Welcome and thank you for visiting Monterey Bay Herb Co (at our herbco.com website address). The herbco.com website and its associated products and services including any related mobile site or applications (collectively, "Website") are provided by Monterey Bay Herb Co. . ("Monterey Bay"), a California corporation. By accessing or using the Website, however accessed, you manifest your intent and agree to be bound by this Terms of Use Agreement ("Agreement").
This Agreement and the terms contained herein are subject to change by Monterey Bay at any time, in its sole and absolute discretion, and without notice. Such changes shall be effective immediately upon posting. Therefore, you are instructed to review the terms of this Agreement prior to using the Website. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Your continued use of the Website after any replacement, modification, or amendment of the terms of this Agreement will constitute your manifestation of assent to, and agreement with, any replacement, modification, or amendment herein.
NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND MONTEREY BAY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.
Eligibility to Use the Website
The Website is open to use to those who are age eighteen (18) or above. By using the Website, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity. You further warrant that you are not prohibited from entering into this Agreement by the terms of any preexisting agreement.
Privacy Policy
Monterey Bay hereby incorporates its Privacy Policy by reference as if fully restated herein. You are instructed to review Monterey Bay’s Privacy Policy to understand the personal and personally identifiable information that Monterey Bay may collect from you when you use the Website and how Monterey Bay may use that personal or personally identifiable information.
Acceptable Use of the Website
When you use the Website, you agree to use it only for its customary and intended purposes and as permitted by the terms of this Agreement and any applicable law, regulation, statute, or ordinance. Additionally, you agree that you are responsible for any breach of your obligations under the terms of this Agreement and for any losses suffered by Monterey Bay for such a breach, including, but not limited to, monetary damages, costs, and attorneys' fees. You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from:
- Attempting to access the Website other than through a standard web browser unless you have been permitted to do so by Monterey Bay through a separate, written agreement;
- Accessing or attempting to access the Website through automated means;
- Circumventing the technological protection measures of the Website;
- Vandalizing the Website;
- Using any malware or otherwise harmful or malicious code in connection with the Website;
- Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;
- Disrupting or otherwise interfering with the Website or its associated servers or networks;
- Scraping, reproducing, republishing, selling, reselling, duplicating, or trading the Website or its content;
- Diverting or attempting to divert customers of the Website to another website or service;
- Reverse engineering, decompiling, translating, or disassembling the Website or its content; and
- Encouraging or assisting any other party to do anything in violation of the terms of this Agreement.
- Monterey Bay reserves the right to modify, amend, or terminate the Website or its associated content at any time and without prior notice. Monterey Bay also reserves the right to refuse service or access to the Website to any person or business entity at any time and without notice.
Limited License to Use the Website
You acknowledge and agree that the Website is the property of or is licensed by Monterey Bay and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. Monterey Bay reserves all rights not expressly granted through this Agreement.
Monterey Bay provides you with a limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.
Idea Submission Policy
Monterey Bay may provide you with the ability to submit ideas or feedback to Monterey Bay through the Website. If you submit ideas or feedback to Monterey Bay, you agree that any ideas or feedback that you submit to Monterey Bay will automatically become the property of Monterey Bay and that you will not be compensated for the submission, use, or implementation of the idea or feeback that you submitted to Monterey Bay. You understand and agree that Monterey Bay may use or redistribute any ideas or feedback that you submit to Monterey Bay for any purpose and in any way and that Monterey Bay has no obligation to keep any ideas or feedback submitted to Monterey Bay confidential.
User Account
Monterey Bay may provide you with the ability to register a user account ("User Account"), which may provide access to additional areas of the Website, including, but not limited to, those areas or functions of the Website that are only open to wholesale accounts. Your User Account is protected by a username and password. You recognize that you are solely responsible for maintaining the security and confidentiality of your username and password and that you are responsible for any unauthorized access to your User Account. In the event your User Account is accessed without your authorization, you agree to notify Monterey Bay immediately. Monterey Bay reserves the right to restrict access to, suspend, disable, or delete your User Account at any time, in its sole discretion, and without prior warning. By creating a User Account, Monterey Bay may contact you by any available means, including, but not limited to, by email.
Ordering and Website Policies
You understand and agree that the Website and your User Account may be subject to additional terms or policies, including, but not limited to, Monterey Bay' Bulk Discount Policies and Shipping Policies, which are hereby incorporated by reference in their entirety as if fully reinstated herein. Continued use after being presented with these Agreements constitutes your manifestation of assent to and acceptance and agreement of the same. Monterey Bay reserves the right to discontinue, modify, amend, or replace these policies at any time, without prior notice, and in its sole and absolute discretion. Your continued use of the Website after a change in any such policies constitutes your agreement with and manifestation of assent to any such changes.
Payment
Each order submitted to Monterey Bay through the Website is an offer to Monterey Bay to buy the product(s) listed in the order. When you place an order to purchase a product through the Website, Monterey Bay will send you an email confirming receipt of your order. Your receipt of this email confirms that you have placed an order, and you understand and agree that this email does not constitute Monterey Bay' acceptance of your order. No order will have been deemed to have been accepted by Monterey Bay until the product(s) contained within the order is shipped by Monterey Bay to you.
Payment for all orders placed through the Website must be made at the time of ordering. You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Monterey Bay is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Monterey Bay' payment processor. You agree that you will not initiate any chargebacks to Monterey Bay unless otherwise authorized by Monterey Bay in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Monterey Bay.
Product Pricing and Availability
Though Monterey Bay makes reasonable attempts to ensure that the products listed on the Website are in stock and that the prices for all products are accurate, from time to time Monterey Bay' Website may contain incorrect prices or incorrectly reflect the amount of stock of a particular product. All listings for products on the Website are an invitation to deal and Monterey Bay' reserves the right to modify the pricing of any products prior to shipment. If Monterey Bay identifies that a price reflected on the Website is incorrect or a product listed on the Website is out of stock, Monterey Bay will contact you in a reasonable time frame to advise you of the issue.
Shipping and Returns
You understand and agree that the shipping and return of products purchased through the Website is subject to Monterey Bay' Shipping and Return Policies, which will be displayed on the Website and may be discontinued, modified, amended, or replaced at any time, without prior notice, and in Monterey Bay' sole and absolute discretion. You are directed to review Monterey Bay' Shipping and Return Policies, which are incorporated by reference in their entirety as if fully reinstated herein, prior to making any orders through the Website. Continued use after being presented with the Shipping and Return Policies constitutes your manifestation of assent to and acceptance and agreement of the same
Proprietary Rights
You understand and agree that the Website, including, but not limited to, its source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of Monterey Bay. Under the terms of this Agreement, you do not acquire any ownership rights to the Website or the data or content contained therein. You acquire only a limited license to use the Website subject to the terms of this Agreement. All other rights are reserved by Monterey Bay.
Trademarks
You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Website by Monterey Bay, including, but not limited to, MONTEREY BAY and herbco.com, are common law or registered trademarks owned by or licensed to Monterey Bay. You are expressly prohibited from using the trademarks of Monterey Bay to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of Monterey Bay in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
Taxes
You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with your use of the Website. Monterey Bay will report as income all payments received from you to Monterey Bay to all proper taxing authorities.
Term and Termination
The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) Monterey Bay terminates your access to the Website; or (ii) you cease using the Website and terminate your Account. Monterey Bay reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice for any reason whatsoever, including without limitation your breach of the Agreement or any of its terms.
Disclaimer Regarding Accuracy of Vendor Information
Product specifications and other information listed on the Website have either been provided by third party product vendors or collected from publicly available sources. While Monterey Bay makes reasonable efforts to ensure that the information on this Website is accurate, we can make no representations or warranties as to the accuracy or reliability of any information provided on the Website.
Monterey Bay makes no warranties or representations whatsoever with regard to any product provided or offered by any third party vendor, and you acknowledge that any reliance on representations and warranties provided by any third party vendor shall be at your own risk.
Disclaimer of Warranties and Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN "AS-IS" BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT MONTEREY BAY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE OR TRANSACTIONS THAT OCCUR THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS, AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT MONTEREY BAY'S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO MONTEREY BAY OR $1,000, WHICHEVER IS LESS.
MONTEREY BAY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF ITEMS PURCHASED THROUGH THE WEBSITE. ITEMS PURCHASED THROUGH THE WEBSITE ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES FROM MONTEREY BAY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
MONTEREY BAY WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, PERSONAL INJURY, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE ITEMS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, DEATH, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF ITEMS PURCHASED THROUGH THE WEBSITE IS AT YOUR SOLE RISK AND THAT MONTEREY BAY'S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO MONTEREY BAY OR $1,000, WHICHEVER IS LESS.
All information contained on the Website, including information relating to medical and health conditions, products, and treatments, is for informational purposes only. Such information is often summarized or presented in aggregate form and is not meant to be a substitute for the advice provided by your own physician or other medical professionals or any information contained on or in any product packaging or labels. Monterey Bay is not responsible for any statements or claims that various manufacturers make about their products and cannot be held responsible for typographical errors or product formulation changes. THE INFORMATION CONTAINED ON THIS SITE SHOULD NOT BE USED FOR DIAGNOSING A HEALTH PROBLEM OR PRESCRIBING A MEDICATION. YOU SHOULD CAREFULLY CONSULT ALL INFORMATION PROVIDED BY THE MANUFACTURERS OF THE PRODUCTS ON OR IN THE PRODUCT PACKAGING AND LABELS BEFORE USING ANY PRODUCT PURCHASED ON THIS SITE. YOU SHOULD ALWAYS CONSULT YOUR OWN PHYSICIAN AND MEDICAL ADVISORS. INFORMATION AND STATEMENTS REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR ILLNESS.
Indemnification
You agree to indemnify, defend, and hold harmless Monterey Bay, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from and against any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) your use of the Website, (ii) your purchase of any item through the Website, (iii) your violation of any term or condition of this Agreement; (iv) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (v) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national, or international. Your obligation to defend Monterey Bay will not provide you with the ability to control Monterey Bay' defense, and Monterey Bay reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
Choice of Law and Stipulation to Jurisdiction
You and Monterey Bay agree that any dispute arising out of or related to this Agreement or your use of the Website, including, but not limited to, your purchase or use of products through the Website, will be governed by the laws of the State of California, without regard to its conflict of laws rules. Specifically, the validity, interpretation, and performance of this Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Except for claims for injunctive relief by either party, you and Monterey Bay agree that any dispute or controversy arising out of, in relation to, or in connection with this Agreement or your use of the Website or products purchased through the Website, including, without limitation, any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements concerning the existence, breach, interpretation, application, or termination of this Agreement, will be resolved by final and binding arbitration pursuant to the Federal Arbitration Act in Santa Cruz County, California or, at the option of the party seeking relief, by telephone, online, or via written submissions alone, and be administered by the American Arbitration Association ("AAA") under the then in force Commercial Arbitration Rules by one arbitrator appointed in accordance with such rules. Such arbitration will be independent and impartial. If the parties fail to agree on the arbitrator within twenty (20) calendar days after the initiation of the arbitration hereunder, AAA will appoint the arbitrator.
This arbitration will be conducted in the English language. The decision of the arbitrator will be final and binding on the parties and judgment on any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The parties undertake to keep confidential all awards in their arbitration, together with all confidential information, all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings and not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. The arbitrator shall award all fees and expenses, including reasonable attorney's fees, to the prevailing party. Any judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.
ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PURCHASE OR USE OF ITEMS FROM OR THROUGH THE WEBSITE, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, AND YOU AND MONTEREY BAY EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN OR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
Any claims must be brought within one year of each applicable invoice or will otherwise be barred.
Force Majeure
Monterey Bay will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Monterey Bay' control, such as acts of God, war, riots, fire, terrorist attacks, pandemics, power outages, severe weather, shipping delays, accidents, or other matters beyond the control of Monterey Bay.
Survivability
The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your Account, or the Website, including, but not limited to, your duty to indemnify and defend Monterey Bay.
Interpretation
This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
Assignment
You are expressly prohibited from assigning your rights and duties under this Agreement. Monterey Bay reserves the right to assign its rights and duties under this Agreement, including in a sale of Monterey Bay or its Website.
Waiver and Integration
No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.
