DISCLAIMERS & ACKNOWLEDGMENTS
ACKNOWLEDGMENT OF FEDERAL LAW
You expressly acknowledge that the Company’s Services are for residents with laws regulating medical or the recreational use of cannabis only and that medical cannabis collectives and patients are established pursuant to their respective State’s laws. Marijuana is included on Schedule 1 of the Controlled Substances Act. Under the federal laws of the United States of America, manufacturing, distributing, dispensing or possession of marijuana is illegal, and individuals are subject to arrest and/or prosecution for doing so. You further acknowledge that medical use is not recognized as a valid defense under federal laws regarding marijuana. You also acknowledge that the interstate transportation of marijuana is a federal offense.
ACKNOWLEDGMENT OF CALIFORNIA LAW
You expressly acknowledge that the use, possession, cultivation, transportation and distribution of cannabis is illegal in California unless all participants are acting completely within the scope of California’s medical and adult-use cannabis laws, including, but not limited to the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”), and any amendments thereto.
ACKNOWLEDGMENT OF THE LAWS OF USER’S STATE OF RESIDENCY
The Company has its principal place of business is California. Even though the Site and the Company’s Services may be accessed outside of California, the Services are currently available only to users located in California. In all events, you must abide by and follow the laws of the state in which you are a resident. You expressly acknowledge and assume full responsibility for cooperating with the laws of the state of your residency.
WARNING: Products sold by the Company containing marijuana contain chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm. You hereby acknowledge that the Company has warned you of such potential harm and that you are aware of such potential harm.
WARRANTY OF Compliance with California Law
Presently, the Company’s Sites and/or Services are directed to California residents only. If you are not a California resident with a valid medical marijuana identification card or doctor’s prescription, then you cannot register for the Site and/or the Services. Accordingly, you hereby warrant that you (1) are a California resident that holds a valid medical marijuana identification card or a doctor’s prescriptions; and (2) comply with California’s Compassionate Care Use Act of 1996 (“CUA”), codified as Health & Safety Code, § 11362.5 (as well all other County and local state laws related thereto).
As used in these Terms of Service (hereinafter, the “Terms”), the terms “the Company”, “us”, “we” or “our” shall mean our Company d/b/a CanEx, and any of its affiliated entities which own the Sites or provide the Services that you may be accessing or using. These Terms govern your access to and use of the Company’s (a) websites, portals, mobile applications, channels and software that link to or otherwise reference these Terms, including cannabisexpress.com and canex.com, and (b) social media pages and channels (collectively, the “Sites”), 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 Company, on the one hand, and you and your successors, heirs and assigns (and, if applicable, the corporate entity that you represent, together with its successors and assigns) (collectively referred to herein as “you” or “your”), on the other hand. By accessing or using any of the Sites, 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 Sites or Services or create an account or user profile.
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 Sites. 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 Sites. 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 Sites shall constitute effective notice of the changes described therein. Continued use of any of the Sites 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 Sites 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 Sites and Services (as applicable, the “Additional Terms”). The Additional Terms will be posted (via a link) on the applicable Site 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 Site or Service, the applicable Additional Terms shall govern and take precedence over these Terms with respect to your use of or access to that Site or Service.
The information available on or through use of the Sites and Services, including but not limited to data, text, articles, content, software, images, graphics, photographs, audio and video clips, links and references and other materials (collectively, “Information”) is provided for informational purposes only. Information is not intended to be a substitute for professional medical advice, diagnosis, cure or treatment. The Company does not recommend or endorse any specific physicians, products, tests, procedures, opinions or other information that may be mentioned on the Sites and/or the Services.
You should always seek the advice of a qualified medical professional with any questions you may have regarding your condition. Do not disregard professional medical advice or delay in seeking it because of Information on the Sites and/or the Services. Reliance on any Information is solely at your own risk.
The Sites and Services are intended solely and only available to individuals who are at least twenty-one (21) years of age, who can willingly and knowingly enter into legally binding contracts under applicable law. Please note that certain of the Sites and Services require you to be at least twenty-one (21) years of age to access and use such Sites and Services. Please check the applicable Additional Terms for such Sites and Services for further information. Without limiting the foregoing, the Sites and Services are not available to minors or suspended members or users. Further, your account and user ID for any of the Sites or Services may not be transferred or sold to another party. 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.
By accessing or using the Sites 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 Sites or through any of the Services. By accessing or using the Sites 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.
Using The Services
5.1 User Registration and Accounts
In order to access or use some of the Sites or Services, you must first register and create an individual profile for yourself or a business for such Site or Service (each a “User Profile”).
By creating a User Profile, you agree that:
(1) 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 (d) is offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion;
(2) 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. If you provide any information that is untrue, inaccurate, outdated or incomplete, the Company may suspend or terminate your account and refuse you any and all current or future access to or use of the Sites and Services (or any portion thereof). If you fail to update your information in a timely manner, then the Company has reasonable grounds to suspect that such information is untrue, inaccurate, outdated or incomplete, which will allow the Company to suspend or terminate your account, and refuse you any and all current or future access or use of the Sites and Services (or any portion thereof).
(3) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity;
(4) 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 Sites or Services using your name, username, or password;
(5) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security;
(6) You will not post libelous content or create false or misleading reviews or posts; and
(7) You will not sell, transfer, or assign your account or any account rights.
The Company is not liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
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 Sites and Services, at our sole discretion and without advance notice or liability.
Your User Profile cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, fundraising, contests or other promotions absent our prior written consent. 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. The Company assumes no responsibility or liability for any issues, problems or Content on your User Profile.
User Profiles may only be set up by an authorized representative of the individual or business that is the subject of the User Profile. The Company does not review each User Profile to determine if they were created by an appropriate party. In addition, The Company 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 Sites is unauthorized, fake, fraudulent or otherwise improper or misleading, please send an email to firstname.lastname@example.org.
5.2 User 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 Sites 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 Sites or Services, including any electronic data or information with respect to their customers, (d) “Company Content” means Content that we create or otherwise owned by us and make available in connection with the Sites or Services, (e) “Third Party Content” means Content that originates from parties other than The Company or users of any of the Sites or Services, which is made available in connection with the Sites 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 Sites or Services, including Your Content, User Content, Third Party Content (and Third Party Material (as defined below)), and Company Content.
By submitting User Content, you agree:
(1) That you own, or have the necessary licenses, rights, consents and/or permissions to all patent, trademark, trade secret, copyright or other intellectual property or proprietary rights to your User Content, and to any other works that you incorporate into your User Content;
(2) That you are responsible for anything you submit to the Sites or Services and agree that the Company does not have to post or keep posted anything you provide. Once posted on the Sites or on the Internet, it is not always possible to remove, especially if multiple copies exist. When User Content is uploaded to the Sites or Services, or posted on any social media platforms with a tag or reference to the Company, you give the Company complete permission to make it available in multiple forms, including, without limitation, on any of our social media accounts, email newsletters or any digital or print promotional materials. If any of your User Content is acquired and used by a third party in a way that violates these Terms or any Additional Terms, you agree that the Company can take legal action against the third party and that the Company shall not be obligated to distribute any recovered sums to you that may be obtained in connection with such legal proceedings;
(3) That, and represent and warrant that, submission of your User Content will not cause injury to any other person or entity using the Sites, Services, or otherwise, and the Company is under no obligation to post any User Content that you provide, and reserves the right to post our own versions of your User Content as Company Content in our sole discretion;
(4) To fully assign the Company the right to pursue enforcement of copyright, trademark, trade secret and other intellectual property related claims against third parties that have, without receiving proper authorization, and in violation of these Terms or any Additional Terms, scraped, manipulated, copied, derived, distributed or otherwise improperly or illegally used and benefited from User Content that has been provided to the Company by you;
(5) That you have the written consent, release, and/or express permission of each and every identifiable person in your User Content to use such person’s name and/or likeness in your User Content for any use permitted by these Terms;
(6) That you will not post, transmit, broadcast or otherwise make available any User Content that is unlawful, misleading, harmful, bigoted, offensive, profane, insensitive, obscene, tortious, libelous, pornographic, threatening, abusive, harassing, tortious, defamatory, vulgar, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable (hereinafter, “Offensive Content”);
(7) That you are at least of legal age, being no less than eighteen (18) years old (or twenty-one (21) years old, as applicable), and you acknowledge that persons under legal age may not submit User Content to the Company, the Sites or the Services; and
(8) That the Company may, in its sole discretion, monitor the User Content you submit and any other communications that you may have, but is under no obligation to do so.
By submitting User Content, you acknowledge that you may expose yourself to liability if, for example, you User Content contains material that is false, intentionally misleading or defamatory; 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; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
5.3 License to User and Third Party Content/Data
As between you and the Company, you retain ownership of the User Content that you post, submit, provide or otherwise make available on or through the Sites or Services. However, by submitting your User Content, you hereby grant the Company and all Sites and Services, the following worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable and transferable rights and licenses:
(1) To host, cache, store, archive, index, crawl, create algorithms based on, modify or transcode your User Content to media formats, standards or mediums in any and all forms and by whatever means whether now known or hereinafter devised or created, and to exploit any and all allied, ancillary and subsidiary rights relating thereto and derived therefrom;
(2) To use, license, sell, digitize, stream, store, distribute, exhibit, reproduce, commercialize, publicize, display, modify, adapt, edit, excerpt, communicate, translate, analyze, remove, prepare derivative works and compilations of, compress, transmit, integrate, insert, market and promote your User Content in any and all forms and media and by whatever means whether now known or hereafter devised or created, and to exploit any and all allied, ancillary and subsidiary rights relating thereto and derived therefrom;
(3) To use your User Content, in whole or in part, for advertising, promotional or commercial purposes, including without limitation, the right to publicly display, reproduce and distribute your User Content in any and all forms and media and by whatever means whether now known or hereinafter devised or created, and to exploit any and all allied, ancillary and subsidiary rights relating thereto and derived therefrom; and
(4) To grant any rights or licenses to any third parties to do any of the foregoing in the above clauses (1) – (3) in connection with their own websites and media platforms.
You irrevocably waive, and cause to be waived, against the Company and its users, any claims and assertions of moral rights or attribution with respect to your User Content.
The Company does not guarantee the accuracy, integrity, quality, or authenticity of any User Content. You understand that by using the Sites and Services, you may be exposed to a small portion of Offensive Content that may be unpleasant, indecent or objectionable to some viewers. Under no circumstances will the Company be liable in any way for any such Offensive Content, including, but not limited to, any errors or omissions in any Offensive Content, or any loss or damage of any kind incurred as a result of any Offensive Content uploaded, posted, transmitted, broadcast, transferred or otherwise made available via the Company, the Sites, Services or any related process or venue.
You hereby grant the Company 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 the Company or for any purpose relating to the Sites or Services, including in connection with displaying any data, images or information on the Sites. 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 the Company shall be owned exclusively by us.
The Company may also provide users with the ability to login to the Sites or Services with your login credentials from certain social networking websites (e.g., Facebook, LinkedIn). 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.
Third Party Materials
The Sites 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 the Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. The Company 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 Sites 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. The Company displays these Offers on the Sites 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 Sites or Services. The Offeror, and not the Company, 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.
Indemnity and Release
You agree to indemnify and hold the Company (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 Sites or Services, (ii) your User Content, (iii) your violation of these Terms or any Additional Terms; or (iv) your violation of applicable laws or regulations. The 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 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 the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
You hereby release and forever discharge the Company (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 Sites 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.”
Ownership; Proprietary Rights
As between you and the Company, you own Your Content. We own the Company 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 Sites 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 Company Content, the Sites and the Services, which are protected by copyright, trade secret, patent, trademark laws and all other applicable intellectual property and proprietary rights and laws. As such, you may not use, modify, duplicate, obscure, rent, lease, loan, sell, manipulate, reproduce, copy, republish, download, post, transmit, scrape, reverse engineer, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Company Content, Sites or the Services or any of the IP Rights of the Company, in whole or in part, unless expressly authorized by us in writing. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Sites and the Company Content are retained by us.
It is the Company’s policy, in appropriate circumstances and at its discretion, to disable, eliminate access to and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights of others.
In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which can be found on the U.S. Copyright Office website, The Company will respond appropriately to claims and reports of copyright infringement taking place on or through the Sites.
If you are a copyright owner, an authorized representative of a copyright owner, or an authorized representative permitted to act under an exclusive right per an applicable copyright, please report alleged copyright infringements taking place on or through the Sites by completing the following DMCA Notice of Alleged Infringement and delivering it to the Company in accordance with the DMCA and these Terms. Upon receipt of a properly completed and delivered DMCA Notice of Alleged Infringement, the Company will take whatever action it deems appropriate in its sole discretion, but subject to its obligations under the DMCA, including removal of the challenged material from the Sites.
Any DMCA Notice of Alleged Infringement (“Notice”) delivered to the Company must:
(1) Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – provide a comprehensive list of the copyrighted works that you claim have been infringed.
(2) Identify the material that you claim is infringing (i.e. the material you want removed, or material that you want all access disabled to) and provide information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Sites where such material may be found.
(3) Provide your mailing address, telephone number, and, if available, email address.
(4) Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent or the law.”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
(5) Provide your full legal name and your electronic or physical signature.
The Notice, with all above items completed, must be delivered to the Company at the following address: CanEx Legal Department email@example.com.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a Notice automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the Notice and allegation of copyright infringement.
Subject to your compliance with these Terms and the applicable Additional Terms, the Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and make personal and non-commercial use of the Sites and Services. This license does not include (i) any resale or commercial use of the Sites or Services, or their contents; (ii) any collection, scraping, downloading, reproducing, distributing, copying or use of any product or the Company client listings, descriptions, prices, or any other Website Content; (iii) any derivative use of any of the Sites or Services or Website Content; or (iv) any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms or any Additional Terms are reserved and retained by the Company. You may not use any meta-tags or any other “hidden text” utilizing the Company’s name or trademarks or other IP Rights without the express written consent of the Company. The licenses granted by the Company shall immediately terminate should you fail to comply with these Terms or any Additional Terms.
Subject to these Terms, the Company grants you a non-transferable, non-exclusive, license to install and use the software the Company makes available for mobile devices (“Mobile App”), in executable object code format only, solely on your own handheld mobile device and for your personal, non-commercial use. You acknowledge and agree that the availability of the Mobile App is dependent on the third party app platform from which you received the Mobile App (“App Platform”). You acknowledge that these Terms concern you and the Company, and not the App Platform. The Company, not the App Platform, is solely responsible for 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). Each App Platform may have Additional Terms to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable agreements, terms and conditions of use/service, and other policies of the applicable App Platform.
The Sites and Services contain links to third-party websites or resources. You acknowledge and agree that the Company is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Company of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
Some portions of the Sites implement third party technologies and services. Your use of these technologies and services is subject to the copyright and license policy for technologies and services.
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 Sites or Services. In connection with your access or use of any of the Sites or Services, you may not and will not:
(1) upload, post, transmit, broadcast or otherwise make available any Offensive Content, including any User Content that is unlawful, libelous, defamatory or otherwise objectionable;
(2) breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
(3) review the information and data on our Sites, and/or utilize our Services if you are not able to form legally binding contracts (for example, if you are under the age of 18), or are temporarily or indefinitely suspended from using our Sites or Services;
(4) upload, post, transmit, broadcast, sell, transfer or otherwise make available any User or Website Content that is inauthentic, counterfeit, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(5) register for more than one User Profile on any of the Sites, or register for a User Profile on behalf of an individual other than yourself, or a company that you are not authorized to represent or legally bind to a contract;
(6) manipulate the price of any item or interfere with any other user’s listings, reviews, and products;
(7) take any action that may undermine the feedback or ratings systems of the Sites or Services;
(8) transfer your User Profile to another individual or entity without our prior written consent;
(9) distribute, promote, advertise, or post spam, unsolicited or bulk electronic communications, chain letters, pyramid schemes or any related content;
(10) interfere with or disrupt any Site processes, servers or networks supporting the Sites and/or the Company;
(11) impair or harm any of our computer or related systems or transmit software viruses, worms, or other damaging files;
(12) use any robot, spider, scraper, survey, monitor or other automated or similar means to access any web page or other asset contained in the Sites, Services or Website Content for any purpose;
(13) bypass our robot exclusion headers, interfere with the working of our Services, features or tools, or impose an unreasonable or disproportionately large load on our infrastructure;
(14) export or re-export any of the Company’s applications or tools except in compliance with the export control laws of any relevant jurisdictions and in accordance with all relevant posted rules and restrictions;
(15) insult, threaten, stalk, harass, mislead or deceive other users of the Sites or Services, or in any way promote the discrimination or defamation of other users, or create any other objectionable material;
(16) intentionally or unintentionally violate any applicable local, state, national or international law, rule or ordinance, including, but not limited to, regulations promulgated by the U.S. Copyright Office, U.S. Patent and Trademark Office, U.S. Securities and Exchange Commission, the Internal Revenue Service, the European Enforcement Directive of 2004, or any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any other regulations and/or guidelines having the force of law;
(17) 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;
(18) refuse to acknowledge that the Company may establish general practices and limitations concerning use of the Sites and Services, including without limitation restrictions concerning User Content provided by you for use on the Sites and Services, the type and quantity of transactional data stored and presented in connection with your account, the maximum disk space that will be allotted on the Company’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Sites and Services in any given period of time;
(19) export any Website Content out of the jurisdiction in which it is intended or displayed;
(20) access the Sites or Services in order to build a similar or competitive Site or Service;
(21) 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;
(22) circumvent any technical measures we use to provide Services; or
(23) assist any third party with any of the foregoing.
You fully understand, acknowledge and agree that the Company may, under certain circumstances and without prior notice, immediately terminate your User Profile and access to the Sites, Services and any other related or affiliated applications, functions and tools. Cause for account termination or suspension shall include, but not be limited to: (1) breaches or violations of these Terms or other incorporated agreements, guidelines, or rules; (2) requests by law enforcement or other local, state or federal government agencies or divisions; (3) any attempts to breach our security, private accounts or other protected content on the Sites; (4) discontinuance or significant modification to the Sites or Services, or any related or affiliated website owned and/or operated by the Company (or any part thereof); (5) unforeseen technical, electronic, mechanical or any other difficulties or security issues; (6) prolonged inactivity of your account, which shall be determined by the Company; (7) knowing, willing and/or negligent engagement by you in any form of deceitful, fraudulent, counterfeit or illegal activities; and/or (8) failure by you, or by your representatives, to pay, in full, any fees owed by you in connection with the Sites or any related or affiliated Service, business or website. Termination of a User Profile will deny you access to our Services, delay or remove User Content that you submitted or commented on, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts or special offers, and take technical and/or legal steps to prevent you from using our Sites and Services in the future. The Company has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
An important part of the Company 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. The Company retains the right to remove any content posted on or submitted through any of its Sites 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 Site or Service regarding reviews, comments, feedbacks and other User Content (the “Review Policies”). Please note, the Review Policies of each Site or Service may differ. Please consult the relevant Site or Service to learn about its applicable Review Policy.
Please note, the Company is under no obligation to enforce these Terms or any of the Review Policies on your behalf against another user. While the Company 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.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT:
YOUR ACCESS TO AND USE OF THE SITES AND SERVICES IS AT YOUR OWN RISK. THE SITES AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY 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 ACTUAL WARRANTY OF ANY KIND.
THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, OWNERS, EMPLOYEES, CONTRACTORS, CONSULTANTS AND AGENTS MAKE NO GUARANTEE OR WARRANTY THAT (1) THE SITES AND SERVICES WILL SATISFY YOUR NEEDS AND REQUIREMENTS OR WILL BE COMPATIBLE WITH YOUR EQUIPMENT; (2) THE SITES AND SERVICES, AND ALL AFFILIATED SITES, 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 SITES 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 SITES 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 SITES 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 THE COMPANY OR FROM THE SITES, SERVICES OR RELEVANT SOCIAL MEDIA PAGES SHALL CREATE ANY WARRANTY, GUARANTEE OR STRATEGY NOT EXPRESSLY STATED IN THESE TERMS.
VETTING BY THE COMPANY OF EACH AND EVERY DOCUMENT, PHOTOGRAPH, VIDEO, REVIEW, RELATED MEDIA, POSTING OR OTHER COMMUNICATION, IN ADDITION TO ANY OTHER CONTENT POSTED VIA THE SITES OR SERVICES, MAY NOT BE POSSIBLE OR REALISTICALLY PRACTICEABLE. AS A RESULT, THE COMPANY CANNOT AND DOES NOT CONTROL ANY LISTING REVIEWS, COMMENTS, PHOTOGRAPHS, OPINIONS, POSTINGS OR OTHER CONTENT OR MATERIAL POSTED VIA THE SITES 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 SITES OR SERVICES.
Limitation Of Liability
THE COMPANY IS UNABLE TO GUARANTEE CONSISTENT, CONTINUOUS OR SECURE ACCESS TO ITS SITES, APPLICATIONS, SERVICES, PROGRAMS, CONTENT AND NETWORK, AND OPERATION OF THE SITES AND SERVICES MAY BE INTERFERED WITH OR DELAYED BY NUMEROUS POTENTIAL FACTORS OUTSIDE OF THE COMPANY’S CONTROL. YOU ACKNOWLEDGE, EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY 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 THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SITES, SERVICES 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 SITES OR OTHER AFFILIATED OR RELATED SITES OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITES; (5) THE FAILURE OF THE COMPANY OR SITES TO TIMELY PROCESS AN OFFER; OR (6) ANY OTHER MATTER RELATING TO THE SITES, ANY AFFILIATED OR RELATED COMPANY SERVICES, FEATURES OR APPLICATIONS, OR ANY OTHER ENTITY OWNED OR OPERATED BY THE COMPANY. FURTHER, THE COMPANY IS NOT A PARTY TO ANY SUCH TRANSACTIONS MADE BETWEEN USERS, AND THE COMPANY 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 SITES OR SERVICES.
REGARDLESS OF THE AFOREMENTIONED, IF THE COMPANY IS FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (1) 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.
You and the Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or the use of the Sites and/or Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or a class member in any purported class action consolidated action or representative proceeding. You may only resolve disputes with the Company on an individual basis. Class arbitrations, class actions or private attorney general actions are not allowed. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration here and a separate form for California residents at this page. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and the Company otherwise agree, the arbitration will be conducted in San Francisco, California by one arbitrator. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes. Notwithstanding the provisions of the modification-related provisions above, if Company changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending us a notice to firstname.lastname@example.org with “Legal” in the subject line within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to this Agreement).
Venue for Other Types of Disputes. In the event that arbitration provisions of these Terms are found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) to enforce these Terms, or that otherwise relate to the parties’ obligations under these Terms, shall be submitted to the exclusive jurisdiction of any state or federal court sitting in San Francisco, California. Both you and the Company consent to venue and personal jurisdiction in such forum.
Confidentiality. The arbitration proceeding will be confidential. The existence of any matter submitted to arbitration, and the award, will be kept in confidence by you, the Company, and the arbitrator, except as required in connection with the enforcement of such award or as otherwise required by applicable law.
Choice Of Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without regard to the conflict of law provisions thereof.
Reservation of Rights
The failure of the Company 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 the Company. 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.
Third Party Beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than you and the Company.
Support or Maintenance
You acknowledge and agree that the Company will have no obligation to provide you with any support or maintenance in connection with the Sites or Services.
United States Export & Foreign Assets Control Regulations
We do not represent that the materials in the Sites or Services are appropriate or available for use in any particular location. Those who choose to access the Sites 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.
No Right Of Survivorship And Non-Transferability
You agree that your User Account is non-transferable and any rights to your User Account or contents within your accounts terminate upon your death.
Neither the Company nor any of its owners, directors, managers, officers, partners, employees, independent contractors and agents, or any of their respective successors and assigns, are or will be liable for any losses caused directly or indirectly as a result of causes or events beyond the control of the Company, including natural disasters, acts of God, war, terrorism actions, DNNEC attacks, or decrees of governmental bodies, exchange of market rulings, failure of the Internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”).
The Company may, in its sole discretion, seek your consent to these Terms and certain other agreements on the Sites and/or the Services by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Terms, affirmatively “click” on boxes containing the words, “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms or accessing the Sites and/or the Services after you have had an opportunity to review these Terms, you acknowledge and agree: (i) that you (or, as applicable, the patient or primary care giver on whose behind you access the Sites and/or Services) intend to form a legally binding contract between you and the Company; (ii) that you have read and agree to the terms and conditions of these Terms; (iii) that you agree and intend that these Terms to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to these Terms, you acknowledge that you have received a copy of these Terms by your viewing a web page containing a hyperlink to the web page where these Terms are displayed or otherwise; and (v) that if you are executing these Terms on behalf of others, you hereby certify that you are an authorized representative authorized by law.
The section titles in these Terms are for convenience only and have no legal or contractual effect.
For questions about the Sites or any of the Services we provide, please feel free to contact our Customer Service department at email@example.com or call 415-854-8763 to speak to a representative.