This Marketing Agreement, dated as of the date signed on the signature page hereto (the “Effective Date”), is made and entered into by Stickyleaf Software (the “Company”, “we”, “us” or “our”), and the Collective, Dispensary, Co-op, Storefront, Caregiver Service, or Delivery Service (“Dispensary,” “you” or “your”) whose name and address are set forth on the signature page.
- Monthly Packages; Services. The Company and Dispensary each desire to enter into an on-line hosting and marketing relationship pursuant to which the Company will provide Dispensary, website hosting and promotion services (the “Platform”), with such services of the Company which correspond to those certain monthly packages (the “New Monthly Packages”) set forth on Exhibit A hereto under the heading “New Monthly Packages” (the “Services”), along with their respective New Monthly Package Prices (in the aggregate, the “Total New Monthly Packages Price”). The start date for the Services under a New Monthly Package shall be the first day on which the Company begins to provide to the Dispensary such Services under such New Monthly Package. If the Company is providing any monthly packages to Dispensary as of the Effective Date under an existing marketing agreement and the Company and Dispensary desire for the Company to continue to provide the services under such monthly packages pursuant to this Agreement (the “Existing Monthly Packages” and, together with the New Monthly Packages, the “Monthly Packages”), then such Existing Monthly Packages shall be set forth under the heading “Existing Monthly Packages” on Exhibit A, along with their respective Existing Monthly Package Price (in the aggregate, the “Total Existing Monthly Packages Price”). Set forth immediately below is the payment option that you will use to pay for the Services.
- Fees. You are required to pay the New Monthly Packages Prices and the Existing Monthly Packages Prices set forth on Exhibit A hereto (in the aggregate, the “Total Monthly Packages Price”) for the duration of the Term (as the Total Monthly Packages Price may change from time to time pursuant to Section 3 below). Payments of the Total Monthly Packages Price are due in advance of the month for which they apply. In the event the Total Monthly Packages Price is not timely paid, we have the right to immediately terminate the Services, including suspending use of the Platform. We are not responsible for any lost information, media or data resulting from discontinued Services. If we continue the relationship (and the provision of the Services hereunder), a late fee of 3% per month, or the maximum amount allowed pursuant to applicable law if 3% per month exceeds the maximum amount allowed pursuant to applicable law, will apply, which will be added to the next month’s bill. You are responsible for any taxes from our fees that you may be required to pay in your area.
- New Monthly Package Price Changes. Each New Monthly Package Price set forth on Exhibit A hereto with respect to the applicable New Monthly Package is quoted and locked in for
the 60-day period following the Effective Date (the “60 Day Price Lock Term”). After the end of the 60 Day Price Lock Term, we reserve the right to change any of the New Monthly Package Prices in our sole discretion, and you will receive at least 30 days’ notice (which may be given verbally or in writing) of any changes to any of the New Monthly Package Prices. For the avoidance of doubt, we reserve the right to change any of the Existing Monthly Package Prices in our sole discretion at any time (as the Existing Monthly Package Prices are not subject to the 60 Day Price Lock Term), and you will receive at least 30 days’ notice (which may be given verbally or in writing) of any changes to any of the Existing Monthly Package Prices. You will have the option to continue with the same Monthly Packages at the new monthly package prices or speak with your sales representative to select new Monthly Packages at your discretion. In the event that you and the Company agree to make any changes to the Monthly Packages, the Existing Monthly Package Prices or the New Monthly Package Prices, you and the Company will do so by entering into a new marketing agreement, which shall set forth the existing Monthly Packages, any new Monthly Packages you desire the Company to provide and the pricing that will apply thereto.
- Payment Options.
- Credit Card or Debit Card: Complete and sign the credit card or debit card authorization. If you provide a credit card or a debit card, you authorize the Company to automatically charge you monthly to collect the Total Monthly Packages Price and any other fees or amounts owed hereunder.
- Cancellation; Suspension. We can cancel the Services for non-payment pursuant to Section 2 above. We may also cancel the Services at any time at our discretion, for any reason, with two (2) days’ prior notice to you. You can cancel the Services with notice to us at least five
(5) days prior to the due date of your Total Monthly Packages Price. You will not receive a refund if you cancel, even if you cancel in the middle of a billing cycle. Once payment has been cleared, no refunds will be processed regardless of the basis. Upon notice to you (verbal or written), we may suspend any of the Services for any period of time due to a breach by you of this Agreement, any of the Website Policies (as defined below) or any other Company policies governing your use of the Services or Platform.
6 Confidential Information.
6.1 Dispensary (a) shall not use any information concerning Company or any of its affiliates which Company identifies as being confidential or proprietary or that should reasonably be understood by Dispensary, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be confidential or proprietary (collectively, “Confidential Information”) for its own benefit, and (b) shall keep confidential and not publish or otherwise disclose to any third party any Confidential Information of Company or any of its affiliates, except in the case of both clauses (a) and (b) to the extent such disclosure or use: (i) is expressly permitted by the terms of this Agreement or is reasonably necessary for the performance or exercise of Dispensary’s rights under this Agreement or (ii) is required to be disclosed pursuant to applicable law or in response to a valid order of a court of competent jurisdiction or other governmental or regulatory body; provided, however, that prior to Dispensary disclosing any Confidential Information of Company or any of its affiliates pursuant to this clause (ii), Dispensary shall first give notice to Company, and Company be given a reasonable opportunity to quash such order or obtain a protective order against the disclosure of such Confidential Information.
6.2 Confidential Information includes this Agreement and the terms and conditions contained herein which shall be deemed the Confidential Information of Company. Confidential Information does not include any information that: (a) was publicly known at the time of the Party’s communication thereof to the receiving Party; (b) becomes publicly known through no action or fault of the receiving Party; (c) was in the receiving Party’s possession free of any obligation of confidentiality at the time of the disclosing Party’s communication thereof; (d) is developed by the receiving Party independently of, and without reference to, any of the disclosing party’s Confidential Information; or (e) is rightfully obtained by the receiving Party from third parties authorized to make such disclosure without restriction.
- Intellectual Property.
- All patents, inventions, designs, processes, copyrights, trade secrets and all other intellectual property rights as these terms are understood under United States law
(collectively, the “Intellectual Property”) which are displayed on the Platform, incorporated in the Platform or otherwise provided or used by the Company (collectively, the “Company Intellectual Property”) shall remain the sole property of the Company. For the avoidance of doubt, the Company Intellectual Property shall include all meta data or compilation data generated from the Platform, including utilizing or derived from the Dispensary IP (as defined below). Dispensary shall acquire no right, title, or interest in any of the Company Intellectual Property as a result of this Agreement.
- You hereby grant the Company a worldwide, nonexclusive, sublicensable license during the Term with respect to all Intellectual Property and materials you submit to the Company in connection with the Services, any other services provided to you by the Company or any of its affiliates, any products sold to you by the Company or any of its affiliates, or otherwise (collectively, the “Dispensary IP”) to use such Dispensary IP (i) in connection with providing the Services, (ii) in connection with creating data sets or any other derivative works for the use of the Company or any of its affiliates or partners, and
- Advertising or Publicity. Dispensary shall not use the name, likeness, logo, trademarks, or any other Intellectual Property of the Company or any of its affiliates in public releases, advertising or otherwise without the Company’s prior written approval (which may be withheld
in its sole discretion). Dispensary agrees not to purport to be endorsed or affiliated with the Company and cannot refer to itself as a part of the Company.
- Onsite Services. If Dispensary makes an onsite appointment, regarding, but not limited to, photography, marketing, or consulting, and cancels or reschedules less than 24 hours in advance, Dispensary shall be required to pay a $125 cancellation fee to compensate for time and travel of the Company’s employees or contractors.
- Subcontractors. Company shall have the right to subcontract any of the Services it agrees to provide hereunder to a third party (each, a “Subcontractor”).
- PROHIBITED ACTIVITIES; LIQUIDATED DAMAGES. DISPENSARY HEREBY AGREES THAT IT IS PROHIBITED FROM USING THE PLATFORM OR ANY SERVICES OF THE COMPANY (INCLUDING THE SERVICES) TO (A) MARKET, PROMOTE OR OTHERWISE LIST ON THE PLATFORM ANY WEBSITE, MOBILE APPLICATION OR OTHER BUSINESS OR SERVICE WHICH PROVIDES DISPENSARY, DELIVERY SERVICE OR BRAND LISTING SERVICES OR PROVIDES OTHER MARKETING OR ADVERTISING SERVICES WHICH ARE OTHERWISE SIMILAR TO ANY OF THE SERVICES PROVIDED BY COMPANY OR ITS AFFILIATES OR (B) MARKET, PROMOTE OR OTHERWISE LIST ON THE PLATFORM ANY BUSINESS WHICH IS NOT DISPENSARY’S BUSINESS (THE
“PROHIBITED SERVICES”). FOR THE AVOIDANCE OF DOUBT AND WITHOUT LIMITATION, THE PROHIBITED SERVICES SHALL INCLUDE (I) MOBILE APPLICATIONS OR WEBSITES WHICH PROVIDE ADVERTISING, MARKETING OR OTHER SERVICES TO THIRD PARTY DISPENSARIES, DELIVERY SERVICES, BRANDS OR OTHER BUSINESSES AND (II) MOBILE APPLICATIONS OR WEBSITES WHICH LIST THIRD PARTY BRANDS, DISPENARIES OR DELIVERY SERVICES OR OTHER BUSINESSES OR MENUS ON BEHALF OF ANY OF THE FOREGOING. THE PARTIES AGREE THAT IT WOULD BE DIFFICULT TO ESTIMATE THE AMOUNT OF THE COMPANY’S DAMAGES IN THE EVENT THAT DISPENSARY BREACHES THE TERMS OF THIS SECTION 11. ACCORDINGLY, THE PARTIES AGREE THAT IN THE EVENT OF ANY BREACH OF THIS SECTION 11 BY DISPENSARY, THE COMPANY SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF TEN THOUSAND DOLLARS ($10,000) PER MONTH IN WHICH SUCH BREACH OCCURS OR IS CONTINUING TO OCCUR. THE PARTIES HEREBY AGREE THAT SUCH DAMAGES ARE FAIR AND REASONABLE IN LIGHT OF THE SUBSTANTIAL ECONOMIC HARM TO THE COMPANY AND LOSS OF BUSINESS IN THE EVENT OF SUCH BREACH, AND DISPENSARY AGREES THAT IT SHALL NOT CHALLENGE THE AMOUNT OF SUCH DAMAGES OR CONTEND SUCH DAMAGES ARE A PENALTY PROVISION UNDER STATE OR FEDERAL LAW. THE PARTIES AGREE THIS AMOUNT IS A GENUINE ESTIMATE OF THE DAMAGES SUFFERED BY THE COMPANY IN THE EVENT OF A BREACH OF THIS SECTION 11 AND THE PAYMENT OF SUCH LIQUIDATED
DAMAGES SHALL BE WITHOUT PREJUDICE TO THE COMPANY’S RIGHT TO REMOVE THE PROHIBITED SERVICES OR THE LISTINGS OF DISPENSARYFROM THE PLATFORM.
- Representations, Warranties and Covenants.
- Dispensary represents, warrants and covenants during the Term (as defined below) that (a) it has the authority, power and right to enter into and deliver this Agreement and perform its obligations hereunder, (b) if Dispensary is a legal entity, Dispensary is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized(c) this Agreement has been duly executed and delivered by it and constitutes a valid and binding obligation enforceable against it in accordance with its terms, (d) all information provided to the Company by Dispensary during the Term is and will be true, correct and complete and, if at any time any such information becomes, or if Dispensary later learns that any such information is or was, false or misleading or otherwise not true, correct and complete, then Dispensary will immediately take remedial measures to correct such information and cure such breach, and (e) it is not (and it will not be) in violation in any respect of any applicable law and it is not (and it will not be) conducting any of its businesses or operations in violation in any respect of any applicable law (other than the Controlled Substances Act, 21 U.S.C.
§801, et seq., as it applies to marijuana only). Without limiting the foregoing, Dispensary represents, warrants and covenants that it conducts (and will conduct) its businesses and operations in strict accordance with the guidelines set forth in that certain Memorandum from Deputy Attorney General, James Cole, dated August 29, 2013 (the “Cole Memo”), and without limiting the foregoing representation, warranty and covenant, Dispensary further represents, warrants and covenants that it does not, and will not (i) distribute or participate in the distribution of marijuana to minors, (ii) participate in revenue from the sale of marijuana going to criminal enterprises, gangs and cartels, (iii) divert marijuana from states where it is legal under state law in some form to other states, (iv) participate in a state-authorized marijuana activity that is being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity, (v) use violence or the use of firearms in the cultivation and distribution of marijuana, (vi) commit or endorse drugged driving and does not exacerbate other adverse public health consequences associated with marijuana use, (vii) grow or produce marijuana on public lands, or (viii) distribute or participate in marijuana use or possession on federal property.
- Dispensary represents, warrants and covenants to the Company that any Intellectual Property, information or other materials that Dispensary provides to the Company or any of its affiliates in connection with the Services or otherwise, including offers or advertisements that customers may redeem at the Dispensary (“Deals”) and the Dispensary IP (collectively, the “Dispensary Materials”), will (a) be true, correct and complete, (b) not contain any material which violates the Company’s content guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any Intellectual Property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (c) comply with all applicable laws and regulations (including all applicable privacy / data protection laws and regulations and laws related to Deals). For purposes of this
Agreement, “Deals” shall include any discount, contest, sweepstakes, coupon or other promotion appearing on or promoted through the Platform by Dispensary.
12.3 Dispensary further represents, warrants and covenants to the Company that Dispensary will not, and will not authorize or induce any other party, to: (a) generate any automated, fraudulent or otherwise invalid impressions, inquiries, reviews or other actions on or with respect to the Platform; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect any Company content and/or reviews from the Platform, except as expressly permitted by the Company or (c) use any of the Company’s trademarks or other Intellectual Property in any manner without the Company’s prior written consent. All rights not expressly granted to Dispensary hereunder are reserved by the Company.
- Use of the Platform
- Information Posted. We have no responsibility or liability for information you post to the Platform or otherwise.
- Personal Information. Dispensary hereby agrees that it will not post any Personal Information (as defined below) of any person on the Platform. Dispensary hereby further agrees that, in connection with its use of the Platform and Services, it will comply with all applicable laws (including HIPAA and HITEC and the regulations promulgated thereunder) that relate to the collection, storage, use, transfer, disclosure or security of Personal Information. For purposes of this Section 13.2, “Personal Information” means any information that identifies a natural person or that otherwise is regarded as personally identifying information under applicable law (including Protected Health Information (as defined under HIPAA)).
Termination. The term of this Agreement shall commence on the Effective Date and shall continue on a month-to-month basis until this Agreement is terminated by either Party in accordance with the terms hereof (the “Term”). Without limiting the rights of the Parties under Section 5 above, (a)(i) the Company may terminate this Agreement and cancel the Services with immediate effect for non-payment pursuant to Section 2 above, (ii) the Company may terminate this Agreement and cancel the Services at any time at its discretion, for any reason, with two (2) days’ prior notice (written or verbal) to Dispensary, (iii) the Company may terminate this Agreement and cancel the Services with immediate effect upon any breach by Dispensary of any of its representations, warranties, covenants or agreements set forth herein or its breach of any of the Website Policies or any other Company policy governing the use of the Platform or Services, and (iv) the Company may terminate this Agreement and cancel the Services as otherwise provided by the terms set forth herein, and (b) Dispensary may terminate this Agreement and cancel the Services upon notice to us (written or verbal (to your sales representative)) at least five (5) days prior to the due date of your Total Monthly Packages Price.
- DISCLAIMER OF WARRANTIES. DISPENSARY ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES ARE PROVIDED TO DISPENSARY ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. THE COMPANY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE PLATFORM OR SERVICES. WE SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES REGARDING THE PERFORMANCE, QUALITY AND RESULTS OF THE PLATFORM AND/OR SERVICES FOR YOUR BUSINESS. FURTHER, THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO
UPTIME, CAPACITY OR FUNCTIONALITY OF (I) THE PLATFORM, (II) ANY MOBILE OR APPLICATION BASED VERSIONS OF THE PLATFORM OR (III) THE SERVICES. DISPENSARY IS NOT ENTITLED TO ANY DAMAGES, OFFSETS OR REDUCTIONS IN FEES AS A RESULT OF ANY DOWNTIME, INTERRUPTION, OR FAILURE OF THE PLATFORM OR ANY SERVICES PROVIDED BY THE COMPANY.
- LIMITATION OF LIABILITY. THE COMPANY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO DISPENARY OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, EVEN IF WE WERE APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE COMPANY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY MONETARY DAMAGES, OR SUBJECT TO ANY EQUITABLE REMEDIES OR RELIEF, IN CONNECTION WITH ITS PROVISION OF THE SERVICES OR ITS PERFORMANCE (OR NONPERFORMANCE) OF ANY OF ITS AGREEMENTS SET FORTH IN THIS AGREEMENT OR OTHERWISE.
- Indemnity. We will not be liable for any illegal, unauthorized, misleading or fraudulent activity on your part. Dispensary will indemnify, defend, and hold the Company and its officers, directors, agents, and employees harmless from and against any and all claims, actions, losses, damages, liabilities, costs and expenses (including but not limited to attorneys’ fees and court costs) arising out of or in connection with (i) the Dispensary Materials, the Dispensary
Instructions, or Dispensary’s use of the Platform and/or Services, (ii) any breach of Dispensary’s representations, warranties, covenants or agreements in this Agreement, (iii) Dispensary’s products or services or the provision thereof to customers and (iv) any death or personal injury of any of the Company’s agents and contractors on the premises of the Dispensary. The Company will notify Dispensary of any claim for which the Company seeks indemnification hereunder; provided, that the failure to provide such notice shall not relieve the obligation of Dispensary to provide indemnification hereunder. The Company will have the right to control the defense of and settle each such claim and any lawsuit or proceeding arising therefrom in its sole and absolute discretion.
- Governing Law; Arbitration. Any dispute relating to this agreement will be governed by California law and resolved by binding arbitration administered by and in accordance with the rules of the American Arbitration Association before a single arbitrator in Orange County, California. Both parties waive their right to trial by judge or jury and pretrial discovery. Each party further agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
- Assignment. Dispensary may not assign this Agreement or any of its rights or obligations under this Agreement, whether by operation of law (e.g., in connection with a merger) or otherwise and whether in whole or in part, without the Company’s prior written consent. The Company may assign this Agreement to its affiliates or in connection with the sale of all or substantially all of the Company’s assets (whether by merger, consolidation, the sale of equity interests or otherwise). This Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties.
- Platform Availability. The Platform may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
- Website Policies. Dispensary represents and warrants that it has reviewed each of the Website Policies and that it agrees to be bound by, and to comply in all respects with, each of the Website Policies. The Website Policies are incorporated herein by reference.
- Testing Disclaimer. The Company goes through a process of selecting the laboratories that are being used on the Platform. Any testing being done outside of these selected laboratories may be deleted by us if posted on the Platform. In our discretion, we may allow testing results from labs not selected by us to be posted on the Platform.
- Call Monitoring. Dispensary acknowledges and agrees that Sales Managers of the Company may monitor any of its phone calls with the Company from time to time for quality assurance and training purposes, and Dispensary hereby consents to any such call monitoring by the Company and any of its Sales Managers.
- Miscellaneous. This Agreement, together with the Website Policies, is the entire and exclusive agreement between the Company and Dispensary, and supersedes any and all prior related oral, emailed or written representations and agreements. No statements or promises by either party have been relied upon in entering into this Agreement, except as expressly set forth herein. This Agreement may not be amended or modified except as agreed upon in writing by the parties. Except as otherwise provided in this Agreement in favor of the Company, neither this Agreement nor any provision of this Agreement shall create benefits on behalf of any other person or legal entity not a party to this Agreement (including, without limitation, any owner, equity holder or employee of Dispensary), and this Agreement shall be effective only as among the parties hereto, their successors and permitted assigns.
[Remainder of page intentionally left blank]