Terms of Service - CannaVersions
Last Updated: November 1, 2023
CannaVersions, LLC Services Terms and Conditions
CannaVersions and its Affiliates operate a proprietary online platform at cannaversions.com and associated websites, portals, applications and widgets, including widgets embedded on sites owned by others (collectively, the “Site”) through which operators of cannabis brick-and-mortar storefront locations or cannabis delivery services (“Retailers”) publish listings of various cannabis and cannabis-related products (“Products”) for sale to consumers, patients and caregivers (collectively, “Users”).
CannaVersions provides a set of features (the “Automated E-Commerce Messaging Features”) through the Site for licensed retailers whereby (i) Users can and will receive emails, texts or other messaging by Retailers to return to their online store, purchase products available on the Retailers’ online website or otherwise engage with the Retailer.
Client is a Retailer that (i) is licensed by the applicable state and local licensing authorit(y/ies) (ii) has executed an Agreement with CannaVersions to maintain compliance and allow outreach to Users through our proprietary third party software, and (iii) desires to sell its Products by way of delivery or pickup by User (the “Retailer Services'') using the Automated E-Commerce Messaging Features through the Site (the “CV Services'').
These CannaVersions, LLC Services Terms and Conditions (these “Terms” and collectively with any Service Contract relating hereto, the “Agreement”) are effective as per the date of signatures, and set forth the terms and conditions upon which CannaVersions, LLC, a Massachusetts limited liability company (“CannaVersions”) will provide services to the entity executing the Service Contract under the heading “Client Name” (“Client” and together with CannaVersions, the “Parties”).
1. Access to CV Services. Subject to Client’s compliance with the terms and conditions of the Agreement, CannaVersions hereby grants Client a non-exclusive, non- transferable, revocable, limited right to access the Automated E-Commerce Messaging Features and use the CV Services during the Term, solely for Client’s internal use in connection with generating Orders as authorized by CannaVersions, and solely in the jurisdiction(s) and to the extent permitted under the terms of their License(s). An “Order” is defined as a User ordering Products from Client for delivery or pickup, as applicable, using the Automated E-Commerce Messaging Features through the Site.
2. Access to Retailer Data.
2.1. “Retailer Data” is defined as User’s email, phone number, order value, dispensary location and any other data CannaVersions collects to perform the CV Services.
2.2 Client grants CannaVersions the right to access, store and process Retailer Data. CannaVersions agrees that Retailer Data will be used solely in connection with delivering the CV Services. Retailer Data will not be sold or transferred to any third party or used in any other way. Retailer Data will be removed from Cannaversions possession within 90 days of the termination of this agreement by either party. Retailer can request to remove Retailer Data at any time during the Term however Client acknowledges that if a request to remove Retailer Data is processed, all or some of the historical data stored on the platform and accessible to Client may be unavailable.
2.3 For the avoidance of doubt, CannaVersions does not own and will not obtain ownership of Retailer Data through the performance of the CV Services.
3. CannaVersions’ Role. For the avoidance of doubt, CannaVersions is solely a software service provider and not a cannabis licensee, and CannaVersions disclaims any obligation to obtain any License. CannaVersions does not sell, transport, distribute, dispense, or deliver cannabis Products, and CannaVersions is not a party to any contract for sale of Products between Users and Retailers, including the contract for sale for Products requested via the Automated E-Commerce Messaging Features, and is not otherwise involved in the fulfillment of Orders of such Products (other than by providing access to CannaVersions’ proprietary technology for use in connection with Client’s Retailer Services). Any fees or amounts charged by CannaVersions with respect to the Automated E-Commerce Messaging Features are solely with respect to the provision of technology services and the associated fees, expenses, hosting charges and labor associated with providing such technology services.
4. Incorporated Agreements. Client’s use of the Site and the CV Services shall be subject to, and Client hereby agrees to be bound by, (i) the terms and conditions set forth in the Agreement, the Terms attached as Addendum 1 hereto (“Addendum 1”), and (ii) the Terms of Services, and (iii) each of the policies and guidelines governing the Site and the CV Services as may be provided to Client or amended by CannaVersions from time to time, including the CannaVersions, LLC Terms of Service and the CannaVersions Privacy Policy located at https://cannaversions.com/privacy/ (collectively, the “Website Policies”, the “Incorporated Agreements”). All Incorporated Agreements are incorporated by reference in the Agreement, and references to the Agreement include the Incorporated Agreements unless the context requires otherwise. In the event of any inconsistency between the provisions of the Agreement and any of the Incorporated Agreements the Agreement shall control with respect to the CV Services except to the extent the Incorporated Agreement specifically states that it will control with respect to a specific matter related to the CV Services.
5. Intellectual Property Rights. CannaVersions reserves all right, title and interest in and to all intellectual property rights, as these terms are understood under United States law, that are displayed on the Site, incorporated in the Site, or otherwise are owned, licensed, provided to or used by CannaVersions (collectively, the “CannaVersions Intellectual Property”). For the avoidance of doubt, the CannaVersions Intellectual Property shall include all metadata or compilation data generated from the Site. Client shall acquire no right, title or interest in or to any of the CannaVersions Intellectual Property as a result of the Agreement.
6. Confidential Information.
6.1 The term “Confidential Information” as used throughout this Agreement shall mean all trade secrets, proprietary information and other data or information (and any tangible evidence, record or representation thereof), written or oral, whenever and however acquired, whether prepared, conceived or developed by either Party or received by either Party from an outside source, which is in the possession of either Party and which is maintained in secrecy or confidence by either Party. Notwithstanding the foregoing, the term Confidential Information shall not apply to information which (i) is now or hereafter becomes public through no fault of the Parties; (ii) is shown by written records to have been in the lawful possession of the disclosing party prior to receipt from the receiving party; or (iii) is required to be disclosed by law or by judicial order, provided that either Party shall give prompt written notice of such required disclosure and the Parties shall reasonably cooperate to attempt to secure a protective order or other legal remedy to limit disclosure.
6.2 While providing the CV Services to the Client and thereafter, CannaVersions shall not, directly or indirectly, use any Confidential Information or disclose any of the Client’s Confidential Information to any third party.
6.3 Both Parties agree that all originals and all copies of materials containing, representing, evidencing, recording, or constituting any Confidential Information, however and whenever produced, shall be the sole property of the disclosing party.
7. Term; Termination.
7.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as CannaVersions is performing the CV Services on behalf of the Client (the“Term”). The “Effective Date” is defined as the date this Agreement is last signed by either Party.
7.2 Termination. Client or CannaVersions may terminate the Agreement and cancel the CV Services for any time with thirty (30) days’ prior notice. CannaVersions may terminate or suspend the Agreement and the CV Services immediately upon any breach by Client of the Agreement, including any failure to timely pay any invoice. Upon termination (i) CannaVersions may deactivate Client’s account(s), (ii) CannaVersions may delete Client’s data, (iii) Client shall be responsible for payment of all Fees relating to Orders attributable through the CV Services through the termination date, and (iv) Client will (a) deliver to CannaVersions all CannaVersions Data in Client’s possession or reasonable control, and (b) permanently delete in a manner that makes it non- readable and non-retrievable (i.e., pursuant to NIST 800-88, DoD 5220-22-M) all copies of CannaVersions Data in Client’s possession or reasonable control, except, in each case of (a) and (b), to the extent Client is required to retain such information under Applicable Law. Any decision by CannaVersions to suspend the Agreement or the CV Services will not bar CannaVersions from later terminating the Agreement or be deemed to be a waiver of any of its rights hereunder. “Applicable Law” means all applicable federal, state, and local laws, statutes, ordinances, rules, and regulations of any jurisdiction throughout the world.
7.3 Survival. Termination of the Agreement shall be without prejudice to any claim or right of action of either Party against the other Party for any breach of the Agreement. The provisions of Sections 4, 6, 7.2, 7.3, and 10-13 of these Terms and Section 4 of Addendum 1 shall remain in full force and effect notwithstanding the termination of the Agreement.
8. Payment Terms. As consideration for the CV Services, Client agrees to the payment terms and procedures set forth in Addendum 1.
9. Representations, Warranties and Covenants. Client represents, warrants and covenants to CannaVersions that: (a) It has the authority, power and right to enter into and deliver the Agreement and perform its obligations hereunder; (b) Client is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; (c) the Agreement have been duly executed and delivered by it and constitute valid and binding obligations enforceable against it in accordance with their respective terms, and the execution and delivery of and performance by Client under the Agreement will not violate any other agreement to which it is a party; and (d) it is in compliance with (and during the Term will continue to comply with) all Applicable Law, including the obligation to pay tips to delivery and other workers, if any, and it will not take any action that is likely to result in CannaVersions breaching its obligations under Applicable Law.
9.1 Compliance with Federal Law. Marijuana is included on Schedule 1 under the United States Controlled Substances Act. Under the federal laws of the United States of America, manufacturing, distributing, dispensing or possession of marijuana is illegal, and individuals are subject to arrest and/or prosecution for doing so. Client acknowledges that it is the Client’ responsibility to ensure compliance with these laws. CannaVersions disclaims any and all liability relating to the use of its website and applications in violation of any federal laws, rules and/or regulations.
9.2 Compliance with State Law. The Client expressly acknowledges that the Site is for those residing in states with laws regulating the use of medical or recreational cannabis and that the laws surrounding recreational and medical use are established pursuant to their respective State laws. The Client expressly acknowledges and assumes full responsibility for cooperating with the laws of the state and municipality where you reside. Further, CannaVersions disclaims any and all liability relating to the use of its website and applications in violation of any state laws, rules and/or regulations.
10. Indemnity. Client will indemnify, defend, and hold CannaVersions and its Affiliates and their respective owners, officers, directors, managers, employees, contractors, attorneys, agents and representatives harmless from and against any and all claims, actions, losses, damages (actual and consequential), liabilities, costs and expenses (including but not limited to attorneys’ fees and court costs), known and unknown, suspected and unsuspected, disclosed and undisclosed arising out of or relating to: (i) Client’s use of the Site or the CV Services, including any of Client’s Orders (whether placed on the Client e-commerce store on their website or in-store in person); (ii) any breach of Client’s representations, warranties, covenants or agreements in the Agreement; (iii) Client’s Products and Retailer Services, the provision thereof to any Users or other customers of Client, and any User disputes, including the actions of Client’s personnel; (iv) any death or personal injury of any person on the premises of Client or in connection with an Order; and (v) the gross negligence or willful misconduct of Client or any of its personnel, including any illegal, unauthorized, misleading or fraudulent activity thereof. CannaVersions will notify Client of any claim for which CannaVersions seeks indemnification hereunder; provided, that the failure to provide such notice shall not relieve the obligation of Client to provide indemnification hereunder. CannaVersions will have the right to control the defense of and settle each such claim and any lawsuit or proceeding arising therefrom in its sole and absolute discretion; provided, that CannaVersions may elect to require Client to assume control of the defense of and settlement of any such claim, lawsuit or proceeding at Client’s sole cost and expense. In the event CannaVersions elects to require Client to assume control of such claim, lawsuit or proceeding, Client will employ counsel acceptable to CannaVersions, and Client shall not settle such claim without CannaVersions’ prior written consent. Client agrees that any breach of the Agreement by any of its personnel or any person that it directs shall be deemed to be a breach of the Agreement by Client.
11. Limitation of Liability. CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT CANNAVERSIONS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CANNAVERSIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL CANNAVERSIONS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID CANNAVERSIONS IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO THE CLIENT OR BE ENFORCEABLE WITH RESPECT TO THE CLIENT. IF THE CLIENT IS DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, THE SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
12. Dispute Resolution. FOR THE AVOIDANCE OF DOUBT, BY EXECUTING A SERVICE CONTRACT, CLIENT IS AGREEING TO (I) MANDATORY INDIVIDUAL ARBITRATION REGARDING DISPUTES, (II) WAIVE ANY RIGHT TO TRIAL BY JURY, AND (III) WAIVE ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT,CLASS- WIDE ARBITRATION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, ORANY OTHER REPRESENTATIVE PROCEEDING AS TO ALL DISPUTES, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13. Miscellaneous.
13.1 No Agency. The relationship between CannaVersions and Client is that of independent contractors, and nothing in the Agreement will be construed as creating any partnership, joint venture, agency, franchise, sales representative, or employment relationship between CannaVersions and Client, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
13.2 Subcontractors. CannaVersions shall have the right to subcontract any of the CV Services to a third party.
13.3 Interpretation. Unless the express context otherwise requires: (a) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in the Agreement, shall refer to the Agreement as a whole and not to any particular provision of the Agreement; (b) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (c) the terms “Dollars” and “$” mean United States Dollars; (d) wherever the word “include,” “includes,” or “including” is used in the Agreement, it shall be deemed to be followed by the words “without limitation”; and (e) references herein to any gender shall include each other gender. In the event of an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of the Agreement.
13.4 Notices. Any notices under the Agreement must be made in writing and addressed as follows:
To CannaVersions: Sent via mail to:
CannaVersions, LLC
392 Merrill Rd.
Pittsfield, MA 01201
With a copy (which shall not constitute notice) via email to: info@cannaversions.com
13.5 Counterparts. The Agreement may be executed in any number of counterparts. Counterparts of theAgreement that are signed and delivered by facsimile, email or other electronic transmission (e.g., AdobeSign) shall be deemed to constitute signed original counterparts hereof.
13.6 Amendments and Supplements. This Agreement may not be altered, changed or amended, except by an instrument in writing signed by the Parties hereto.
13.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement is not intended to confer upon any person other than the Parties hereto any rights or remedies hereunder, except as otherwise expressly provided herein and shall not be assignable by operation of law or otherwise.
13.8 No Waiver. The terms and conditions of this Agreement may be waived only by a written instrument signed by the party waiving compliance. The failure of any party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of or non-compliance with this Agreement shall be held to be a waiver of any other or subsequent breach or non-compliance.
13.9 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of The Commonwealth of Massachusetts, without regard to its principles of conflicts of laws.t regard to its principles of conflicts of laws.