HERBI TERMS AND CONDITIONS
The terms and conditions stated herein (collectively, the “Agreement”) constitute a legal agreement between you and Agritek Holdings, Inc., and its subsidiaries including HERBI and affiliates (collectively, “AGTK” or the “Company”). In order to use the Service (defined below) and the associated Application (defined below) you must agree to the Terms and Conditions that are set out below. By using or receiving any services supplied to you by the Company (collectively, the “Service”), and/or accessing, downloading, installing or using any associated application or website provided by the Company (including without limitation, the HERBI website located at GetHerbi.com) (collectively, the “Application”), you hereby expressly acknowledge and agree to be bound by the terms and conditions of the Agreement, and any future amendments and additions to this Agreement as published from time to time at the HERBI website or through the Service.
DISCLAIMER & ACKNOWLEDGMENT
The company, Agritek Holdings, Inc., Get Herbi or its subsidiary companies are not a medical cannabis collective or cooperative (“dispensary”) and does not itself provide medical cannabis delivery services to medical cannabis patients. The company does not provide or sell medical cannabis and is not a medical cannabis delivery service provider. It is the sole responsibility of the third party dispensary to offer state law compliant services, which may be located, scheduled, and coordinated through use of the application or service. Herbi offers pre-verification of users and provides users’ information to dispensaries, and a method to contact a dispensary to obtain delivery services from the dispensary. The company does not and does not intend to provide delivery services or act in any way as a delivery service provider, and has no responsibility or liability for any delivery services provided to you by third party dispensaries.
ACKNOWLEDGMENT OF FEDERAL LAW
User expressly acknowledges that HERBI is 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 laws. Marijuana is included on Schedule 1 under 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. Client further acknowledges that medical use is not recognized as a valid defense under federal laws regarding marijuana. Client also acknowledges that the interstate transportation of marijuana is a federal offense.
ACKNOWLEDGMENT OF CALIFORNIA LAW
User expressly acknowledges 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 cannabis laws as set forth in the Attorney General’s Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (August 2008) and the Medical Marijuana Regulation and Safety Act (consisting of AB243), AB266 and SB643 and any amendments thereto.
ACKNOWLEDGMENT OF THE LAWS OF USERS STATE OF RESIDENCY
The Company has its principal place of business is California. Even though the HERBI Application may be accessed outside of California, the Service is currently available only to users and Dispensaries located in California. In all events, you must abide the by and follow the laws of the state in which you are a resident. User expressly acknowledges and assumes full responsibility for cooperating with the laws of the state of user’s residency.
TERMS & CONDITIONS OF SERVICE
The terms and conditions stated in this Agreement constitute a legal agreement between you and the Company. In order to use the Service (defined below) and the associated Application (defined below) you must agree to the Terms and Conditions that are set out below. By using or receiving any services provided to you by the Company (collectively, the “Service”), and downloading, installing or using any associated application supplied or website provided by the Company which purpose is to enable you to use the Service (collectively, the “Application”), you hereby expressly acknowledge and agree to be bound by the terms and conditions of the Agreement, and any future amendments and additions to this Agreement as published from time to time at the Company website www.GetHerbi.com or through the Service.
The Company is willing to license, not sell, the HERBI Application to you only upon the condition that you accept all the terms contained in this Agreement. By signing up with or by using the HERBI Application, you indicate that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then the Company is unwilling to license the HERBI Application to you.
The Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service or Application at any time, effective upon posting of an updated version of this Agreement on the Service or Application. You are responsible for regularly reviewing this Agreement. Continued use of the Service or Application after any such changes shall constitute your consent to such changes.
The HERBI Application provides the communication structure to enable a connection between persons (“Users”) and third party Dispensaries who provide medical cannabis collective or cooperative membership opportunities and members-only delivery services for medical marijuana. This Agreement describes the terms and conditions that will govern your use of and participation in the HERBI Application.
KEY CONTENT-RELATED TERMS
“Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
“Company Content” means Content that Company makes available through the Service or Application, including any Content licensed from a third party, but excluding User Content.
“User” means a person who accesses or uses the Service or Application
“User Content” means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service or Application.
“Collective Content” means, collectively, Company Content and User Content.
REPRESENTATIONS AND WARRANTIES
Users agree not to post, email, or otherwise make available Content: a) that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way; b) that advertises any illegal service or the sale of any items which are prohibited or restricted by the laws of your State; c) attempt to gain unauthorized access to the Company’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or the HERBI Application (including the HERBI website). By using the Application or Service, you expressly represent and warrant that you are legally entitled to enter into this Agreement. If you reside in a jurisdiction that restricts the use of the Service because of age, or restricts the ability to enter into agreements such as this one due to age or other restrictions, you must abide by such age limits or other restrictions and you must not use the Application and Service. Without limiting the foregoing, the Service and Application is not available to children (persons under the age of 18).
By using the Application or Service, you represent and warrant that you are at least 18 years old. By using the Application or the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. Your participation in using the Service and/or Application is for your sole, personal use. You may not authorize others to use your user status, and you may not assign or otherwise transfer your user account to any other person or entity. When using the Application or Service you agree to comply with all applicable laws from your home nation, country, state and city in which you are present while using the Application or Service.
You may only access the Service using authorized means. It is your responsibility to check to ensure you download the correct Application for your device. The Company is not liable if you do not have a compatible handset or if you have downloaded the wrong version of the Application for your handset. The Company reserves the right to terminate this Agreement should you be using the Service or Application with an incompatible or unauthorized device.
By using the Application or the Service, you agree that:
- You will only use the Service or Application for lawful purposes; you will not use the Services for sending or storing any unlawful material or for fraudulent purposes.
- You will not use the Service or Application to cause nuisance, annoyance or inconvenience.
- You will not impair the proper operation of the network.
- You will not try to harm the Service or Application in any way whatsoever.
- You will not copy, or distribute the Application or other content without written permission from the Company.
- You will only use the Application and Service for your own use and will not resell it to a third party.
- You will keep secure and confidential your account password or any identification we provide you which allows access to the Service.
- You will provide us with whatever proof of identity we may reasonably request.
- You will at all times act in full compliance with the laws of your State pertaining to medical (or the recreational use of) cannabis collectives and/or cooperatives
LICENSE GRANT, RESTRICTIONS, AND COPYRIGHT POLICY
LICENSES TO COMPANY CONTENT AND USER CONTENT GRANTED BY COMPANY
Subject to your compliance with the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any Company Content solely for your personal and non-commercial purposes; and (ii) to view any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service, Application or Collective Content, 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 Company or its licensors, except for the licenses and rights expressly granted in this Agreement.
LICENSE GRANTED BY USER
HERBI may, in its sole discretion, permit Users to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Service or Application, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Service or Application. Company does not claim any ownership rights in any User Content and 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 are solely responsible for all User Content that you make available through the Service or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Service or Application or you have all rights, licenses, consents and releases that are necessary to grant to Company and to the rights in such User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Company’s use of the User Content (or any portion thereof) on, through or by means of the Service or Application will infringe, misappropriate or violate a third party’s 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
You agree that the Company may verify your medical recommendation and may share your identification, your medical recommendation and the results of the medical recommendation verification with any Dispensary with that you join or transact with through the Company
By becoming a User, you expressly consent and agree to accept and receive communications from us and/or Dispensaries that you transact with, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us. By consenting to being contacted by the Company, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of the Company, its affiliated companies and/or Drivers, including but not limited to: operational communications concerning your User account or use of the HERBI Application or Services, updates concerning new and existing features of the HERBI Application, communications concerning promotions run by us or third party Dispensaries, and news concerning the Company and industry developments. IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS PROVIDED TO YOU. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the HERBI Application or the Service. However, you acknowledge that opting out of receiving text messages or other communications may impact your use of the HERBI Application or the Service.
Subject to your compliance with this Agreement, Company grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store, Android Market, Amazon App Store, BlackBerry App World, Samsung Apps Store, Nokia OVI store, and Windows marketplace for Mobile (“App Store Sourced Application”), you will use the App Store Sourced Application as permitted by the “Usage Rules” set forth in the App Store Sourced Application Terms of Service. Company reserves all rights in and to the Application not expressly granted to you under this Agreement.
FEE AND REFUND POLICY
Any fees that the Company may charge you for the Application or Service, are due immediately and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our Application or Service either planned, accidental or intentional, or any reason whatsoever. The Company reserves the right to determine final prevailing pricing – Please note the pricing information published on the website may not reflect the prevailing pricing.
The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. Any such promotions shall be made subject to its particular terms, and unless expressly provided otherwise shall expire ninety (90) days following the date of the promotion offer. The Company may change the fees for our Service or Application, as we deem necessary for our business. We encourage you to check back at our website periodically if you are interested about how we charge for the Service or Application.
INTELLECTUAL PROPERTY OWNERSHIP
The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Application and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Application or the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Application or the Service, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Application and Service are trademarks of the Company or third parties, and no right or license is granted to use them.
THIRD PARTY INTERACTIONS
During use of the Application and Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Application or Service. In particular, Company is not a party to any transaction that a User may enter into with a Dispensary or third party payment processor. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. The Company does not endorse any sites on the Internet that are linked through the Service or Application, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. The Company provides the Application and Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and the Company disclaims any and all responsibility or liability arising from such agreements between you and the third party providers.
The Company may rely on third party advertising and marketing supplied through the Application or Service and other mechanisms to subsidize the Application or Service. By agreeing to these terms and conditions you agree to receive such advertising and marketing. The Company may compile and release information regarding you and your use of the Application or Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
By entering into this Agreement and using the Application or Service, you agree that you shall defend, indemnify and hold the Company, 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 claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including providers of delivery services arranged via the Service or Application, or (c) your use or misuse of the Application or Service.
DISCLAIMER OF WARRANTIES
The company makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the service or application. The company does not represent or warrant that: (a) the use of the service or application will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, application, system or data, (b) the service or application 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 service will meet your requirements or expectations, (e) errors or defects in the service or application will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and application 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 the company. The company 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 service or application. You acknowledge and agree that the entire risk arising out of your use of the application and service, and any third party services or products remains solely with you, to the maximum extent permitted by law.
The company’s service and application may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. The company is not responsible for any delays, delivery failures, or other damage resulting from such problems.
LIMITATION OF LIABILITY
In no event shall the company and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including personal injury, loss of data, revenue, profits, use or other economic advantage). The company and/or its licensors 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 service or application, including but not limited to the use or inability to use the service or application, 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 third party service provider, advertiser or sponsor whose advertising appears on the website or is referred by the service or application, even if the company and/or its licensors have been previously advised of the possibility of such damages.
The company may introduce you to third party delivery service providers for the purposes of providing delivery services. We will not assess the suitability, legality or ability of any third party delivery service providers and you expressly waive and release the company from any and all any liability, claims or damages arising from or in any way related to the third party delivery service provider. You acknowledge that third party delivery service providers providing delivery services requested through the company may offer delivery services and may not be professionally licensed or permitted. The company will not be a party to disputes, negotiations of disputes between you and any third party providers. We cannot and will not play any role in managing payments between you and the third party providers. Responsibility for the decisions you make regarding services offered via the application or service (with all its implications) rests solely with you. We will not assess the suitability, legality or ability of any such third parties and you expressly waive and release the company from any and all liability, claims, causes of action, or damages arising from your use of the application or service, or in any way related to the third parties introduced to you by the application or service. 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.”
The quality of the delivery services services scheduled through the use of the service or application is entirely the responsibility of the third party provider who ultimately provides such delivery services to you. You understand, therefore, that by using the application and the service, you may be exposed to a delivery service that is potentially dangerous, offensive, harmful to minors, unsafe or otherwise objectionable, and that you use the application and the service at your own risk.
The Company may give notice by means of a general notice on the Service, electronic mail to your email address on record in the Company’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company’s account information. 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 the Company (such notice shall be deemed given when received by the Company) at any time by sending an email to: firstname.lastname@example.org; 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 the Company but may be assigned without your consent by the Company to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. 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 Application 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 App Store Sourced Application, 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.
You and 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 Service or Application (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 class User in any purported class action or representative proceeding. 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 Company 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 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 email@example.com 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 this Agreement (or accepted any subsequent changes to this Agreement).
No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of this Agreement or use of the Service or Application. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company 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 the Company in writing.
This User Agreement constitutes the entire agreement between you and the Company and governs your use of the Service, superseding any prior agreements between you and the Company. The User Agreement and the relationship between you and HERBI shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and HERBI agree to submit to binding arbitration for any dispute arising out of your relationship with HERBI and that such arbitration will take place in the City of Orange County, California. The failure of HERBI to exercise or enforce any right or provision of the User Agreement shall not constitute a waiver of such right or provision. If any provision of the User Agreement is found by an arbitrator to be invalid, the parties nevertheless agree that the arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the User Agreement remain in full force and effect. You 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 Service or the TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.