HERBALIZER® (“Herbalizer”), AS A CONVENIENCE TO YOU, GRANTS YOU ACCESS TO ITS WEBSITE, ACCESSIBLE VIA http://www.herbalizer.com (THE “SITE”), CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS, CONDITIONS AND NOTICES CONTAINED HEREIN (THESE “TERMS OF USE”). FOR THE PURPOSES OF THESE TERMS OF USE, “CONTENT” MEANS, COLLECTIVELY, ANY TEXT, IMAGES, GRAPHICS, SOFTWARE, SOURCE CODE, APPLICATIONS, SPECIFICATIONS, AUDIO FILES, VIDEOS, ARTICLES, TRADEMARKS, LOGOS AND OTHER INFORMATION OR CONTENT AVAILABLE THROUGH THE SITE THAT ARE NOT SUBMISSIONS (AS THAT TERM IS DEFINED BELOW), INCLUDING BUT NOT LIMITED TO THE DESIGN, STRUCTURE, SELECTION, COORDINATION, EXPRESSION, “LOOK AND FEEL” AND ARRANGEMENT OF SUCH CONTENT.

1. Acceptance of Terms.

PLEASE READ THESE TERMS OF USE AND HERBALIZER’S PRIVACY POLICY CAREFULLY. BY USING THE SITE, YOU AGREE TO THESE TERMS OF USE, AND YOU CONSENT TO THE COLLECTION, USE AND DISCLOSURE OF INFORMATION AS DESCRIBED IN THESE TERMS OF USE AND OUR PRIVACY POLICY. YOU FURTHER AGREE TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS IN USING THIS SITE. IF YOU DO NOT AGREE TO THESE TERMS OF USE AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY, YOU MUST EXIT THE SITE IMMEDIATELY AND DISCONTINUE ANY USE OF THE SITE AND ANY OF ITS CONTENT. YOUR USE OF THE SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. HERBALIZER CAN CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS OF USE ON THE SITES OR BY SENDING REGISTERED USERS AN EMAIL NOTICE OF THE CHANGES. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL CEASE USING THE SITE. IF YOU DO NOT CEASE USING THE SITE, YOU WILL BE DEEMED TO HAVE ACCEPTED THE CHANGE. These Terms of Use do not alter in any way the terms or conditions of any other agreement you may have withHerbalizer or its affiliates for other products or services.

You are also subject to the HERBALIZER Privacy Policy.

These Terms of Use were updated as of February, 2014.

2. Use and Restrictions.

The Site may be accessed and used only by individuals who can form legally binding contracts under applicable laws and who are not barred from using the Site under applicable laws.

The Site is provided solely as a convenience to you for non-commercial use. You may access and use the Site only in accordance with all applicable laws and regulations and with these Terms of Use. You acknowledge and agree that Herbalizer, in its sole discretion and without notice or any further obligation to you, may temporarily suspend or permanently discontinue and refuse any and all current and future, access to or use of the Site. You further agree that you will not: (a) resell for commercial purposes products purchased through use of the Site; (b) resell or make commercial use of the Site or Content therein; (c) modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, or sell any Content; (d) collect or use any product listings or descriptions; (e) use any data mining, robots, or similar data gathering and extraction methods from the Site; (f) other than for your use of the Site as expressly permitted in these Terms of Use, access or attempt to access any systems or servers on which the Site are hosted or modify or alter the Site in any way; (g) forge headers, create a false identity or otherwise manipulate identifiers in order to deceive others or disguise the origin of any Content or other information transmitted to or via the Site; (h) use, frame or utilize framing techniques to enclose any Herbalizer trademark, logo or other proprietary information (including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page) without Herbalizer’s express prior written consent; or (i) use any meta tags or any other “hidden text” utilizing a Herbalizer name, trademark, or product name without Herbalizer’s express written consent.

Any unauthorized use of the Site will terminate the permission or license granted by these Terms of Use, will result in you being barred from use of the Site, and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes. All rights not expressly granted to you in these Terms of Use are reserved and retained by Herbalizer or its licensors, suppliers, publishers or other content providers.

3. Copyright

The Content and the Site, as well as the selection and arrangement thereof, are the sole property of Herbalizer and/or its licensors and are protected by patent, copyright, trademark and other intellectual property laws and may not be used except in accordance with these Terms of Use or with Herbalizer’s express prior written consent. Other than as necessary for your use of the Site in accordance with these Terms of Use, Herbalizer grants no other privileges or rights in the Content to you, and you must keep intact all patent, copyright, trademark and other proprietary notices on the Content. Any Content owned by Herbalizer’s licensors may be subject to additional restrictions. Except as expressly provided in these Terms of Use, no part of the Sites and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Herbalizer’s express prior written consent.

4. Trademark

All trademarks, service marks, trade names, logos and trade dress, whether registered or unregistered (collectively the “Marks”) that appear on the Sites are proprietary to Herbalizer or such Marks’ respective owners. You may not display or reproduce the Marks other than with the prior written consent of Herbalizer, and you may not remove or otherwise modify any trademark notices from any Content. The Marks are protected by trademark, trade dress, copyright, and various other intellectual property rights and unfair competition laws.

In addition, all page headers, custom graphics, button icons, and scripts are trademarks, service marks, trade names and/or trade dress of Herbalizer or their respective owners, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Herbalizer.

The following marks are under trademark protection by Herbalizer: HERBALIZER (name & logo), VAPORTHERAPY (name), CLOVERSHIELD (logo), VAPE LIKE A BOSS (name).

5. Your Account

You are solely responsible for (i) maintaining the security and confidentiality of your account and your account password; (ii) restricting access to your computer and your account; and (iii) keeping your email address listed on your account current. You are solely responsible and liable for all activities, including, without limitation, all purchases of products and services through the use of the Site that occur under your account or your account password.

You acknowledge and agree that Herbalizer may access, preserve, and disclose your account information, all Submissions (as defined below), all communications to and from you, all information relating to your use of the Site, and all information relating to the use of the Site under your account or account password if Herbalizeris required to do so by law or legal process or if Herbalizer determines, in its sole discretion, that such action is necessary to protect the rights of Herbalizer, third parties, and other users of the Site or for purposes of responding to your request for customer service. Herbalizer’s right to disclose any such information shall govern over any terms of our Privacy Policy

6. Terms of Sale

All product sales from the Site are governed by any terms of sale that are be posted on the Site at http://www.herbalizer.com/returns-warranty. You should refer to our terms of sale to learn more about applicable product warranties, our return policy, and shipping terms. By ordering and/or accepting delivery of the products, you agree to be bound by these terms of sale. The terms of sale are subject to change without prior notice at any time, in Herbalizer’s sole discretion so you should review the terms of sale each time you make a purchase. Additional information may be found in our FAQ and online shopping sections of the Site. All prices related to Herbalizer products or services are subject to change by us at any time, without notice and without liability to you. We do not provide price protection or refunds in the event of a price drop or a promotional offering.

7. Electronic Communications

You consent to receive electronic communications from Herbalizer either in the form of email sent to you at the email address listed on your account or by communications posted on the Site. You acknowledge and agree that any electronic communication in the form of such email or posting on the Site shall satisfy any legal requirement that such communication be in writing.

8. Submissions

You acknowledge that you are responsible for the information, profiles, goals, opinions, messages, comments, blogs, photos, videos and any other content or material that you submit, upload, post or otherwise make available on or through the Site (each a “Submission”) and through the services available in connection with the Site, and that you, and not Herbalizer, have full responsibility for each such Submission you make, including its legality, reliability, appropriateness, and trademark, copyright and other intellectual property ownership. Before making a Submission, you must ensure that you either own all intellectual property rights or are otherwise in a position to grant a License (as defined below) to Herbalizer. Unless otherwise explicitly stated herein or in the Herbalizer Privacy Policy, you agree that any Submission provided by you in connection with the Site is provided on a non-proprietary and non-confidential basis. You agree that Herbalizer is free to use a Submission for the purpose of providing you and others with use of the Site and their functionality and providing you with the associated products and services, and you grant Herbalizer a sublicensable, transferable, perpetual, nonexclusive, worldwide, royalty-free license (“License”) to (in any media, whether now known or not currently known or invented) link to, utilize, use, publicly perform, publicly display, reproduce, distribute, edit, adapt, modify and prepare derivative works of the Submission. In addition, to the extent any Submission contains your or any other person’s name, likeness, voice or biographical information (“Personal Rights”), you hereby grant and will cause such other person to grant to Herbalizer a License to (in any media, whether now known or not currently known or invented) exploit or use such Personal Rights for any advertising or marketing of Herbalizer products (in any media, whether now known or not currently known or invented). Submissions shall be considered non-confidential and Herbalizer is under no obligation to treat such Submissions as proprietary information except pursuant toHerbalizer’s Privacy Policy to personally identifiable information. SUBJECT ONLY TO THE LICENSES GRANTED IN THESE TERMS OF USE, YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN YOUR SUBMISSIONS.

You further agree that you will not upload, post or otherwise make available on the Site any material protected by copyright, trademark, patent, trade secret or any other proprietary right without the express permission of the owner of such copyright, trademark, patent, trade secret or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for damage resulting from your account, or any infringement of copyrights, trademarks, patents, or other proprietary rights, or any violations of rights of privacy or publicity, or any other harm resulting from any Submission that you make.

You represent and warrant that: (i) you own all Submissions posted by you on or through the Site or otherwise have the right to grant the Licenses to Herbalizer set forth in this section, and (ii) your Submission is accurate and not misleading and (iii) the posting of your Submissions on or through the Site does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity or violate any applicable law, rule, regulation or order. You agree to pay for all royalties, fees, damages and any other monies owing to any person by reason of any Submissions posted by you to or through the Site. When submitting Submissions to or otherwise using the Site and/or the services, you agree not to, without limitation:

  • Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
  • Use racially, ethnically, or otherwise offensive language.
  • Discuss or incite illegal activity.
  • Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
  • Post anything that exploits children or minors or that depicts cruelty to animals.
  • Post any copyrighted or trademarked materials without the express permission from the owner of such copyright or trademark.
  • Post any person’s name, likeness, voice or biographical information without the express permission from such person (or if that person is a minor, from that person’s parent or legal guardian).
  • Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
  • Use any robot, spider, scraper or other automated means to access the Site.
  • Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
  • Alter the opinions, goals, profiles or comments posted by others on the Site.

This list of prohibitions provides examples and is not complete or exclusive. Herbalizer reserves the right in its sole discretion to (a) terminate your access to your account; (b) terminate your ability to post to the Site (or the services) and (c) refuse, delete, modify, edit or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that Herbalizer determines is inappropriate or disruptive to this Site or to any other user of the Site and/or services. Herbalizer may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Herbalizer’s discretion, Herbalizer will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Site or on the Internet.

Herbalizer takes no responsibility and assumes no liability for any Submissions posted or uploaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Herbalizer is only a forum and is not liable for any statements, representations, or Submissions provided by its users in any public forum or personal home page.

These prohibitions do not require Herbalizer to monitor, police or remove any Submissions or other information submitted by you or any other user.

9. Feedback

If you submit any feedback or ideas about our products and services to the Site, you hereby assign and agree to assign to Herbalizer all right, title and interest in and to such feedback.

10. Modifications

Any Content offered or posted on the Site is subject to modification or discontinuation at any time and from time to time without notice or obligation to you. Without limiting the foregoing, Herbalizer reserves the right, in its sole discretion, to charge fees for the use or purchase of, or access to, any products, services or Content offered through the Site, at any time and from time to time.

11. Indemnification

You agree to defend, indemnify and hold harmless Herbalizer, its affiliates and their respective directors, officers, employees and agents against any losses, liabilities, claims, expenses (including attorney’s fees) arising out of your account, any breach by you of these Terms of Use, your use of the Site, and your Submissions and any Personal Rights contained therein.

12. Links to Third Party WebSite

The Site may contain links to websites and other resources operated by third parties other than Herbalizer. Such links are provided solely as a convenience to you.Herbalizer does not control such websites, and is not responsible for the content, products, services or information offered by any third parties. The inclusion of links to such websites on the Site does not imply any endorsement of any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person. If you decide to access any third party websites or acquire any third party products or services, you do so entirely at your own risk, and you may be subject to the terms and conditions and the privacy policies imposed by such third parties.

13. Warranties and Disclaimer

USE OF THIS SITE IS AT YOUR SOLE RISK. THE SITE, SUBMISSIONS AND ANY CONTENT PROVIDED VIA THE SITE, INCLUDING LINKS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES OR GUARANTEES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HERBALIZER DISCLAIMS ALL REPRESENTATIONS, GUARANTEES, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, SUBMISSIONS, THE CONTENT AND ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM ERRORS, OMISSIONS, COMPUTER VIRUSES OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, AND IMPLIED WARRANTIES OR CONDITIONS ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, HERBALIZER DOES NOT REPRESENT OR WARRANT THAT THE SITE, SUBMISSIONS, CONTENT OR ANY PRODUCTS, SERVICES OR ANY OTHER INFORMATION ACCESSIBLE VIA THE SITE IS SECURE, ACCURATE, COMPLETE OR CURRENT OR THAT ANY PARTICULAR PRODUCTS OR INVENTORY WILL BE AVAILABLE AT ANY PARTICULAR STORE. AS A CONDITION OF YOUR USE OF THE SITE, YOU WARRANT TO HERBALIZER THAT YOU WILL NOT USE THE SITE FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THESE TERMS OF USE.

THE SITE MAY CONTAIN TYPOGRAPHICAL ERRORS OR INACCURACIES AND MAY NOT BE COMPLETE OR CURRENT. HERBALIZER THEREFORE RESERVES THE RIGHT TO CORRECT ANY ERRORS, INACCURACIES OR OMISSIONS (INCLUDING AFTER AN ORDER HAS BEEN SUBMITTED) AND TO CHANGE OR UPDATE INFORMATION AT ANY TIME WITHOUT PRIOR NOTICE. PLEASE NOTE THAT SUCH ERRORS, INACCURACIES OR OMISSIONS MAY RELATE TO PRICING AND AVAILABILITY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, HERBALIZER RESERVES THE RIGHT TO CANCEL OR REFUSE TO ACCEPT ANY ORDER PLACED BASED ON INCORRECT PRICING OR AVAILABILITY INFORMATION. WE APOLOGIZE FOR ANY INCONVENIENCE.

IF AN ITEM BECOMES UNAVAILABLE FOR WHATEVER REASON AFTER AN ORDER IS ACCEPTED, HERBALIZER MAY TERMINATE THE ORDER BY GIVING YOU WRITTEN NOTICE. IN SUCH EVENT, HERBALIZER WILL CONTACT YOU TO ARRANGE FOR A REFUND OR PROVISION OF CREDIT AGAINST FUTURE PURCHASE. AGAIN, WE APOLOGIZE FOR ANY INCONVENIENCE.

14. Limitation of Liability

HERBALIZER AND ITS PARENT, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND THIRD PARTY PARTNERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES OR FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OR OTHER DAMAGES IN CONNECTION WITH ANY PERSONAL INJURY OR EXPENSE OF ANY NATURE WHATSOEVER WHICH MAY BE SUFFERED BY YOU OR ANY THIRD PARTY, THE UNAVAILABILITY OR NONPERFORMANCE OF THE SITE, ERRORS, OMISSIONS, VIRUSES AND MALICIOUS CODE. HERBALIZER’S CUMULATIVE LIABILITY WITH RESPECT TO ANY CLAIMS MADE IN RELATION TO OR ARISING UNDER THESE TERMS OF USE UNDER ANY THEORY OR BASIS WILL NOT EXCEED FEES PAID BY YOU TO HERBALIZER. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Certain laws do not allow limitations on implied warranties or conditions, or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations, may not apply to you, and you may have additional rights to those contained herein.

15. Copyright and Trademark Infringements

Notification:

Herbalizer respects the intellectual property rights of others, and we ask you to do the same. Herbalizer may, in appropriate circumstances and at our discretion, terminate service and/or access to the Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide Herbalizer’s designated agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Herbalizer to locate the material.
  • Information reasonably sufficient to permit Herbalizer to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Herbalizer’s agent for notice of claims of copyright or trademark infringement on the Site can be reached as follows:

By mail:
Herbalizer
5005 Texas St Ste 102
San Diego, California 92108
support@herbalizer.com

Please also note that this procedure is exclusively for notifying Herbalizer that your copyrighted material has been infringed. For copyright infringements under Section 512(f) of the U.S. Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

16. Governing Law and Injunctive Relief

All litigation, court proceedings, arbitration proceedings, mediation proceedings, lawsuits, court hearings and other hearings or actions initiated in connection with the Site and/or the Content must and will be venued exclusively in San Diego, California, USA. These Terms of Use and the relationship between you and Herbalizer will be governed by the laws of California. You acknowledge that Herbalizer has a proprietary interest in the information provided on the Site and that any use by you that intends to frustrate the purpose of these Terms of Use, including but not limited to selling, renting, or otherwise distributing the information would cause irreparable injury to Herbalizer in a way that could not be adequately compensated by damages. You agree that, in the event of such improper use, Herbalizer shall be entitled to an immediate injunction without the requirement of posting a bond (to the fullest extent permissible by law).

17. Miscellaneous

If any provision of these Terms of Use is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect the effectiveness or validity of any provision in any other jurisdiction, and these Terms of Use will be reformed, construed and enforced in such jurisdiction as if such provision had never been contained herein. Any headings or titles herein are for convenience only. The official language of these Terms of Use exclusively shall be, and all communications and agreements between Herbalizer and you and any proceedings in connection with these Terms of Use and/or your use of the Site, exclusively shall be made in, the English language. Herbalizer and you waive any rights we may have under any other law to have these Terms of Use written in another language, and any translation of this Terms of Use will be for convenience only. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Herbalizer as a result of these Terms of Use, our Privacy Policy or any use of the Site. Herbalizer’s performance of these Terms of Use is subject to existing laws and legal process, and nothing contained in these Terms of Use or our Privacy Policy is in derogation ofHerbalizer’s right to comply with law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Herbalizerwith respect to such use. These Terms of Use and our Privacy Policy constitute the entire agreement between you and Herbalizer with respect to the Site, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Herbalizer with respect to the Site.