This Master Services Agreement sets forth the legally binding terms and conditions (“Terms”) that govern Customer’s (as defined below) use of the Services. By clicking the “Create Password” button, Customer: (i) acknowledges and agrees that Customer has read, is aware of, accepts full responsibility for and is bound by the Terms, which also governs the use and provision of any Services purchased by Customer pursuant to any Order Form (as defined below), and (ii) represents and warrants that Customer has the right, authority, and capacity to enter into these Terms. Any individual signing or accepting this Agreement represents that he or she is of legal age and has the authority and power to sign or accept this Agreement on their own behalf or for the Customer. Any individual signing or accepting this Agreement may not access or use the Application Services or accept the Terms if they are not at least 21 years old. If you do not agree with all of the provisions of these Terms, do not access and/or use the Application Services.
1.1 “Affiliate” means any person or other entity, which directly or indirectly owns, is owned by or is under common ownership with a party.
1.2 “Agreement” means this Master Services Agreement, including any Order Forms.
1.3 “Application Documentation” means documentation, whether in electronic or printed format, provided by Company to Customer that describes the features, functions and operation of the Application Services and Application Programs.
1.4 “Application Programs” means the computer software programs and related Application Documentation, including any updates, modifications or enhancements thereto, that are either delivered or made accessible to Customer by Company in connection with the Services.
1.5 “Application Services” means the software-as-a-service offerings ordered by Customer as set forth in any Order Form and provided by means of access to the features and functions of such service as hosted by Company, including without limitation, the Dispensary Management System.
1.6 “Authorized User” means each of Customer's employees, agents, and independent contractors when and to the extent they are acting on behalf of Customer, who is granted access to the Application Services by Customer.
1.7 “Company” or “Dispense” means Dispense Software, Inc.
1.8 “Company Brand” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, registrations and applications for registration thereof owned by, or licensed to, Company.
1.9 “Company Content” means any information, data, text, messages, software, sound, music, video, photographs, graphics, images and tags incorporated into the Services by Company.
1.10 “Company Fees” means the fees due to Company as set forth on an Order Form, which may include monthly software fees (the “Monthly Software Fees”), setup fees (the “Initial Setup Fees”), and fees for other Services ordered by Customer, a set forth on an Order Form.
1.11 “Confidential Information” means all written, oral, or electronic technical or non-technical information, disclosed by either Party to the other (each, a “disclosing Party”), related to the business, products, services or operations of either Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, customers, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers and agents; and (iii) information regarding the skills and compensation of the disclosing Party's employees, contractors, and other agents. Without limiting the foregoing, and for purposes of this Agreement, the Application Services (including the Application Documentation), Company Content, Feedback and any data or information collected and/or compiled by Company under the terms of this Agreement, will be the Confidential Information of Company.
1.12 “Customer” means the person or entity listed as “Customer” in opening the account associated with this Agreement.
1.13 “Customer Brand” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, registrations, and applications for registration thereof owned by Customer.
1.14 “Customer Content” means any photographs, graphics, artwork, text, data, information, and other content provided by Customer or its End Users in connection with Customer’s use of the Services.
1.15 “Dispensary Management System” means Company’s proprietary dispensary management technology and content that Company makes available on a software as a service basis to customers that enables Customer to manage client reservations, manage its client offerings including without limitation, those related to the distribution or sale of cannabis products and provides relevant resources to the staff of the dispensary regarding the client reservations, and provide any other Services described on an applicable Order Form.
1.16 “End User” means any third party that utilizes End User Services.
1.17 “End User Personal Data” means any Personal Data input by Customer or End Users in connection with Customer’s use of the Services.
1.18 “Order Form” means a document signed by an authorized representative of each Party identifying the specific Application Service(s) to be made available, the Company Fees to be paid and other relevant customized terms and conditions.1.19 “Party” or “Parties” means either or both of Company and/or Customer.1.20 “Services” means the Application Services and any other services ordered by Customer, to be provided by Company, as set forth in an Order Form.1.21 “Third Party Services” means data, services, hardware or software developed, provided or maintained by Customer or third-parties.
2.1 Orders. During the applicable Order Form Term (as defined on the Order Form), and subject to these Terms and Customer’s payment of all applicable fees, Company will provide to Customer the Services identified in one or more Order Forms. The Parties will negotiate and sign each Order Form separately. Each Order Form will incorporate these Terms by reference and will be subject to this Agreement. If a Company desires to use the Services in more than one location, as applicable, then there shall be a separate Order Form for each such location.
2.2 Access Grant. Subject to Customer’s compliance with these Terms, including Customer’s payment of all applicable fees, during the applicable Order Form Term, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license to: (a) access, and to allow Authorized Users to access, the Dispensary Management System, and (b) install and use any Application Programs to access the Dispensary Management System on a mobile device. Company will provide to Customer the necessary login information, passwords, security protocols and policies (the "Access Protocols") to permit Customer to access the Application Services in accordance with this Agreement. Customer will safeguard the Access Protocols and will be responsible for all activity carried out under all such accounts. Customer will notify Company immediately of any unauthorized use of any Access Protocols or any other known or suspected breach of security. Customer agrees that all right, title and interest in and to the Services and any copies, modifications, alterations, or derivative works thereof, and that all right, title and interest in and to any existing or future copyrights, trade secrets, and other proprietary rights embodied therein, shall vest and/or remain exclusively with Company.
2.3 Provision of Access to Authorized Users and End Users. Customer may grant access to the Application Services to Authorized Users and End Users. Customer will be responsible for all acts and omissions of its Authorized Users. Customer acknowledges and agrees that at least one of its Authorized Users will be required to upload certain information to the Application Services in order for the Application Services to function properly. Customer represents and warrants that all such information uploaded to the Application Services will be true, accurate and complete and that the Services may not perform as intended if the information is not true, accurate and complete.
2.4 Usage Restrictions. Customer will use the Services, including the Application Services (as applicable), solely on its own behalf and not on behalf of any third parties. For purposes of clarity, the Parties agree that, in the event that Customer owns or operates multiple cannabis locations, Customer shall obtain Services for each location at which it intends to use the Service pursuant to a separate Order Form. Customer may use the Services solely in connection with the Customer specified on the Order Form. Customer will not use the Services: (i) in any manner that is not in compliance with applicable law or industry best practice; (ii) to display, transmit, distribute or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content or information of any kind; (iii) to defraud or deceive any third party; (iv) to build a similar or competitive product or service; or (v) with any device, software, or routine that damages, interferes with or disrupts the integrity, performance or use of the Services. Customer will not conceal, remove or alter any proprietary notice or legend regarding Company’s proprietary rights in the Services. Subject to the terms and conditions herein, Customer may permit any Authorized User to access and use the features and functions of the Services only through the Access Protocols and solely in accordance with the Application Documentation. Customer will only allow Authorized Users who have been assigned a unique user identification to access the Application Services.
2.5 Customer Responsibilities. Notwithstanding Company’s provision of the Services, Customer acknowledges and agrees that Customer will be solely responsible for: (a) determining how the Application Services and Application Programs will be configured for Customer’s use in compliance with all applicable laws and regulations; (b) providing for and maintaining any systems, software, hardware and internet service necessary to access and use the Application Services and Application Programs,; and (c) ensuring that Customer’s Authorized Users and End Users are legally able to interact with the Application Services in Customer’s jurisdiction.
2.6 Transactions. Company does not offer cannabis retail services or cannabis delivery services, does not set pricing for Customer’s products, and does not maintain any inventory of cannabis. Customer acknowledges and agrees that any reservations or transactions using the Services are made between Customer and its End-Users.
3.1 License Grant of Customer Brand & Customer Content.(a) Customer grants to Company a royalty-free, non-exclusive, non-transferable right and license to use the Customer Brand and any photographs, graphics, artwork, text and other content provided by Customer during the applicable Order Form Term for the limited purposes of performing Company’s obligations under this Agreement and for Company marketing purposes.(b) Customer owns all right, title and interest in and to the Customer Content. Customer hereby grants to Company a limited, royalty-free license during the applicable Order Form Term to use, process, store, transmit, copy, display, disclose, modify, and distribute the Customer Content to provide Services to Customer and to perform Company’s obligations under these Terms. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content, and Company will not be responsible or liable for the deletion, damage, or failure to store any Customer Content by Authorized Users.(c) Customer retains all right, title and interest in and to the Customer Brand and Customer Content, and Company acknowledges that it neither owns nor acquires any additional rights in and to the Customer Brand or Customer Content not expressly granted by this Agreement.
3.2 License Grant of Company Brand. Company grants to Customer a non-exclusive, non-transferable right and license to use the Company Brand and any photographs, graphics, artwork, text and other content provided by Company during the applicable Order Form Term in accordance with Company branding guidelines. Customer agrees that Company will have a prior written right of approval over any use of the Company Brand by Customer.
3.3 Feedback. Company in its sole discretion, may utilize, in any manner it deems appropriate, all comments and suggestions, whether written or oral, furnished by Customer to Company in connection with its access to and use of the Services (all reports, comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Company's products and services.
3.4 Ownership. All right, title and interest, in and to the Services (including the Application Services and Application Documentation), Application Programs and Feedback remain with Company, and Company expressly reserves all rights and licenses not expressly granted. Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.
4.1 Training. Company will provide the number of hour(s) set forth on the Order Form of remote training related to the Services (including the Application Services as applicable) for the appropriate Customer personnel at a date and time agreed to by the parties. Customer may request that Company provide certain professional services related to Customer's use of the Application Services, including, by way of example, customization and/or additional training; provided, however, except as provided in this Section 4.1, Company shall have no obligation to provide or perform such services for or on behalf of Customer unless otherwise mutually agreed by the Parties in the relevant Order Form.
4.2 Support. Company will be reasonably available to provide phone and email technical support during the regular business hours of 9 am-7 pm EST Monday through Friday excluding U.S. federal holidays .Company may change its availability period from time to time, after giving notice of such changes to Customer.
5.1 Fee and Payment Obligations. In consideration for the access rights granted to Customer pursuant to Section 2 herein and the Services provided by Company under this Agreement, Customer agrees as follows:
(a) Customer shall pay to Company, without offset or deduction, the applicable fees set forth in any and all Order Forms.
(b) Customer shall also be responsible for payment of any applicable sales, use and other taxes and similar charges (other than taxes based on Company income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related Services.
(c) Initial Setup Fees are due upon the Order Form Effective Date, and monthly billing shall commence upon the date the first Authorized User receives a login account for the Application Services.
(d) Customer acknowledges and agrees that during the Order Form Term, unless Customer has opted for an automatically renewing subscription, Company will invoice Customer on a monthly basis in advance of each month's service for the Monthly Software Fee as set forth on any Order Form, and each invoiced amount will be due and payable within ten (10) days of receipt of the relevant invoice by Customer, unless otherwise mutually agreed by the Parties in the relevant Order Form.
(e) Customer acknowledges and agrees that during the Order Form Term, if Customer has opted for an automatically renewing subscription, Customer’s subscription will be renewed automatically and Customer’s credit card or bank account will be charged based on the subscription program Customer has chosen, unless Customer has opted out or cancelled by following the instructions in this Agreement. In case of subscriptions longer than one month, Customer will be notified via email before the subscription ends and asked to correct any information that has changed and reminded of the opportunity to “opt out” of renewal. Renewal of the subscription takes place subject to the terms and conditions in effect on the date of renewal.
(f) Customer may opt out of renewing its subscription at least two business days before the renewal date by email via the contact information below or by logging into Customer’s account and following the cancellation instructions there; otherwise, the payment for renewal period of the subscription will be processed. Cancellations must be received by 5:00 p.m. Eastern Time on the appropriate day as described above.
(h) Customer shall be solely responsible for and pay any and all taxes (sales tax or otherwise) associated with any End-User transaction. Customer shall be responsible to obtain a copy of each End User’s ID, credit card, and signature upon arrival at a Customer’s venue. In the event of a chargeback, and Customer has not obtained such information, Customer shall be solely and exclusively responsible to Company for any refunds and chargebacks.
(i) Any portion of any amount payable by Customer hereunder that is not paid when due will accrue interest at one and one-half (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
6.1 Confidential Information. During this Agreement, each Party will have access to certain Confidential Information of the other Party. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and will remain the sole property of the disclosing Party. Except as otherwise expressly permitted, and without limiting each Party's obligations, under this Agreement, each Party agrees as follows: (a) it will not disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors who have a need to know, (b) it will not use Confidential Information disclosed by the other Party for any purpose other than exercising its rights and performing its obligations as described herein; (c) that such Party will not reproduce Confidential Information disclosed by the other Party; (d) that each Party will take no less than commercially reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information; (e) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; and (f) that such party will notify the other Party of any suspected breach of this Section 6. Notwithstanding the foregoing, the provisions of Section 6.1 will not apply to Confidential Information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure by the disclosing Party as shown by the receiving Party's files and records immediately prior to the time of disclosure; (e) is independently developed by the recipient without use of or reference to the disclosing Party's Confidential Information; or (f) is approved in writing for release or disclosure by an authorized representative of the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will, to the extent permitted by law, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (2) to establish a Party's rights under this Agreement, including to make such court filings as it may be required to do. In the event of a breach or threatened breach of this Section 6, the non-breaching Party will be entitled to seek injunctive relief to enforce the provisions of this Agreement without posting any bond and, if successful, will be entitled to recover reasonable attorneys' fees.
6.3 Company Use of End User Personal Data. Customer grants to Company, its representatives and subcontractors, the right to retain, use, process or disclose End User Personal Data solely to provide the Services to Customer and fulfill Company’s obligations under these Terms, or as required to: (i) comply with any applicable laws or regulations, (ii) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities, (iii) to cooperate with law enforcement concerning conduct or activity that Company, Customer, or a third party reasonably believes may violate federal, state, or local law, or (iv) exercise or defend legal claims For purposes of this Agreement “Personal Data” means any information relating to an identified or identifiable natural person, including name, identification number, online identifier, or to one or more factors relating to the physical, physiological, genetic, mental, economic, cultural, or social identity of such person. Company agrees to use and/or implement reasonable technical and organizational measures to protect the End User Personal Data from theft, unauthorized disclosure, destruction, or damage. Customer agrees not to disclose any Personal Data regarding an End User to any third party without Company’s prior written consent. Customer further agrees to use End User Personal Data only in accordance with Company’s written instructions and only for the purpose of providing services to the End User. Customer agrees that all employees, agents, and contractors of Customer that have access to End User Personal Data will be bound to Customer by an appropriate obligation of confidentiality with respect to the use and disclosure of End User Personal Data; provided that Customer may not engage a contractor or subcontractor to provide the Customer’s services without Company’s prior written consent if such contractor or subcontractor will have access to End User Personal Data. Customer will inform Company promptly in the event that Customer becomes aware of any unauthorized access to or processing of End User personal Data or any damage to or destruction of End User Personal Data. Upon Company’s request, Customer will cooperate in any manner in connection with Company’s compliance with any applicable law or regulation. Customer will destroy all End User Personal Data upon Company’s request.
6.4 Responsibilities of Customer with respect to End User Personal Data. Customer and Company agree that the following responsibilities shall be undertaken by Customer with respect to End User Personal Data:
(a) Customer is solely responsible for obtaining any relevant authorizations, consents, and permissions, or establishing any other lawful basis, for the collection and processing of End User in accordance with these Terms. Customer agrees to provide all such authorizations, consents, and permissions or other lawful basis to Company from time to time upon Company’s request.
(c) Upon notice to Customer, Customer shall assist and support Company in the event of an investigation by any regulator, if and to the extent such investigation relates to End User Personal Data processed in the Dispensary Management System. Such assistance shall be at Company’s expense, except where such investigation was required due to the acts of Customer or its Authorized Users, in which case such assistance shall be at Customer’s expense.
7.1 Customer Representations and Warranties. Customer represents and warrants that: (a) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to Customer; (b) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of Customer and will be enforceable against Customer in accordance with its terms; (c) Customer will at all times conduct itself in a competent and professional manner in accordance with industry practice; (d) it owns or otherwise has all necessary permissions, licenses, and rights to conduct a cannabis business in its jurisdiction and to grant Company access to and use of the Customer Content in accordance with these Terms; (e) Customer will comply with all laws, rules or regulations that are applicable to the Application Services and Customer’s performance under this Agreement, including without limitation, those related to the distribution or sale of controlled substances; (f) the Customer Content will not violate the right of any third party (including any intellectual property right), or violate any law, regulation or other judicial or administrative action; and (g) Customer has obtained all necessary and required consents to disclose any End User Personal Data to Company and to permit Company to use, process, store, and disclose such End User Personal Data. To the extent applicable, Customer acknowledges and agrees that all cannabis products are being sold and provided to the End User solely by the Customer, and that Customer shall be solely responsible for obtaining any and all required cannabis licenses (collectively, “Permits“). Customer represents and warrants that it has all Permits, and that the Permits are valid and in good standing.
7.2 Company Representations and Warranties. Company represents and warrants that: (a) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to Company; (b) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of Company and will be enforceable against Company in accordance with its terms; and (c) Company will comply with all laws, rules or regulations of the United States that are applicable to the Application Services and Company's performance under this Agreement. Customer's exclusive remedies for a material breach of any warranty in this Section 7.2 will be a right to terminate the Agreement in accordance with Section 10.2 and, to the extent applicable, Customer's rights of indemnification pursuant to Section 9.
8.1 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.2, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, REGARDING THE SERVICES, APPLICATION PROGRAMS AND ALL OTHER MATERIALS AND SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SERVICES, APPLICATION PROGRAMS, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES OR APPLICATION PROGRAMS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. THE APPLICATION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.2 Exclusions of Remedies. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
8.3 Limitation on Liability. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, THE CUMULATIVE LIABILITY OF COMPANY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR DUE TO COMPANY BY Customer IN THE TWELVE (12) MONTHS PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE PROVISIONS OF THIS 8.3 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.1 Company Indemnification Obligations. Subject to the terms and conditions set forth in this Section 9, Company agrees to indemnify, defend and hold Customer, its directors, managers, officers, employees and representatives (each a “Customer Indemnified Party”), harmless from and against any and all losses, damages and liability awarded by a court or agreed to in settlement and all related costs and expenses (including reasonable attorneys' fees) (collectively “Losses”) arising out of any third party claim against Customer alleging that the Services or Application Programs infringe or misappropriate any U.S. intellectual property right of such third party, including any patent, copyright, trademark, or trade secret; provided that the Customer Indemnified Party promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. This Section 9.1 will not apply to the extent that the alleged infringement arises from (i) a modification of the Services or the Application Documentation by Customer or any entity acting on Customer's behalf, (ii) Customer’s failure to use the most current release or version of the Application Programs or any corrections or enhancements provide by Company thereto, where the infringement would not have occurred but fo such failure; (iii) a combination, operation or use of the Services or Application Documentation with other software, hardware or technology not provided by Company, (iv) the Customer Content, (v) Customer’s failure to comply with any applicable law, regulation or rule; or (vi) access to or use of the Services or Application Programs other than as permitted under these Terms (any of the foregoing circumstances under clauses (i), (ii), (iii), (iv), (v), or (vi) will be collectively referred to as a “Customer Indemnity Responsibility”).
9.2 Customer's Indemnity Obligations. Customer agrees to indemnify, hold harmless and, at Company's option, defend Company, its directors, managers, officers, employees and representatives (each a “Company Indemnified Party”), from and against any and all Losses arising from any third party claim against Company: (a) related to or in connection with the circumstances or an occurrence on or around premises owned or operated by Customer, or otherwise related to, or in connection with, Customer’s use of the Services, including without limitation, claims related to personal property damage, theft, personal injury or death; (b) arising out of Customer's breach of Section 7.1, (c) arising out of Customer's failure to comply with any applicable law, regulation or rule, and (d) arising out of a Customer Indemnity Responsibility; provided that the Company Indemnified Party promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim. Company reserves the right to participate in the defense and/or settlement of any such claim with counsel of its own choosing, at its own cost and expense.
9.3 Settlement. The indemnifying party may enter into a settlement of such third party claim only if such settlement: (a) involves only the payment of money damages by the indemnifying party and (b) includes a complete release of the Indemnified Parties.
9.4 Infringement. If any Service is, or in Company's opinion, is likely to become the subject of any infringement-related claim, then Company may, at its expense and in its discretion: (a) procure for Customer a license to continue use of any such infringing material or (b) modify or replace any such infringing material to make the Service non-infringing. If Company determines that neither of these alternatives is commercially practicable, then Company may terminate the Agreement or its obligation to provide the applicable Service, and Customer shall be provided a pro-rata refund of any pre-paid fees attributable to the remaining balance of the Term prior to such termination. EXCLUSIVE OF COMPANY'S INDEMNIFICATION OBLIGATIONS, THE PROVISIONS OF THIS SECTION 9.4 STATE COMPANY'S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE Services INFRINGE A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHT.
10.1 Term. The term of this Agreement will commence on the Effective Date and will continue for as long as any Order Form is in effect, unless terminated in accordance with this Section 10 or as otherwise expressly provided in these Terms (the “Term”).
10.2 Termination for Breach. Either Party may, at its option, terminate the applicable Order Form and/or this Agreement in the event of a material breach by the other Party. The breaching Party will have a right to cure such breach or breaches within thirty (30) days (10 days, in the case of Customer’s failure to pay any amounts due to Company) of receipt of written notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) or ten (10) day period, as applicable. If Company is the terminating party, Customer shall pay, within thirty (30) days of the effective date of the termination, all remaining Monthly Software Fees (as set forth on any Order Form) applicable to the Term during which Customer was to be subject to this Agreement as if it had it not been so terminated. If Customer is the terminating party, Customer shall pay, within thirty (30) days of the effective date of the termination, Monthly Software Fees on a pro-rated basis through the effective date of the termination.
10.3 Suspension of Access. At any time during the Term, Company may, immediately upon prior written notice to Customer, limit or suspend access to the Services in the event that: (a) Company has reasonably determined that Customer has breached the terms of this Agreement or is using the Services in such a manner that could reasonably be expected to reflect unfavorably on the reputation of Company; (b) Company has reasonably determined that Customer is not complying with any applicable law or the terms of this Agreement; or (c) any amount due under this Agreement is not received by Company when due. In such a case, no portion of Customer’s subscription payment will be refunded. Company also reserves the right to suspend or terminate Customer’s access to the Services at any time for any reason, and should the Company terminate Customer’ s access for any reason other than as set forth in subparagraphs (a)-(c) above, Company will refund to Customer any unused portion of Customer’s subscription payment, which will be Customer’s sole and exclusive remedy upon such suspension or termination.
10.4 Termination for Convenience. If Customer wishes to terminate this Agreement for convenience prior to the end of the Term, Customer may do so, provided Customer provides thirty (30) days prior written notice to Company, and Customer pays, within such thirty (30) day period, all remaining Monthly Software Fees applicable to the Term during which such Customer was to be subject to this Agreement (had it not been so terminated). If Company wishes to terminate this Agreement for convenience prior to the end of the Term, Company may do so, provided Company provides thirty (30) days prior written notice to Customer. Within such thirty (30) day period, Monthly Software Fees applicable to the Term shall be pro-rated and Customer shall only be responsible for such Monthly Software Fees through the effective date of the termination.
10.5 Termination for Change of Circumstances. Company may terminate this Agreement immediately upon providing written notice to Customer if: (a) either party is in jeopardy of civil or criminal investigation or penalties for performing their respective obligations under these Terms; or (b) state or local laws change such that performance of either Party’s obligations under these Terms becomes illegal.
10.6 Effect of Termination. Upon any termination of this Agreement: (a) Customer will pay immediately all amounts due to Company under all Order Forms; (b) Customer will immediately discontinue all use of the Services, the Application Programs, the Application Documentation, and any Company Confidential Information; (c) Company and Customer will each delete any Confidential Information of the other party from its computer storage or any other media including, but not limited to, online and off-line libraries; (d) at the party's option, return or destroy, all copies of any Confidential Information of the other party then in the party's possession (including any Application Documentation).
The provisions of Sections 1, 3, 5, 6, and 8 through 12 will survive the termination or expiration of this Agreement. The provisions of Sections 7 will survive the termination or expiration of this Agreement for a period of 3 years.
12.1 Entire Agreement. This Agreement, together with the Order Forms, sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof.
12.2 Independent Contractors. In making and performing this Agreement, Customer and Company act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them.
12.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid recognized overnight courier, or email to the Parties at their respective addresses set forth in the Order Form, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.
12.4 Amendments; Modifications. These terms and conditions are subject to occasional revision by Company, and if Company makes any substantial changes, Company shall notify Customer by sending Customer an e-mail to the last e-mail address provided to Company by Customer (if any). Customer is responsible for providing Company with its most current e-mail address. In the event that the last e-mail address that Customer provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these terms will be effective upon the earlier of thirty (30) calendar days following Company’s dispatch of an e-mail notice to Customer (if applicable). Continued use of the Services by Customer following notice of such changes shall indicate Customer’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Notwithstanding the foregoing to the contrary, an Order Form may only be amended if executed by Company and Customer.
12.5 Assignment; Delegation. This Agreement cannot be assigned by either Party without the prior written consent of the other Party; provided, however, that Customer and Company may each assign this Agreement to and affiliate or to any person or entity that acquires by sale, merger or otherwise all or substantially all of its assets, stock, or business. Any attempted assignment or delegation in violation of this Section 12.5 will be null, void and of no effect.
12.6 Order of Precedence. These Terms shall control over any conflicting preprinted terms and conditions contained in in Customer’s purchase order or similar documents. To the extent of any conflict between these Terms and an Order Form, these Terms shall control, except to the extent an Order From expressly identifies a provision of these Terms to be superseded.
12.7 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
12.9 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
12.10 Waiver of Defense of Illegality. Customer irrevocably waives any defense based on federal law or that the transactions contemplated by this Agreement are void as against public policy or based on illegality under federal law, including without limitation, any Federal Marijuana Law.
12.11 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, Internet access outside of Company's reasonable control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.
12.12 Governing Law. Except as set forth in Section 12.13, this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflicts of law principles. For purposes of all Disputes (as defined below), each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THIS AGREEMENT.
12.13 Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the Application Services (collectively, “Disputes”) shall be settled solely and exclusively by a binding arbitration process administered by JAMS in Boston, Massachusetts. Such arbitration shall be conducted in accordance with the then-existing JAMS Rules of Practice and Procedure, with the following exceptions if in conflict: (i) one arbitrator [who is a retired judge] shall be chosen by JAMS; (ii) each Party to the arbitration will pay one-half of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; (iii) arbitration may proceed in the absence of any Party if written notice (pursuant to the JAMS rules and regulations) of the proceedings has been given to such Party; and (iv) the Federal Arbitration Act will govern the enforceability of this section. Each Party shall bear its own attorney’s fees and expenses; provided that the arbitrator may assess the prevailing Party’s fees and costs against the non-prevailing Party as part of the arbitrator’s award. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions. An award of arbitration may be confirmed in a Massachusetts state court of competent jurisdiction. All such Disputes shall be settled in this manner in lieu of any action at law or equity; provided, however, that nothing in this subsection shall be construed as precluding the bringing of an action for injunctive relief or specific performance as provided in this Agreement. This dispute resolution process and any arbitration hereunder shall be confidential and neither any Party nor the neutral arbitrator shall disclose the existence, contents, or results of such process without the prior written consent of all Parties, except where necessary or compelled in a court to enforce this arbitration provision or an award from such arbitration or otherwise in a legal proceeding. If JAMS no longer exists or is otherwise unavailable, the Parties agree that the American Arbitration Association (“AAA”) shall administer the arbitration in accordance with its then-existing rules as modified by this subsection. In such event, all references herein to JAMS shall mean AAA.