Herb Terms of Service
Last Updated: June 3, 2019
Welcome to Herb, the premier technology platform connecting independent, licensed cannabis retailers (“Retailers”) with verified consumers (“Consumers”). This Terms of Service Agreement (“Agreement”) describes the terms and conditions that govern your use of Herb and its associated services, and constitutes a legal, binding agreement between you, Herb Services, Inc., and its subsidiaries and affiliates, including Herb Elements, LLC. (“Herb Elements”) (collectively, “Herb”).
THE DISPUTE RESOLUTION SECTION OF THIS AGREEMENT CONTAINS A MUTUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRES YOU AND Herb TO RESOLVE DISPUTES WITH EACH OTHER ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. PLEASE REVIEW THE DISPUTE RESOLUTION SECTION OF THIS AGREEMENT CAREFULLY. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Acceptance Of This Agreement
By using, accessing, or downloading the Herb Platform (defined below under the section entitled “The Herb Platform”), you hereby expressly acknowledge and agree to be bound by all of the terms and conditions of this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use the Herb Platform.
Amendments To This Agreement
Herb may, in its sole discretion, modify or update this Agreement, or any policies relating to the Herb Platform, from time to time. Please review this page periodically to ensure you are up-to-date with any changes. Any changes to this Agreement or associated policies will be published through the Herb Platform, and are effective upon the publishing of said modification or update. If we make material changes to this Agreement, we will notify you via the email address associated with your Account or by posting a notice on the Herb Platform. Continued use of the Herb Platform after any such changes shall constitute your acceptance of such changes.
For the purposes of this Agreement, the terms “cannabis” and “marijuana” are interchangeable, will be deemed under this Agreement to have the same legal meaning and significance, and do not encompass industrial hemp and products derived therefrom. “Industrial hemp” is defined by the Agriculture Improvement Act of 2018 as any part of the Cannabis sativa L. plant that contains less than 0.3 percent delta-9 tetrahydrocannabinol on a dry weight basis.
THE HERB PLATFORM
Your use of the “Herb Platform” consists of the Application and the Service. You may access services Herb provides through the Herb website located at herb.services, Driver mobile applications for iOS and Android mobile operating systems (the “Driver App”), Consumer mobile applications for iOS and Android, and any other websites, applications, programs, or tools provided, owned, or operated by Herb (collectively, the “Application”). Use of the Application may include ordering and receiving medical or adult-use cannabis and cannabis accessories via on-demand delivery from licensed Retailers (“Delivery Services”), ordering and receiving industrial hemp-derived products and accessories via shipping, providing Delivery Services as an employee or independent contractor of a licensed Retailer (“Driver”), or any other services provided or facilitated by Herb including, without limitation, lead generation, logistical support, and customer engagement (collectively, the “Service”). Together, the Service and the Application are known as the Herb Platform.
DISCLAIMERS & ACKNOWLEDGMENTS
Herb Is A Technology Platform
You expressly agree and acknowledge that Herb (i) is a technology services provider; (ii) is not a licensed medical or adult-use cannabis Retailer, Brand (defined below in “Third-Party Providers”), or cultivator; (iii) does not itself provide Delivery Services to Consumers; (iv) does not employ or contract Drivers who provide Delivery Services; and (v) does not cultivate, manufacture, package, label, test, or sell medical or adult-use cannabis. It is the sole responsibility of the Retailer to offer its services to you in a legal and compliant manner, which are facilitated through its use of the Herb Platform. Herb has no responsibility or liability for any Delivery Services provided to you by Retailers or their Drivers, or provided by you as a Driver to Consumers.
Acknowledgment of Federal Law
Herb operates under applicable state laws. You expressly acknowledge and understand that marijuana (cannabis) is listed on Schedule I of the United States 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. Pursuant to the Agricultural Improvement Act of 2018, industrial hemp is not listed on Schedule 1 of the Controlled Substances Act. You further acknowledge that medical use is not recognized as a valid defense under federal laws regarding marijuana. You also acknowledge and understand that the interstate transportation of marijuana is a federal offense.
Acknowledgment of State Law
You expressly acknowledge, agree, and understand that the use, possession, cultivation, manufacturing, transportation, and distribution of cannabis is illegal in your state of residence and in the state you are located unless all participants are acting completely within the scope of the state’s applicable laws.
Acknowledgment of the Laws of Your Location
While the Application or parts of the Herb Platform may be accessed from various locations, the Service is currently available only to Users and Retailers located in certain states, cities, counties, municipalities, and jurisdictions, determined at the sole discretion of Herb (“Service Area”). In all scenarios, you must abide by and follow the applicable laws of the state, city, county, municipality, or jurisdiction in which you are located in order to use the Herb Platform. You expressly acknowledge, agree, understand, and assume full responsibility for cooperating with the laws of your place of location while using the Herb Platform. Herb reserves the right to determine or change its Service Area in its sole discretion at any time.
You expressly acknowledge, agree, and understand that any statements relating to cannabis goods, accessories or any other products available on the Herb Platform (“Products”) have not been evaluated by the FDA. Neither the Products nor the ingredients in any of the Products have been approved or endorsed by the FDA or any regulatory agency. The Products available on the Herb Platform are not intended to diagnose, treat, cure, mitigate, or prevent any medical condition, illness, or disease in humans or animals. The information provided is designed for educational purposes only and is not intended to be a substitute for informed medical advice or care. If you are pregnant, nursing, taking medication, or have a medical condition, we suggest consulting with a physician before using any Products.
USING THE HERB PLATFORM
Your User Account
You agree to maintain accurate, complete, and up-to-date information in your Account and that we and others may rely on your information as accurate, current and complete. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired identification on file, may result in your inability to access or use the Service.
You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Herb in writing, you may only possess one Account.
Your participation in using the Herb Platform is for your sole, personal use. You agree that you are the sole authorized user of your Account, and you may not assign or otherwise transfer your Account to any other person or entity. Any attempt by another individual to use your Account may result in your inability to use the Service, and/or suspension from the Herb Platform. You are responsible for the use of your Account and Herb expressly disclaims any liability arising from the unauthorized use of your Account. If you suspect unauthorized access of your Account or any other breach of security, you agree to notify us immediately.
Herb reserves the right, in its sole discretion, to set the requirements for, or to suspend, disable, deny access to, or disallow the registration of your Account for any reason. If you believe your inability to access your Account or the Herb Platform has been made in error, please contact our Customer Support team. You acknowledge and agree that Herb shall not be liable to you or any third party for any termination of your access to the Herb Platform. The terms and conditions of this Agreement and the Herb Terms shall survive and endure beyond any termination, deletion, or suspension of your Account, or if you cease using Herb Platform.
You must be at least 18 years old to use the Herb Platform, and must be at least 21 years old to use the Herb Platform to order, receive, or facilitate delivery of adult-use cannabis. By using the Herb Platform you expressly represent and warrant that you are at least 18 years old, are legally entitled to enter into this Agreement, and have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. Users over the age of 18 but under 21 may, in certain circumstances determined by Herb, be permitted to order medical cannabis with a valid doctor’s recommendation pursuant to the laws of your jurisdiction. You acknowledge that Herb reserves the right to determine a minimum age for any User or Service Area in its sole discretion (“Qualifying Age”). You agree that if you are not of Qualifying Age while located in any Service Area, you are prohibited from using, and will not attempt to use, the Service.
By entering into this Agreement or using the Herb Platform, you expressly consent and agree to accept and receive communications from Herb and/or Retailers (including Drivers) that you transact with, including via email, text message, calls, and push notifications to the cellular telephone number you provided to Herb.
By consenting to being contacted, you understand and agree that you may receive communications (including those generated by automatic telephone dialing systems and/or which will deliver pre recorded messages) sent by or on behalf of Herb, and/or Retailers (or their Drivers), including but not limited to: operational or transactional communications concerning your Account or use of the Herb Platform; updates concerning new or existing features of the Herb Platform; communications concerning Promotions (defined below) run by Herb, Retailers or third parties; and news or industry developments concerning Herb, Retailers, or third parties. Standard text messaging charges applied by your cell phone carrier will apply to text messages you receive.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, UNSUBSCRIBE FROM Herb’S PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF, INCLUDING CLICKING THE UNSUBSCRIBE LINK PROVIDED AT THE BOTTOM OF THE EMAIL. IF YOU WISH TO OPT OUT OF PUSH NOTIFICATIONS YOU MAY DO SO THROUGH YOUR DEVICE SETTINGS. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES TO THE PHONE NUMBER YOU RECEIVED THE MESSAGE FROM.
YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE Herb PLATFORM. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM Herb (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), PLEASE CONTACT OUR CUSTOMER SUPPORT LINE AT 1-844-420-5420. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE Herb PLATFORM.
Electronic Records & Signatures
You agree that your electronic signature on the Herb Platform is the legal equivalent of your manual or paper signature. You consent to receive any communications, records, receipts, notices, agreements, documents, and disclosures provided by Herb regarding your Account and the Herb Platform electronically (collectively, “Electronic Communications”). We may provide these Electronic Communications to you via the Herb Platform, email, text message, push notification, chat, customer support, or other electronic communications.
In order to access and retain Electronic Communications, you will need at least the following computer hardware and software:
In order for us to send you Electronic Communications, you must ensure your contact information and email address is true, accurate and complete at all times. You acknowledge and agree Herb will be deemed to have provided Electronic Communications to you even if your contact information on file is incorrect, out of date, blocked by your service provider, or you are otherwise are unable to receive Electronic Communications. You can update your contact information at any time by logging into your Account and updating your profile settings, or by contacting Customer Support.
You can withdraw your consent to receive Electronic Communications at any time by sending us an email with the subject line “Withdrawing E-Sign Consent” to email@example.com However, if you withdraw your consent to receive Electronic Communications, Herb reserves the right to immediately close your Account as we may be unable to properly facilitate your legal use of the Herb Platform.
Charges, Billing, & Refunds
You understand and acknowledge that you may incur fees or charges from Herb, Retailers, or other third parties in connection with the goods and services purchased or facilitated through the Herb Platform (“Charges”). All Charges will be identified in your cart prior to or during checkout, and in your receipt. Such Charges may include some combination of the following:
Herb may change any Charges at its sole discretion and reserves the right to determine final prevailing pricing. Please note that pricing information published on the Herb Platform may not accurately reflect pricing. Herb may, at its sole discretion, make promotional offers with differing features and/or Charges to any individual or User. Such offers, unless made to you, have no bearing whatsoever on your use of the Herb Platform.
You may receive Promotions (defined below) or Referral Codes (defined below) that you can apply toward payment of certain Charges. Promotions or Referral Codes are only valid for use on the Herb Platform, and are not transferable or redeemable for cash except as required by law. Additional restrictions on Promotions or Referral Codes may apply as communicated to you in a relevant promotion.
All Charges are due immediately and are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Herb Platform, Herb’s decision to terminate your usage, any disruption to the Herb Platform, or any other reason whatsoever. If you are dissatisfied with any of the Products you receive, please contact Customer Support.
During your use of the Herb Platform, you may purchase goods and/or services from, correspond with, participate in the promotions of, or otherwise utilize third parties facilitating their business through the Herb Platform, including without limitation, (i) Retailers; (ii) manufacturers, cultivators, distributors, microbusinesses, or licensors who sell Products to, through, and/or as Retailers (“Brands”); (iii) advertisers, business partners, or affiliates; (iv) Payment Vendors; and (v) the respective employees of each of the preceding (“Third-Party Providers”). You agree and acknowledge that Herb is not a party to any transaction you enter into with any Third-Party Provider, unless otherwise indicated in this Agreement. Any such activity, and any terms, conditions, warranties, or representations associated with such activity is solely between you and the applicable Third-Party Provider. Herb and its licensors shall have no liability, obligation or responsibility for any such purchase, correspondence, promotion, or transaction between you and any Third-Party Provider. In no event shall Herb or its licensors be responsible for any content, products, services, or other materials on or available from Third-Party Providers.
Herb does not endorse any third-party advertisements, links, promotions, or websites linked through the Herb Platform, and in no event shall Herb or its licensors be responsible for any content, products, services or other materials on or available from such sites or Third-Party Providers. Certain Third-Party Providers may require you to agree to additional or different terms and conditions prior to your use of or access to their goods and/or services. Herb disclaims any and all responsibility or liability arising from such agreements between you and the Third-Party Providers.
Herb may make available materials by Third-Party Providers, such as their opinions, advice, statements, offers, other information or content concerning Herb or other materials made available through the Herb Platform (“Third-Party Materials”). Such Third-Party Materials are not provided by Herb and Herb is not responsible for the content of Third-Party Materials. The authors of the Third-Party Materials are solely responsible for such content. Herb disclaims responsibility for any loss or damage resulting from your reliance on information or other content posted by Third-Party Providers, whether on the Herb Platform or otherwise. We reserve the right, without any obligation, to monitor, remove or suspend any Third-Party Materials posted on the Herb Platform and remove any such material that, in our sole opinion, violates or is alleged to violate: (i) the law; (ii) this Agreement; (iii) the rights, or threatens to harm the safety or rights of Users or others.
The Herb Platform may contain third-party advertising and marketing. By agreeing to this Agreement, you agree to receive such advertising and marketing. Herb disclaims responsibility for any loss or damage resulting from or related to such advertising and/or marketing.
Herb attempts to be as accurate as possible in Product descriptions or images for Products available through the Herb Platform. However, Herb is not a Brand and does not itself package, test, or label the Products available on the Platform. Herb does not warrant that Product descriptions, images, or other Content (defined below) available on the Herb Platform is accurate, complete, reliable, current, or error-free.
You acknowledge and agree that Amounts (defined below) in Product descriptions on the Herb Platform are averages or estimates, and that Amounts may vary for individual items, packages, or orders that you receive. Amounts on the Herb Platform include without limitation the level (by weight, mass, volume, or percentage) of THC, CBD, other cannabinoids, and terpenes in a Product, the total weight, mass, or volume of a Product, the size, number of individual items, or servings, in a Product, and any other unit of measurement related to a Product.
Herb may, in its sole discretion, make available certain promotions or offers, which may at times be redeemed by entering promotional codes, that may confer discounts, price reductions, features, benefits, related to the Service, subject to any additional terms that Herb establishes (“Promotions”). Promotions may be offered by Herb, Retailers, Brands, or other Third-Party Providers on the Herb Platform. Each Promotion is a limited time offer and is valid only for the time specified therein. Unless otherwise specified on the Promotion itself, you may only use one Promotion per Account, per day.
Each Promotion (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, resold or transferred in any manner, made available to the general public (whether posted to a public form or otherwise) or combined with any other offers unless otherwise permitted by Herb; (iii) may only apply to qualifying items and may require a minimum dollar order purchase; (iv) may be modified, disabled, or withdrawn by Herb at any time for any reason or no reason without liability to Herb; (v) is not valid for cash or credit, has no monetary value, and cannot be applied after an order is submitted; (vi) may expire prior to your use; and (vii) is void where prohibited by law. If you violate any of the Promotion terms, the Promotion will be invalid.
Herb, at its sole discretion, reserves the right to issue Promotions with different features, discounts, offers, or deals to any Users or groups of Users determined solely by Herb. These Promotions, unless made to you, shall have no bearing whatsoever on your use of Herb, or any Promotions offered to you.
Unless otherwise indicated by Herb, Promotions do not apply to taxes, fees, or any Charges other than Retail Price. Taxes and fees may apply to the full value of Products subsequently reduced in price by a Promotion.
Herb may, in its sole discretion, create referral links or codes (“Referral Codes”) that may be redeemed for discounts on future Services, or other features or benefits related to the Service, subject to any additional terms that Herb establishes. You agree that Referral Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, resold, or transferred in any manner, made available to the general public (whether posted to a public form or otherwise) or combined with any other referral codes, promotional codes or other promotions, discounts, coupons, or any other Herb offers, unless in each case expressly permitted by Herb; (iii) may be disabled or withdrawn by Herb at any time for any reason or no reason without liability to Herb; (iv) may only be used pursuant to the specific terms set forth in the Program Rules; (v) are not valid for cash or credit; and (vi) may expire prior to your use. Herb reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Referral Codes by you or any other User in Herb’s sole discretion, including, without limitation, in the event that Herb determines or believes that the use of the referral system or use or redemption of the Referral Code was in error, fraudulent, illegal, or otherwise in violation of the Program Rules. The Program Rules are incorporated herein by reference. Please refer to them for the full terms and conditions applicable to your use of Referral Codes.
Mobile Data Fees & Usage
Herb is not responsible for any fees or usage charges related to your access of the Herb Platform. Your mobile network’s data and messaging rates and fees may apply if you access or use the Herb Platform from a device. You are solely responsible for acquiring and updating compatible hardware or devices necessary to access and use the Herb Platform and any updates thereto. Herb does not guarantee that the Herb Platform, or any portion thereof, will function on any particular network, hardware, or devices.
PRIVACY & CONFIDENTIALITY
You agree not to use, disclose, or permit disclosure of, for any purpose other than as stated in this Agreement, (i) any technical, financial, strategic, and other proprietary and confidential information or data relating to Herb’s business, operations, and properties; (ii) the technical, financial, strategic, and other proprietary and confidential information or data relating to the business, operations, or properties of any Retailer, Brand, or other Third-Party Provider; (iii) the User Data, PII, or any other information or data related to any other User; (iv) any non-public information of Herb, any Retailer, Brand, or other Third-Party Provider, or any User that such party designates as being proprietary or confidential, or of which the other party should reasonably know that it should be treated as confidential (collectively, “Confidential Information”). You agree that all Confidential Information shall remain the exclusive property of the disclosing party. You agree not to disclose or permit disclosure of any Confidential Information to third parties for any purpose except as permitted under the Herb Terms, to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information, to prevent Confidential Information from falling into the public domain, and to return or destroy all Confidential Information of the disclosing party upon termination of this Agreement or at the request of the disclosing party subject to applicable law. In the event Confidential Information is required to be disclosed pursuant to the order or requirement of a court administrative agency, or other governmental body, you agree to provide prompt notice of such court order or requirement to Herb to enable Herb to seek a protective order or otherwise prevent or restrict such disclosure.
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (i) is or becomes part of the public domain at a time it is intentionally disclosed by Herb or has entered the public domain through no act or omission on the part of the receiving party; (ii) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (iii) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (iv) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
With respect to your use of the Herb Platform, you agree you will not:
LICENSING AND INTELLECTUAL PROPERTY
Limited License Granted By Herb
Subject to your compliance with the terms and conditions of this Agreement, Herb hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Herb Platform only as permitted by its functionality. This license permits you to download and install a copy of the Application on a mobile device or computer that you own or control and to run such copy of the Application solely for your own personal, non-commercial use.
You will not use, copy, adapt, modify, prepare derivative works based upon, reverse engineer, decompile, disassemble, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Herb Platform, Content, or Confidential Information, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Herb or its licensors, except for the licenses and rights expressly granted in this Agreement.
Furthermore, with respect to any form of the Application accessed through or downloaded from the Apple App Store, Android Market, Google Play Store, Amazon App Store, BlackBerry App World, Samsung Apps Store, Nokia OVI store, Windows marketplace for Mobile, or any online marketplace, you will use that version of the Application as permitted by any “Usage Rules” set forth in the respective third-party terms of service or use applicable to such version of the Application. Herb disclaims any and all responsibility or liability arising from such agreements between you and such third parties. Herb reserves all rights in and to the Herb Platform not expressly granted to you under this Agreement.
License Granted By User
The Herb Platform may allow you to post or submit feedback, comments, questions, and other content or information that a User submits, posts, uploads, or otherwise makes available on or through the Herb Platform (“User Content”). You are solely responsible for, and the sole owner of the User Content that you upload, publish, display, link to, or otherwise make available on the Herb Platform, and agree Herb is acting only as an interactive computer service for your publication of such User Content.
By making available any User Content, you hereby grant Herb a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free right and license, with the right to sublicense through multiple tiers, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, distribute, broadcast and otherwise exploit such User Content in any media or format, or to prepare derivative works or incorporate into other works such User Content in any media or format. Nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any User Content. You acknowledge and agree that you do not acquire any rights to any research or commercial products that may be developed by Herb or its collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through or to the Herb Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available or you have all rights, licenses, consents and releases that are necessary to grant Herb the above license to such User Content; and (ii) neither the User Content itself, you making it available, or Herb’s use of the User Content will infringe, misappropriate or violate any third party rights, including, without limitation, any patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Herb reserves the right, but is not obligated, to review, monitor, reject or remove any User Content, at Herb’s sole discretion at any time and for any reason, without notice to you.
Intellectual Property Ownership
Herb (and its licensors where applicable) owns all intellectual property rights in and related to the Herb Platform absolutely and in their entirety. You acknowledge that any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you relating to the Herb Platform are non-confidential and shall become the sole property of Herb. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Herb Platform, or any intellectual property rights owned by Herb. Any trademarks, logos, service marks, company or product names displayed through the Herb Platform are trademarks of Herb or third parties, and no right or license is granted to use them.
Other than as specifically permitted by Herb, you are not permitted to use or reference in any manner Herb’s, its Brand and Retail partners, or any of their licensors’ company names, logos, product and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the “Herb Marks and Names”) for any commercial purposes. You agree that you will not: (i) try to register or otherwise use and/or claim ownership in any of the Herb Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services; (ii) take any other action that would jeopardize or impair Herb’s rights as owner of the Herb Marks and Names or the legality and/or enforceability of the Herb Marks and Names, including, challenging or opposing Herb’s ownership in the Herb Marks and Names; or (iii) use the Herb Marks or Names on or in connection with any product, service, or activity that is in violation of any law, statute, government regulation or standard. Violation of this license may result in immediate termination of your license, at the sole discretion of Herb.
You and Herb 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 Herb Platform (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 Herb are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding. Further, unless both you and Herb 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 & 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 adr.org or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. If needed, the AAA provides a form Demand for Arbitration and additional forms at adr.org. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state where the arbitration will be conducted 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 & Procedure
Unless you and Herb otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Herb 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.
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.
Your responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the modification-related provisions above, if Herb 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 Herb’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 Herb in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
By entering into this Agreement and using the Herb Platform, you agree to defend, indemnify and hold Herb, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, Users, employees, attorneys and agents harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) your violation or breach of any term of this Agreement, the Herb Terms, or any applicable law or regulation, whether or not referenced herein; (ii) your violation of any rights of any third party, including Users, Retailers, Brands, or other Third-Party Providers; (iii) your use or misuse of the Herb Platform or Products available therein; (iv) if you are a Driver, your actions or omissions arising from the performance of Delivery Services or access or use of the Driver App.
Disclaimer Of Warranties
Herb MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE Herb PLATFORM. Herb DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE Herb PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE Herb PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE Herb PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE Herb PLATFORM WILL BE CORRECTED, OR (F) THE Herb NETWORK OR OTHER ASPECTS OF THE Herb PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE Herb PLATFORM IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Herb. Herb MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE Herb PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE Herb PLATFORM, AND ANY THIRD-PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
BY USING THE Herb PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE Herb PLATFORM.
The Herb Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Herb does not guarantee the availability or uptime of the Herb Platform. You acknowledge and agree that the Herb Platform may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, Delivery Services from Retailers may be subject to limitations, delays, and other problems inherent in physical delivery, and neither Herb nor Third-Party Providers are responsible for any delays, delivery failures, or other damages, liabilities, or losses resulting from such problems.
Limitation Of Liability
IN NO EVENT SHALL HERB, INCLUDING ITS LICENSORS, AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “Herb” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU OR ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). Herb SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE, OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE Herb PLATFORM, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE Herb PLATFORM, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER, RETAILER, BRAND, SPONSOR, OR OTHER THIRD-PARTY PROVIDER WHOSE ADVERTISING APPEARS ON THE Herb PLATFORM OR IS REFERRED THROUGH THE Herb PLATFORM, EVEN IF Herb HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Herb MAY INTRODUCE YOU TO RETAILERS, BRANDS OR OTHER THIRD-PARTY PROVIDERS FOR THE PURPOSES OF PROVIDING DELIVERY SERVICES. Herb WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY RETAILER, BRAND, DRIVER, OR OTHER THIRD-PARTY PROVIDER AND YOU EXPRESSLY WAIVE AND RELEASE Herb FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO SUCH THIRD PARTIES. YOU ACKNOWLEDGE THAT RETAILERS PROVIDING DELIVERY SERVICES REQUESTED THROUGH THE Herb PLATFORM MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. Herb WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN YOU AND ANY THIRD PARTIES. Herb CANNOT AND WILL NOT PLAY ANY ROLE IN MANAGING PAYMENTS BETWEEN YOU AND A THIRD PARTY, INCLUDING THIRD-PARTY PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE HERB PLATFORM (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU.
YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Herb may give notice by means of a general notice on the Herb Platform, email, telephone, text message or by written communication sent by first class mail or pre-paid post to your address on record in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Herb (such notice shall be deemed given when received by Herb) at any time by sending an email to: legalnotices@Herb.com. Please specify the reason for the email in the subject line so it can be forwarded to the proper department.
This Agreement may not be assigned by you without the prior written approval of Herb but may be assigned without your consent by Herb to: (i) a parent or subsidiary; (ii) an acquirer of assets; (iii) a successor by merger; or (iv) any third party that assumes Herb’s rights and obligations under this Agreement. Any purported assignment in violation of this section shall be void.
You agree to comply fully with all U.S. and foreign export laws and regulations to ensure that neither the Herb Platform nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Herb Platform, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Term For Cause Of Action
You and Herb agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Herb Platform or the Herb Terms must be filed within one (1) year after such claim or cause of action arose. Otherwise such claim or cause of action is permanently barred.
No joint venture, partnership, employment, or agency relationship exists between you, Herb, or any third party as a result of this Agreement or use of the Herb Platform. If any provision of the Agreement is held to be invalid or unenforceable, you and Herb agree that such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of Herb to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Herb in writing.
This Agreement (including the Herb Terms) constitutes the entire agreement between you and Herb and governs your use of the Herb Platform, superseding any prior agreements between you and Herb. This Agreement and the relationship between you and Herb shall be governed by the laws of the State of Nevada without regard to its conflict of law provisions. In the event that either you or Herb commence a court action, any such action shall be brought exclusively in the state or federal courts located in Clark County County, Nevada, and you and Herb both submit to personal jurisdiction there. The section titles or headings in this Agreement are for convenience only and have no legal or contractual effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.