MASTER SERVICES AGREEMENT
This Master Services Agreement ( “Agreement”) is dated and made effective as of the latest date set forth in the signature block below (the “Effective Date") between Odava Inc., a Delaware corporation located at 1355 NW Everett Street, Portland, OR 97209 (“Odava”), and the business entity identified in the signature block below (“Customer”). Odava and Customer hereby agree as follows:
NOTE: THIS MASTER AGREEMENT WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE “OTHER AGREEMENT”) IS ALREADY IN PLACE BETWEEN CUSTOMER (DEFINED BELOW) AND ODAVA, INC. PERTAINING TO THE PRODUCTS AND/OR SERVICES TO WHICH THIS AGREEMENT APPLIES. TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN CUSTOMER’S ACCESS AND USE OF THE SOLUTION, HARDWARE, HOSTED SERVICE AND/OR PROFESSIONAL SERVICES (AS EACH SUCH TERM IS DEFINED BELOW) AND THIS AGREEMENT WILL NOT APPLY.
BY INDICATING YOUR ASSENT TO ENTER THIS AGREEMENT, YOU SUBMIT TO ODAVA, INC., A DELAWARE CORPORATION (“ODAVA”), AN OFFER TO OBTAIN THE RIGHT TO USE THE SOLUTION, HARDWARE, HOSTED SERVICE AND/OR PROFESSIONAL SERVICES UNDER THE PROVISIONS OF THIS MASTER AGREEMENT (THE “AGREEMENT”) AND HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE PRODUCTS AND SERVICEs LISTED ON THE WRITTEN OR ELECTRONIC QUOTATION, ORDER FORM(S) AND/OR OTHER DOCUMENTS (EACH AN “ORDER FORM”) WHICH WE PROVIDE TO CUSTOMER IN CONNECTION WITH THE PURCHASE OF LICENSES TO ACCESS AND USE THE HOSTED SERVICE OR RELATED PROFESSIONAL SERVICES. THE TERMS OF EACH ORDER FORM WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
If YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER do not agree to any of the terms below, SHOPIGNITER is unwilling to PROVIDE THE HOSTED SERVICE TO CUSTOMER, and you should NOT discontinue the Order, AND/OR registration process.
The Order Form will set forth the(a) licenses to access and use one or more of Odava’s proprietary point-of-service solution (each, a “Solution”) to be hosted and made available by Odava in object code format on a software-as-a-service basis, including related APIs (the “Hosted Service”), (b) related hardware components (“Hardware”) and/or (c) related laboratory testing or other professional services (collectively, “Professional Services”) that Customer is purchasing.
USE RIGHTS AND RESTRICTIONS.
Administrative Rights. The Solution will include a restricted-access administrative interface component (“Administrative Interface”) to allow employees or specific independent contractors designated by Customer (“Administrative Users”) to access the configuration and settings components of the Solution to manage, configure and monitor the Solution for Customer’s benefit, which such configuration may include enabling the Solution to interact with a mobile application (“Mobile App”) separately made available by Odava. Each Administrative User will be provided access to and use of the Administrative Interface (“Admin User Access”). Customer shall be responsible for ensuring the security and confidentiality of all Admin User Access. Customer acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.
Access to Hosted Service.
License Rights. During the applicable Subscription Term (as defined in Section 6.1 below) and subject to the terms and conditions of this Agreement, Odava hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license to: (i) access and use the Solution set forth in each Order Form via the Hosted Service; and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by Odava that describes functionality of the Solution, if any (collectively, the “Documentation”), in each case solely for Customer’s internal business purposes within jurisdictions that have been authorized by Odava in writing. For purposes of clarification, Customer acknowledges and agrees that all Mobile Apps shall be made available solely in accordance with the terms of the then-current end user license agreement under which each such Mobile App is made available (the “EULA”), which such EULA shall supersede any conflicting terms or conditions of this Agreement with respect to any access to and use of the Mobile Apps.
Access Requirements. Customer is solely responsible for (i) obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Hosted Service, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith, (ii) ensuring that such equipment or ancillary services are compatible with the Hosted Service and (iii) procuring all necessary rights from applicable third parties to any related third party product(s) not provided by Odava that may be necessary for Customer to fully utilize any Hosted Service (i.e., payment gateway rights, point of sale, email, inventory control, shipping and/or accounting systems, etc.).
Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Solution or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Solution (or any portion thereof) to third parties, including, but not limited to, making such Solution available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Solution (or any element thereof) into applications of Customer or third parties; (d) create modifications to or derivative works of the Solution; (e) reproduce the Solution or Documentation; (f) use the Solution in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, or (g) in any way access, use, or copy any portion of the Solution code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Solution.
DELIVERY AND USE OF HARDWARE AND HOSTED SERVICE; CUSTOMER DATA.Hardware.
Delivery of Hardware. Following the effective date of each Order Form, subject to availability, Odava will deliver to Customer all Hardware set forth in such Order Form in accordance with Odava’s then-current Hardware shipping and delivery policies. Customer acknowledges that all Hardware is manufactured by third party manufacturers. Accordingly, (i) the Hardware is subject to the applicable manufacturer terms and conditions; and (ii) other than as set forth herein, Odava makes no representations or warranties, and offers no additional indemnities or other protections, with respect to the Hardware.
Responsibility and Use of Hardware. During the applicable Subscription Term, subject to Customer’s payment of all related Fees (as defined in Section 5.1 below), Customer may use the Hardware for its internal business purposes. Customer shall be solely responsible for all loss of or damage to or liability in connection with its utilization of the Hardware however caused occurring at any time or times while Customer is in physical possession of the Hardware, reasonable wear and tear excepted. Customer will return all Hardware to Odava within five (5) business days following any termination of this Agreement.
Delivery of Hosted Service; Service Levels. During the applicable Subscription Term, subject to Customer’s payment of all related Fees, Odava or its third party hosting provider will set-up and host the Solution, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Customer to access and use the Solution in accordance with this Agreement. Odava will manage and install all updates and upgrades that Odava makes generally available to its customers for the Solution within the Hosting Infrastructure. Odava will provide Hosted Service in accordance with the service levels and other requirements set forth in Exhibit A; provided that Odava does not warrant that Customer’s use of the Hosted Service will be error-free or uninterrupted.
Usage Data. Odava shall have the right to use, create derivative works of, distribute and otherwise exploit anonymous, aggregate usage data derived from Customer Data (“Usage Data”) such as the aggregate number of transactions that occur within a particular Hosted Service provided that in no event will Odava disclose or make available any Usage Data in a manner that does or reasonably could permit the recipient of such information to determine that such Usage Data pertained to Customer in particular.
SUPPORT SERVICES; PROFESSIONAL SERVICES.
Support Services. During the applicable Subscription Term, subject to Customer’s payment of all related Fees, Odava shall, unless otherwise set forth on the applicable Order Form, provide technical support services to Customer regarding Customer’s operation and use of the Solution, Hardware and Hosted Service as set forth in the applicable Order Form, as further described in Exhibit B.
Generally. Odava will provide all Professional Services and related deliverables (“Deliverables”) in accordance with the specifications and schedule, if any, set forth in each Order Form. If Customer notifies Odava in writing within thirty (30) days after the Deliverables are made available to Customer that Odava is not in compliance with the foregoing covenant with respect to such Deliverables, then Odava will, as Customer’s sole and exclusive remedy and Odava’s sole liability, use commercially reasonable efforts to cause the Deliverables to conform to such covenant at no additional cost to Customer.
Ownership Rights. Unless expressly stated otherwise in an Order Form, Odava will retain all right, title and interest in and to all Deliverables (including any and all intellectual, property rights therein) and Customer hereby irrevocably assigns to Odava any and all ownership rights it may have in or to such Deliverables (including any and all intellectual, property rights therein). Customer’s rights to the Deliverables shall be the same as the rights granted to Customer under the Agreement with respect to the Solution to which such Deliverable pertains.
Fees. Subject to the terms and conditions below, all one-time and recurring fees for, as applicable, the Solution, Hardware, Hosted Service and/or Professional Services (collectively, the “Fees”) will be set forth on the applicable Order Form.
Payment Terms. Unless otherwise agreed to in writing by the parties, Customer will pay to Odava all undisputed Fees owed either, in Odava’s sole discretion, (i) in advance by credit card or (ii) within thirty (30) days, or such other period as may be specified in the Order Form, after Odava’s issuance of an invoice pertaining thereto. If applicable, payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Odava’s income). Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement. In cases where Customer fails to make payment under this Agreement, Customer shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
Term and Termination.
Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein. The initial subscription term for each Hosted Service license purchased by Customer will be as set forth in the applicable Order Form and subject to any renewal as set forth in Section 6.2 below (collectively, the “Subscription Term”).
Subscription Terms; Adjustment; Renewal. Each Subscription Term will commence on the date that both parties have executed the applicable Order Form under which Customer acquires such license, unless a later commencement date is expressly set forth on such Order Form, and will continue for the initial Subscription Term. Thereafter, each Solution license will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for a period of one (1) year and (ii) at the same Fees applicable during the immediately preceding term (based upon the latest applicable pricing tier) unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.
Termination. This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2 or 8), or (b) as set forth in Section 10. Additionally, a particular Order Form may be temporarily suspended or terminated by Odava in the event that Customer fails to pay applicable Fees when due or otherwise violates any of the use restrictions set forth herein.
Effect of Termination. Upon any termination of this Agreement or an Order Form, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.3, 5, 6.4, 7, 8, 9.3, 10, 12 and 13 shall survive termination, (b) Customer will promptly delete and destroy all copies of the Documentation in its possession or control, and (c) Customer shall pay to Odava any outstanding Fees that have accrued under the Agreement and/or Order Form prior to the date of termination.
As between the parties, (i) Odava will retain all ownership rights in and to the Solution, all updates and/or upgrades thereto, Hardware, Mobile Apps, the Deliverables, Documentation, and other derivative works of the Solution and/or Documentation that are provided by Odava, and all intellectual property rights incorporated into or related to the foregoing and (ii) Customer will retain all ownership rights in and to the Customer Data, and all intellectual property rights incorporated into or related to the foregoing. The trademarks and service marks and other Odava logos and product and service names are trademarks of Odava (the “Odava Marks”). Likewise, the trademarks and service marks and other logos and product and service names of Customer are trademarks of Customer (collectively “Customer Marks”). Without the other party’s prior written permission, the parties agree not to display or use in any manner, the Odava Marks or Customer Marks, as applicable. All rights not expressly licensed by Odava and Customer under this Agreement are reserved. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Data
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations; provided that Customer shall be solely responsible for ensuring that its use of the Hosted Service is in full compliance with applicable federal andstate laws, rules and regulations that govern the manufacture, distribution and/or sale of cannabis.
By Odava. Odava warrants that (a) all Professional Services shall be provided in a professional, competent and workmanlike manner in accordance with the prevailing industry standards, (b) the Solution, as made available via the Hosted Service and when used in accordance with the Documentation, will perform in all material respects as specified in such Documentation during the applicable Subscription Term, and (c) Odava will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Solution that are intentionally designed to permit unauthorized access to or use of either the Solution’s or Customer’s computer systems (“Viruses”). In the event of any breach of the warranties in subsection (a) or (b) above, Odava shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Professional Services and/or Solution to not conform to such warranties promptly after its receipt of written notice from Customer. Odava will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination or as integrated with the Solution) not provided by Odava; (ii) unauthorized use or use of the Solution other than in accordance with the Documentation or (iii) Viruses introduced by Customer or its agents (collectively, “Exclusions”).
Disclaimer. The express warranties set forth in this agreement are the exclusive warranties offered by either party and all other conditions and warranties, including, without limitation, any conditions or warranties of fitness for a particular purpose, non-infringement, accuracy, quiet enjoyment, title, merchantability and those that arise from any course of dealing or course of performance are hereby disclaimed. Odava does not warrant that customer’s use OF the Solution will be uninterrupted or error-free, or that errors will be corrected.
INDEMNIFICATION, LIMITATION OF LIABILITY.
Indemnification. Odava will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Solution infringes any United States copyright or misappropriates any trade secret rights and Odava will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Customer will defend at its own expense any action against Odava brought by a third party to the extent that the action is based upon a claim that Customer has violated the Customer Policies or otherwise failed to comply with applicable law regarding the manufacture, distribution and/or sale of cannabis and Customer will pay those costs and damages finally awarded against Odava in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of such action, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense. If the Solution (or any component thereof) becomes, or in Odava’s opinion is likely to become, the subject of an infringement claim, Odava may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Solution so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Odava’s reasonable opinion, commercially reasonable, Odava may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Odava will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon any Exclusions. This Section 10.1 states Odava’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
Limitation of Liability. in no event shall either party be liable to the other party or to any third party, whether under theory of contract, tort or otherwise, for any indirect, incidental, punitive, consequential, or special damages (including any damage to business reputation, lost profits or lost data), whether foreseeable or not and whether OR NOT SUCH PARTY is advised of the possibility of such damages. In addition, each party’s aggregate cumulative liability to the other, in connection with this Agreement, including the Solution, services and intellectual property provided hereunder shall not exceed, in the aggregate and regardless of whether under theory of contract, tort or otherwise, the total of the Fees actually paid and the Fees payable to Odava by customer under this Agreement during the one (1) year period prior to the date that such liability first arises.
During the term of this Agreement, unless otherwise set forth in the applicable Order Form, Customer hereby agrees that Odava shall have the right, but not the obligation, to include Customer’s name and logo as a customer who uses the Solution on the Odava website and in other materials promoting the Solution.
INJUNCTIVE RELIEF. The parties acknowledge that the Solution and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of each party’s Confidential Information, the Solution, or any information or data contained therein.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Odava. The terms on any purchase order or similar document submitted by Customer to Odava will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order Form.
EXHIBIT A – SERVICE LEVELS
Uptime Commitment: Odava will use commercially reasonable efforts to ensure that the Hosted Service will be available at least 99.4% of the time, as measured monthly, subject to the exclusions set forth below and also excluding scheduled downtime and any time necessary to implement any updates, upgrades or other modifications to the Solution (“Uptime Commitment”). Odava will notify Customer at least twenty-four (24) hours prior to any scheduled downtime and will use commercially reasonable efforts to minimize the effect of such maintenance on the Hosted Service.
Exclusions: The Uptime Commitment shall not apply in the event of any causes beyond the control of Odava or its hosting provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the Internet generally, any actions or inactions of Customer or any third party, or other failures.
EXHIBIT B – TECHNICAL SUPPORT SERVICES
1. Customer Obligations. Customer agrees to provide Odava with all information and materials requested by Odava for use in replicating, diagnosing and correcting an error or other problem with the Solution and/or Hardware reported by Customer. Customer acknowledges that Odava’s ability to provide satisfactory support services is dependent on Odava having the information necessary to replicate the reported problem with the Solution and/or Hardware.
2. Items Not Covered by Support Services. Odava is not obligated to provide support services for errors or problems caused by the following:
(a) third-party components not provided by Odava; or
(b) use of the Solution or Hardware other than as described in the Documentation.
3. Technical Support Services. Odava shall provide the following technical support services for the Solution and Hardware:
Available by phone or email during business hours
Business Hours: 9:00 a.m. – 5:00 p.m. PST (Monday – Friday)
(Excluding Nationally Recognized Holidays)