Last Revised: August 26, 2021
IMPORTANT: Carefully read this Service Agreement (the “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Customer”) and Illuminate Data Science Inc. (d.b.a. Cannametrics) with a principal place of business at Vancouver, British Columbia (“Provider”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. DEFINITIONS. As used in this Agreement:
1.1 “Confidential Information” means information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. For greater clarity, Costumer Data is not Confidential Information.
1.2 “Customer Data” means information provided by the Customer which is designated to be shared and published for the purposes of the Service with certain other third-party users of the Service. Customer Data includes information regarding products that the Customer hosts or views on the Service, aggregate and derived information from the Customer’s use of the Service, and other information that is expressly designated to be shared including engagement, survey and feedback data.
1.3 “Fees” is defined in Section 4.
1.4 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, moral rights and all other intellectual property rights, modifications, derivatives thereof, and forms of protection of a similar nature in Canada and the US.
1.5 “Malicious Code” means any viruses, bots, worms, malware, ransomware, cancel-bots, time bomb, Trojan horse, disabling device, automatic restraint or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
1.6 “Order Form” means collectively the documents representing the initial subscription to the Service (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement from time to time.
1.7 “Service” means the web-based “Producer Connect” service delivered by Provider to Customer, as modified from time-to-time, which allows users to transmit and receive cannabis product data and associated marketing materials as well as communicate with other users of the Service for those same purposes.
1.8 “System” means the technology, including hardware and software, used by Provider to deliver the Service to Customer in accordance with this Agreement.
1.9 “UserID” is defined in Section 3.1.
1.10 “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. THE SERVICE.
2.1 Subscription to the Service. Provided that the Customer: (a) complies with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperates with the reasonable requests of Provider; and (c) grants Provider access to the Customer Data, Provider hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s business purposes and not for resale or to provide services to third parties. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Provider constitutes a binding contract between the parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Provider with respect to future functionality or features.
2.2 Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Provider shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Provider will not have an obligation to provide a correction for all such nonconformities.
2.3 Internet Disclaimer. Customer acknowledges and agrees that Provider exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Provider’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.4 Limitation, Suspension or Termination of Access. In addition to other rights and remedies of Provider under this Agreement, Provider may suspend, terminate or limit (in Provider’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the Service or System; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Provider from harm to its reputation or business. Provider will use commercially reasonable efforts to notify Customer of such a limitation, suspension or termination as soon as reasonably practicable. In the event of a limitation or suspension, Provider will restore Customer’s access to the Service when Provider determines, acting reasonably, that the relevant risk event has been resolved. Nothing in this Agreement will limit Provider’s right to take any action or invoke remedies, or will act as a waiver of Provider’s rights in any way with respect to any of the foregoing activities. Provider will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.4.
3. CUSTOMER’S USE OF THE SERVICE.
3.1 Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Provider for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will not share or distribute any password or login information associated with the Service. Customer will promptly notify Provider of any actual or suspected unauthorized use of the Service. Provider may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, provincial, federal and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person to:
- (a) use the Service other than as permitted by this Agreement;
- (b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right;
- (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
- (d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service or System;
- (e) use or launch any automated system, including without limitation any Malicious Code that accesses the Service or System; or
- (f) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of a Malicious Code or any other program.
3.3 Customer Data. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer is solely responsible for the accuracy of the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any Intellectual Property rights, publicity/privacy rights, law or regulation; or (b) contains any Malicious Code or other program intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Provider may take remedial action if Customer Data violates this Section 3.3, however, Provider is under no obligation to review Customer Data for accuracy or potential liability.
4. FEES, PAYMENT AND SUSPENSION.
As consideration for the subscription to the Service and the support services provided by Provider under this Agreement, Customer will pay Provider the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed and payable in advance on a monthly recurring basis from the date the Order Form is executed (the “Payment Date”). If a month does not have the corresponding Payment Date, the Fees will be billed on the last day of that month. All Fees are payable through a third-party payment provider at Provider’s website. All Fees owed by Customer in connection with this Agreement and the Order Form are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Provider’s income. Provider reserves the right (in addition to any other rights or remedies Provider may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if the Fees are not paid by the monthly Payment Date until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. CONFIDENTIAL INFORMATION.
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. OWNERSHIP AND USE
6.1 System and Technology. Customer acknowledges that Provider retains all right, title and interest in and to the System and all software, materials, formats, interfaces, information, data, content and proprietary information and technology used by Provider or provided to Customer in connection with the Service, and that the System and Service is protected by Intellectual Property Rights owned by or licensed to Provider. Other than as expressly set forth in this Agreement, no license or other rights in the System and Service are granted to the Customer, and all such rights are hereby expressly reserved by Provider. Customer hereby grants to Provider a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
6.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Customer grants to Provider all necessary licenses in and to the Customer Data as necessary for Provider to provide the Service to the Customer, allow Provider to collect and use, in perpetuity, the Customer Data in aggregate for present and future features of the Service, collect and use the Customer Data in developing additional commercialized technology, to report to other customers the engagement of individual, identified customers or customer segments in aggregate with particular products and services including the engagement through views or impressions of products hosted by other customers on the platform and for analysis relating to the improvement of existing features or development of additional features. Provider will not use or disclose Customer Data for any purposes except as expressly permitted by this Section 6.2 and will not disclose personally identifiable information in the course of collecting and using the Customer Data.
7. TERM AND TERMINATION.
7.1 Term. This Agreement will commence on the date the Customer accepts this Agreement for the use of the Service and will continue until either the subscription to the Service expires or the Service is terminated as contemplated herein.
7.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such a breach. If Customer terminates this Agreement in accordance with this Section 7.2, Provider will refund a prorated portion of any pre-paid Fees as they relate to the remainder of the then unexpired term as of the effective date of termination.
7.3 Effect of Termination. Immediately upon the termination of this Agreement for any reason: (a) the subscription granted to Customer hereunder will terminate and Customer will discontinue any and all use of the Service; (b) any amounts which the Customer owes to Provider under this Agreement as of the effective date of termination will become immediately due and payable; and (c) each party will, as appropriate, delete or return to the other all property (including any Confidential Information) of the other party in its possession or control.
8. WARRANTY; DISCLAIMER. THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY PROVIDER TO CUSTOMER, INCLUDING WITHOUT LIMITATION ACCESS TO THE SYSTEM, ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. PROVIDER FURTHER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
9.1 By Provider. If any action is instituted by a third party against Customer based upon a claim that the Service or System, as delivered by Provider, infringes any registered third party Intellectual Property Rights in Canada, Provider shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Provider may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Provider shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without Provider’s prior written consent, (ii) in combination with any other service, equipment, software or process not provided by Provider, or (iii) if the Customer continues to use the Service or System subsequent to receiving notice of an action by a third party. This Section 9 sets forth the entire obligation of Provider and the exclusive remedy of Customer against Provider or any of its suppliers for any alleged infringement or adjudicated infringement of any Intellectual Property Rights by the Service or System.
9.2 By Customer. If any action is instituted by a third party against Provider arising out of or relating to: (a) Customer’s use of the System or Service (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the Intellectual Property Rights or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Provider and shall pay all damages attributable to such claim which are finally awarded against Provider or paid in settlement of such claim. Customer shall have no obligation under this section 9.2 for any part of or all of a claim or action that arises directly out of a breach of this Agreement by Provider.
9.3 Conditions. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. LIMITATION OF LIABILITY
The following provisions are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
10.1 Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE CUSTOMER TO PROVIDER UNDER THIS AGREEMENT FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL PROVIDER’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL PROVIDER BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 Exclusions. THE PROVISIONS OF SECTIONS 10.1 AND 10.2 SHALL NOT APPLY TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES FROM:
- (a) A BREACH OF A RECIPIENT’S OBLIGATIONS UNDER SECTION 5 (CONFIDENTIAL INFORMATION); OR
- (b) CLAIMS FOR SUBSCRIPTION FEES OR OTHER FEES OWED TO PROVIDER UNDER THIS AGREEMENT AND ANY COST, EXPENSE OR FEES INCURRED IN THEIR COLLECTION.
11. GENERAL PROVISIONS
11.1 Publicity. Provider may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Provider to use Customer’s name and logo in customer lists, for, on or with respect to the Provider’s website or other online social media accounts, and other promotional materials describing Customer as a customer of Provider and user of the Service.
11.2 Assignment. Customer may not assign this Agreement to a third party without Provider’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. Provider may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
11.3 Authorization. To the extent that any aspect of Provider’s Services are deemed to be promotional in nature, the Customer hereby authorizes Provider to promote and market on behalf of the Customer any and all of Customer’s cannabis products on the System (including through the web-based “Producer Connect” service) insofar as such promotional or marketing activities are related to the Services provided hereunder. The Customer hereby confirms that all of Customer’s cannabis products are registered with all applicable legal authorities and government departments. The Customer hereby confirms that this Section serves as a “letter of authorization” issued by the Customer that authorizes Provider to engage in the activities contemplated under this Section. The Customer further agrees that, upon the reasonable request of Provider, the Customer will take all reasonable steps to aid Provider in obtaining any and all necessary government approvals required to provide the Services and any and all promotional and marketing aspects related thereto.
11.4 Arbitration. Except for any dispute related to the Intellectual Property Rights of a party, any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The number of arbitrators shall be one (1).
11.5 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.6 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Provider, by email at [email protected] or by courier at 1801 Fulford-Ganges Rd. Salt Spring Island, BC, V8K 2A5; or (ii) to Customer, by email or by courier at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
11.7 Entire Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
11.9 Survival of Terms. Upon termination or expiry of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief.
11.10 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.