can only be delivered in the Delivery Area. We cannot guarantee the availability of a particular Company Product at any particular time, and we reserve the right to change and/or cancel our merchandise offerings, without notice, at any time. We also reserve the right to change our prices, without notice, at any time. All Company Products sold by or received from Company may have quantity limitations in accordance with applicable law, and are intended to be used for personal purposes only. You may not sell, distribute, or resell any Company Products you purchase or otherwise receive from Company. Company reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or Company Products to be provided to you that may result in a violation of these Terms or applicable law, as determined by Company in its sole discretion. For other products or services sold through the Platform (i.e., Partner products and services), please see Section 12.2(b).
To the extent permitted by applicable law, you hereby release and forever discharge Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, 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 that relates directly or indirectly to, the Platform or any products purchased through the Platform (including any Company Products or, interactions with, or act or omission of, other Platform users, any Partner Sites, any Partners, or any Third-Party Integrations & Ads). FOR CLARITY, YOU EXPRESSLY WAIVE AND RELEASE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF OR RELIANCE ON THE PLATFORM, COMPANY PRODUCTS, PARTNER SITES, THE THIRD-PARTY INTEGRATIONS & ADS, OR IN ANY WAY RELATED TO PARTNERS AND THIRD-PARTIES INTRODUCED TO YOU BY THE PLATFORM. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING (INCLUDING SECTION 5.1), WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” IF YOU ARE A RESIDENT OF ANOTHER JURISDICTION, YOU WAIVE ANY COMPARABLE STATUTE OR DOCTRINE.
Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR PARTNER OR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST DATA, PERSONAL INJURY, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE PLATFORM OR COMPANY PRODUCTS, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY THIRD-PARTY INTEGRATIONS & ADS (OR ANY RELATIONSHIP OR TRANSACTION ARISING THEREFROM), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE PLATFORM AND/OR COMPANY PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY PERSONAL INJURY, DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM, OF THE GREATER OF: (I) THE PURCHASE PRICE OF COMPANY PRODUCTS GIVING RISE TO THE DISPUTE, OR (II) FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Term and Termination.
Subject to this Section, these Terms will remain in full force and effect while you use the Platform. We may suspend, discontinue, change, or terminate your rights to use the Platform (including your Account and any orders you may have placed) at any time for any reason at our sole discretion, including without limitation, for any use of the Platform in violation of these Terms or applicable law, as requested by one of our Partners, or for any reason beyond our control. Upon termination of your rights under these Terms, your Account and right to access and use the Platform will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 5, 9, 10, 11, 14 – 16, 18, 20, and 21.
Company respects the intellectual property of others and asks that users of our Platform do the same. In connection with our Platform, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Platform who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Platform, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
your physical or electronic signature;
identification of the copyrighted work(s) that you claim to have been infringed;
identification of the material on our services that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and email address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement. The designated Copyright Agent for Company may be reached at firstname.lastname@example.org.
Notice for California Residents Pursuant to CA Civil Code Section 1789.3
Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at 916-445-1254 or 800-952-5210.
Limitation of Claims; Dispute Resolution. Please read this Section carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER AND A LIMITATION ON CLAIMS. SUBJECT TO ALL OTHER PROVISIONS OF THIS SECTION, YOU HEREBY AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION AGAINST COMPANY ARISING OUT OF OR RELATED TO YOUR USE OF THE PLATFORM, COMPANY PRODUCTS, OR THESE TERMS MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR BE FOREVER BARRED.
Governing Law; Jurisdiction.
These Terms are governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Company agree that, except as otherwise provided below, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all Disputes arising out of or related to these Terms or your use of the Platform and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Company shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
You and Company agree that, except as provided in Section (13.6) below, all Disputes, (each a “claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 20 (Dispute Resolution) and the JAMS Rules, the terms in this Section will control and prevail. Except as otherwise set forth in Section 20.6 below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Company will have the opportunity for discovery of non-privileged information that is relevant to the claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator, and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
The arbitration will take place in San Francisco, California unless the parties agree to video, phone or internet connection appearances.
You and Company agree that any arbitration shall be limited to the claim between Company and you individually. YOU AND COMPANY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration.
You and Company agree that the following claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Excluded Dispute, (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use, or violation of the Computer Fraud and Abuse Act, (c) defamation, or (d) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
If you initiate arbitration for a claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the Dispute be resolved by a judge.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.
You and Company agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 20.6), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 20.6 is found to be illegal or unenforceable then neither you nor Company will elect to arbitrate any claim falling within that portion of Section 20.6 found to be illegal or unenforceable and such claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, California, and you and Company agree to submit to the personal jurisdiction of that court.
Right to Waive.
Any or all of the rights and limitations set forth in this Section 20 may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Section 20.
Survival of Agreement.
This Section 20 will survive the termination of your relationship with Company.
Small Claims Court.
Notwithstanding the foregoing, either you or Company may bring an individual action in small claims court.
Emergency Equitable Relief.
Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 20.
In any circumstances where the foregoing Section 20 permits the parties to litigate in court, or in the event the foregoing Section 20 is found under the law to be invalid or unenforceable so as not to require the parties to engage in arbitration, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California.
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes on our Platform. You are responsible for providing us with your most current email address. In the event that the last email address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the effective date indicated above. Continued use of our Platform 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.
The Platform may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations. Furthermore, by using the Platform you represent and warrant that: (a) you are not located in a country that is subject to any U.S. Government embargo or has been designated by the U.S. Government as supporting terrorism; and (b) that you are not listed on any U.S. Government list of prohibited or restricted parties.
Notice; Electronic Communications.
The communications between you and Company use electronic means, whether you use the Platform or send us emails, or whether Company posts notices on the Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. You may also withdraw your consent to receive electronic communications, however, in such event we reserve the right to immediately terminate your Account.
Governing Law; Entire Terms.
These Terms and your relationship with Company shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California, without regard to its conflict of laws’ provisions. These Terms constitute the entire agreement between you and us regarding the use of the Platform. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
Please contact us directly with any comments, questions, or complaints you may have about our services, the Platform, or these Terms: Address: 255 W. Julian St. Suite 400, San Jose, CA 95125 Email: email@example.com