Last updated: October 23, 2020
TECHNOLOGY PLATFORM. You expressly agree and acknowledge that BB (i) is a technology platform; (ii) is not a cannabis retailer, cultivator, or brand; (iii) does not itself, provide delivery of any cannabis or process payments for cannabis; and (iv) does not itself cultivate, manufacture, package, label, test, or sell cannabis. The third-parties and brands who list their cannabis-related or non-cannabis-related services or businesses on BB (“Third-Party Sellers”) are solely responsible for ensuring that their products or services are offered in a safe, legal, and compliant manner. BB has no responsibility or liability for any products or services offered by any Retailer. Nor does BB have any responsibility or liability for any reviews or statements posted on BB regarding any products or services offered by any Retailer.
ACKNOWLEDGMENT OF U.S. FEDERAL LAW. BB operates under applicable U.S. state laws. You expressly acknowledge and understand that marijuana (cannabis) is listed on Schedule I of the United States Controlled Substances Act. Under U.S. federal laws, manufacturing, distributing, dispensing, or possession of marijuana is illegal, and individuals are subject to arrest and/or prosecution for doing so. You further acknowledge that medical use is not recognized as a valid defense under federal laws regarding marijuana. You also acknowledge and understand that the interstate transportation of marijuana is a federal offense.
ACKNOWLEDGMENT OF STATE LAW. You expressly acknowledge, understand, and agree that the use, possession, cultivation, manufacturing, transportation, and distribution of cannabis may be illegal in your state of residence and in the state you are located, unless all participants are acting completely within the scope of the state’s applicable laws.
ACKNOWLEDGMENT OF THE LAWS OF YOUR LOCATION. While the BB may be accessed from various locations, BB only accepts listings from medical marijuana patient 21 years of age or older with a state cannabis license in one of the following states ARIZONA, CALIFORNIA, COLORADO, ILLINOIS, MASSACHUSETTS, MICHIGAN, MINNESOTA, MONTANA, NEVADA, NEW YORK, OHIO, OREGON OR WASHINGTON. If you are not 21 years of age and or do not meet these requirements, please leave now. Third Party Sellers located in certain states, cities, counties, municipalities, provinces, and jurisdictions (“Service Area”). In all scenarios, you must abide by and follow the applicable laws of the state, city, county, municipality, province, or jurisdiction in which you are located in order to use BB. You expressly acknowledge, understand, and agree to assume full responsibility for cooperating with the laws of your place of location while using BB. BB reserves the right to determine or change its Service Area in its sole discretion at any time.
HEALTH INFORMATION. You expressly acknowledge, understand, and agree that any statements relating to cannabis goods, accessories, or any other products available on BB have not been evaluated by the U.S. Food and Drug Administration (FDA). Neither the products nor the ingredients in any of the products have been approved or endorsed by the FDA or any other regulatory agency. The products available on BB are not intended to diagnose, treat, cure, mitigate, or prevent any medical condition, illness, or disease in humans or animals. The information provided is designed for educational purposes only and is not intended to be a substitute for informed medical advice or care. If you are pregnant, nursing, taking medication, or have a medical condition, we suggest consulting with a physician before using any products seen on BB.
LICENSE. If you agree to the TOU and (1) are of 21 years of age and capacity to use BB and be bound by the TOU, or (2) use BB on behalf of a business, thereby binding that business to the TOU, we grant you a limited, revocable, non-exclusive, non-assignable license to use BB in compliance with the TOU; unlicensed use is unauthorized. You agree not to display, “frame,” make derivative works, distribute, license, or sell, content from BB, excluding postings you create. You grant us a perpetual, irrevocable, unlimited, worldwide, fully paid/sublicensable license to use, copy, display, distribute, and make derivative works from content you post.
LICENSE GRANTED BY YOU. As between you and BB, you retain ownership of the content that you post, submit, provide, or otherwise make available on or through BB. However, by submitting your content, you hereby grant BB, the following worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable, and transferable rights and licenses:
1. To host, cache, store, archive, index, crawl, create algorithms based on, modify, or transcode your content to media formats, standards, or mediums in any and all forms and by whatever means whether now known or hereinafter devised or created, and to exploit any and all allied, ancillary, and subsidiary rights relating thereto and derived therefrom;
2. To use, license, sell, digitize, stream, store, distribute, exhibit, reproduce, commercialize, publicize, display, modify, adapt, edit, excerpt, communicate, translate, analyze, remove, prepare derivative works and compilations of, compress, transmit, integrate, insert, market, and promote your content in any and all forms and media and by whatever means whether now known or hereinafter devised or created, and to exploit any and all allied, ancillary, and subsidiary rights relating thereto and derived therefrom;
3. To use your content, in whole or in part, for advertising, promotional, or commercial purposes, including without limitation, the right to publicly display, reproduce, and distribute your content in any and all forms and media and by whatever means whether now known or hereinafter devised or created, and to exploit any and all allied, ancillary, and subsidiary rights relating thereto and derived therefrom
4. To grant any rights or licenses to any third parties to do any of the foregoing in the above clauses (1) – (3) in connection with their own websites and media platforms; and
5. To enforce copyright, trademark, trade secret, and other intellectual property related claims against third parties that have, without receiving proper authorization, scraped, manipulated, copied, derived, distributed, or otherwise improperly or illegally used and benefited from content that has been provided to BB by you.
You irrevocably waive, and cause to be waived, against BB and its users, any claims and assertions of moral rights or attribution with respect to your user content.
You hereby grant BB the right and license to use any data, images, or information that is pushed or otherwise transferred to us through any of our application programming interfaces by you or by any third party on your behalf (“Licensed Data”) for any purpose relating to any of the businesses
of BB or for any purpose relating to BB, including in connection with displaying any data, images, or information on BB. You acknowledge and agree that we shall have the right to reformat, improve, modify, adapt, derive, redisplay, and/or reprocess any of the Licensed Data and that we shall exclusively own all derivative works, graphical layouts, compilations, improvements, modifications, adaptations, analyses, and interpretations of the Licensed Data. Interpretations or translations of any of the Licensed Data prepared by BB shall be owned exclusively by us.
USE. Unless licensed by us in a separate written or electronic agreement, you agree not to use or provide software (except our App and general purpose web browsers and email clients) or services that interact or interoperate with BB, e.g. for downloading, uploading, creating/accessing/using
an account, posting, flagging, emailing, searching, or mobile use. You agree not to copy/collect BB content via robots, spiders, scripts, scrapers, crawlers, or any automated or manual equivalent (e.g., by hand). Misleading, unsolicited, and/or unlawful postings/communications/accounts are
prohibited, as is buying or selling accounts. You agree not to post content that is prohibited by any of BB’s policies or rules referenced above (“Prohibited Content”). You agree not to abuse BB’s flagging or reporting processes. You agree not to collect BB user information or interfere with
BB. You agree we may moderate BB access/use in our sole discretion, e.g., by blocking, filtering, re-categorizing, re-ranking, deleting, delaying, holding, omitting, verifying, or terminating your access/license/account. You agree (1) not to bypass said moderation, (2) we are not liable for moderating or not moderating, and (3) nothing we say or do waives our right to moderate, or not. Unless licensed by us in a separate written or electronic agreement, you agree not to (i) rent, lease, sell, publish, distribute, license, sublicense, assign, transfer, or otherwise make available BB or our application programming interface (“API”), (ii) copy, adapt, create derivative works of, decompile, reverse engineer, translate, localize, port or modify the App, the API, any website code, or any software used to provide BB, (iii) combine or integrate BB or the API with any software, technology, services, or materials not authorized by us, (iv) circumvent any functionality that controls access to or otherwise protects BB or the API, or (v) remove or alter any copyright, trademark or other proprietary rights notices. You agree not to use BB or the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
PROHIBITED. Users must comply with all applicable laws, the BB TOU, and all Additional Terms. Here is a partial list of goods, services, and content prohibited on Budbay:
• any good, service, or content that violates the law or legal rights of others
• false, misleading, deceptive, or fraudulent content; bait and switch; keyword spam
• offensive, obscene, defamatory, threatening, or malicious postings or email
• anyone’s personal, identifying, confidential or proprietary information
• spam; miscategorized, overposted, cross-posted, or nonlocal content
• postings or email the primary purpose of which is to drive traffic to a website
• weapons; firearms/guns and components; BB/pellet, stun, and spear guns; etc
• ammunition, clips, cartridges, reloading materials, gunpowder, fireworks, explosives
• US military items not demilitarized in accord with Defense Department policy
• child pornography; bestiality; offers or solicitation of illegal prostitution
• pet sales (re-homing with small adoption fee ok), animal parts, stud service
• food stamps, WIC vouchers, SNAP or WIC goods, governmental assistance
• hazardous materials, recall items; body parts/fluids; unsanitized bedding/clothing
• stolen property, property with serial number removed/altered, burglary tools, etc
• ID cards, licenses, police insignia, government documents, birth certificates, etc
• counterfeit, replica, or pirated items; tickets or gift cards that restrict transfer
• lottery or raffle tickets, sweepstakes entries, slot machines, gambling items
Please don’t use BB for these purposes, and report anyone else you see doing so.
THIRD-PARTY MATERIALS. BB might display, include, or make available Third-Party content (including data, information, links, articles, applications or other products, services, and/or materials) or contain links to third-party websites, services, and advertisements for Third-Party
Sellers (collectively, hereinafter “Third-Party Materials”). You acknowledge and agree that BB is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. BB does not assume and will not have any liability or responsibility to you or any other person or user for any Third-Party Materials. Third-Party Materials are provided solely as a convenience to you and you access and use them entirely at your own risk. When you link to Third-Party Material, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Material.
LIQUIDATED DAMAGES. You further agree that if you violate the TOU, or you encourage, support, benefit from, or induce others to do so, you will be jointly and severally liable to us for liquidated damages as follows for: (A) collecting/harvesting BB users’ information, including personal or identifying information – $1 per violation; (B) publishing/misusing personal or identifying information of a third party in connection with your use of BB without that party’s express written consent – $1,000 per violation; (C) misrepresenting your identity or affiliation to anyone in connection with your use of BB – $1,000 per violation; (D) posting or attempting to post Prohibited Content – $4 per violation; (E) posting or attempting to post Prohibited Content in any paid section of BB – the price per post applicable to that section of BB; (F) sending an unauthorized/unsolicited email to an email address obtained from BB – $25 per violation; (G) using BB user information to make/send an unauthorized/unsolicited text message, call, or communication to a BB user – $500 per text/call/communication; (H) creating a misleading or unlawful BB account or buying/selling a BB account – $4 per violation; (I) abusing or attempting to abuse BB’s flagging or reporting processes – $1 per violation; (J) distributing any software to facilitate violations of the USE Section – $1,000 per violation; (K) aggregating, displaying, framing, copying, duplicating, reproducing, making derivative works from, distributing, licensing, selling, or exploiting BB content for any purpose without our express written consent – $3,000 for each day you engage in such violations; (L) requesting, viewing, or accessing more than 1,000 pages of BB in any 24-hour period – $0.25 per page during the 24 hour period after the first 1,000 pages; (M) bypassing or attempting to bypass our moderation efforts – $4 per violation. You agree that these amounts are (1) a reasonable estimate of our damages (as actual damages are often difficult to calculate), (2) not a penalty, and (3) not otherwise limiting on our ability to recover under any legal theory or claim, including statutory damages and other equitable relief (e.g., for spam, we can elect between the above liquidated damages or statutory damages under the anti-spam statute). You further agree that repeated violations of the USE section will irreparably harm and entitle us to injunctive or equitable relief, in addition to monetary damages.
FEES. When you make a paid posting you authorize us to charge your account. We may refuse any posting.
DMCA NOTICE OF ALLEGED INFRINGEMENT (“NOTICE”). BB may, in appropriate circumstances and at its discretion, to disable, eliminate access to, and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights of others. In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which can be found on the U.S. Copyright Office website, BB will respond appropriately to claims and reports of copyright infringement taking place on or through BB. If you are a copyright owner, an authorized representative of a copyright owner, or an authorized representative permitted to act under an exclusive right per an applicable copyright, please report alleged copyright infringements taking place on or through BB by completing the following DMCA Notice of Alleged Infringement and delivering it to BB in accordance with the DMCA and these TOU. Upon receipt of a properly completed and delivered DMCA Notice of Alleged Infringement, BB will take whatever action it deems appropriate in its sole discretion, but subject to its obligations under the DMCA, including removal of the challenged material from BB.
1. Identify the copyrighted work that you claim has been infringed, or—if multiple copyrighted works are covered by this Notice—provide a comprehensive list of the copyrighted works that you claim have been infringed.
2. Identify the material that you claim is infringing (i.e., the material you want removed, or material that you want all access disabled to) and provide information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on BB where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
a. “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.”
b. “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
6. Deliver this Notice, with all above items completed, to:
Chimney Smokes Holdings Corp.
422 Larkfield Ctr.
Santa Rosa, CA 95403
Attn: DMCA Agent
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities)
in a Notice automatically subjects the complaining party to liability for any damages, costs, and
attorney’s fees incurred by BB in connection with the Notice and allegation of copyright
INDEMNIFICATION AND RELEASE. If there is a dispute between users of BB, including between Consumers and Retailers, you understand and agree that BB and its affiliates are under no obligation to become involved in such a dispute. You agree to indemnify and hold BB and its affiliates (and their respective owners, directors, managers, officers, partners, employees, independent contractors, agents, successors and assigns) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs, and expenses (including but not limited to attorneys’ fees and court costs) known and unknown, suspected and unsuspected, disclosed and undisclosed arising out of or
AGREEMENT TO ARBITRATE. In the event we cannot resolve a dispute through direct informal discussions, you and BB (collectively, the “Parties”) mutually agree that any dispute, claim, counterclaim, or controversy arising out of or relating to these TOU— including the applicability, breach, termination, validity, enforcement or interpretation thereof—or the use of BB (collectively, “Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to a Dispute, the Parties mutually agree that the arbitrator will decide this issue.
EXCEPTIONS TO ARBITRATION AGREEMENT. The Parties mutually agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) any claim seeking emergency injunctive relief based on exigent circumstances. Filing of claims subject to these exceptions shall not be deemed a waiver of either your or BB’s right under the Arbitration Agreement to have all other Disputes determined by individual arbitration in accordance with the terms of the Arbitration Agreement.
ARBITRATION RULES AND GOVERNING LAW. This Arbitration Agreement shall be governed by the Federal Arbitration Act. The arbitration will be administered by the AAA in accordance with the AAA Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
JURY TRIAL WAIVER. The Parties acknowledge and agree to waive the right to a trial by jury as to all arbitrable Disputes.
NO CLASS ACTIONS OR REPRESENTATIVE PROCEEDINGS. The Parties acknowledge and agree, to the fullest extent permitted by law, to waive the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, collective action, private attorney general action, or any other representative proceeding as to all Disputes. Unless the Parties both otherwise agree in writing, the arbitrator may not consolidate or join the claims of other persons or parties, or otherwise preside over any form of class, collective, or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “collective action” waiver or the “private attorney general action” waiver or the “representative proceeding” waiver in this paragraph is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and the Parties agree that any collective claims and private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
SEVERABILITY / NO WAIVER. Except as provided above with respect to the “class action lawsuit” or “class-wide arbitration” waivers, if any provision of the Arbitration Agreement is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of the Arbitration Agreement shall continue in full force and effect.
SURVIVAL PAST TERMINATION. Unless superseded by a later arbitration agreement between the Parties, this Arbitration Agreement will survive the termination of these TOU.
DISCLAIMER OF WARRANTIES. You expressly acknowledge, understand, and agree that:
1. To the maximum extent permitted by law, the entire risk arising out of your access to and use of BB, is assumed by you and remains with you.
2. BB IS PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS. BB and its affiliates, officers, directors, managers,
shareholders, owners, employees, contractors, consultants, and agents expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement and quality of service, or any other potential or actual warranty of any kind.
3. BB and its affiliates, officers, directors, managers, shareholders, owners, employees, contractors, consultants, and agents make no guarantee or warranty that:
(a) BB will satisfy your needs and requirements or will be compatible with your equipment;
(b) BB, and all affiliated websites, features, services, communications, and applications, will be comprehensive, uninterrupted, timely, secure, or error-free, or be free from loss, destruction, corruption, online attack, viruses, worms, or other invasive, harmful, or corrupted or other related intrusions; (c) the information, data, or results realized or obtained from your use of BB will be accurate, up to date, satisfactory or reliable or fit or useful for any specific purpose; (d) the quality or value of any properties, services, products, information, or other materials purchased or obtained by you through BB will meet your expectations; (e) that any offer made or message sent will be successfully transmitted, received, and processed; and (f) any errors in the guidelines, software, or protocols will be corrected or resolved.
4. BB is unable to guarantee consistent, continuous, or secure access to its websites, applications, services, programs, content, and network, and operation of BB may be interfered with or delayed by numerous potential factors outside of BB’s control.
5. Any product or program downloaded or otherwise obtained through the use of BB is accessed at your own discretion and risk, and you will be solely responsible and fully liable for any damage to your computer system or mobile device, loss of data, or any other loss or damage that results from the download or use of any such product, material, application, feature, or other program.
6. All content, including medical or legal information, strategy, guidelines, or related content, whether oral or written, obtained by you from BB, or relevant social media pages is intended for informational and educational purposes only. Such information is not intended to be legal advice and/or medical advice, diagnosis, or treatment. You should consult an attorney for legal advice regarding your individual situation and/or a doctor or other qualified health care provider if you have any questions about any medical conditions.
7. No information, including medical or legal information, strategy, guidelines, or related content, whether oral or written, obtained by you from BB or from the Websites, Services, or relevant social media pages shall create any warranty, guarantee, or strategy not expressly stated in these TOU.
8. BB cannot and does not control any User Content and, as such, does not guarantee the accuracy, integrity, quality, safety, legality, morality, and/or authenticity of such content, the truth or accuracy of users’ content, the ability of listings to confirm product availability or pricing, or the ability of users to confirm experiences from using or purchasing specific products discussed or sold on the Websites or Services.
LIMITATION OF LIABILITY. You expressly acknowledge, understand, and agree that:
1. BB and its subsidiaries, affiliates, officers, employees, agents, partners, licensees, and licensors shall bear no liability whatsoever, whether in contract, warranty, tort (including negligence), product liability, or any other legal theory for any costs or damages of any kind resulting from technical disruptions, computer malfunctions, computer viruses, third-party modifications to the Websites or Services, or any other
event beyond BUD’s reasonable control.
3. Neither BB nor its subsidiaries, affiliates, officers, employees, agents, partners, licensees, and licensors is a party to any transactions made between Retailers and Consumers. Neither BB nor its subsidiaries, affiliates, officers, employees, agents, partners, licensees, and licensors shall be liable for any defaults, costs, the contents of any documents, or interactions between or among users, including users, listings, physicians, and all related parties.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between you and BB. Some states, counties, or jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential, or other related damages or losses. Accordingly, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. Nothing herein is intended to limit any rights you may have which may not be lawfully limited.