1.1. This Master Services Agreement (this “MSA”) is a legal agreement entered into by and between SD Technologies, Inc. (“Sweed”) and the Customer identified in an Order Form (“Customer”). This MSA governs any Order Form that references this MSA or purchases any Sweed services. This MSA is effective on the date Customer executes the Order Form (the “Effective Date”). This MSA permits the Customer to purchase Services identified in the Order Form and sets forth the terms and conditions under which those Services will be delivered. The “Agreement” consists of (i) this MSA, (ii) the terms set forth in any URL referenced in this MSA or the Order Form, including the Service Level Agreement, and (iv) the Order Form.
1.2. Subject to the terms of the Agreement, Sweed will use commercially reasonable efforts to provide Customer with the Services. As part of the registration process, Customer will identify an administrative username and password for Customer’s account. Sweed reserves the right to refuse registration or cancel passwords it deems inappropriate, acting reasonably.
1.3. Subject to the terms of the Agreement, Sweed will provide Customer with technical support services in accordance with Sweed’s standard practices. The Services will include, without limitation, the operation, maintenance, and support of the Sweed Software.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. 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 the proprietary Sweed Software, documentation or data related to the Services (the “Sweed Software”); modify, translate, or create derivative works based on the Services or the Sweed Software (except with respect to the Sweed Software or to the extent expressly permitted by Sweed or authorized within the Services); use the Services or any Sweed Software for time sharing or service bureau purposes or otherwise for the benefit of a third party (provided that, and for the sake clarity, Customer’s current and future subsidiaries and affiliates will be permitted to use and benefit from the Services and Sweed Software in accordance with the Agreement); or remove any customary proprietary notices or labels. With respect to any Sweed Software that is distributed or provided to Customer for use on Customer premises or devices in connection with the Services, Sweed hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Sweed Software during the Term only in connection with the Services.
2.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Sweed Software 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. Notwithstanding the foregoing, the Parties expressly acknowledge and agree that Customer may use the Services and the Sweed Software in connection with its international operations without restriction, except as otherwise restricted by applicable laws.
2.3. Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Sweed against any damages, losses, liabilities, settlements, and expenses (including, without limitation, reasonable costs and attorneys’ fees) in connection with any third-party claim or action that arises from an alleged violation of the foregoing.
2.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Sweed Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”); provided, however, that Sweed shall maintain the servers (including fully-redundant back-ups thereof) necessary or appropriate for hosting and delivering Services and Sweed Software. Sweed shall maintain the security of the equipment used (directly or indirectly) by it in connection with the hosting and delivery of the Services and the Sweed Software. To the extent necessary, based on utilization, Customer will pay actual incremental costs associated with hosting. Customer shall be responsible for all user account passwords (including but not limited to administrative and user passwords).
2.5. During the term of the Agreement, Customer hereby grants to Sweed the right to use Customer trademarks, service marks, and logos (collectively, “Trademarks”) in connection with the Services, subject to compliance with the provisions of this section. Sweed agrees that all ownership rights in Customer Trademarks shall remain in Customer, that Sweed shall not claim any right, title, or interest in and to Customer Trademarks, except the limited right to use pursuant to the Agreement, and that Sweed shall not apply for nor obtain any state or federal service mark or trademark registration, or any foreign service mark or trademark registration, covering or including any Customer Trademark.
2.6. The Sweed Software and Services, Customer’s use thereof, and Sweed’s exercise of its rights and performance of its obligations under the Agreement will comply with all laws applicable to Sweed, as the same may be amended from time to time. Sweed shall update the Services as necessary to maintain compliance with all laws prior to the effective date of any such laws. Without limiting the foregoing, Sweed warrants that, at all times, the services shall enable the Customer to comply with all laws applicable to Customer’s business, which the Customer shall make known to Sweed, including, but not limited to, the laws, rules, and regulations referenced in Section 2.3 of this MSA. To the extent there are additional costs required to achieve compliance, such costs shall be borne by the Customer. Moreover, Sweed will endeavor to make such changes related to compliance in a commercially reasonable timeframe.
3. CONFIDENTIALITY; DATA SECURITY
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical information, designs, roadmaps, business plans, market data and information, financial information and/or customer data and information relating to the Disclosing Party’s business (hereinafter collectively referred to as “Proprietary Information”). 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 to any information that the Receiving Party can prove (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without the use of any Proprietary Information of the Disclosing Party (e) is required to be disclosed by law, or (f) was developed at the direction, or for the exclusive benefit, of the Receiving Party.
3.2. In providing the Services and the Development Services hereunder, Sweed shall implement and require that its subcontractors implement, commercially reasonable physical, technical, and administrative safeguards designed to protect Customer’s Proprietary Information that are no less rigorous than generally-accepted industry practices and will keep all such safeguards, including how the Proprietary Information is handled, processed, stored and disposed of, in compliance with all applicable data protection and privacy laws, including all applicable data protection and privacy laws and regulations related to the cannabis industry. Sweed shall keep, the Services and the Sweed Software, and, as applicable, shall require that Sweed’s subcontractors be, in compliance with the Payment Card Industry (“PCI”) Data Security Standard requirements as applicable for any access to or handling, processing, storing, or transmitting of credit or debit card information. Sweed shall establish and implement regular backup, archiving, and redundancy procedures applicable to Customer so that a backup file set that is not more than twenty-four (24) hours old is always available and that Customer’s Proprietary Information is not inadvertently or deliberately discarded without Customer’s prior written consent. Sweed shall not archive or destroy data and information relating to Customer except in accordance with such backup, archiving, and redundancy procedures. Sweed shall comply with all applicable federal and state privacy and data protection laws related to the collection, storage, use, and dissemination of personally identifiable information and will comply with the terms of its own privacy policy. If Sweed discovers or is notified of a breach or a reasonably suspected breach of security relating to Customer’s Proprietary Information, Sweed will promptly notify Customer and shall take appropriate action, in consultation with the Customer, to resolve any such breach. Sweed shall take commercially reasonable measures in accordance with industry standards to protect any Social Security Numbers, driver’s license numbers, full birth date, financial account information, payment card information, customer lists, and any other types of personally identifiable information that would be reasonably considered highly sensitive (collectively, “PII”).
4. PAYMENT OF FEES
4.1. Customer will pay Sweed the then applicable Service Fees described in the Order Form (the “Service Fees”) on the terms provided therein for the Initial term. At the end of the Initial Service Term, or any written extension thereof, the parties will negotiate in good faith any increase or decrease in Service Fees for the next renewal term (in each case a “Fee Increase” or “Fee Decrease,” as the case may be), provided that any mutually agreed upon Fee increase shall not exceed an amount that is substantiated and documented with actual cost and expense increases incurred by Sweed. If Customer believes that Sweed has billed Customer incorrectly, Customer must contact Sweed as soon as practicable after the error or problem appears. Inquiries should be directed to Sweed’s customer support department.
4.2. The applicable Service Fees and Additional Fees shall be invoiced monthly by Sweed, in advance, and must be paid by the Customer within five (5) days of receipt of an invoice. To the extent permissible based on regulatory or other restrictions, Customer shall cooperate with Sweed to establish an automated payment process. Unpaid amounts are subject to a finance charge of 1% per month on any outstanding balance or the maximum permitted by law, whichever is lower. Undisputed payments that are more than sixty (60) days late may be referred to an attorney or agency for collection, and Customer will be responsible for all reasonable attorney’s fees and collections costs. Customer shall be responsible for all applicable sales taxes associated with the Services, and for the avoidance of any doubt, Customer shall not be responsible for any corporate income taxes or any other taxes due and owing by Sweed related to the conduct of its business.
4.3. Customer authorizes Sweed to deduct amounts owed by Customer to Sweed from the checking account designated by Sweed. Customer understands that this authorization will remain in effect until Customer cancels it in writing, and Customer agrees to notify accounting@sweed.com in writing of any changes in its account information or termination of this authorization at least 30 days prior to the next billing date. If the above-noted payment dates fall on a weekend or holiday, Customer understands that the payments may be executed on the next business day. For debits to Customer’s checking/savings account, because these are electronic transactions, these funds may be withdrawn from Customer’s account as soon as the above-noted periodic transaction dates. If a transaction is rejected for Non-Sufficient Funds (NSF), Sweed may at its discretion attempt to process the charge again within 30 days, and Customer agrees to pay a $30 charge for each attempt returned NSF which will be initiated as a separate transaction from the authorized recurring payment. Customer acknowledges that the origination of transactions to its account must comply with the provisions of U.S. law. Customer certifies that it is an authorized user of this bank account and will not dispute these scheduled transactions with its bank; so long as the transactions correspond to the terms indicated in this authorization.
5. TERM AND TERMINATION
Subject to earlier termination as provided below, the Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed with an increase of 7% of Module fees for additional periods of the same duration 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.
In addition to any other remedies it may have, either party may also terminate the Agreement 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 the Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Sweed will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Sweed may, but is not obligated to, delete stored Customer Data. All sections of the 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. WARRANTIES
There is currently no actual or threatened suit by any third party that may adversely affect Sweed’s ability to perform under the Agreement or the use of the Services by Customer under the Agreement. For so long as the Agreement is in effect, Sweed shall notify Customer promptly, in writing, if it becomes aware of any action, suit or proceeding, pending or threatened, that may have a material impact on Sweed’s ability to fulfill its obligations under the Agreement. The Services and the Sweed Software are free from material defects for the Term and operate in accordance with specifications and documentation in all material respects. Sweed warrants that all Services provided under the Agreement will be performed by qualified personnel in a professional and workmanlike manner. Sweed will re-perform all Services not performed in compliance with this warranty at no additional cost to the Customer. The Services and Sweed Software are and shall remain, free from time locks, viruses, trojans, worms, spyware, adware, other malware, and malicious code, copy-protect mechanisms, back doors, or any disclosed or undisclosed features, which are designed to, (a) disable the Sweed Software or render it incapable of operation, or (b) permit access unauthorized by Customer to the Sweed Software or to any of Customer’s networks, systems, programs or Customer data. Sweed shall provide end user documentation for the Sweed Software, and warrants that such documentation (i) is of sufficient detail to enable reasonably skilled users to operate and comprehend the operation of the Sweed Software, and (ii) accurately reflects the operation of the Sweed Software. Sweed further warrants that the documentation will be updated from time to time to reflect all updates. Sweed shall, at no additional cost to Customer, correct any errors or omissions in any documentation that does not conform to this warranty. Sweed shall timely obtain and will cause its employees, agents, and third-party contractors to timely obtain all permits and licenses required to perform the Services. Sweed shall not, without Customer’s prior written consent, and without complying with Customer’s security policies and procedures, access or remove from Customer’s premises any Proprietary Information, computer systems, and/or other property of Customer, its affiliates, or employees.
7. INDEMNITY
Sweed shall indemnify, defend and hold Customer and its affiliates, and their respective customers, resellers, officers, directors, employees, independent contractors, and agents harmless from and against any and all third-party claims of loss, liability, costs, and expenses (including reasonable legal fees and costs) arising out of any claim or action by a third party alleging that the Sweed Software or the, Services at any time infringes or misappropriates any patent, copyright, trade secret or other intellectual property right of a third party. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Sweed, (ii) that are modified after delivery by Sweed where the alleged infringement relates to such modifications, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, or (v) where Customer’s use of the Services is not in material compliance with the Agreement.
8. LIMITATION OF LIABILITY
Sweed shall have no liability for any damages for business interruption, lost profits, lost revenues, loss of or use of information, or other special, consequential, exemplary, punitive, or incidental damages: (1) arising out of the Agreement or Customers’ use of the Services or the Sweed Software, or (2) for any claim against Customer by any third party; in each case, however, caused, even if Sweed has been advised of the possibility of such damages. Sweed’s maximum aggregate liability for any damages arising out of or related to the Agreement, whether in contract, tort, or otherwise, shall in no event exceed, in the aggregate, the total amount of the Services Fees (but not Additional Fees) paid to Sweed by Customer (excluding any reimbursable expenses), during the twelve (12) month period immediately preceding the events giving rise to the most recent claim. Any refunds or credits provided to Customer by Sweed in connection with the Services or the Sweed Software shall offset and reduce any such damages and count towards the above limitation of liability.
9. MISCELLANEOUS
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable, or sublicensable by Customer except with Sweed’s prior written consent. The Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the subject matter of the Agreement and supersedes and cancels all previous written and oral agreements, quotations, proposals, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and neither Party has any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the 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. The Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
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