TERMS AND CONDITIONS

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will provide Customer the Services during the Service Term set forth on the Order Form and in accordance with the Service Level Terms attached hereto.

1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.

2. CREATING AN ACCOUNT.

2.1 As part of the registration process, Customer will provide that information reasonable and necessary, in Company’s sole discretion, to create an account with Company including but not limited to an administrative user name and password for Customer’s Company account.

2.2 Such information provided to Company shall, along with other information provided to Company by Customer be governed by the Company’s Privacy Policy available at http://komplyd.com/privacy which policy is integrated into, and forms an integral part of, this Agreement.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Customer will not, directly or indirectly: 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 Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

3.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any applicable restrictions, laws or regulations of the United States Consistent with applicable law, any use modification, reproduction, release, performance, display, or disclosure of the Software will be governed solely by the terms of this Agreement, including but not limited to its choice of law provisions, and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

3.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and the then current Company Privacy Policy [link] and the Company’s Data Protection Policy [link] (collectively the “Policies”) 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 Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3.5 Company does not provide any legal or regulatory advice. The Services and related information and materials made available by Company are for informational purposes only, and is not intended to provide, and should not be relied on for legal or regulatory advice. Customer acknowledges and agrees that it will consult its own legal or regulatory advisors before engaging in any transaction.

3.6 Company does not interpret state reporting errors or provide inventory management guidance. Customer is solely responsible for and will contact and work directly with their local regulatory agency to resolve matters related to reporting and/or inventory management.

4. CUSTOMER REPRESENTATIONS.

Customer represents and warrants that it has

4.1 rights in the Customer Data sufficient to perform its obligations hereunder including but not limited to the right to provide Customer Data to Company for use as contemplated in this Agreement;

4.2 current contracts in place with state level service providers (e.g. Metrc) sufficient for Komplyd to provide the Services; and

4.3 is now, and at all times during the term hereof, will possess and only operate under those license(s) reasonable and necessary to carry on its business including but not limited to state level cannabis licenses.

5. CONFIDENTIALITY; PROPRIETARY RIGHTS; LICENSE

5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, but is not limited to the Software and non-public information regarding features, functionality and performance of the Service(s). Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the 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 that the Receiving Party can document (a) is or becomes generally available to the public through no fault or action of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (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.

5.2 Company owns and retains all right, title and interest in and to (a) the Services and Software including but not limited to all improvements, enhancements or modifications thereto without regard to provenance or genesis, (b) any software, applications, inventions or other technology developed in connection with the Services and Software without regard to provenance or genesis, and (c) all intellectual property rights related to any of the foregoing. The Parties acknowledge and agree that any ideas, suggestions to improve the Services and/or Software, inventions (whether patentable or not), original works of authorship, developments, improvements, results, modifications, enhancements, trade secrets, documentation, software, hardware, firmware, creative works, know-how or information that are conceived, reduced to practice, or developed by Company or Customer during the term hereof, whether using Customer Data or not, are the sole and exclusive property of Company without regard to provenance or genesis.

5.3 Customer grants Company the right to access and use Customer Data as reasonable and necessary for Company to perform the Services and exercise its rights under this Agreement. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

5.4 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 Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Any information collected or analyzed pursuant to this section shall be governed by the Company’s privacy policy.

6. PAYMENT OF FEES

6.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Unless otherwise provided in the Order Form, Company will invoice Customer for the first year of Fees as of the effective date of the Order Form, and thereafter Company will invoice Customer for Fees for the next 12 months on the date that is 30 days before the start of such 12-month period. Fees are not refundable except as specifically provided otherwise in this Agreement. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein or as set forth on the invoice. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company 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.

6.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject 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 e of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

6.3 If Customer believes Company has charged or invoiced Customer incorrectly, Customer must contact Company no later than 45 days after having been charged by Company or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

7. TERM AND TERMINATION

7.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration and on the same terms as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

7.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ prior, written notice (or without notice in the case of nonpayment), OR immediately if the other party materially breaches any of the terms or conditions of this Agreement and that breach remains uncured for ten (10) calendar days following written notice of that breach. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data and/or derivations or analyses thereof. 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.

7.3 Notwithstanding the foregoing, this Agreement will terminate automatically in the event that (i) either Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against a Party and the petition is not dismissed within thirty (30) calendar days; (iii) a Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) a Party discontinues its business; or (v) a receiver is appointed for a Party or its business.

8. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. INDEMNITY

Customer shall hold Company harmless from liability to third parties arising from or related to its breach of any representation or warranty made under this Agreement and/or the use of the Services and Software by Customer as well as the provision of Customer Data to Company including but not limited to third party claims of infringement of any right including but not limited to intellectual property rights.

10. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY, ITS AFFILIATES AND SUPPLIERS AND THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OWNERS, AND REPRESENTATIVES SHALL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER AND/OR ANY OF ITS CUSTOMERS, AFFILIATES AND/OR SUPPLIERS AND THEIR RESPECTIVE AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OWNERS, AND REPRESENTATIVES FOR ANY COSTS, OBLIGATIONS, AMOUNTS, LIABILITES, FEES AND/OR DAMNAGES OF ANY NATURE OR KIND ARISING FROM OR RELATED TO THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT, THESE TERMS AND CONDITIONS, THE SERVICES, CUSTOMER’S USE OF THE SERVICES, COMPANY’S PROVISION OF THE SERVICES AND/OR USE OF CUSTOMER DATA UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY INCLUDING BUT NOT LIMITED TO CLAIMS ARISING FROM OR RELATED TO (A) ERROR OR INTERRUPTION OF USE OF THE SERVICES AND/OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA AND/OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY AND/OR LOSS OF BUSINESS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER A PARTY WAS MADE AWARE OF THEIR POSSIBILITY OR NOT; AND/OR (C) ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; AND/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.

11. MISCELLANEOUS

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 the remaining portions of this Agreement will remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable except with each Party’s prior written consent. This Agreement, including its attachments and the policies referenced herein, 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. This Agreement may not be altered, edited or modified except in a writing signed by all Parties. No action or inaction by any Party shall constitute the waiver by any Party of any right it may have hereunder. The Parties hereto are independent contractors with respect to each other and no agency, partnership, joint venture, or employment relationship is created as a result of this Agreement. Neither Party hereto has any authority of any kind to bind the other 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. Notwithstanding anything to the contrary herein, any controversy or claim arising under or in connection with this Agreement and/or the Services, or in connection with the validity, construction, performance, or purported breach of this Agreement and/or the Services, and/or in connection with the subject matter of this Agreement and/or the Services, shall be resolved by final, binding, and non-appealable arbitration conducted by a single arbitrator and administered by the American Arbitration Association in the city of San Jose, California, or, by the election of any party, virtually all in accordance with the AAA Commercial Arbitration Rules (the “Rules”), as they may be amended and in effect at the time the arbitration is filed, regardless of the amount in dispute, and judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. To be clear, without limiting the previous sentence, the arbitration shall be commenced and the arbitrator shall be chosen in accordance with the procedures set forth in the Rules, which are incorporated herein and made a part of this Agreement by reference. The parties agree to accept service of process in accordance with the Rules. Further, the parties agree to abide by and perform any award rendered in any such arbitration, and agree that any court having jurisdiction over them may issue a judgment based upon the award. The prevailing party in any arbitration shall be entitled to reimbursement of all costs of the arbitration, including but not limited to filing fees and expenses, arbitrator fees and expenses, and reasonable attorneys’ fees and expenses. BY AGREEING TO FINAL AND BINDING ARBITRATION, EACH PARTY IS WAIVING ITS RIGHT TO (A) A TRIAL BY JURY OR A JUDGE, IN A STATE OR FEDERAL COURT, (B) FINDINGS OF FACT AND USE OF THE RULES OF EVIDENCE PURSUANT TO THE DELAWARE RULES OF EVIDENCE OR THE FEDERAL RULES OF EVIDENCE, (C) AN APPEAL (EXCEPT ONE IN LIMITED CIRCUMSTANCES AND LIMITED IN SCOPE), AND (D) FORMAL DISCOVERY RIGHTS WHICH PARTIES TO A LAWSUIT GENERALLY HAVE.
It is the intent of the Parties that this Agreement comply in all respects with all Applicable Laws and the Parties have structured their relationship with that specific intent. However, each Party understands that the Applicable Laws are complicated and in a state of flux. Therefore, subject to this paragraph, in the event that any provision of this Agreement is rendered invalid or unenforceable by a court of competent jurisdiction, or the applicable laws and regulations are altered by any legislative or regulatory body, or either Party notifies the other Party in writing of its reasonable belief that this Agreement or any of its provisions may be declared null, void, unenforceable, or in violation of Applicable Laws, the remaining provisions, if any, of this Agreement shall nevertheless continue in full force and effect as set forth herein. Notwithstanding the foregoing, if any change to Applicable Law has a materially adverse effect on the ability of either Party to carry out its obligations under this Agreement such Party, upon written notice, may request renegotiation of this Agreement in good faith to amend this Agreement to the extent reasonably necessary or prudent to address the change in Applicable Law in a manner that accomplishes the intents and objectives of the Parties, as evidenced by the terms of this Agreement, in all material respects to the extent possible. Such renegotiation will be undertaken in good faith and may include the use of a mutually approved independent third-party mediator. If the Parties are unable to renegotiate the terms within ten (10) days after such notice and good faith negotiations, either Party may terminate this Agreement on thirty (30) days’ further written notice or at the end of the Term (even if less than thirty (30) days remain until the end of the Term), whichever is earlier. For purposes of this section “Applicable Laws” means any and all applicable local, state and federal laws, rules and regulations; including but not limited to California’s MAUCRSA and the California DCC Regulations, provided, however, that notwithstanding anything to the contrary contained herein, the U.S. Federal Controlled Substances Act shall for purposes hereof not constitute an Applicable Law, and a violation of the CSA shall not be deemed to constitute non-compliance with Applicable Law as used herein.

EXHIBIT A
Statement of Work
TBD

EXHIBIT B
Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control (e.g. pandemic, war, government order, acts of god, natural disasters, labor and/or civil unrest) will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.

EXHIBIT C
Support Terms

Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”).

Customer may initiate a helpdesk ticket during Support Hours by calling [[Forthcoming]] or any time by emailing support@komplyd.com.

Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.