Effective Date of Terms: 2/17/2021
This agreement includes these Canix Standard Terms and Conditions (the “T&Cs”) and the quote or order form referencing these T&Cs (the “Order”), which is hereby incorporated by reference (collectively, the “Agreement”). The Agreement is entered into between Entrc, Inc. (d.b.a. Canix) (“Company”), and the entity entering into the Order (“Customer”) on the date that the Customer signed or otherwise agreed to the Order (the “Effective Date”).
By executing and accepting the Order, Customer acknowledges and agrees that: (i) it has read, understood and agrees to be bound by these T&Cs; and (ii) the individual entering into this agreement has the power, right, authority, and capacity to enter into this agreement on behalf of Customer.
1. HOSTED SERVICES; APPLICATION; AND SUPPORT
1.1 Subject to the terms of this Agreement and any use restrictions or any User quantity or capacity, or other metrics on which Fees are based under an Order, Company grants Customer a non-exclusive, limited: (i) right to access and use, and permit Users to access and use the features and functionality of Company’s proprietary seed-to-sale software as a service platform for which a license is purchased via the Order (the “Hosted Services”); and (ii) download, install, and run Company’s mobile application for accessing and using the Hosted Services on mobile devices owned or controlled by Customer (the “Application”) for Customer’s internal business purposes in connection with cannabis seed to sale management and tracking.
1.2 Customer will be able to provide access to the Hosted Services for those of its personnel, designated by Customer (“Users”), not to exceed, if applicable, the number of Users identified on the Order, to administer and use, respectively, the Hosted Services through a Customer-specific account (an “Account”). Each User will have and use a unique identifier and access credentials to access the Hosted Services. Customer is solely responsible for maintaining the confidentiality of all Account information (including access credentials), and will be fully liable for any and all activities under its Account, including by any Users or with any User’s access credentials. Customer agrees to keep all Account information up-to-date and to notify Company: (i) immediately of any unauthorized use of its Account or any other breach of security; and (ii) promptly of any User who should no longer have access to the Hosted Services for any reason. Except as required by applicable law, Customer will not permit any third party (other than Users) to access or use the Hosted Services without Company’s prior written consent. Customer acknowledges that Company may, but is under no obligation to monitor Customer’s use of the Hosted Service. Company may suspend Customer’s access to the Hosted Services for any period during which Customer is, or Company has a reasonable basis for alleging Customer is, in noncompliance with the foregoing.
1.3 Subject to Customer’s compliance with the terms of this Agreement, including payment of all Fees and its restrictions and responsibilities with respect to the Company Technology (as defined below) Company will: (i) make the Hosted Services available to Customer at least 99% of the time, excluding scheduled maintenance other downtime resulting from causes beyond Company’s reasonable control, measured on a rolling 6-month basis; (ii) use commercially reasonable efforts consistent with prevailing industry standards to maintain the Hosted Services in a manner which minimizes errors and interruptions in the Hosted Services; and (iii) implement commercially reasonable measures designed to secure the Hosted Services against unauthorized access to or alteration of Customer Data (defined below). Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
1.4 Company will provide technical support to Customer via both telephone and electronic mail on weekdays during normal working hours, with the exclusion of Federal Holidays. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within two (2) business days. Company acknowledges and agrees that Company may access Customer’s Account for the purposes of providing maintenance and technical support.
1.5 Subject to Customer’s timely payment of all applicable Fees, Company will use commercially reasonable efforts to provide to Customer the implementation, training, or other professional services, if any, set forth in the Order (the “Professional Services”) in a professional and workmanlike manner. Nothing in this Agreement or any attachment hereto shall be understood to prevent Company from developing similar work product or deliverables for other customers.
1.6 Company may make available integrations between the Hosted Services and Applications and third party hardware, software, or services (“Third Party Technology”). Company makes no representations, warranties, or covenants and assumes no liability regarding any use or operation of Third Party Technology. Customer may have to enter into separate written agreements with third parties for use of Third Party Technology, and Customer will comply with all such agreements.
1.7 In the event that the Customer would like to purchase additional Hosted Services, the parties may enter an additional quote or change order referencing this Agreement and setting out the additional Hosted Services (“Change Order”) and the Hosted Services will be provided hereunder shall be updated on a go-forward basis. Unless otherwise stated in a Change Order, Customer will pay the fees applicable to the additional Hosted Services for the remainder of the then-current Initial Term or Renewal Term (as defined below) in accordance with the payment terms in this Order. Upon the execution of any Change Order, this Agreement will be deemed amended to incorporate the additional Hosted Services contemplated by such Change Order; provided however that no such Change Order will be deemed to modify any terms of this Agreement other than the Hosted Services to be provided hereunder and any other modifications to the Agreement may only be made pursuant to an amendment to a written amendment to the Agreement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Hosted Services or the Application or any software, documentation or data related to thereto (“Company Technology”); (ii) modify, translate, or create derivative works based on the Company Technology (except to the extent expressly permitted by Company or authorized within the Hosted Services or Application); (iii) use the Company Technology for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) use the Company Technology for the purpose of developing any products or services that compete with or serve a similar purpose as the Company Technology; (v) or remove any proprietary notices or labels.
2.2 Customer may not remove or export from the United States or allow the export or re-export of the Company Technology or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.3 Customer represents, covenants, and warrants that Customer will use the Company Technology only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Company Technology. Although Company has no obligation to monitor Customer’s use of the Company Technology, Company may do so and may prohibit any use of the Company Technology it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for: (i) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Technology, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”); and (ii) ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of all Customer Data.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that should reasonably be considered confidential or proprietary based on the nature of the information or the circumstances surrounding its disclosure (with respect to the applicable Disclosing Party, hereinafter referred to as “Proprietary Information”). Without limiting the foregoing, Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Company Technology. Proprietary Information of Customer includes non-public data provided by Customer to the Hosted Services via the Applications to enable the provision of the Hosted Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Proprietary Information, and (ii) not to use (except in performance of the Hosted Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that: (a) is or becomes generally available to the public; (b) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Notwithstanding anything to the contrary herein, where the Receiving Party becomes legally compelled to disclose Proprietary Information, provided that the Receiving Party has given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Proprietary Information (if permitted by applicable law).
3.2 Company shall own and retain all right, title and interest, including all intellectual property rights, in and to: (i) the Company Technology, all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other work product or technology developed in connection with Professional Services (except as expressly set forth in the Order) or maintenance and support services. No rights or licenses are granted except as expressly set forth herein.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Hosted Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company is free (during and after the Term) to: (i) use such information and data to develop, improve, and enhance the Company’s products and services, including the Company Technology, and for other development, diagnostic and corrective purposes in connection with the Company’s products and services; and (ii) disclose and publish such data solely in aggregate or other de-identified form in connection with its business, including as part of industry reports or standalone products.
3.4 Customer agrees that Company may: (i) use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any: (a) aggregated non-personally identifiable information related to any usage of the Hosted Services to operate and improve Company’s products and services; and (b) suggestions, requests and feedback provided by or on behalf of Customer regarding the Hosted Services, Application or any other Company Technology; and (ii) utilize Customer’s logo and testimonials on Company’s website and other marketing materials. Company may request rights to conduct a case study on Customer’s experience, though case study rights shall be granted at Customer’s discretion.
4. PAYMENT OF FEES
4.1 Customer will pay Company the applicable fees described in the Order in accordance with the payment terms therein (the “Fees”). If Customer’s use of the Hosted Services exceeds the any use restrictions in an Order or if Customer exceeds any User quantity or capacity or other metrics, if any, on which Fees are based under an Order, Company may bill for such usage at Company’s then standard rates, and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (also set forth in the Order) or then-current Renewal Term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If either party believes that the other party has billed or paid an incorrect amount, such party must contact the other party no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. If fees for Professional Services are not set forth on the Order, such fees will be paid for services to be rendered at Company’s then prevailing time and materials rates. Customer agrees to promptly reimburse Company upon invoice for any actual, reasonable out-of-pocket economy travel and lodging expenses incurred by Company in connection with any on-site Professional Services set forth on the Order. Except as otherwise expressly set forth in the Order, all Fees are non-cancellable, non-refundable, and non-recoupable.
4.2 If Customer provides Company, or Company’s third party payment service provider with payment information, Customer hereby authorizes Company and its third party payment service provider to and agrees that Company and its third party payment service provider may automatically charge such payment information for any Fees upon such fees becoming payable hereunder. If Company chooses to bill Customer through an invoice, such invoices must be paid in full within 30 days after Company’s provision of such invoice in accordance with the instructions in such invoice if applicable. Any past-due, unpaid amounts hereunder may be subject, in Company’s sole discretion, to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Customer’s right to access and use the Hosted Services. Customer shall be responsible for all taxes associated with the Hosted Services, Professional Services, and Application other than U.S. taxes based on Company’s net income.
4.3 Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement and such taxes shall be listed as line items on the applicable invoice (other than taxes based on Company’s net income).
5. TERM AND TERMINATION
5.1 This Agreement commences on the Effective Date and continues for the period of time set forth on the Order (“Initial Term”) and shall be automatically renewed for additional periods of the same duration as the Initial Term (each a “Renewal Term”) unless either party provides notice of nonrenewal at least 60 days’ prior to the end of the then current Initial Term or Renewal Term, or specified otherwise herein (the Initial Term and all Renewal Terms, together the “Term”).
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement: (i) upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement; or (ii) immediately if the other party ceases to carry on its business, has a receiver or similar officer is appointed for its business, property, affairs or revenues and such proceedings continue for 45 days, becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import, or commences or has commenced against it proceedings under bankruptcy or insolvency laws that are not dismissed within 45 days.
5.3 Upon the effective date of expiration or termination of this Agreement for any reason: (i) Customer’s access to the Hosted Services, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer that have already accrued or for already rendered services will become due and payable immediately; (iii) Customer shall immediately return, or at Company’s request destroy and certify the destruction of any tangible embodiments of Company’s Proprietary Information, including all copies of the Applications; and (iv)Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter the Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.1 Company shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Applications or Customer’s use as authorized in this Agreement of the Hosted Services during the Term constitutes a direct infringement of U.S. copyrights or trade secrets of any third party (a “Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Company; provided that Customer provides Company (a) prompt written notice of, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by Company in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Company may, at its sole option and expense: (w) procure for Customer the right to continue to use the Hosted Services or the Applications; (x) modify the Hosted Services or Application, as applicable, to make it non-infringing; (y) replace the affected aspect of the Hosted Services or Application with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, Company will have no liability to Customer: (1) for any use of the Hosted Services or Applications in combination with software, products, or services not provided by Company, to the extent that the Hosted Services or Applications would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Hosted Services or Application in accordance with this Agreement; or (3) for any Claims related to Customer Data. THIS SECTION 6.1 STATES THE ENTIRE LIABILITY OF COMPANY, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY COMPANY, ANY COMPANY TECHNOLOGY, OR ANY PART THEREOF.
6.2 Notwithstanding anything to the contrary in Section 6.1, Customer shall defend or, at its option, settle, any claim brought against Company by a third party alleging that the use by or on behalf of Company of the Customer Data and/or any Company data obtained pursuant to a request from Customer in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws. Customer will pay all damages finally awarded against Company (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Company shall provide Customer with: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.
7. WARRANTY DISCLAIMER
COMPANY DOES NOT WARRANT THAT THE COMPANY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE COMPANY TECHNOLOGY, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES. THE COMPANY TECHNOLOGY AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. COMPANY SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY SOFTWARE, PRODUCTS, OR SERVICES PROVIDED, USED, OR INTEGRATED WITH THE COMPANY TECHNOLOGY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. In the event of a true conflict between the terms and conditions of these T&Cs and the terms and conditions of an Order, the terms and conditions of these T&Cs shall control unless the Order expressly states that it supersedes a particular provision in these T&Cs. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties hereby agree, consent, and submit to the sole and exclusive jurisdiction of the state and federal courts located in Santa Clara County, California with respect to any suits or claims arising under this Agreement. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, pandemic, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance. As defined in FAR section 2.101, the Application and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Except as expressly set forth herein, the parties agree that there shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
The following applies to any Applications accessed through or downloaded from the Apple App Store. Customer acknowledges and agrees that (i) the Agreement is concluded between Customer and Company only, and not Apple, and (ii) Company, not Apple, is solely responsible for the Application and content thereof. Customer’s use of the Application must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Application on the App Store to Customer and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. As between Company and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Company. Customer and Company acknowledge that, as between Company and Apple, Apple is not responsible for addressing any claims Customer may have or any claims of any third party relating to the Application or Customer’s possession and use of the Application, including, but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Customer and Company acknowledge that, in the event of any third-party claim that the Application or Customer’s possession and use of the Application infringes a third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Customer and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to Customer’s license of the Application, and that, upon Customer’s acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to Customer’s license of the Application against Customer as a third-party beneficiary thereof. Without limiting any other terms of the Agreement, Customer must comply with all applicable third-party terms of agreement when using the Application.