This Terms of Service Agreement (this "Agreement") is a binding contract between you ("Customer," "you," or "your") and Marijuana Software LLC ("Provider," "we," or "us"). This Agreement governs your access to and use of the Cloud Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING THE CLOUD SERVICES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE CLOUD SERVICES YOU
(A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT;
(B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND
(C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
Marijuana Software LLC has assembled a package of software and online services which include components addressing point of sale, cannabis inventory management, and METRC integrated cannabis compliance solutions for cannabis dispensaries, producers, and processors. Marijuana Software LLC provides best in class cannabis compliance software, industry standard hardware and supplies, retail dispensary management, production management, online ordering, and social media support. Services are meant for use in marijuana retail, medical, and production facilities and is the first METRC integrated point of sale and dispensary management system to be certified in Oregon.
(a) Users may sign up for Marijuana Software's Cloud Services, which are the services provided by Marijuana Software that are detailed on Marijuana Software's website, if it is a business or an individual.
(b) "User" means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Cloud Services has been purchased hereunder and (iii) who are authorized by the Customer to accept modified terms on the Customer's behalf.
2. Account Creation.
(a) Steps to Creation.
(i) Customer must select a Subscription Tier.
(ii) Customer must pay the initial subscription fee outlined in the selected Subscription Tier.
(iii) Customer must create unique access credentials and password that the Customer acknowledges must be kept confidential.
(iv) By creating an account with Marijuana Software, Customer acknowledges and accepts the responsibility to not violate Marijuana Software's Acceptable Use Policy.
(v) Customer must accept Marijuana Software's Terms of Service in order to create an account with Marijuana Software.
(vi) Customer must adequately fill out every required field in the final Account Creation stage with information that is accurate and current.
(b) Customer Responsibilities.
(i) Acceptable Use Policy. The Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider's Acceptable Use Policy (AUP) located on the Provider's website, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on the Provider's website from time to time, including the AUP.
(ii) Account Use. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. In addition, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You must use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
(iii) Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Cloud Services to you. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(iv) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(v) Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Cloud Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products. Marijuana Software requires Customers to adhere to local, state, and national patient privacy laws.
(c) Account Termination.
(i) Provider may terminate this Agreement for any reason upon thirty (30) days' advance notice. You may terminate this Agreement for any reason upon thirty (30) days' advance notice.
(ii) Provider may terminate this Agreement if Customer is thirty (30) days late paying its Fees.
(iii) Provider may terminate this Agreement if Customer violates Marijuana Software's Acceptable Use Policy detailed on the Provider's website.
(iv) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
(v) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party:
(A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
(B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
(C) makes or seeks to make a general assignment for the benefit of its creditors; or
(D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(i) Data Retention. Marijuana Software will retain Customer data after termination so long as the data serves a business purpose for Marijuana Software and is required by law. As a policy, Marijuana Software will delete an account's data after an account has been suspended for thirty consecutive days.
3. Payment Terms and Subscription Tiers.
(a) Subscription Tiers.
(i) "Initial Subscription Fee" means the first payment a Customer pays when creating an Account with Marijuana Software.
(ii) "Subscription Payment" means the payments outlined in a respective Subscription Tier, excluding the initial subscription fee.
(iii) Subscription Tier: Medical Tier
(A) Pricing: Always $50 subscription fee per 30-day cycle. Exclusive to medical-only dispensaries.
(iv) Subscription Tier: Regular OMMPOS
(A) Pricing: Usage based pricing, where the subscription fee per payment cycle is automatically adjusted to reflect monthly usage. See OMMPOS Price Chart.
(v) Subscription Tier: OMMPOS Private Cloud
(A) Pricing: Flat rate subscription fee of $300 per 30-day cycle. This tier gives the Customer access to a Private Cloud copy of OMMPOS.
(vi) Subscription Tier: Stand Alone OMMPOS
(A) Pricing: One-time payment of $2500 for a private backup server. This tier also includes a server computer, software, and a year of support. After the first year of complimentary support, Customer has the option of purchasing support services for this tier for $750 per calendar year.
(vii) Changing Subscription Tiers.
(A) Marijuana Software reserves the right to change a Customer's Subscription Tier with thirty (30) day notice for any reasonable business purpose.
(b) Payment Terms.
(i) Customer must pay the initial subscription fee outlined in Section 2(a) and Customer's selected Subscription Tier.
(ii) Customer is responsible for paying the fees outlined in Customer's selected Subscription Tier, and Customer acknowledges that Marijuana Software may suspend Customer's account or access for missed payments.
(iii) Payment Cycle. Customer's payment cycle begins when the Customer pays the initial subscription fee during Account Creation. The subscription's payment cycle runs for thirty (30) days. Customer's first payment is due thirty (30) days after the initial subscription fee has been paid. The payment cycle will reset after each subscription payment. The following payment will be due thirty (30) days after the previous subscription payment.
(iv) Renewal Process. Customer's access to Cloud Services outlined by its selected Subscription Tier continues for thirty (30) days with each subscription payment.
(v) Penalties for Missed Payments. Marijuana Software reserves the right to suspend and delete a Customer's account and access to Cloud Services for missed payments. Customer's account will automatically suspend upon a missed payment. A suspended account that has not paid its required fees within thirty (30) days will be deleted by Marijuana Software.
4. Payment Process.
(a) Secured Payment System. Fees outlined in Customer's subscription tier must be paid through a Marijuana Software approved third-party service.
(b) Billing Process.
(i) Marijuana Software will notify Customers on the Marijuana Software website when its subscription fee is due.
(ii) Customer must pay its subscription fees on the Marijuana Software website.
(iii) Late Payment. Customer's subscription fee payments are not considered late if payment is completed by 11:59 PM of the 30th day in the Payment Cycle.
(A) Customer's account automatically suspends at 12:00 AM of the 1st day after the Payment Cycle.
(B) Customer's payment cycle will restart, and Customer's account suspension will end upon Customer's payment of the missed subscription fee.
(c) Restoral Fee for Deleted Accounts. Deleted accounts may be restored by Marijuana Software up to thirty (30) days after account deletion. Customer must pay a restoral fee of $300 to have a deleted account restored.
(a) Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Provider shall provide you the necessary passwords and access credentials to allow you to access the Cloud Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Cloud Services.
(i) "Documentation" means Provider's user manuals, handbooks, and guides relating to the Cloud Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Cloud Services available on the Provider's website.
(c) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
(i) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part;
(ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part, without Marijuana Software's express consent;
(iv) remove any proprietary notices from the Cloud Services or Documentation; or
(v) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(d) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Cloud Services and collect and compile data and information related to Customer's use of the Cloud Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services ("Aggregated Statistics"). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
(i) Customer Data means, other than Aggregated Statistics information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
(e) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(i) Provider IP means the Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Cloud Services but does not include Customer Data.
(f) Service and Account Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Cloud Services if:
(i) Provider reasonably determines that
(A) there is a threat or attack on any of the Provider IP;
(B) Customer's or any other Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider;
(C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities;
(D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(E) Provider's provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law;
(ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or
(iii) Customer has not timely and sufficiently paid its Fees to Marijuana Software (detailed in Sections 3 and 4)
Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
6. Service Levels and Support.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Cloud Services available in accordance with the service levels below:
(i) Service Availability. Provider will use commercially reasonable efforts to make Cloud Services available at an uptime percentage of 99% (Availability Requirement)
(ii) Service Maintenance. Provider reserves the right to schedule service downtime to conduct routine service maintenance and exclude scheduled maintenance downtime from the calculation of service unavailability. Provider will provide Customer notice at least 24 hours prior to the beginning of scheduled maintenance.
(iii) Exceptions to calculation of service unavailability include service degradation or outages resulting from:
(A) Scheduled Maintenance as set forth in Section 6(a)(ii)
(B) Customer's misuse of Cloud Services.
(C) Failures of the Customer's or Authorized User's internet connectivity.
(D) Customer's failure to meet the Agreement's hardware or software specifications.
(iv) Remedies. If the actual Service Availability is less than the Availability Requirement for any Service Period, such failure shall constitute a Service Error for which Provider will issue to Customer the corresponding service credits as set forth in the Service Availability Credits section of the Provider's website. "Service Period" means, with respect to Cloud Services, a thirty-day period commencing upon Customer's provision of access and use that ends on the last day of each thirty-day cycle. The purpose of Service Periods is to calculate Service Availability Credits should Marijuana Software fail to meet Service Levels.
(b) Support. The access rights granted hereunder entitle Customer to the email and phone support services described on Provider's website for the duration of the Term following the Effective Date under this Agreement.
8. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
9. Limited Warranty and Warranty Disclaimer.
(a) Provider warrants that the Cloud Services will conform in all material respects to the Service Levels when accessed and used by Customer in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Cloud Services unless specifically identified in the Service Levels. The remedies set forth in the Service Levels are Customer's sole remedies and Provider's sole liability under the limited warranty set forth in this Section 9(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) Customer Warranty. You warrant that both the Customer Data and your use of the Cloud Services are in compliance with the AUP.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION Error! Reference source not found., THE CLOUD SERVICES ARE PROVIDED "AS IS" AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, BUG-FREE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees ("Losses"), incurred by Customer resulting from any Action by a third party that Customer's use of Cloud Services in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party's US Intellectual Property Rights/US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(i) Third Party Products or Customer Data;
(ii) Access to or use of the Provider IP in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer's use in the Documentation;
(iii) Modification of the Provider IP other than: (A) by or on behalf of Provider; or (B) with Provider's written approval in accordance with Provider's written specification;
(iv) Failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(v) Act, omission or other matter described in Section 10(b)(i), Section 10(b)(ii), Section 10(b)(iii), or Section 10(b)(iv), whether or not the same results in any Action against or Losses by any Provider Indemnitee
(vi) Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
(b) Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and officers, directors, employees, agents, members, directors, managers, successors, and assigns each, a "Provider Indemnitee" from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party that arise out of or result from, or are alleged to arise out of or result from:
(i) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(ii) Any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(iii) Allegation of facts that, if true, would constitute Customer's breach of any its representations, warranties, covenants, or obligations under this Agreement;
(iv) Negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third part on behalf of Customer or any Authorized User, in connection with this Agreement; or
(v) Allegation of facts that, if true, would constitute Customer's violation of the Acceptable Use Policy outlined in Appendix A.
(c) Regulation Indemnification. Customer shall indemnify, defend, and hold harmless Provider and officers, directors, employees, agents, members, directors, managers, successors, and assigns each, a "Provider Indemnitee" from and against any and all Losses incurred by such Provider Indemnitee resulting from any violation of a local, state, or federal regulation.
(d) Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10(a) or Section 10(b) and 10(c), as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 10(d) will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
(a) IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY:
(i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES;
(ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
(iii) LOSS OF GOODWILL OR REPUTATION;
(iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR
(v) COST OF REPLACEMENT GOODS OR SERVICES,
(vi) COMPLIANCE CITATIONS CAUSED BY AUTHORIZED USER'S NEGLIGENCE OR ERROR
(vii) COMPLIANCE CITATIONS CAUSED BY CLOUD SERVICE UNAVAILABILITY OUTSIDE EXPECTED INDUSTRY STANDARD
IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement and that modified terms become effective on posting. You will be notified of modifications through direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least thirty (30) days' advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services.
13. Export Regulation. The Cloud Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to, or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the US.
14. Governing Law and Jurisdiction. The laws of the State of Oregon govern the construction of this Agreement, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. Multnomah County, Oregon will be the venue for dispute resolution between the parties
15. Arbitration. In the event that a dispute should arise out of, or relating to, the interpretation, performance, breach, or invalidity of this Agreement, the parties will attempt in good faith to resolve their differences. Any dispute which is not resolvable by the parties will be referred to binding arbitration in accordance with the then applicable rules of the Arbitration Service of Portland and judgment on the award may be entered in any court having jurisdiction, except the parties reserve the right to resolve disputes in Small Claims Court if the claim is within the jurisdiction of the Small Claims Court. Venue for dispute resolution will be Multnomah County, Oregon.
(a) Cost of Suit. Each party in any such arbitration will be responsible for their own attorneys' fees, court fees, and cost of suit incurred.
(b) Marijuana Software reserves the right to utilize Better Business Bureau's arbitration services if the parties engage in arbitration.
(a) Notices. Any notices to us must be sent to our corporate headquarters address available on the Provider's website and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications will be sent to the email address provided upon registration, and Customer is responsible for maintaining that email. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.