Please read these Terms and Conditions (these “Terms”) carefully. All Services provided by Provider to Customer shall be governed by these Terms and Conditions.
1. As used in these Terms, the following terms shall have the meanings given to them below. Other terms are defined in other sections of these Terms. Such other defined terms are identified by being in bold text and flanked by quotation marks. Such other terms shall have the meanings so assigned to them whenever used in these Terms.
“Acceptable Use Policy” means Provider’s then current Acceptable Use Policy available at ** link to acceptable use policy if Mercy has one ** and attached hereto as Schedule A.
“Account(s)” means the Customer account(s) enabling a person to access and use the Services, including both administrator accounts and user accounts.
“Affilliate” means any entity that is controlling, controlled by, or under common control with a party, in each case where the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise.
“Agreement” means these Terms together with all Service Orders and Supplemental Terms for Services governed by these Terms or that otherwise reference these Terms and that are entered into between Provider and the Customer.
“Business Day” means any day other than a bank or public holiday in The United States of America.
“Business Hours” means the hours of 10:00 to 19:00 PST on a Business Day.
“Charges” means amounts charged by Provider to Customer for the Services in accordance with the Agreement.
“Customer” means the person or entity identified as such in the Services Order Form.
“Customer Data” means all data, works and materials, including Customer Personal Information: uploaded to or stored on the Hosted Services by the Customer; transmitted by the Hosted Services at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Hosted Services; or generated by the Hosted Services as a result of the use of the Services by the Customer (but excluding anonymized customer data where no personal identifiable information is available to the viewer, analytics data and anything relating to the use of the Hosted Services and server log files).
“Customer Personal Information” means any Personal Information that is processed by the Provider on behalf of the Customer pursuant to these Terms.
“Data Protection Laws” means all applicable laws relating to the processing and/or protection of Personal Information.
“Documentation” means the documentation for the Services produced by Provider and delivered or made available by Provider to Customer.
“Effective Date” means the date on which Provider sends an order confirmation to Customer following Customer’s acceptance of these Terms via the self-service sign-up or as otherwise agreed by the parties in writing.
“Federal Cannabis Law” means federal laws of the United States regulating marijuana or cannabis as included on Schedule 1 under the United States Controlled Substances Act, including any such federal laws of the United States pertaining to manufacturing, distributing, dispensing or possession of marijuana or cannabis.
“Hosted Services” means the Services provided by Provider to Customer through the ** does Mercy host services? original language said “web-based portal” made available by Provider to Customer as a service via the internet in accordance with the Agreement. **cut this part?**
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, or otherwise under or related to any patent, copyright, trademark, business names, trade names, know-how, trade secret, database protection, or other intellectual property laws, and all similar or equivalent rights or forms of protection, including but not limited to any application or right of application for such rights.
“License Fees” means all of the recurring license fees, software license fees, per store license fees, license and support fees, or any similar fees for access to the Services as more particularly described on the applicable Service Order; except that License Fees shall not mean or include any messaging, message segment, SMS usage, phone, email or variable carrier fees charged on a per use basis.
“Mobile App” means the mobile application known as the Alpine IQ Native App Extension **should this name be changed to Mercy app or similar?** if or when such application is made available by Provider through mobile app stores.
“Personal Information” means any information relating to, capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household, including, without limitation, any inferences drawn therefrom or derivatives thereof, or any other information that is regulated as “personal data” or “personal information” under applicable law.
“Provider” means Mercy Wellness, a corporation incorporated in ** should this be Mercy Wellness LLC or Mercy Wellness of Cotati?**
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Laws.
“Service Order” means any order for Services placed by Customer via the self-service signup form located at ** https://lab.alpineiq.com/joinMembers/1241 (is this correct?) ** and accepted by Provider as evidenced by the order confirmation sent by Provider to Customer and any other written order for Services placed by Customer and accepted in writing by Provider.
“Services” means any services that the Provider provides to Customer, or has an obligation to provide to the Customer, under the Agreement, which may include Hosted Services, Supplemental Services, and Support Services.
“Support Services” means those support services made available by Provider in relation to the use of, and the identification and resolution of errors in, the Hosted Services or Supplemental Services, but shall not include the provision of training services.
“Supported Web Browser” means the current release from time to time of Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported.
“Term” means the period commencing on the Effective Date and continuing until termination of the Agreement in accordance with Section 18.
2. Hosted Services
1. Subject to Customer’s compliance with the Agreement, Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services by means of a Supported Web Browser during the Term. Provider shall use commercially reasonable efforts to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
2. The Hosted Services may only be used by the named users identified on the settings page for Customer’s Account in the Hosted Services (each such user, an “Authorized User”). Customer may change, add, or remove an Authorized User in accordance with the procedure set out in the Documentation. Customer shall only add as an Authorized User Customer’s authorized employee and agents and the employees and agents of its Affiliates. Customer is responsible for all actions and omissions of any Authorized User, and any breach of the Agreement by any Authorized User shall be a breach of Customer.
3. Except to the extent expressly permitted by the Agreement or as otherwise required by law, the license granted by Provider to Customer under Section 2.1 is subject to the following additional prohibitions and limitations:
(a) Customer shall not sub-license its right to acess and use the Hosted Services, except that the foregoing restrictions shall not prohibit Customer from providing access to the Hosted Services to any Authorized User properly authorized in accordance with these Terms.
(b) Customer must not permit any unauthorized person to access or use the Hosted Services;
(c) Customer must not use the Hosted Services to provide services to third parties;
(d) Customer must not republish or redistribute any content or material from the Hosted Services;
(e) Customer must not make any alteration to the Hosted Services, except as permitted by the Documentation;
(f) Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Hosted Services or impairs the availability or accessibility of the Hosted Services;
(g) Customer must not use the Hosted Services in any way that is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;
(h) Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Hosted Services; and
(i) Customer must not reverse engineer the Services and/or any Hosted Services technology.
4. Customer shall use reasonable efforts, including implementing and maintaining reasonable security measures relating to administrator Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an administrator Account.
5. Customer must comply with Acceptable Use Policy and must ensure that all persons using the Hosted Services for or on behalf of the Customer or by means of an Account comply with the Acceptable Use Policy.
6. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code, and source code) of the Hosted Services, either during or after the Term.
3. Supplemental Services
1. The parties may mutually agree, through the execution of an addendum or modification to the Agreement through Service Order, self-service signup form, or otherwise (each such addendum or modification, “Supplemental Terms”), for Provider to provide additional or supplemental Services to Customer, including for example, Services related to the Mobile App (collectively, “Supplemental Services”). Any such Supplemental Services shall be subject to and governed by these Terms, except as otherwise specifically set out in the applicable Supplemental Terms. In the event of any conflict between these Terms and any Supplemental Terms, the Supplemental Terms shall control.
4. Support Services
1. Subject to Provider’s right to suspend or terminate Services for non-payment of Charges owed by Customer, Provider shall provide Support Services to the Customer during Business Hours for the duration of the Term. The Support Services shall be provided by Provider with reasonable skill and care.
2. Provider may make available to Customer an email-based help-desk, and Customer may use the help-desk for the purposes of requesting and, where applicable, receiving Support Services.
3. Provider shall respond promptly to all requests for Support Services made by the Customer through the help-desk and work diligently to resolve any repeatable error or malfunction so submitted, but Provider does not guarantee resolution by any particular time of any matter so submitted.
5. Service Level Requirements
**are these sections on uptime relevant to Mercy?** 1. Uptime and Reliability. Subject to any limits as described in the Documentation, Provider will use commercially reasonable efforts to make the Hosted Services available and operational to Customer with an uptime of 99.99%, calculated on a monthly, per-minute basis (“Target Uptime”).
2. Exclusions. Any determination by the parties of whether or not Provider has met the Target Uptime shall not include any unavailability or disruption to the Hosted Services due to: (i) Customer’s use of the Services in a manner not authorized in the Agreement or the Documentation, (ii) problems affecting internet connectivity or internet infrastructure not solely provided by and under the direct control of Provider, force majeure events or other factors outside of the reasonable control of Provider (including but not limited to, denial of service attacks or third-party service outages), (iii) Customer’s (or one of its agents’ or vendors’) equipment, software, network connections, utilities or other infrastructure, (iv) third party systems, acts or ommissions or (v) Scheduled Maintenance (as defined below) or reasonable emergency maintenance. “Scheduled Maintenance” means scheduled maintenance that may affect Target Uptime. Schedule Maintenance will not exceed six (6) hours per month in the aggregate and, to the extent practicable, will be scheduled during the evening hours between 11:00pm and 4:00am Mountain Time the following day. In the event of any unavailability described above, Provider will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperatibility of the Hosted Services in connection with outages, whether scheduled or not.
3. If Provider does not meet the Target Uptime specified above, Customer will be entitled, upon written request, to a service level credit (“Service Level Credit”) to be calculated, as follows: (i) if the Target Uptime is at least 99.99% of the month’s minutes, no Service Level Credits are provided; (ii) if Target Uptime is 99.75% to 99.99% (inclusive) of the month’s minutes, Customer will be eligible for a credit in an amount equal to 5% of Customer’s Average Monthly License Fees; or (iii) if Target Uptime is 99.50% to 99.74% (inclusive) of the month’s minutes, Customer will be eligible for a credit in an amount equal to 7.5% of the Customer’s Average Monthly License Fees; or (iv) if Target Uptime is less than 99.50% of the month’s minutes, Customer will be eligible for a credit in an amount equal to 10.0% of the Customer’s Average Monthly License Fees. A Customer’s “Average Monthly License Fees” will be equal to the aggregate License Fees actually paid by the Customer to Provider during the twelve months preceding the calculation divided by twelve; provided, that if the Customer has not paid License Fees for a period of twelve months prior to the date of calculation then the Provider shall calculate the Average Monthly Fees on any reasonable basis. Including the average of License Fees actually paid over the number of months preceding the calculation during which the Customer paid License Fees. Customer shall only be eligible to request Service Level Credits if Customer notifies Provider in writing within thirty (30) days from the end of the month for which Service Level Credits are due. In the event after such notification Provider determines that Service Level Credits are not due, or that different Service Level Credits are due, Provider shall notify Customer in writing on that finding. Service Level Credits will be applied to the next invoice following Customer’s request and Provider’s confirmation of available credits.
6. Customer Data
1. Customer hereby grants Provider a limited, non-revocable, non-transferable right and license to receive, store, process, and transfer the Customer Data solely as permitted under these Terms. Provider and its authorized agents, employees, and subprocessors acting under the authority of the Provider shall process Customer Data, including Customer Personal Information solely (i) for the purpose of providing the Services and as otherwise permitted under these Terms, (ii) as specifically instructed by Customer in writing or by the Customer creating a digital request to transfer or send data via the Services to any outside party or connected integration vendor, (iii) in accordance with any Service Order or Supplemental Services that specifically contemplate or require additional processing or sharing, or (iv) as required to do so by applicable law, including Data Protection Laws, to which the Provider is subject (in which case, the Provider shall notify the Customer of that legal requirement before such processing, except as otherwise prohibited by law). Notwithstanding the foregoing, the Provider may also process Customer Data and Customer Personal Information for data security purposes and for internal commercial use, including the development of anonymous analytics, statistics and log data that may be published, sold, or otherwise shared (such data, “Analytics Data”), but Provider may not sell any Customer Personal Information. For the avoidance of doubt, Provider will not disclose such Analytics Data to third parties except as authorized hereunder. Such Analytics Data sold or processed by Provider may include product and store level sales information (for example, price and volume) of Customer. Customer may elect to opt-out of the sale (but not the processing) of any Analytics Data identifiable to Customer and/or its stores by selecting the appropriate setting in the Hosted Services for any such selling of Analytics Data after the date of such opt-out. Subject to any such opt-outs, Customer hereby grants Provider an unlimited, non-revocable, transferable license in and to any and all the Analytics Data for use by Provider for any and all purposes.
2. Provider will make commercially reasonable efforts to ensure that Customer Data is made available to Customer, either through the Hosted Services or upon Customer’s written request to Provider no later than sixty (60) days prior to the termination of these Terms if such Customer Data has not otherwise been made available. Any such Customer Data made available by Provider pursuant to this section shall be in any format as reasonably determined by Provider. Provider shall have no obligation to store or make available any Customer Data more than ninety (90) days from the termination or expiration of these Terms or any applicable Service Order, whichever occurs earliest.
3. The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person and will not breach the provisions of any applicable law, statute, or regulation.
4. Except for the licenses provided in Section 6.1, nothing in these Terms shall be construed as granting Provider or any third party any right, title, or interest in Customer Data.
5. Each party has made and will continue to make available to the other party information that is not generally known to the public and at the time of disclosure and is identified as, or would reasonably be understood by the receiving party to be, proprietary or confidential information of the disclosing party (“Confidential Information”). Confidential Information may be disclosed in oral, written, visual, electronic or other form. Customer’s Confidential Information includes Customer’s (a) business plans, strategies, forecasts, projects, and analyses; (b) financial information and fee structures; (c) business processes, methods, and models; (d) director, member, manager officer, employee, customer, and company information (whether past, current or prospective); (e) Personal Information; (f) product and service specifications; and (g) manufacturing, purchasing, logistics, sales and marketing information. The receiving party will use the same care and discretion to prevent disclosure, publication or dissemination of any Confidential Information received from the disclosing party as the receiving party uses with its own similar Confidential Information that it does not wish to disclose, publish or disseminate (but in no event, not less than a reasonable degree of care). The Provider will ensure that its personnel use Customer Confidential Information only to the extent necessary to perform its obligations under these Terms. The receiving party will be liable for any unauthorized disclosure or use of Confidential Information by any of its personnel, agents, advisors, or Affiliates. Confidential Information shall be returned or deleted within 7 days upon a party’s written request.
7. No assignment of Intellectual Property Rights
1. Except as otherwise expressly stated herein, nothing in these Terms shall operate to assign or transfer any Intellectual Property Rights from Provider to Customer, or from Customer to Provider.
8. Charges ** strike this part? **
1. Unless otherwise agreed in writing (including in a Service Order), Charges for the Services shall be as set forth in Provider’s charge policies located at ** link to charge policy if applicable ** as in effect from time to time. Such Charges may include, but are not limited to, Charges based on the number of locations or stores linked to Customer, the number of orders processed through the Services by the Provider for Customer, SMS usage fees, regular access fees for the Services, including the Mobile App, and additional fees for any other Supplemental Services.
2. Provider may modify the Charges for the Services by giving Customer not less than 30 days written notice of the proposed change. In the event that the Customer does not wish to pay the modified Charges for continued provision of the Services, the Customer may terminate the Agreement by delivering written notice of its election to terminate the Agreement prior to the effective date of the modification to the Charges.
3. All listed Charges provided by Provider are stated exclusive of any applicable value added and sales taxes, which will be added to the Charge and payable by Customer to Provider.
** don’t think this applies to Mercy **
1. Customer shall pay all Charges due to Provider in advance of the due date stated for such Charges.
2. If Customer does not pay any Charges due to Provider when due, Provider may charge Customer interest on the overdue amount at the lesser of 1.5% per month or the maximum amount permitted by law (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
3. Provider may suspend or terminate Customer’s access to and use of the Services, including the Hosted Services, Supplemental Services, and Support Services, if Customer’s payment for any Charges is past due and such past due payment has not been cured within 7 days after Provider provides Customer written notice of such past due Charges and its intention to suspend or terminate Services.
10. Privacy and Data Protection
1. Each party shall comply with any Data Protection Laws with respect to the processing of the Customer Personal Information.
2. Customer represents and warrants to Provider that it has the legal right to disclose all Personal Information that it does in fact disclose to Provider in connection with the Services.
3. Notwithstanding any other provision of the Agreement, Provider may process Customer Personal Information as necessary to provide any Services and to the extent that Provider is required to do so by applicable law. If Provider is required by applicable law to process any Customer Personal Information, Provider shall inform Customer of the legal requirement before processing, except as prohibited by applicable law.
4. Provider shall ensure that persons authorized to access or process such data have executed confidentiality and/or non-disclosure agreements no less protective of Customer’s Personal Information than these Terms.
5. Provider and Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Information.
6. Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist Customer with the fulfillment of Customer’s obligation to respond to requests exercising a consumer’s rights under Data Protection Laws.
7. Provider shall report any Data Breach to the Customer within 3 days following the Provider becoming aware of such Data Breach. “Data Breach” means any event that materially compromises the confidentiality, security, integrity, or availability of Customer Personal Information including any (i) unauthorized access, use, disclosure, modification, or destruction of Customer Personal Information or (ii) loss or misuse (by any means) of any Customer Personal Information.
8. Following any Data Breach, Provider shall make available to Customer all information necessary to demonstrate the compliance of Provider with its obligations under this Section 10 and the Data Protection Laws, including: (i) any report generated in connection with a Data Breach, (ii) the contact information of the person(s) handling any suspected Data Breach, and (iii) a description of the measures taken or proposed to be taken to address a Data Breach. Provider shall maintain compliance with industry standard information security practices, such as SOC 1 Type 2 and SOC 2 Type 1, and shall perform or have performed, at least annually, audits of Provider’s compliance with such industry standard information security practices.
9. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information, except as specifically agreed to in writing by the parties. Provider shall have no liability under the Agreement or otherwise for Sensitive Personal Information, notwithstanding anything to the contrary herein.
10. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Information carried out under the Agreement, then the parties shall use their reasonable best efforts promptly to agree to such modifications to these Terms as may be necessary to remedy such non-compliance.
11. RESPONSIBILITY FOR MESSAGING AND RECORDING ** this does not seem to apply to Mercy’s relationship to Mercy customers **
1. IT IS EXPRESSLY AGREED BY THE PARTIES THAT CUSTOMER IS THE SOLE RESPONSIBLE INITIATOR OF ALL MESSAGING CAMPAIGNS (INCLUDING ALL TEXT, SMS, MMS, PUSH, BROWSER, EMAIL AND OR OTHER MESSAGING CHANNEL CAMPAIGNS) IN ALL CIRCUMSTANCES AND IS AND SHALL BE SOLELY RESPONSIBLE FOR ALL SUCH MESSAGING CAMPAINGS, INCLUDING OBTAINING ALL REQUIRED CONSENTS AND FOLLOWING ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING THE “Telephone Consumer Protection Act” (TCPA), REGARDLESS OF WHETHER PROVIDER IS TASKED WITH CREATING AND/OR MANAGING ANY SUCH CAMPAIGNS FOR CUSTOMER. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS PROVIDER FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY MESSAGING CAMPAIGNS AND ANY AND ALL COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) SUFFERED OR INCURRED BY PROVIDER IN CONNECTION WITH ANY SUCH THIRD-PARTY CLAIM.
2. If Customer records or monitors telephone calls, SMS/ MMS messages, or other communications using the Services, Customer will do so in compliance with all applicable laws and will secure all required consents to record or monitor communications using the Services prior to engaging in such activities. Provider makes no representations or warranties with respect to recording or monitoring of telephone calls, SMS/ MMS messages, emails, push notifications, chat, or other communications. Customer acknowledges that these representations, warranties, and obligations are essential to Provider’s ability to provide Customer with access to recording and monitoring features that are part of the Services. Customer shall indemnify and hold harmless Provider and its affiliates for any claims, damages, liabilities, or actions arising out of or related to Customer’s acts or omissions with respect to or in connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls, SMS/ MMS messages, or other communications using the Services.
3. Provider shall provide a mechanism for Customer’s Hosted Services users to opt-out of Customer communications sent through the Hosted Services that is intended to allow Customer to comply with the TCPA. However, Customer is solely responsible for ensuring that such mechanism of the Hosted Services is suitable for Customer’s TCPA compliance obligations as determined independently by Customer and its counsel with respect to all of Customer’s operations that may be subject to the TCPA, including but not limited to Customer’s use of the Hosted Services. Customer shall comply with all requirements of the TCPA and similar laws and regulations in the use of the Hosted Services.
12. Representations and Warranties
1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) It is a duly organized, validly existing, and in good standing as a corporation or other legal entity under the laws of the jurisdiction of its incorporation or other organization.
(b) It is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required.
(c) It has all requisite power and authority to enter into the Agreement, and the Agreement will be a binding and enforceable agreement with respect to such party.
2. Additional Provider Warranties. The Provider represents and warrants to the Customer that:
(a) During the Term, and subject to Provider’s right to suspend or terminate the Services as provided in the Agreement, the Services, when used in accordance with the Documentation, will operate in all material respects as described in the Documentation. Provider will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, correct any reasonably verifiable continuing or repeating error in the Services reported to Provider by Customer in writing during the Term.
(b) The Services, when used in accordance with and as contemplated by the Documentation, will not infringe, misappropriate, or otherwise violate any Intellectual Property rights of any third party.
3. The Customer represents and warrants to the Provider that:
(a) Customer has read and agrees to abide by the Acceptable Use Policy.
(b) The Customer Data, or any other materials provided by Customer to Provider in connection with the Services will not infringe, misappropriate, or otherwise violate any Intellectual Property rights or any other right of any third party.
4. THE EXPRESS WARRANTIES GIVEN IN THE AGREEMENT ARE GIVEN IN LIEU OF, AND THE PARTIES HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, DATA ACCURACY, SYSTEMS INTEGRATION, PERFORMANCE, OPERATION, AND UP-TIME, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
13. Acknowledgements and Further Warranty Limitations
1. Customer acknowledges that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of these Terms, Provider gives no warranty or representation that the Services will be wholly free from defects, errors, and bugs.
2. Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms, Provider gives no warranty or representation that the Services will be entirely secure.
3. Customer acknowledges that the Services are designed to be compatible only with that software and those systems specified as compatible; and Provider does not warrant or represent that the Services will be compatible with any other software or systems.
4. Customer acknowledges that Provider will not provide any legal, financial, accountancy or taxation advice; and, except to the extent expressly provided otherwise in these Terms, Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
5. Violation of Federal Cannabis Laws shall not be, on its own and without connection to a violation of any other applicable law or term of the Agreement, considered a breach of these Terms, or any party’s obligations hereunder, including references to applicable law and/or illegal conduct, where such party is otherwise in material compliance with all state, local, and/or Canadian provincial laws pertaining to the sale, manufacture, licensing, production, and possession of cannabis and marijuana.
14. Limitations and Exclusions of Liability
1. Nothing in these Terms will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit any liabilities in any way that is not permitted under applicable law; or
(c) exclude any liabilities that may not be excluded under applicable law.
2. Neither party will be liable to the other in respect of any loss of revenue or income, loss of profits, anticipated savings, loss of use or production, loss of business, contracts, or opportunities, or any special, indirect, or consequential damages.
3. Except with respect to a breach of its obligations under Section 6 or Section 10 of these Terms, Provider will not be liable to Customer in respect of any loss or corruption of any data, database, or software.
4. Provider will not be liable for the monetary value or regulations related to gaming, lottery, raffle, or loyalty points systems and or bookkeeping of such systems via ledgers. Any such loyalty points systems, ledgers, or rewards points recorded or offered by the Services are for purely informational purposes, and do not represent any actual value owed, held, or maintained by Provider. Provider does not guarantee the accuracy of any such ledgers or loyalty or rewards points systems.
5. The aggregate liability of each party to the other under the Agreement shall not exceed the lesser of (a) the amount paid or payable by Customer to Provider under the Agreement during the 12-month period preceding the date of the claim or (b) $1,000,000.
6. The limitations in this Section 14 shall not apply to the parties’ respective indemnification obligations under the Agreement.
1. At all times during the Term, Provider shall procure and maintain, at its sole cost and expense, all insurance coverage required by applicable law, and in any event insurance coverage in the following types and amounts:
(a) Commercial General Liability with limits of no less than $3 Million per occurrence and $3 Million in the aggregate, which policy will include contractual liability coverage insuring the activities of Provider under these Terms;
(b) Cyber Liability Insurance, including the first party and third party coverage, with limits of no less than $3 Million per occurrence and $3 Million in the aggregate for all claims each policy year.
(c) Worker’s Compensation and employers’ liability insurance with limits no less than the minimum amount required by applicable Law for each accident and occupational illness claim.
2. The coverage limits stated herein above may be met by Provider through combined primary and excess or umbrella coverage.
16. Mutual and Special Indemnity
1. Mutual Indemnity. Each party shall indemnify, defend, and hold harmless the other party from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any gross negligence or willful misconduct of such indemnifying party.
2. Customer Special Indemnity. Customer shall indemnify, defend, and hold harmless Provider from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any Customer Data or breach or alleged breach by Customer of Section 10.9 (Sensitive Personal Information), or violation of the Acceptable Use Policy.
3. Provider Special Indemnity. Provider shall defend (or at its option settle) any third-party claim, suit or action against Customer alleging that the Services, Hosted Services, or Mobile App infringe any Intellectual Property Rights of such third party (each, an “Infringement Claim”) and indemnify Customer from the resulting costs and damages finally awarded against Customer to that third party by a court of competent jurisdiction or agreed to in settlement by Provider. Customer shall (a) promptly provide Provider with notice of any Infringement Claim within a reasonable period of time after learning of it; (b) allow Provider sole control over the claim’s defense and settlement; and (c) reasonably cooperate in response to Provider’s requests for assistance. Customer may not settle or compromise any Infringement Claim without Provider’s prior written consent. If the Services, Hosted Services, or Mobile App is or are, or in Provider’s opinion likely to become, the subject of an Infringement Claim, then Provider may (i) procure for Customer, at no cost to Customer, the right to continue using the Services, Hosted Services, or Mobile App, (ii) replace or modify the infringing the Services, Hosted Services, or Mobile App to make it non-infringing, at no cost to Customer, or (iii) if the right to continue using the infringing the Services, Hosted Services, or Mobile App cannot be procured for Customer for a reasonable cost, or cannot reasonably be modified to make it non-infringing, terminate this Agreement, and refund to Customer any prepaid Fees. Notwithstanding the foregoing, Provider will have no obligation under this Section 16.3 or otherwise with respect to any Infringement Claim based upon: (1) any use of the Services, Hosted Services, or Mobile App in a manner not in accordance with the Agreement or the applicable Documentation; (2) any use of the Services, Hosted Services, or Mobile App in combination with products, equipment, or software not supplied by Provider if such infringement would have been avoided without the combination with such other products, equipment, or software; or (3) any modification of the Services, Hosted Services, or Mobile App by any person other than Provider or its authorized agents or subcontractors; or (4) any Services, Hosted Services, or Mobile App provided on a no charge, beta, trial or evaluation basis. Provider’s obligations under this Section 16.3 are Provider’s sole obligations and Customer’s exclusive remedy for any Infringement Claim.
17. Force Majeure Event
1. If an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars) gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of such event(s).
18. Term and Termination
1. The Agreement will commence on the Effective Date and continue for successive, automatically renewing 1-year terms (each such 1-year term, the “Term”).
2. Subject to any contrary provisions in any Service Orders or Supplemental Terms, Customer may terminate the Agreement at any time during the first 90 days from the Effective Date with immediate effect, or, at any time during the Term by giving the Provider at least 60 days’ written notice. Otherwise the Term will renew for the full Term Length. Provider reserves the right to terminate the Agreement after providing 30 days written notice to the Customer.
3. Either party may terminate the Agreement after providing written notice of a material breach and intent to terminate to the other party if the other party commits a material breach of the Agreement and the breaching party fails to cure the breach within 30 days after receipt of such written notice.
4. Either party may terminate these Terms immediately by giving written notice of termination to the other party if:
(a) the other party:
i. is dissolved;
ii. ceases to conduct all (or substantially all) of its business;
iii. is or becomes unable to pay its debts as they fall due;
iv. is or becomes insolvent or is declared insolvent; or
v. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
19. Effects of Termination
1. Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, except that any provisions thereof that by their nature should survive termination shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely), including but not limited to Sections 6.4, 7, 9, 11, 12.4, 13, 14, 16, 19, 22, 23, and 24 of these Terms.
2. Except to the extent expressly provided otherwise in the Agreement, the termination of the Agreement shall not affect the accrued rights of either party.
3. Within 10 days following the termination of the Agreement for any reason:
(a) Customer must pay to Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement and any other amounts required by the Agreement to be paid by Customer in connection with such termination; and
(b) Provider must refund to Customer any Charges paid by the Customer to Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement net of any amounts Customer is required to pay pursuant to Section 19.3(a), that will not be provided because of such termination.
1. Neither party shall assign or delegate its rights or obligations under the Agreement either in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement, and all rights and obligations hereunder, to a successor to all or substantially all of such party’s assets or voting securities, whether by sale, merger, or otherwise, provided that such assignee shall agree to be bound by the Agreement.
1. Any notice from one party to the other party with respect to the Agreement must be given by the following method: by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received upon receipt of the email by the recipient’s email server.
1. No Waiver. No breach of any provision of the Agreement shall be waived except with the express written consent of the non-breaching party. The failure of a party to insist upon strict adherence to any term of the Agreement shall not be considered waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of the Agreement.
2. Severability. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
3. No Third Party Beneficiaries. The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party.
4. Complete Agreement. The Agreement, including the various components thereof and any schedules, addenda, and modifications thereto, shall constitute the entire agreement between the parties in relation to the subject matter therein, and shall supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
5. Applicable Law. The laws of the State of Colorado, without giving effect to its conflict or choice of law rules, govern all matters arising under or related to this Agreement.
1. Customer agrees to reasonably cooperate with the Provider to serve as a reference account upon request.
2. The Provider and the Customer can enter a renegotiation (at the Customer’s request) after the Customer has obtained 30 days of operational data from their fourth retail location (that is connected to the system), assuming that the Customer had 3 stores or less prior.
3. Customer hereby grants to Provider a limited, revocable license to use Customer’s name, logo, and identifying marks in advertising Provider’s Services, including through marketing activities and in marketing materials, subject to Customer’s reasonable objection.
** cut this part I think ** 4. If the Customer is charged at a different rate than the standard default pricing as set forth in Provider’s standard charge policy referenced below, and such Customer does not connect all of its stores to the Hosted Services after 45 days of using the Hosted Services, the Provider may increase the Charges to match the standard default pricing rates found at ** URL of charge policy here **.
5. The Customer may not use the Services to message or otherwise send communications to individuals who are not current customers of a store currently listed as an active store of Customer in the Hosted Services or other settings page of any Services (each such store, a “Customer Store”). If the Customer messages individuals who are not customers of a Customer Store, the Customer will be in material breach of these Terms.
24. Dispute Resolution
1. If any dispute arises under or with respect to the Agreement, Provider and Customer shall first attempt to resolve the dispute through negotiation. If the parties cannot resolve the dispute after 30 days of negotiation, then the parties shall submit the dispute to binding arbitration before a single arbitrator in accordance with the American Arbitration Association’s Commercial Arbitration Rules. The arbitration shall be conducted in Boulder, Colorado, and judgment on the award may be entered in any court having jurisdiction. Notwithstanding the foregoing or anything in the Agreement to the contrary, Provider may pursue a claim for non-payment of Charges in any jurisdiction or venue without condition or delay.
2. TO THE EXTENT ALLOWED BY LAW, (A) EACH PARTY WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING, AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
1. Provider reserves the right to make changes to these Terms from time to time by providing Customer with written notice of the changes at least 20 days prior to any such changes. Such written notice shall specify the effective date of such changes (which must be at least 20 days after delivery of the notice) and Customer’s continued access or use of the Services on or after the effective date of any such changes constitutes Customer’s acceptance of and consent to any such changes. If Customer opposes any such changes to the Terms, Customer may terminate the Agreement effective immediately upon written notice to Provider prior to the effective date of any such new Terms.
2. Notwithstanding the foregoing, no modification of either party’s respective limitations of liability or indemnification obligations hereunder shall be binding unless made in a written document that expressly identifies it as an amendment to the Agreement and is signed by each party’s authorized representative.