Branded Service Agreement:
Terms & Conditions
Last Updated. April 28 2023
WHEREAS, CannaGo is the owner of the trademark “CannaGo” (the “Licensed Mark”) and the goodwill of the business symbolized thereby;
WHEREAS, CannaGo has developed and provides an on-demand, self-service, ordering and delivery management solution for cannabis retailers (including all upgrades, updates and enhancements thereof that CannaGo in its sole discretion may release for general availability in the normal course of its business, the “CannaGo Service”), which CannaGo shall make available to Retailer via a single Retailer branded site, as provided in this Agreement;
WHEREAS, Retailer owns and operates cannabis retail operations set forth on the signature page hereto (the “Retailer Service”); and
WHEREAS, Retailer desires to use the Licensed Mark and CannaGo Service with the Retailer Service;
NOW, THEREFORE, the parties, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, do hereby agree as follows:
LICENSES & OBLIGATIONS
(a) License to Retailer. Subject to the terms and conditions hereof, CannaGo grants to Retailer, for the Term of this Agreement, a limited, revocable, non-exclusive, royalty-free license to use the Licensed Mark worldwide for and in connection with the marketing, promotion, advertisement, distribution, or sale of a Retailer branded version of the CannaGo Service (“Branded Service”) to any actual or prospective consumer of the Retailer Services (“Consumer(s)”). Retailer’s use of the Licensed Mark does not confer or imply any ownership, goodwill, or other rights in the Licensed Mark.
(b) License to CannaGo. Subject to the terms and conditions hereof, Retailer grants CannaGo a limited, revocable, non-exclusive, non-transferable royalty-free license, during the Term, to use the designated Retailer trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, “Retailer Marks”) in the form delivered by Retailer, as reasonably necessary to perform CannaGo’s obligations hereunder. CannaGo’s use of any Retailer Marks does not confer or imply any ownership, goodwill, or other rights in the Retailer Marks.
- 2. CannaGo Service License.
(a)License. Subject to the terms and conditions hereof, CannaGo hereby grants to Retailer, for the term of this Agreement, a worldwide, license to: (i) use the CannaGo Service in connection with the Retailer Service, and (ii) to make available the CannaGo Service in connection with the Retailer Service to consumers (“Consumers”), provided that Retailer shall not allow any Consumer to access the Branded Service until such Consumer has either entered into an end user license agreement.
(b)Retailer will not disassemble, decompile, or reverse engineer any CannaGo Service.
- 3. Retailer Data License.
Subject to the terms and conditions of this Agreement, Retailer grants CannaGo a limited, non-exclusive, transferable royalty-free license during the Term to use the Retailer Data solely to perform its obligations hereunder. “Retailer Data” means all data and information provided by, relating to, of or concerning Retailer and/or the Consumers, that is/was obtained by, disclosed to or otherwise made available to CannaGo by the Consumer or Retailer for the purposes of engaging in the Retailer Service, including personal information, product pricing, geographic location, and product information, inventions, designs, methodologies, intellectual property. Notwithstanding the foregoing, in order to create performance reports, white papers, or to improve or promote the CannaGo Services, CannaGo may use, aggregated, anatomized Retailer Data (“Usage Information”), which shall be the sole property of CannaGo.
- 4. CannaGo Obligations.
(a) Hosting. Throughout the Term of the Agreement and subject to Retailer’s approval rights with respect to look and feel, CannaGo, at its sole cost and expense, will be responsible for development, design, operation, hosting, maintenance and monitoring of the Branded Service in accordance with the Service Level Agreement (“SLA”) attached hereto as Schedule 1.4. The Branded Service will be provided in the form of the CannaGo Service offering, as may be modified from time to time upon reasonable prior written notice to Retailer. CannaGo will maintain such personnel, software, servers and other equipment/resources adequate to support its obligations under this Agreement, including:
(i) Setup & Configuration. CannaGo will provide Retailer assistance in the implementation and deployment for the CannaGo Service and the Branded Service reasonably necessary to support Retailer’s use as permitted under this Agreement.
(ii) Updates, Fixes and Support.
(1) Throughout the Term, CannaGo will update, as it determines appropriate in its reasonable discretion, the CannaGo Service.
(2) Throughout the term of this Agreement, Retailer will provide first-tier support for the Branded Service. CannaGo will provide support, as outlined on Schedule 1.4 hereof, to Retailer for the Branded Service with respect to issues relating to the CannaGo Service. CannaGo will provide first and second-tier support for Retailer M-F, 8:00 a.m.-5:00 p.m. ET in accordance with the SLA.
2. COMPENSATION & PAYMENT TERMS
2.1. Payment. SaleSpider will remit payment to CannaGo within fifteen (15) days of invoice. All payments will be made in United States dollars as follows or as otherwise requested by CannaGo:
2048 Bolton Drive,
Atlanta, GA 30318
3. CONFIDENTIAL INFORMATION
3.1. Maintenance and Confidentiality. Each of the parties will take reasonable measures to cause its respective employees, attorneys, accountants, consultants and its agents and advisors (collectively, and together with their respective officers and directors, “Agents”) to maintain in confidence the terms of this Agreement and all information of the disclosing party that is marked as “Confidential,” “Proprietary” or some similar designation in connection with this Agreement, including each party’s software, documentation, and flow charts (the “Confidential Information”). Notwithstanding the foregoing, in the case of Retailer, Confidential Information includes the Retailer Data. Each party agrees not to disclose Confidential Information except to its respective Agents that need to know such Confidential Information. Each party further agrees that it will not use the Confidential Information for any purpose other than determining and performing its obligations and exercising its rights against the other party in the event of a claimed breach of this Agreement. Each party will take reasonable measures necessary to prevent any unauthorized disclosure of the Confidential Information by any of their respective Agents. The measures taken by a party to protect Confidential Information will not be deemed unreasonable if the measures taken are at least as strong as the measures taken by the disclosing party to protect such Confidential Information.
3.2. Permitted Disclosures.Nothing herein will prevent either party or its Agents from using, disclosing, or authorizing the disclosure of Confidential Information it receives which:
(a) has been published or is in the public domain, or which subsequently comes into the public domain, through no fault of the receiving party;
(b) prior to receipt hereunder was properly within the possession of the receiving party or, subsequent to receipt hereunder is lawfully received from a third party having rights therein without restriction of the third party’s right to disseminate the Confidential Information and without notice of any restriction against its further disclosure, in either case as evidenced by the business records of the receiving party;
(c)is independently developed by the receiving party without use of such Confidential Information, as evidenced by the business records of the receiving party; or
(d)the receiving party is required to be produced under order of a court of competent jurisdiction or other similar requirements of a governmental agency, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
3.3. Press Release; Disclosure Neither party may issue any press release or public announcement regarding this Agreement without the other party’s prior written consent. CannaGo may list Retailer on its website or in marketing materials as a customer of CannaGo.
3.4. Survival The obligations under this Article 3 will survive, as to any party, until two (2) years following the date of termination of this Agreement.
4.1. CannaGo's Ownershp. Retailer acknowledges CannaGo’s right, title and interest in and to the Licensed Mark, CannaGo Service, and Usage Information and acknowledges that nothing herein will be construed to accord to Retailer any rights in the Licensed Mark, CannaGo Service, or Usage Information except as expressly provided herein. Retailer acknowledges that, except as expressly provided herein, its use of the Licensed Mark or CannaGo Service will not create in Retailer any right, title or interest in the Licensed Mark or CannaGo Service and that all use of the Licensed Mark and the goodwill symbolized by and connected with such use of the Licensed Mark will inure solely to the benefit of CannaGo. Retailer covenants that (i) Retailer will not at any time challenge CannaGo’s rights, title, or interest in the Licensed Mark, CannaGo Service, or Usage Data (other than to assert the specific rights granted to Retailer under this Agreement), and (ii) Retailer will not represent to any third party that Retailer has any ownership or rights with respect to the Licensed Mark other than the specific rights conferred by this Agreement. Retailer agrees that upon expiration or termination of the Agreement, Retailer will immediately stop using the Licensed Mark.
4.2. Retailer Ownership CannaGo recognizes the unique value, goodwill, and secondary meaning associated with the Retailer Marks. All rights, title, and interests in the Retailer Marks, the Retailer Data and the goodwill pertaining thereto automatically vests in Retailer, and at all times will remain owned by and in the name of Retailer. CannaGo will not contest the validity of Retailer’s ownership of any Retailer Mark or Retailer Data. CannaGo agrees that upon expiration or termination of the Agreement, CannaGo will immediately stop using the Retailer Marks and Retailer Data, except as such Retailer Data is incorporated into the Usage Data.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF CANNAGO
5.1. Right to Grant License. CannaGo represents, warrants, and covenants that (i) CannaGo has the right to grant the licenses provided for in this Agreement, and (ii) the Licensed Mark and CannaGo Service (excluding any content provided by the Retailer or the Consumers (the “Consumer Content”): (a) does not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, (collectively, “Laws”), (b) does not infringe any copyright, patent, trademark or other intellectual property right of any person or entity, and (c) does not breach any agreement, duty toward, or rights of, any person or entity.
5.2. Disclaimer of Warranties. Except as expressly provided in this Agreement, CannaGo makes no representation or warranty of any kind or nature whether express or implied with respect to the Licensed Mark OR THE CANNAGO SERVICE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE CANNAGO SERVICE IS PROVIDED “AS IS”. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING IN LAW. CANNAGO DOES NOT ASSUME OR AUTHORIZE RETAILER TO ASSUME FOR CANNAGO ANY OTHER WARRANTY.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
(a) Retailer agrees to indemnify, defend and hold harmless CannaGo from any third party claim, whether actual or alleged (collectively, “Loss”) suffered or incurred by CannaGo to the extent that such Loss arises out of or in connection with Retailer’s breach of this Agreement. Retailer agrees to be solely responsible for defending any Loss against CannaGo, subject to CannaGo’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Losses against CannaGo, provided that Retailer will not agree to any settlement that imposes any obligation or liability on CannaGo without its prior express written consent.
(b) CannaGo will indemnify, defend and hold harmless Retailer from any Loss suffered or incurred by Retailer that arises out of or in connection with (i) a Retailer’s use of the CannaGo Service and/or Licensed Mark (other than to the extent of a Loss arising out of unmodified Consumer Content), and/or (ii) CannaGo’s breach of this Agreement. CannaGo agrees to be solely responsible for defending any Loss against Retailer, subject to Retailer’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Losses against Retailer, provided that CannaGo will not agree to any settlement that imposes any obligation or liability on Retailer without its prior express written consent.
6.2. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF BREACH OF SECTION 3, ABOVE, AND/OR EACH OF CANNAGO OR RETAILER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.1, ABOVE (“EXCLUDED LIABILITIES”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF CANNAGO AND/OR RETAILER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE AMOUNT PAID BY RETAILER TO CANNAGO PURSUANT TO THIS AGREEMENT IN THE THREE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
6.3. Consequential Damages. EXCEPT FOR EXCLUDED LIABILITIES, IN NO EVENT WILL CANNAGO OR RETAILER BE LIABLE TO RETAILER OR CANNAGO, AS APPLICABLE, FOR INCIDENTAL, SPECIAL, INDIRECT, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, OR DATA BEING RENDERED INACCURATE.
7. MARKETING OPPORTUNITIES
- Retailer will include the phrase “Powered by CannaGo” on its externally/publicly available Consumer interface for the Branded Service.
- All formal marketing, promotion, and advertising materials prepared by or for Retailer’s in connection with the Branded Service, if any, will include references to the Licensed Mark, and with respect to Branded Service will include “Powered by CannaGo” or such other phrase as the parties may agree.
- Retailer will use commercially reasonable efforts to promote the Branded Service throughout the Term.
RELATIONSHIP OF PARTIES
It is the express intention of the parties that CannaGo is and will be an independent contractor, and no partnership will exist between Retailer and CannaGo pursuant hereto. This Agreement will not be construed to make either party the agent or legal representative of the other party for any purpose whatsoever, and neither party is granted any right or authority to assume or create any obligations for, on behalf of, or in the name of the other party.
TERM; TERMINATION; EFFECTS OF TERMINATION
1. Term. This Agreement commences on the Effective Date, and continues for one year (“Term”), and shall automatically renew of successive one year Terms unless terminated pursuant to Section 9.2 below.
2. Termination. Notwithstanding Section 9.1, either party may terminate this Agreement: (a) upon sixty (60) days written prior to the end of the then-current Term, which termination shall be effective as of the end of such Term; (b) upon thirty (30) days’ written notice if the other party breaches any provision of this Agreement and such breach is not cured within such thirty (30) days period; or (c) upon written notice effective immediately if (i) the other party ceases operations (other than in connection with a valid assignment pursuant to Article 13 below) or (ii) the other party becomes voluntarily or involuntarily subject to a bankruptcy or similar proceeding.
3. Effects of Termination
(a)Upon the expiration or termination of this Agreement for any reason:
(i) Retailer will (x) return all CannaGo Confidential Information and remove copies of CannaGo Confidential Information from its information systems, including any backup media or servers, and (y) stop using the Licensed Mark and CannaGo Service.
(ii) CannaGo will: (x) return all Retailer confidential information and remove copies of Retailer Confidential Information from its information systems, including any backup media or servers, and (z) stop using the Retailer Marks.
(b) Sections 4 through 6, 8, 9.3, 10, and 11 will survive expiration or termination of this Agreement.
By operation of law or otherwise, neither party may assign, sublicense, or transfer the Agreement or any right or duty under the Agreement, without the other party’s prior written consent, which will not be unreasonably withheld; provided, however, either party may assign this Agreement, in whole, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of such party. Any purported assignment or transfer of the Agreement in violation of this Article 10 will be null and void.
5.1. Notices. Any legal notice regarding indemnification, Confidential Information, and/or breach of the Agreement will be in writing and mailed (certified or registered mail, postage prepaid, return receipt requested) or sent by hand or overnight courier, charges prepaid and addressed to the address set forth on the signature page hereto, or to such other address as such party may from time to time specify by written notice to the other party. All notices and other communications given to a party in accordance with the provisions of this Agreement will be deemed to have been given when received (if delivered in person), the date set forth on the return receipt, delivery confirmation or equivalent or when delivery is attempted if delivery is refused.
5.2. Binding Effect; Construction. Except as otherwise provided in this Agreement, this Agreement will be binding upon and inure to the benefit of the parties and their permitted respective successors, transferees, and assigns. This Agreement will be construed simply according to its fair meaning and not strictly for or against any party.
5.3. Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile), each of which will be deemed an original but all of which together will constitute one and the same instrument.
5.4. Headings. The Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement.
5.5. Severability. If any term or provision hereof is illegal, invalid or unenforceable for any reason whatsoever, that term or provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and such illegality, invalidity or unenforceability will not affect the validity or legality of the remainder of this Agreement. If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language which as closely as possible reflects such intent.
5.6.Governing Law. The laws of the State of Georgia (without regard to principles of conflict/choice of laws) will govern this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties. CannaGo and Retailer each agree to submit to the exclusive jurisdiction of the state and federal courts located in Fulton County, Georgia.
5.7. Entire Agreement. The provisions of this Agreement, including the schedules attached hereto, set forth the entire agreement and understanding between the parties as to the subject matter hereof and supersede all prior and contemporaneous agreements, oral or written, and other communications between the parties relating to the subject matter hereof.
5.8. Limitation on Rights of Others. Nothing in this Agreement, whether express or implied, will be construed to give any party other than as expressly set forth herein any legal or equitable right, remedy or claim under or in respect of this Agreement.
5.9.Waivers; Remedies. Any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term, but any such waiver will be effective only if in writing signed by the party against which such waiver is to be asserted. Except as otherwise provided herein,
no failure or delay of any party in exercising any power or right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other further exercise thereof or the exercise of any other right or power.
SERVICE LEVEL AGREEMENTS
1. Accessibility and Response Time. The website server, database server, and public access to the web servers hosting the CannaGo Service and Branded Service will be available 99.9% of the time, 24 hours per day, seven days per week, 365 days per year, measured weekly, except for the exclusions as set forth in Section 2. Response time for the CannaGo Service and Branded Service, consisting of the time elapsed from the time a request is received to the time CannaGo transmits the first packet of electronic data in response, exclusive of Internet performance factors (including but not limited to: end user connectivity, hardware, connection speed, Internet spam, denial of service, etc.), must not exceed six (6) seconds based on a daily average 24x7x365.
2. Exclusions. Scheduled maintenance periods for which Retailer has been notified in writing (email acceptable) at least one (1) business day, will be excluded from the determination of actual uptime and response time. Scheduled maintenance may occur during from 2200 – 0200 Pacific Time. Uptime and response time calculations will also exclude outages resulting from any of the following: (i) a shut down due to circumstances reasonably believed by CannaGo to be a significant threat to the normal operation of the CannaGo Service and Branded Service, the CannaGo facility, or access to or integrity of end user data (e.g., hacker or virus attack), or (ii) a shut down due to an act of nature not controllable or preventable by CannaGo. If the notice required by this Section is delivered by email, it will be sent to the Retailer signatory above, or such other address as Retailer may designate from time to time.
3. System Enhancements. CannaGo will include in the CannaGo Service and Branded Service, from time to time as developed and when released by CannaGo, enhancements, changes, upgrades, revisions, bug fixes, workarounds or bypasses (collectively "Enhancements") to the CannaGo Service and Branded Service.
4. System Fixes. CannaGo will undertake best efforts to correct material errors in the CannaGo Service and Branded Service. A "material error" is any material failure of the CannaGo Service and Branded Service to operate in substantial conformity with the published documentation or "help" screens for the CannaGo Service and Branded Service. Corrections may consist of software patches or reasonable bypasses around the errors.
5. Priority Levels. If material errors arise, CannaGo will work with Retailer to identify the priority of the error. Priority codes will be assigned based on a material error’s impact on the functionality of the CannaGo Service and Branded Service and the impact on Retailer.
(a) A Priority One error will mean that use of an essential feature or function is impossible or impractical, and no known work-around exists. CannaGo will immediately identify appropriate resources to work exclusively on solving the Priority One error.
(b) A Priority Two error will mean that use of an essential feature or function is difficult and which is a reproducible problem that affects the performance of the essential feature or function; however, a known work-around exists such that the error can be circumvented temporarily. CannaGo will identify appropriate resources to work on correcting the Priority Two error.
(c) A Priority Three error will mean there is a failure of an essential feature or function that is intermittent or there is a failure of a non-essential feature that is consistent; however, a known work-around exists such that the error can be resolved in a reasonable timeframe.
(d) A Priority Four error will mean there is a minor failure, or a minor inconsistency, of a non-essential feature or function that is a slight inconvenience and which can be tolerated temporarily, but not to exceed four (4) days. CannaGo will provide resources as they become available to resolve the error as soon as practicable but not to exceed four (4) days.
6. Summary of Response Time. The following table summarizes the response time for each priority level after notification from Retailer.