Last Updated: These Terms of Service were last updated on August 29th, 2018.
These Terms of Service (“Terms of Service”) of BAY AREA SAFE ALTERNATIVES LLC, its subsidiaries, affiliates, officers, directors, members, employees, attorneys, its licensors, and their respective parent organizations (“BASA” or “us” or “we”) govern your use of our marijuana ordering and delivery service (“Service”) that we make available via our website located at www.TRYBASA.com (the “Website”). By accessing or using the Service or the Website, you expressly accept all of the provisions of these Terms of Service and represent to us that you are at least 21 years of age, are not located in the European Union, and are legally competent to enter into and agree to these Terms of Service. If you do not accept these Terms of Service, then you are not authorized to use the Service or the Website.
THESE TERMS OF SERVICE INCLUDE: (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; AND (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICE OR THE WEBSITE.
1.1 What BASA Does. BASA provides a virtual marketplace where medical and/or recreational marijuana users can connect with lawfully operated marijuana providers, collectives, cooperatives, and related delivery service providers (collectively, “Dispensaries”). BASA does not provide medical services other than the provision of marijuana to qualified medical marijuana patients with a valid doctors recommendation. You acknowledge that BASA does not provide medical advice or similar professional services or advice via the Service, the Website, or otherwise.
1.2 Dispensaries and State Law. You may only place orders, make reservations, or request deliveries for goods or services at participating Dispensaries using the Service and the Website. You may not pay for any goods or services using the Service or the Website unless permitted by the Law (as defined in Section 3). Depending on your location, payment for any goods or services may be made in-person at a Dispensary or authorized delivery location upon presenting your valid, government-issued identification, medical marijuana registration card, doctor’s recommendation, or such combination of the preceding documents or additional documents as may be required by state law or the Dispensary. At all times, your use of the Service and the Website, and the manner in which you order, reserve, request delivery, pick-up, or pay for products will be governed by the laws of the State of California. You
agree and acknowledge that certain features of the Service or the Website may not be available depending on your location. For example, you may be able to request delivery of products in certain locations, but not others.
1.3 Federal Law. Although many states have legalized some form of marijuana, the cultivation, manufacture, distribution, and possession of marijuana and assisting with or conspiring to do the same remains illegal under United States federal law. BASA has made no representation to the contrary. It is your responsibility to ensure compliance with the Law. BASA has no obligation to defend, or hold you harmless from any civil, criminal, or administrative investigations, proceedings, or penalties that may result from your use of the Service or the Website.
2.1 Creating an Account. In order to create an account (“Account”) and become a registered user of the Service, you must be at least 21 years of age and have a valid government-issued ID. You do not need to create an Account to use the Website. However, you will not be able to access certain features of the Website, place orders, make reservations, or request deliveries for products until you do so. You are responsible for providing us with and maintaining accurate contact information, including your name, email address, address, and phone number. If you intend to use the Service or the Website, place orders, make reservations, or request deliveries of medical marijuana, you must also provide us with your medical marijuana card or doctor’s recommendation. You represent that any information you provide to us is true and accurate.
2.2 Geolocation. In order to comply with state laws regarding the medical and/or recreational distribution, possession, and use of marijuana, BASA must be able to obtain your approximate geographic location, via IP address lookup or otherwise. If you access the Website via a mobile device and disable location services on that device, or otherwise elect not to provide us with information regarding your location, you will not be able to access certain features of the Website, place orders, make reservations, or request deliveries for products. Additionally, certain features of the Website may not be available depending on your location.
2.3 Account Activities. You are the sole authorized user of your Account and are responsible for maintaining the accuracy and confidentiality of your login information. You are solely and fully responsible for all activities that occur under your Account. BASA has no control over the use of your or any other user’s Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your Account or you suspect any other breach of security, you will cease all use and contact us immediately by [email protected].
3.1 License Grant. Subject to your compliance with these Terms of Service, we hereby grant you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the Website, for your personal use only in connection with your use of the Service, and subject to the limitations set forth below. These Terms of Service are limited to the intellectual property rights of BASA and its licensors and do not include any rights to other intellectual property. We reserve any and all rights not expressly granted to you pursuant to these Terms of Service. The limited rights granted to you to access and use the Service and the Website comprise a limited license and do not constitute the sale of any software program.
3.2 Fees. BASA does not currently charge end users any fees for the use of the Service or Website, though we reserve the right to do so in the future if permitted by applicable state law. BASA will notify end users prior to charging any fees for the use of the Service or Website.
3.3 Use Restrictions.
(a) You agree that: (i) you will not use the Service or the Website if you are not fully able and legally competent to agree to these Terms of Service; (ii) you will only use the Service and the Website in full compliance with the laws and regulations of the state of Califonia and all applicable federal laws, excepting only for federal laws and regulations related to marijuana (collectively, “Law”); (iii) you will not use the Service or the Website for sending or storing any material prohibited by the Law or for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct; (iv) you will not use the Service or the Website to advertise, solicit or transmit commercial advertisements, including “spam”; (v) you will not use the Service or the Website to cause nuisance, annoyance or inconvenience; (vi) you will keep secure and confidential your account password or any identification we provide you which allows access to the Service or the Website; and (vii) you will provide us with whatever proof of identity and other necessary verification documents as we may reasonably request.
(b) Further, except as specifically permitted herein, you agree that you will not directly or indirectly: (i) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Service or the Website in any unauthorized manner; (ii) use the Service or the Website in any service bureau arrangement; (iii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Service, the Website, or any part thereof in any form or manner or by any means; (iv) harvest or scrape any content or data from the Service or the Website; (v) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Service or the Website; (vi) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Service, the Website, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law); (vii) use any means to discover the source code of any portion of the Service or the Website; (viii) otherwise circumvent any functionality that controls access to or otherwise protects the Service or the Website; or (ix) permit any third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a violation of the rights of BASA and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
3.4 Ownership. The Service, the Website and their respective content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information, and other materials, are protected under intellectual property, copyright, trademark, and other laws. You acknowledge and agree that BASA and/or its licensors own all right, title and interest in and to the Service and the Website (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of BASA’S (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms of Service. Any and all: (i) suggestions for correction, change and modification to the Service or the Website and other feedback (including but not limited to quotations of written or oral feedback), information and reports you provide to BASA (collectively “Feedback”); and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by BASA or otherwise relating to the Service or the Website (collectively, “Revisions”), are and will remain the property of BASA. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Service or the Website or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of BASA and BASA may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to BASA any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At BASA’S request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
3.6 Notice of Infringement; Digital Millennium Copyright Act. (a) Anyone who believes that his or her work has been reproduced in the Service or the Website in a manner which constitutes copyright infringement may submit a notification to BASA’S copyright agent in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing: (i) identification of the copyrighted work that is claimed to be infringed; (ii) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service; (iii) information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address; (iv) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (v) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. You acknowledge that if you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
(b) Notices of copyright infringement claims should be sent by mail to: BASA COLLECTIVE Attn: BENJAMIN MANTON, 1326 Grove Street, San Francisco, CA 94117, or by email to [email protected]. We will respond expeditiously to claims of copyright infringement using the Service or the Website that are reported to our copyright agent in the notification explained above. It is our policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
(c) If you believe that any of Your Content that was removed (or to which access was disabled) after we received a notice of copyright infringement is not actually infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may send a counter-notice containing the following information to our copyright agent: (i) your physical or electronic signature (with your full legal name); (ii) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (iii) a statement that you have a good faith belief, under penalty of perjury, that the content was removed or disabled as a result of mistake or a misidentification of the content; and (iv) your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided the original notification of the alleged infringement.
(d) If a counter-notice is received by our copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) business days or more after receipt of the counter-notice, at our sole discretion. Please understand that filing a counternotification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation by using this process.
(e) Further information on the DMCA can be found in 17 U.S.C. 512 or on the United States Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf.
4.1 Warranty Disclaimer. THE SERVICE AND THE WEBSITE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BASA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. BASA DOES NOT WARRANT THAT: (I) THE SERVICE OR THE WEBSITE WILL MEET YOUR REQUIREMENTS; (II) OPERATION OF THE SERVICE OR THE WEBSITE WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE; (III) THE SERVICE OR THE WEBSITE WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; OR (IV) DEFECTS IN THE SERVICE OR THE WEBSITE CAN OR WILL BE CORRECTED. FURTHER, BASA DOES NOT WARRANT THE QUALITY, SAFETY, SUITABILITY, RELIABILITY OR AVAILABILITY OF ANY PRODUCTS, GOODS OR SERVICES OBTAINED BY YOU FROM THIRD PARTIES THROUGH THE SERVICE OR THE WEBSITE. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICE AND THE WEBSITE, AND ANY THIRD PARTY PRODUCTS, GOODS OR SERVICES REMAINS SOLELY WITH YOU.
4.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BASA BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF PROFITS, REVENUE OR INCOME, OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING FROM OR RELATED TO THESE TERMS OF SERVICE OR THE USE OR INABILITY TO USE THE SERVICE OR THE WEBSITE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BASA’S TOTAL AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF: (I) THE AMOUNTS, IF ANY, YOU PAY TO BASA UNDER THESE TERMS OR SERVICE; OR (II) ONE HUNDRED DOLLARS ($100.00). BY ACCESSING THE SERVICE OR THE WEBSITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
4.3 Indemnity. By agreeing to these Terms of Service and using the Service and the Website, you agree that you shall defend, indemnify and hold BASA, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) your violation or breach of any term of these Terms of Service or any applicable law or regulation; (ii) your violation of any rights of any third party; (c) any unauthorized use of the Service or the Website; or (iii) your negligence or willful misconduct.
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt-out of the arbitration agreement by following the opt-out procedure described below.
5.1 Binding Arbitration. Any dispute or claim arising in any way from your use of the Service or the Website, except for disputes relating to the infringement of our intellectual property rights or the access or use of the Service or the Website in violation of these Terms of Service, will be resolved by binding arbitration, rather than in court, but you may assert claims in small claims court if your claims qualify.
5.2 No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms of Service as a court would.
5.3 Arbitrator and Rules. The arbitration will be conducted before a single neutral arbitrator, whose decision will be final and binding, and the arbitral proceedings shall be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer¬ Related Disputes. These rules can be found on the AAA website at www.adr.org. The arbitrator shall apply the law of the State of California to any such dispute.
5.4 Starting an Arbitration. To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: [email protected]. BASA will send any notice of dispute to you at the contact information we have for you.
5.5 Format of Proceedings. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
5.6 Fees. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, BASA will pay all other AAA and arbitrator’s fees and expenses.
5.7 Individual Basis; Class Action Waiver. To the fullest extent permitted by applicable law, you and BASA each agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and BASA each waive any right to a jury trial. As a result, PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS.
5.8 Limitation Period. In no event shall any claim, action or proceeding by you or BASA be instituted more than one (1) year after the cause of action arose.
5.9 Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court in the State of California. The United Nations Conventions on Contracts for the International Sale of Goods shall have no applicability.
5.10 Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and BASA each agree to the exclusive jurisdiction of the State courts located in San Francisco, California, and you and BASA each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
6.1 Termination. If you breach any of the terms of these Terms of Service, all licenses granted by us, including permission to use the Service and the Website, will terminate automatically. Additionally, we may suspend, disable, or delete your Account, the Service or the Website (or any part of the foregoing) with or without notice, for any or no reason (including, for example, if you fail to honor reservations you make through the Service or the Website). If we delete your Account for any suspected breach of these Terms of Service by you, you are prohibited from re-registering for the Service under a different name. All sections which by their nature should survive the termination of these Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by BASA or you. Termination will not limit any of our other rights or remedies at law or in equity.
6.2 Injunctive Relief. You agree that a breach of these Terms of Service will cause irreparable injury to BASA for which monetary damages would not be an adequate remedy and BASA shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
6.3 Notices. We may give notice to you by means of a general notice on the Service or the Website, electronic mail, or by written communication sent by first-class mail or pre-paid post. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by sending an email to [email protected]. Please specify the reason for the email in the subject line so it can be forwarded to the proper department.
6.4 Miscellaneous. These Terms of Service constitute the entire agreement of you and BASA with respect to the subject matter hereof, and all prior or contemporaneous understandings or agreements, whether written or oral, between you and BASA with respect to such subject matter are hereby superseded in their entirety. These Terms of Service may not be modified except by a writing executed by the duly-authorized representatives of BASA or pursuant to Section 6.5 of these Terms of Service. No other act, document, usage or custom will be deemed to modify or amend these Terms of Service. These Terms of Service will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Service and the licenses granted hereunder may be assigned by BASA but may not be assigned by you without the prior express written consent of BASA. Any attempt by you to assign these Terms of Service without the written consent of BASA shall be null and void. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms of Service will be deemed to constitute either party as the agent or representative of the other party or both parties as joint ventures or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Service due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the Terms of Service but are for convenience only. You and BASA agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms of Service. The laws of the state of California, excluding its conflicts of law rules, govern these Terms of Service and your use of the Service and the Website. Your use of the Service and the Website may also be subject to other local, state, national, or international laws. Under California Civil Code Section 1789.3, California users of the Website and Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
6.5 Modifications. We may occasionally update these Terms of Service. When we do update these Terms of Service, we will also revise the “Last Updated” date at the top of these Terms of Service. If we make changes to these Terms of Service that, in our discretion, we consider significant, we will post the updated Terms of Service on the Website, and we may also send emails to our users who have created an Account containing a link to the revised Terms of Service. If you continue to use the Service or the Website after we post an update to these Terms of Service, you indicate your acceptance of the updated Terms of Service.
6.6 Contact Us. If you have any questions regarding these Terms of Service, the Service or the Website, please contact us at [email protected] or at 1326 Grove Street, San Francisco, CA 94117, Phone: 415-409-1002.