Terms of Service at Herbers & Company

Last updated December 1, 2021

Welcome to Herbers & Company. Herbers & Company is a multi-faceted consulting, innovation, education and training company with a group of web-based platforms (as modified from time to time, collectively, the “Platforms”) that provide various services, including, but not limited to, expert consulting, practice management training, hosted study groups, discussions, subscription based membership, training videos, tools and templates, and other content and services for financial advisors, professional services employees, executives and other leaders (collectively, “Customers” or “you”). The website at www.HerbersCo.com , www.herbersacademy.com, and www.grow.herbersco.com (the “Site”), the Android and IOS mobile apps grow.herbersco.com operating under the brand name Herbers & Company (collectively, the “Mobile Apps”) and the various other related training courses, study groups, training content, services, features, functions, software, applications, websites and networks (together with the Platform, the Site and the Mobile Apps, collectively, the “Herbers & Company Services”) are provided and operated, and are being made available to you, your organization (the “Organization”), other Customers and the other users of any of the Herbers & Company Services (collectively, “Users”) by Angie Herbers, LLC dba Herbers & Company and operating under the brand name Herbers & Company (“Herbers & Company”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.

IMPORTANT! THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF THE SITE, THE PLATFORM AND THE OTHER HERBERS & COMPANY SERVICES. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR ORGANIZATION, REFERENCES TO “YOU” OR “YOUR” SHALL MEAN YOU, YOUR ORGANIZATION AND ANY OTHER USER ACCESSING AND USING THE PLATFORMS ON BEHALF OF SUCH ORGANIZATION. BY CLICKING “I AGREE”, DOWNLOADING, USING, CONFIGURING OR ACCESSING THE SITE, THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THESE TERMS OF SERVICE FOR AND ON BEHALF OF YOURSELF (AND YOUR ORGANIZATION), AND ARE DOING SO, (B) YOU (AND YOUR ORGANIZATION) CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU (AND YOUR ORGANIZATION) SHALL BE BOUND BY THESE TERMS OF SERVICE AND HERBERS & COMPANY’S PRIVACY POLICY (THE “PRIVACY POLICY”) AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, PLEASE DO NOT USE ANY OF THE HERBERS & COMPANY SERVICES.

These Terms contain an Arbitration provision which will, with limited exceptions, require you to submit disputes you have against Herbers & Company to binding and final arbitration. You will only be permitted to pursue claims against Herbers & Company on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

1. Eligibility.

To access and use the Site, the Platforms and the other Herbers & Company Services, you and each of the other Users must be at least 18 years of age. By accessing or using the Platforms or any of the other Herbers & Company Services, clicking the “I Agree” button and/or responding “yes” or by downloading, installing, or otherwise accessing or using any of the Herbers & Company Services, you represent that:

YOU SATISFY THE ELIGIBILITY REQUIREMENTS AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES OR PROHIBITED FROM ACCESSING AND USING THE PLATFORMS;

YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HERBERS & COMPANY;
YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS; AND
YOU ARE NOT A COMPETITOR OF AND DO NOT INTEND TO USE THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES FOR REASONS THAT ARE, DIRECTLY OR INDIRECTLY, IN COMPETITION WITH THE HERBERS & COMPANY SERVICES OR OTHERWISE TO REPLICATE SOME OR ALL OF THE OTHER HERBERS & COMPANY SERVICES FOR ANY REASON.

2. Privacy.

Your privacy is important to Herbers & Company. Our goal is to make the Herbers & Company Services as good, useful and rewarding for you as possible. In order to do that, Herbers & Company may collect and process information from you when you use the Platforms or any of the other Herbers & Company Services. Herbers & Company will collect certain personally identifiable information from you as set forth in more detail in our Privacy Policy. By accessing and using the Platforms and the other Herbers & Company Services, you agree that Herbers & Company may collect, use and disclose, as set forth in the Privacy Policy, the information you provide during your access to or use of any of the Platforms or any of the other Herbers & Company Services, and in some cases information that is provided by or through any of the Herbers & Company Services.

3. The Platforms

3.1 Training and other Services. Herbers & Company is an independent, multi-faceted group of consulting, education and training platforms through which Customers can access and use a wide variety of training and other services, including, but not limited to:

On-line practice management training through live webinars and recordings
Hosted study groups
Training videos and content
Discussions with other Customers

3.2 Accounts. To access and use the Platforms, Customers must create an account and/or download the Mobile App. When creating an account, you will be required (a) to provide us certain information such as your name, professional designation and e-mail address and (b) to create a password.

3.3 Registration Data. In registering and creating an account, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted during the registration and account creation process (“Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your account. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Herbers & Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Herbers & Company has the right to suspend or terminate your account and prohibit you from accessing and using the Herbers & Company Platforms and/or any of the other Herbers & Company Services. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one business account and one personal account. You agree not to create an account or to access and use the Herbers & Company Platforms or any of the other Herbers & Company Services if you have been previously removed by Herbers & Company or if you have been previously banned from accessing and using the Platforms or any of the other Herbers & Company Services.

4. Fees, Payments and Refunds

4.1 Fees. The fees for Customers to access and use the Platforms and the various training and other services are set forth on the Site (the “Fees”). Herbers & Company may waive these Fees in its sole discretion.

4.2 Payment and Taxes.

(a) Payments. Unless otherwise agreed by Herbers & Company, the Fees shall be paid in advance in accordance with Section 4.2(b). The Fees shall be paid by credit card. You authorize Herbers & Company to automatically charge your credit or debit card through the Payment Processor for any such Fees.

(b) Payment Processing Unless otherwise agreed by Herbers & Company, all payments made through the Platforms shall be made through a third-party payment processor directed by Herbers & Company (e.g., Stripe, etc.) (any such third-party payment processor, the “Payment Processor”). Payment processing services for Customers and the other Users, are currently provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (as modified from time to time, collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to use any of the Herbers & Company Services, you agree to be bound by the Stripe Services Agreement. As a condition of Herbers & Company’s enabling payment processing services through a Payment Processor, you agree to provide Herbers & Company accurate and complete information about you, your business, your credit or debit card or bank account and such other information required by the Payment Processor, and you authorize Herbers & Company to share it and any relevant transaction information related to your use of the payment processing services provided by the Payment Processor. You acknowledge and agree that Herbers & Company shall have no responsibility or liability for any violation or loss of your information that is provided to the Payment Processor.

(c) Right to Suspend. If you fail to pay any Fees when due, Herbers & Company may, with or without written notice to you, suspend your ability to access and use the Platforms and the other Herbers & Company Services.

(d) Future Services. In paying the Fees, you acknowledge and agree that you are not relying on future availability of the Platforms or the other Herbers & Company Services beyond the period for which the Fee that you paid applies.

(e) Taxes. To the extent that any sales or other similar taxes are payable by Herbers & Company, or any Payment Processor in connection with the Platforms and/or the other Herbers & Company Services, the Customer shall be obligated to pay to Herbers & Company, or any such Payment Processor, the amount of such taxes in addition to any other amounts owing to Herbers & Company.

4.3 Changes in Fees and Payment Methods. Herbers & Company reserves the right at any time to change the Fees (including to begin charging for services that it is currently providing free of charge or for new premium features) and the billing and payment methods, either immediately upon posting on the Platforms, the Site, any of the other Herbers & Company Services or by notifying you by email.

4.4 Refunds. ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS REQUIRED BY LAW OR AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT OR THE SITE OR AGREED BY HERBERS & COMPANY IN ITS SOLE DISCRETION.

5. Right to Access and Use; Unauthorized Use.

5.1 Right to Access and Use. Subject to your compliance with all of the terms and conditions set out in these Terms, Herbers & Company hereby grants to you a limited, non-exclusive, non-transferable, freely revocable right to access and use the Platforms and the other Herbers & Company Services to the extent and in accordance with these Terms.

5.2 Prevention of Unauthorized Use. Herbers & Company reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Platforms or any of the other Herbers & Company Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.

6. Support.

Herbers & shall provide technical and other limited support with respect to the Site, the Platforms and the other Herbers & Company Services by email at service@herbersco.com are 10:00 am to 4:00 pm CST, Monday through Friday with the exception of company holidays.

7. Additional Policies.

When using the Platforms and any of the other Herbers & Company Services, you will be subject to any additional posted policies, guidelines or rules applicable to the Site, the Platforms and the other Herbers & Company Services and features which may be posted from time to time (as added or modified from time to time, the “Policies”). All such Policies are hereby incorporated by reference into these Terms.

8. Respecting other People’s Rights.

Herbers & Company respects the rights of others and so should you. You therefore may not post any comments or Content that:

violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by Herbers & Company in its sole discretion;
- is false, misleading, untruthful or inaccurate;
- includes anyone's identification documents or sensitive financial information, including investment advice and opinions on stock market, bonds, mutual funds, etc.
- impersonates any person or entity, including any of Herbers & Company’s employees or representatives; or
- spams or solicits any Users, including any Customers or other users.

9. Account Security.

When you access and use the Platforms or any of the other Herbers & Company Services, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and mobile devices, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Herbers & Company when creating an account and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.

If you change or deactivate the email that you used to create a Herbers & Company account, you must update your account information within 72 hours to prevent us from sending to someone else messages intended for you.

If at any time you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any payment information, if applicable), then you shall immediately notify Herbers & Company at service@herbersco.com. You may be liable for the losses incurred by Herbers & Company or others due to any unauthorized use of your account or any of the Herbers & Company Services.

10. Modification of these Terms.

Herbers & Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or otherwise through the Herbers & Company Services. If Herbers & Company updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the Platforms after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to these Terms materially modifies your rights or obligations (including applicable Fees), Herbers & Company will make reasonable efforts to notify you of such change. Herbers & Company may provide notice through a pop-up or banner within any of the Herbers & Company Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Herbers & Company may require you to provide consent by accepting the changed Terms. If Herbers & Company requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Herbers & Company, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the Herbers & Company Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE PLATFORMS AND ALL OF THE OTHER HERBERS & COMPANY SERVICES.

To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.

11. Digital Millennium Copyright Act.

It is Herbers & Company’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you file a notice with our copyright agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). Herbers & Company reserves the right to terminate without notice any User’s access to the Platforms and the other Herbers & Company Services if that User is determined by Herbers & Company to be a “repeat infringer.” In addition, Herbers & Company accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

12. License Grant for Content; Representations and Warranties.

12.1 Limited License Grant to Herbers & Company. The Platforms or the other Herbers & Company Services may now or in the future permit you to post comments or to participate in chat rooms or discussion boards (“Content”). By posting, distributing or disseminating any Content to or through the Platforms or any of the other Herbers & Company Services, you hereby grant to Herbers & Company a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit your Content (and any copyrights, publicity, database and other proprietary rights therein), in connection with the operation, maintenance and operations of the Site, the Platforms and the other Herbers & Company Services.

12.2 Content Use by other Users. You hereby consent to the use of your Content by other Users that are authorized to access your Content in the manner contemplated by these Terms and any of the Herbers & Company Services.

12.3 Content and Confidential Information. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Content and the consequences of posting or publishing any Content. By uploading and publishing your Content, you affirm, represent, and warrant that: (a) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Herbers & Company and the Users to use and distribute your Content as necessary to exercise the licenses granted by you in this Section 12 and in the manner contemplated by Herbers & Company and these Terms; (b) your Content does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (iii) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the Herbers & Company Services. Violators of these third-party rights may be subject to criminal and civil liability. Herbers & Company reserves all rights and remedies against any Users who violate these Terms.

12.4 Content Disclaimer. You understand that when using the Platforms or any of the other Herbers & Company Services you may be exposed to Content or other materials from a variety of sources, and that Herbers & Company is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content and other content. You further understand and acknowledge that you may be exposed to Content and other materials that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Herbers & Company with respect thereto. Herbers & Company does not endorse any Content and other material or any opinion, recommendation or advice expressed therein, and Herbers & Company expressly disclaims any and all liability in connection with Content and other materials. If notified by a User or a content owner of any Content or other content or materials that allegedly do not conform to these Terms, Herbers & Company may investigate the allegation and determine in its sole discretion whether to remove the Content or other content or materials, which it reserves the right to do at any time and without notice. For clarity, Herbers & Company does not permit copyright infringing activities on or through any of the Herbers & Company Services.

13. Prohibited Conduct.

BY USING THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES YOU AGREE NOT TO:

13.1 Develop or create any competing business or service or provide any competing services, including training services based on any of the content included under the Platforms and other Herbers & Company Services;

13.2 Decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Platforms or any of the other Herbers & Company Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);

13.3 Use the Platforms or any of the other Herbers & Company Services for the benefit of anyone other than you or your Organization, including selling, reselling, distributing, hosting, leasing, renting, licensing or sublicensing, in whole or in part, the Platforms or any of the other Herbers & Company Services for hosting or time-sharing services, or as part of a service bureau or outsourcing offering;

13.4 Provide any services to any third party using the Platforms or any of the other Herbers & Company Services except in accordance with these Terms;

13.5 Develop or create (a) any derivative work of the Platforms or any of the other Herbers & Company Services or (b) any other Platforms or service to the extent intended to compete with the Platforms and/or and the other Herbers & Company Services;

13.6 Reproduce (except as expressly permitted herein), modify, adapt, translate or otherwise make any changes to any of the Herbers & Company Services or any part thereof;

13.7 Copy, disclose, or distribute any content or data available on or through the Platforms or any of the other Herbers & Company Services, in any medium, including without limitation, by any automated or non-automated “scraping;”

13.8 Interfere with, circumvent or disable any security or other technological features or measures of any of the Herbers & Company Services or attempt to gain unauthorized access to any of the Herbers & Company Services or its related systems or networks;

13.9 Make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users (including Customers) of any of the Herbers & Company Services (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);

13.10 Use bots or other automated methods to: access the Platforms or any of the other Herbers & Company Services, download profiles, contacts or any other information, send or redirect messages or perform any other activities through any of the Herbers & Company Services;

13.11 Use the Platforms or any of the other Herbers & Company Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment;

13.12 Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of any of the Herbers & Company Services;

13.13 Take any action that imposes, or may impose at Herbers & Company’s sole determination, an unreasonable or disproportionately large load on Herbers & Company’s infrastructure;

13.14 Deep-link to the Platforms or any of the other Herbers & Company Services without Herbers & Company's consent;

13.15 Share or disclose information of other Users without their express consent; or

13.16 Use another User’s account or allow anyone else to use your account.

14. Third-Party Sites.

The Herbers & Company Services may in the future include links or references to other third-party web sites or services (“Third-Party Sites”) solely as a convenience to Users. Herbers & Company does not endorse any such Third-Party Sites or the information, materials, products, or services contained on or accessible through Third Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the Herbers & Company Services are solely between you and such advertiser. Access and use of Third Party Sites, including the information, materials, products, and services on or available through Third Party Sites are solely at your own risk.

15. Text Messages; Mobile and Data Charges.

Herbers & Company may occasionally send text message offers and alerts. By agreeing to these Terms, you authorize Herbers & Company to send text messages to your mobile device with notifications and occasional special offers.

You are responsible for any mobile and data charges that you may incur for using any of the Herbers & Company Services, including text-messaging charges. If you’re unsure what those charges may be, you should ask your service provider before using the Platforms or any of the other Herbers & Company Services.

16. Termination; Terms of Use Violations.

16.1 Herbers & Company. You agree that Herbers & Company, in its sole discretion, for any or no reason, and without penalty, may suspend or terminate your use of the Platforms or any of the other Herbers & Company Services or any account (or any part thereof) you may have with Herbers & Company and remove and discard all or any part of your account, user profile, and any Content, at any time. Herbers & Company may also in its sole discretion and at any time discontinue providing access to the Platforms, or any part thereof, with or without notice. You agree that any suspension or termination of your access to the Platforms or any the other Herbers & Company Services or any account you may have or portion thereof may be effected without prior notice, and you agree that Herbers & Company will not be liable to you or any third party for any such termination. Herbers & Company reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Herbers & Company to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Herbers & Company may have at law or in equity. As discussed herein, Herbers & Company does not permit copyright infringing activities on the Site, the Platforms or any of the other Herbers & Company Services, and shall be permitted to terminate access to any of the Herbers & Company Services, and remove all Content or other content submitted by any Users who are found to be repeat infringers. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD HERBERS & COMPANY HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY HERBERS & COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER HERBERS & COMPANY OR LAW ENFORCEMENT AUTHORITIES.

16.2 You. Your only remedy against Herbers & Company or any of its affiliates with respect to any dissatisfaction with (i) the Platforms or any of the other Herbers & Company Services, (ii) any term of these Terms, (iii) any policy or practice of Herbers & Company in operating the Platforms and the other Herbers & Company Services, or (iv) any Content transmitted through the Platforms or any of these other Herbers & Company Services, is to terminate your account and your use of all of the Herbers & Company Services. You may terminate your use of the Platforms and the other Herbers & Company Services and your account at any time. After such termination, you must refrain from use of the Platforms and the other Herbers & Company Services until authorized by Herbers & Company.

17. Ownership; Proprietary Rights.

The Site, the Platforms and the other Herbers & Company Services are owned and operated by Herbers & Company. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Platforms and the other Herbers & Company Services provided by Herbers & Company (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content that is provided and owned by Users, all Materials contained on any of the Herbers & Company Services are the property of Herbers & Company or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Herbers & Company or its affiliates and/or third-party licensors. Except as expressly authorized by Herbers & Company, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Herbers & Company reserves all rights not expressly granted in these Terms.

Herbers & Company shall own and have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Platforms or any of the other Herbers & Company Services.

18. Indemnification.

You agree to indemnify, save, and hold Herbers & Company, its affiliated companies, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, the Platforms, any of the other Herbers & Company Services or any of the Content, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. Herbers & Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Herbers & Company, and you agree to cooperate with Herbers & Company’s defense of these claims. Herbers & Company will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

19. No Warranties; Disclaimers.

19.1 No Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HERBERS & COMPANY AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “HERBERS & COMPANY PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE PLATFORMS AND THE OTHER HERBERS & COMPANY SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HERBERS & COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE PLATFORMS OR THE OTHER HERBERS & COMPANY SERVICES, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE HERBERS & COMPANY PARTIES OR THROUGH THE PLATFORMS OR THE OTHER HERBERS & COMPANY SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

19.2 “As Is” And “As Available” and “With All Faults”. YOU EXPRESSLY AGREE THAT THE USE OF THE PLATFORMS AND ANY OF THE OTHER HERBERS & COMPANY SERVICES, AND ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD PARTY SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

19.3 Platforms Operation and Content. THE HERBERS & COMPANY PARTIES DO NOT WARRANT THAT THE DATA, ASSESSMENTS, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES, OR ANY THIRD-PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

19.4 Accuracy. EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY HERBERS & COMPANY, THE HERBERS & COMPANY PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES OR ANY THIRD-PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

19.5 Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES OR ANY THIRD-PARTY SITES, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

20. Limitation of Liability and Damages.

20.1 Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE HERBERS & COMPANY PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS, ASSESSMENTS, RESULTS OR CONTENT ON THE PLATFORMS OR THE OTHER HERBERS & COMPANY SERVICES OR ANY OTHER INTERACTIONS WITH HERBERS & COMPANY AND A CUSTOMER, EVEN IF HERBERS & COMPANY OR A HERBERS & COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, HERBERS & COMPANY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

20.2 Limitation of Damages. IN NO EVENT WILL THE HERBERS & COMPANY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE PLATFORMS AND THE OTHER HERBERS & COMPANY SERVICES, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) $50.00 AND (B) THE FEES PAID BY YOU, IF ANY, TO HERBERS & COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR FIFTY DOLLARS, WHICHEVER IS GREATER.

20.3 Release for Disputes between Users. If you have a dispute with any other Users (including any Customer) or other third parties, you release Herbers & Company and the other Herbers & Company Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.”

20.4 Third-party Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN HERBERS & COMPANY AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE HERBERS & COMPANY SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITES.

20.5 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT HERBERS & COMPANY HAS OFFERED THE PLATFORMS AND THE OTHER HERBERS & COMPANY SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND HERBERS & COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND HERBERS & COMPANY. HERBERS & COMPANY WOULD NOT BE ABLE TO PROVIDE THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

20.6 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

21. United States Export Controls.

You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Platforms or any of the other Herbers & Company Services or any underlying intellectual property, information or technology except with Herbers & Company’s prior written approval and in full compliance with all United States, foreign and other applicable export control laws and regulations.

22. Miscellaneous.

22.1 Notice. Herbers & Company may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on any of the Herbers & Company Services. Notice will be deemed given twenty-four hours after the email is sent, unless Herbers & Company is notified that the email address is invalid. Alternatively, Herbers & Company may give you legal notice by mail to a postal address, if provided by you through any of the Herbers & Company Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on any of the Herbers & Company Services is deemed given 30 days following the initial posting.

22.2 Waiver. The failure of Herbers & Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Herbers & Company.

22.3 Dispute Resolution. If a dispute arises between you and Herbers & Company, the goal is to provide you with a neutral and cost-effective methods of resolving the dispute quickly. Accordingly, you and Herbers & Company agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Platforms or any of the other Herbers & Company Services (a “Dispute”) will be resolved in accordance with this Section 22.3 or as Herbers & Company and you otherwise agree in writing. Before resorting to these dispute methods, Herbers & Company strongly encourages you to first contact Herbers & Company directly to seek a resolution.

The parties hereby irrevocably and unconditionally agree that service of process in any such Dispute may be effected by mailing a copy of such process by certified mail, postage prepaid, to such party at the address provided by such party.

(a) Choice of Law. THESE TERMS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS, THE PLATFORMS OR ANY OF THE OTHER HERBERS & COMPANY SERVICES.

(b) Arbitration and Class Action Waiver.

PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.

(i) Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND HERBERS & COMPANY (WHETHER OR NOT SUCH CLAIM INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS, THE PLATORM OR ANY OF THE OTHER HERBERS & COMPANY SERVICES INCLUDING WITHOUT LIMITATION, YOUR RIGHTS OF PRIVACY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S APPLICABLE RULES FOR ARBITRATION AND YOU AND HERBERS & COMPANY HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND HERBERS & COMPANYWOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Any such arbitration shall be in English and be held in Austin, TX and the number of arbitrators shall be one (1). Except as otherwise required by law, the parties and the arbitrator agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute. You may bring claims only on your own behalf.

NEITHER YOU NOR HERBERS & COMPANY WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST HERBERS & COMPANY INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Herbers & Company is a party to the proceeding.

This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 22.3(b) is found not to apply to you or your claim, you and Herbers & Company agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the applicable procedural rules of, the federal or state courts of Travis County, TX. Both you and Herbers & Company irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Herbers & Company may bring a claim for equitable relief in any court with proper jurisdiction.

(iii) Survival. This arbitration agreement will survive the termination of your use of the Platforms or any of the other Herbers & Company Services or your relationship with Herbers & Company.

(c) 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 22.3 above by sending written notice of your decision to opt-out to Herbers & Company’s contact information listed at the bottom of these Terms. The notice must be sent to Herbers & Company within thirty (30) days of your registering to use the Platforms or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of this Section 22.3. If you opt-out of these arbitration provisions, however, we also will not be bound by them.

(d) Improperly Filed Disputes. All claims you bring against Herbers & Company must be resolved in accordance with this Section 22.3. All claims filed or brought contrary to this Section 22.3 shall be considered improperly filed. Should you file a claim contrary to this Section 22.3, Herbers & Company may recover attorneys’ fees and costs up to $15,000, provided that Herbers & Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

(e) Prevailing Party. In the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Privacy Policy, the Platforms or any of the other Herbers & Company Services, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.

(f) LIMITATION ON TIME TO FILE CLAIMS. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE PRIVACY POLICY, THE PLATORM OR ANY OF THE OTHER HERBERS & COMPANY SERVICES, ANY PRODUCT OR OTHER SERVICES, ANY CONTENT OR YOUR RELATIONSHIP WITH HERBERS & COMPANY MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

22.4 Severability. If any provision of these Terms (including the Privacy Policy or any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

22.5 Assignment. These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Herbers & Company without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

22.6 Survival. Upon termination of these Terms, your use of the Platforms or any of the other Herbers & Company Services, or your relationship with Herbers & Company, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2, 4.4, and 11 - 22.

22.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

22.8 Entire Agreement. These Terms, including the Privacy Policy and the Policies are the entire agreement between you and Herbers & Company relating to the subject matter herein and will not be modified except by a change to these Terms or Policies made by Herbers & Company as set forth in Section 9 above or as provided in the applicable agreement.

22.9 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

22.10 Geographic Restrictions. Herbers & Company is based in the state of Texas in the United States. Herbers & Company makes no claims that the Platforms or any of the other Herbers & Company Services or any of the content is accessible or appropriate outside of the United States. Access to the Site, the Platforms and the other Herbers & Company Services may not be legal by certain persons or in certain countries. If you access the Platforms or any of these other Herbers & Company Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Herbers & Company with respect thereto.

22.11 Disclosures. The Site, the Platforms and the other Herbers & Company Services are offered by Herbers & Company located at: 3800 North Lamar Blvd., Suite 200, Austin, Texas, 78756 and email: service@herbersco.com All mail should be sent to Herbers & Company, 1101 W 34th Street, 310, Austin, TX 78751. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.

California users are also entitled to 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., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.