CC Software LLC
Version 1.0, Effective Date: 30 July 2015, Last Updated Date: 30 July 2015
1. Services. CC provides an online marketplace, laboratory test order management system, and data analytics, insights and reporting platform that brings cultivators, manufacturers, distributors and dispensaries of legal medical and adult-use cannabis products (“Customers”) together with laboratories that provide testing of such cannabis products (“Labs”) (“Customers” and “Labs” that create accounts on the Website are referred to collectively herein as “Registered Users”). As a marketplace, we do not own or sell the cannabis testing services listed on the Website (the “Cannabis Test Services”) or the test results that Labs upload for viewing by Customers who have ordered such Cannabis Test Services (the “Lab Test Results”), so the actual contract for purchase of each Cannabis Test Service and delivery of the Lab Test Results related thereto, and the processing of payments therefor, is directly between the Lab and the Customer seeking to buy such Cannabis Test Services.
2. CC Only Provides a Venue. We are not a party to the contracts between Users. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of the Cannabis Test Services provided by Labs, or of the integrity, responsibility, or any actions of any Users. CC makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. We cannot confirm that each User is who they claim to be. CC does not assume any responsibility for the accuracy or reliability of any User Content provided through the Services. As set forth more fully in Section 9, CC does not claim ownership of Your Content.
NEITHER CC NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. CC AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF OUR PROPERTIES.
3. Use of the Services and Our Properties. Our Properties and the information and content available on Our Properties are protected by copyright laws throughout the world. Subject to the Terms, CC grants you a limited license to reproduce portions of Our Properties for the sole purpose of using the Services for the business purposes specified in Section 1. Unless otherwise specified by CC in a separate license, your right to use any of Our Properties is subject to the Terms.
3.1 CC Software. Use of any software and associated documentation that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will CC provide you with any tangible copy of our Software. CC shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms. Subject to your compliance with the Terms, CC grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
3.2 Updates. You understand that Our Properties are evolving. You acknowledge and agree that CC may update Our Properties with or without notifying you. You may need to update third-party software from time to time in order to use Our Properties.
3.3 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Our Properties or any portion of Our Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or any other of Our Properties (including images, text, page layout or form) of CC; (c) you shall not use any metatags or other “hidden text” using CC’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Our Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Our Properties in order to build a similar or competitive website or service; (g) except as expressly stated herein, no part of Our Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Our Properties. Any future release, update or other addition to Our Properties shall be subject to the Terms. CC, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Our Properties terminates the licenses granted by CC pursuant to the Terms.
4.1 Registering Your Account. In order to access the Services you will be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”).
4.2 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least twenty-one (21+) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using Our Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by anyone under the age of twenty-one (21) years old, and you will accept full responsibility for any unauthorized use of Our Properties by such individuals. You may not share your Account or password with anyone, and you agree to (1) notify CC immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or CC has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CC has the right to suspend or terminate your Account and refuse any and all current or future use of Our Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. CC reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Our Properties if you have been previously removed by CC, or if you have been previously banned from any of Our Properties.
4.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of CC.
4.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Our Properties. You are solely responsible for any fees, including Internet connection that you incur when accessing Our Properties.
5. Right to Charge for Services. We reserve the right to charge fees for some or all of our Services in the future by posting the changes on Our Properties fourteen (14) days in advance.
6. Customer Conditions. If you are registered as a Customer, you agree to the following:
6.1 When you place an order with a Lab through the Services, that order becomes a legally binding contract between you and the Lab when it is accepted by the Lab;
6.2 The Lab may require you to sign an additional contract with it as a condition to its acceptance of your order.
7. Release. CC expressly disclaims any liability that is either directly or indirectly related to or arises from your use of Our Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Our Properties. The Services are only a venue for connecting Registered Users. Because CC is not involved in the actual contract between Registered Users or in the sale of the Cannabis Test Services or delivery of the Lab Test Results, in the event that you have a dispute with another User or with a third-party website, you release CC (and our officers, directors, agents, investors, subsidiaries, and employees) and CC’s successors from any and all claims, demands, losses, damages (actual or consequential), rights, and actions of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes arising in connection with or as a result of the Terms or your use of Our Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.
8. Responsibility for Content.
8.1 Types of Content. You acknowledge that all Content, including Our Properties, is the sole responsibility of the party from whom such Content originated. This means that (a) you, and not CC, are entirely responsible for all Content, including but not limited to Lab Test Results, that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Our Properties (“Your Content”), and that (b) other Users of Our Properties, and not CC, are similarly responsible for all Content they Make Available through Our Properties (“User Content”).
8.2 Lab Test Results. Each Lab will post Lab Test Results for Cannabis Test Services ordered by a Customer which will be made available for viewing on the Website solely by such Customer. All of your Lab Test Results will be available for you to download from the Website at any time.
8.3 Publication of Lab Test Results by Customer At some point in the future, the Company intends to provide each Customer with the option on the Website for each Cannabis Test Service ordered to make the associated Lab Test Results public (“Make Public”) through Our Properties. In the event that a Customer Makes Public Lab Test Results, CC will host such Lab Test Results and the Customer can provide a link to such Lab Test Results, for example, in order to provide such Lab Test Results to other Registered Users of the Company Properties and to third parties who are not Registered Users of the Company Properties.
8.4 Use of Anonymous Data by CC. If you are registered as a Customer, you acknowledge and agree that CC may use and disclose Anonymous Data extracted from Lab Test Results that are provided by a Lab to you for any purpose. “Anonymous Data” means any data from such Lab Test Results that is not associated with or linked to Customer’s name, address, email, website or other information that would identify the Customer, including data that has been aggregated with similar Anonymous Data from Lab Test Results provided to other Users of the Service.
8.5 No Obligation to Pre-Screen Content. You acknowledge that CC has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although CC reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that CC pre-screens, refuses or removes any Content, you acknowledge that CC may do so for any reason or no reason. Without limiting the foregoing, CC shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
8.6 Storage. CC encourages you to maintain your own backup of Your Content. CC is not a backup service and unless expressly agreed to by CC in writing elsewhere, CC has no obligation to store any of Your Content and is not responsible for any loss of Your Content. CC has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Our Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that CC retains the right to create reasonable limits on CC’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by CC in its sole discretion.
9.1 Our Properties. Except with respect to Your Content and User Content, you agree that CC and its suppliers own all rights, title and interest in Our Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Our Properties without prior written consent.
9.2 Trademarks. “Confident Cannabis” and other related graphics, logos, service marks and trade names used on or in connection with Our Properties are the trademarks of CC and may not be used without prior written consent in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Our Properties are the property of their respective owners.
9.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Our Properties.
9.4 Your Content. CC does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Our Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
9.5 License to Your Content. . CC will make best commercial efforts to maintain the confidentiality and privacy of Your Content as required by law You grant CC a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, any of Your Content (in whole or in part) which you make Make Available on your Profile, in any other area of Our Properties that is accessible to other Users of Our Properties, or as set forth in Section 8.3. You also grant CC a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, license, and distribute any Other Content you Make Available on our Site solely for the purposes of providing the Services to You. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the licenses stated above. You agree that you, not CC, are responsible for all of Your Content that you Make Available on or in Our Properties.
9.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Our Properties, you hereby expressly permit CC to identify you by your username (which may be your name, email or organization’s name) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
9.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to CC through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that CC has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to CC a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Our Properties.
9.8 Reviews and Evaluations. The Services may in the future host User generated Content that is related to reviews or evaluations of certain Users. Such reviews are opinions and are not the opinion of CC, have not been verified by CC, and each User should undertake his or her own research to be satisfied concerning any specific User. You agree that CC is not liable for any User generated Content.
10. User Conduct. While using or accessing Our Properties you agree that you will not, under any circumstances:
(a) Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
(b) Interfere with or damage Our Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Fail to pay for testing services purchased by you, unless the Laboratory has given express authorization for such failure of payment, the Laboratory has materially changed the testing services’ description after your bid, a clear typographical error is made, or you cannot contact the Laboratory;
(d) Fail to deliver testing services sold by you, unless the Customer fails to follow the posted terms, or you cannot contact the Customer
(e) Manipulate the price of any testing services or interfere with other Users’ listings;
(f) Post false, inaccurate, misleading, defamatory or libelous content;
(g) Take any action that may undermine our feedback or ratings systems;
(h) Transfer your Account and username to another party without our consent;
(i) Bypass our robot exclusion headers, interfere with the working of Our Properties, or impose an unreasonable or disproportionately large load on our infrastructure;
(j) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(k) Use Our Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(l) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; or
(m) Upload, post, e-mail, transmit or otherwise make available any content that infringes upon any intellectual property rights (including but not limited to the rights included in a patent, copyright, trademark or trade secret).
11. No Solicitation. The Services may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through Our Properties. You may not use the Services to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of CC.
12. Investigations. CC may, but is not obligated to, monitor or review Our Properties and Content at any time. Without limiting the foregoing, CC shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although CC does not generally monitor User activity occurring in connection with Our Properties or Content, if CC becomes aware of any possible violations by you of any provision of the Terms, CC reserves the right to investigate such violations, and CC may, at its sole discretion, immediately terminate your license to use Our Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
13. Third-Party Websites & Ads. Our Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left Our Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of CC. CC is not responsible for any Third-Party Websites & Ads. CC provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. CC reserves the right to display Third-Party Websites & Ads before, after, or in conjunction with the User Content posted on the Services, and you acknowledge and agree that CC has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by CC as a result of such advertising).
14. Indemnification. You agree to indemnify and hold CC, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, “CC Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Our Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; (e) your interactions with other Users of Our Properties, including but not limited to the purchase or sale of Cannabis Test Services; or (f) your violation of any applicable laws, rules or regulations. CC reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with CC in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Our Properties.
15. Disclaimer of Warranties.
15.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PROPERTIES IS AT YOUR SOLE RISK, AND OUR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CC PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) CC PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) OUR PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF OUR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF OUR PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN OUR PROPERTIES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH OUR PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS OUR PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) From time to time, CC may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at CC’s sole discretion. The provisions of this section apply with full force to such features or tools.
15.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT CC PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CC PARTIES LIABLE, FOR THE CONDUCT OF OTHER REGISTERED USERS OR ANY THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH USERS OR THIRD PARTIES RESTS ENTIRELY WITH YOU.
(a) CC makes no warranty that the Cannabis Test Services provided by Labs pursuant to orders placed by Customers through Our Properties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. CC makes no warranty regarding the quality of any such Cannabis Test Services, or the accuracy, timeliness, truthfulness, completeness or reliability of any User Content Made Available through Our Properties.
(b) CC is not involved in the actual transaction between Customers and Labs. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of the Cannabis Test Services procured through Our Properties, the truth or accuracy of User Content, the ability of Labs to provide the Cannabis Test Services they offer through our Properties, or the ability of Customers to pay for the Cannabis Test Services they order through Our Properties.
15.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR PROPERTIES. YOU UNDERSTAND THAT CC DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF OUR PROPERTIES. CC MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF OUR PROPERTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR PROPERTIES.
16. Limitation of Liability.
16.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CC PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR PROPERTIES, OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT CC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF OUR PROPERTIES, INCLUDING CANNABIS TEST SERVICES ORDERED THROUGH OUR PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE OUR PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH OUR PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO OUR PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
16.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL CC PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY CC AS A RESULT OF YOUR USE OF OUR PROPERTIES. IF YOU HAVE NOT PAID CC ANY AMOUNTS, CC’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
16.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
16.4 User Content. CC PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
16.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CC AND YOU.
17. Termination and Suspension. CC may terminate or suspend your right to use Our Properties at any time for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice. We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services. Without limitation, CC may terminate or suspend your right to use Our Properties if you breach any provision of the Terms or any policy of CC posted through Our Properties from time to time; if CC otherwise finds that you have engaged in inappropriate and/or offensive behavior; if CC believes you are creating problems or possible legal liabilities; if CC believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities; if CC believes you are infringing the rights of third parties; if CC believes you are acting inconsistently with the spirit of these Terms; if despite our reasonable endeavors, CC is unable to verify or authenticate any information you provide; or if you fail to pay all fees due for our Services by the payment due date. In addition to terminating or suspending your Account, CC reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.
17.1 Violations. If CC becomes aware of any possible violations by you of the Terms, CC reserves the right to investigate such violations. CC will comply with all applicable laws and any instructions from applicable legal authorities. CC is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Our Properties, including Your Content, in CC’s possession in connection with your use of Our Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of CC, its Users or the public, and all enforcement or other government officials, as CC in its sole discretion believes to be necessary or appropriate.
17.2 No Subsequent Registration. If your registration(s) with or ability to access Our Properties is discontinued by CC due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access Our Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees, if any, related to those of Our Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, CC reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
18. General Provisions.
18.1 Electronic Communications. The communications between you and CC use electronic means, whether you visit Our Properties or send CC e-mails, or whether CC posts notices on Our Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from CC in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that CC provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.2 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you, except to a successor entity in the case of a merger or other corporate reorganization in which you are not the surviving entity, without CC’s prior written consent, and any such attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.3 Force Majeure. CC shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Our Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.5 Limitations Period. YOU AND CC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, OUR PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.6 Dispute Resolution.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by CC that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and CC, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to CC should be sent to: PO Box 61258, Palo Alto, CA 94306 and email@example.com. After the Notice is received, you and CC may attempt to resolve the claim or dispute informally. If you and CC do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that CC made to you prior to the initiation of arbitration, CC will pay you the greater of the award or $1,000 Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or CC pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and CC, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and CC.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and CC in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CC WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with CC.
(m) Small Claims Court. Notwithstanding the foregoing, either you or CC may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California, for such purpose.
18.7 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
18.8 Notice. Where CC requires that you provide an e-mail address, you are responsible for providing CC with your most current e-mail address. In the event that the last e-mail address you provided to CC is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, CC’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to CC at the following address: PO Box 61258, Palo Alto, CA 94306. Such notice shall be deemed given when received by CC by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.10 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
18.11 Export Control. You may not use, export, import, or transfer Our Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Properties, and any other applicable laws. In particular, but without limitation, Our Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Our Properties, 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 also will not use Our Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by CC are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer CC products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.13 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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