SUBSCRIPTION AGREEMENT FOR APOTHECANNA DIGITAL ASSETS
READ THIS SUBSCRIPTION AGREEMENT FOR APOTHECANNA DIGITAL ASSETS (“AGREEMENT”) CAREFULLY BEFORE ACCESSING, DOWNLOADING AND/OR USING APOTHECANNA DIGITAL ASSETS (“DIGITAL ASSETS”), DEFINED HEREIN BELOW. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “SUBSCRIBER” (EITHER AN INDIVIDUAL, ON BEHALF OF ITSELF, IF NO ENTITY IS THE BENEFICIAL RECIPIENT OF THE DIGITAL ASSETS, OR AN EMPLOYEE, AGENT OR REPRESENTATIVE, ON BEHALF OF AN ENTITY THAT IS THE BENEFICIAL RECIPIENT OF THE DIGITAL ASSETS, THAT PERFORMS THE ACTION OF ACCESSING, DOWNLOADING AND/OR USING THE DIGITAL ASSETS) AT A SINGLE SITE, WHICH INCLUDES ALL ASSOCIATED, AFFILIATED, SUBSIDIARY AND PARENT ENTITIES (COLLECTIVELY, “APCNA”). IF THE DIGITAL ASSETS ARE ACCESSED, DOWNLOADED AND/OR USED, INCLUDING BY REQUESTING THE AUTHORIZATION EMAIL, ANY ACCESS, DOWNLOAD AND/OR USE OF THE DIGITAL ASSETS, SUBSCRIBER IS DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. FURTHER, BY CLICKING “AGREE” AT THE END OF THIS DOCUMENT, SUBSCRIBER HAS DEMONSTRATED SUBSCRIBER’S UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT AND THIS AGREEMENT IS EFFECTIVE AS OF THAT DATE (“EFFECTIVE DATE”). IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT (AS DEMONSTRATED BY CLICKING “DO NOT AGREE”), SUBSCRIBER IS NOT AUTHORIZED TO ACCESS, DOWNLOAD AND/OR USE DIGITAL ASSETS; AND AS A RESULT, SUBSCRIBER WILL BE DENIED ANY ACCESS OR USE OF THE DIGITAL ASSETS. APCNA and the SUBSCRIBER may be alternatively referred to as party, individually, and parties, collectively.
1. PURPOSE. The purpose of this Agreement is to recite the terms and conditions under which APCNA will permit the SUBSCRIBER to download, access and/or use APCNA’s Digital Assets in connection with commercialization and marketing of APCNA’s products and services for the Site. The Digital Assets are provided via a link embedded in an email to the authorized SUBSCRIBER or through other electronic delivery means.
2. DEFINITIONS. Agreement definitions: a) “Digital Assets” are defined as electronic images of products, product displays or services; trademarks, trade names, logos, slogans, tag lines, product names, designs, branding expressions or service marks, whether statutory or common law or registered or not registered, including any applications therefore; marketing tools, documentation and collaterals; any and all domain names or web sites, including associated emails, links and text accounts (e.g., twitter, Facebook, blogs, Instagram); and general commercial product and service information and training materials in connection with APCNA offerings at your Site; b) “Access” is defined as the authorized right granted to the SUBSCRIBER by APCNA to access and use the Digital Assets via an active unique link, which is activated upon the Activation Date; c) “Activation Date” is defined as the date that APCNA first provides and permits Access to the Digital Assets by the SUBSCRIBER by sending an email notice to the SUBSCRIBER, which contains an enabled active link for the Term of Access; d) “Term of Access” is defined as the length of time that Access is granted to the SUBSCRIBER commencing upon the Activation Date; e) “Authorized User(s)” is defined as a sole individual (e.g., employee, subcontractor, representative, agent, contractor or consultant) of SUBSCRIBER that is authorized and identified to access and use the Digital Assets at a Site; and f) “Site” is defined as one Subscriber per each single discrete dispensary location.
3. TERM. The Term of Access shall be for an initial period of One (1) year(s) from the Activation Date, which shall automatically renew on each anniversary of the Activation Date, unless earlier terminated. The Agreement Term will be commensurate with the Term of Access.
4. SUBSCRIPTION SCOPE. The Term of Access applies solely to a SUBSCRIBER at a Site. During the Term of Access, the SUBSCRIBER and the SUBSCRIBER’s Site shall be compliant with the terms recited in this Agreement and all applicable federal, state, county, city and/or local laws and regulations that apply to SUBSCRIBER and/or SUBSCRIBER’s marketing, business and commercial activities and practices at the Site as particularly described in Section 7. Any non-compliance may affect this Agreement or cause this Agreement to terminated, at the discretion of APCNA.
5. PROPRIETARY INTERESTS/AUTHORIZATIONS/CONFIDENTIALITY. a) SUBSCRIBER acknowledges that APCNA owns all right, title and interest in and to the Digital Assets, and any associated tangible or intangible APCNA-provided materials, documents or other embodiments of information or data, and expressions (whether tangible or intangible), APCNA confidential information, including any related, associated or underlying concepts, ideas, methods, and processes; algorithms, source, object, binary, executable code, html and code listings; improvements, enhancements, modifications, changes, alterations, versions and updates; and expressions and derivative works thereof having patent, copyright, trade secret, trademark, and/or any other applicable proprietary interest, whether statutory or common law, which is in existence as of the Activation Date or which is developed, generated, derived or created by APCNA during the Term of Access under this Agreement. The SUBSCRIBER further acknowledges that any improvements, enhancements, changes, alterations, modifications or derivative works, which are developed, created, derived or generated by the SUBSCRIBER, either jointly with APCNA or solely, from the preceding during the Term of Access shall be owned and held by APCNA and that the SUBSCRIBER hereby assigns all right, title and interest therein, without further consideration, to APCNA to confirm APCNA’s ownership thereof (collectively, “APCNA Property”).
b) During the effective Term of Access, APCNA grants to SUBSCRIBER solely for the Site a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to certain Digital Assets for marketing and commercial purposes in connection with APCNA services or products as follows: i) only SUBSCRIBER is authorized to download and access through Authorized User(s) the Digital Assets only through an active link sent via email that is unique to SUBSCRIBER at the Site; ii) SUBSCRIBER shall not copy, alter, modify, change, affect the integrity or quality or create derivative works of Digital Assets except SUBSCRIBER shall have the right to copy, distribute, and create derivative works of copyrighted Digital Assets only in connection with the marketing and commercialization of APCNA services and products, subject to displaying applicable copyright notices; iii) only SUBSCRIBER at the Site shall be permitted to use and display trademark Digital Assets only for APCNA services and products only in connection with marketing and commercialization, and in particular, SUBSCRIBER shall be permitted to use, copy, disseminate, co-brand (each trademark will be equal in size, placement and color intensity and be distinct from the other marks and subject APCNA’s approval to co-brand) and display certain trademarks, logos, slogans, service marks, brand names and trade names (including URLs, web sites, links, social media) in connection with APCNA services and products (including on associated marketing or informational service or product collaterals, whether tangible or intangible) for Site marketing and commercialization activities of SUBSCRIBER and SUBSCRIBER shall not alter, modify, change or affect the integrity or quality (which includes color, design, appearance and other details, and which shall be exact duplicates as those trademarks that appear in the Digital Assets) in any way nor remove or alter any associated trademark notice thereon.; iv) the SUBSCRIBER shall not be permitted to make Digital Assets available to, or use Digital Assets for the benefit of, anyone other than SUBSCRIBER at the Site; or v) access or use Digital Assets or any APCNA Property in order to build a competitive product or service. Any use of the Digital Assets or APCNA Property in breach of this Agreement by SUBSCRIBER that in APCNA’s judgment threatens the integrity or rights, title or interests in Digital Assets or APCNA Property, may result in SUBSCRIBER’s immediate suspension of SUBSCRIBER’s use of the Digital Assets. The authorizations herein do not diminish, in any manner, APCNA’s rights, title and interests in Digital Assets and APCNA Property; and SUBSCRIBER’s access and/or use of Digital Assets or APCNA Property is limited to the scope of the authorizations described herein. SUBSCRIBER is not permitted to remove, alter or modify any confidential and/or proprietary notice that appears on Digital Assets or APCNA Property. No other licenses, grants or authorizations under any patent, trademark, copyright, trade secret or other intellectual property, either common law or statutory, is either granted or implied to SUBSCRIBER by the download, access or use of Digital Assets or APCNA Property. In the event SUBSCRIBER becomes aware of any infringing, misuse or unauthorized use of Digital Assets by a third party so as to appear to violate APCNA’s proprietary interests and rights, SUBSCRIBER shall promptly notify APCNA of such violation, or if SUBSCRIBER is threatened with or is presented with a claim of infringement by a third party based on the Digital Assets, SUBSCRIBER shall promptly notify APCNA and cooperate with APCNA in addressing the foregoing.
c) SUBSCRIBER shall consider certain of Digital Assets and APCNA Property, including all related technical and business information, whether disclosed in oral, visual or written form, to be confidential and proprietary to APCNA. The SUBSCRIBER shall exercise at least a reasonable standard of care to protect the confidentiality of the information, and to prevent the unauthorized use, dissemination, disclosure or publication of confidential information during the Term of Access. The SUBSCRIBER may disclose such confidential and proprietary information to those of its employees, sub-contractors or consultants, who have a definable need to know and who are under similar obligations of confidentiality and use as provided herein. The term of confidentiality shall extend for two (2) years beyond the expiration and/or termination date of this Agreement; however, it is understood that this Agreement shall impose no obligations of confidentiality on the SUBSCRIBER where such information: (a) was rightfully in the SUBSCRIBER’s possession before receipt from APCNA; (b) is or becomes a matter of public knowledge through no fault of the SUBSCRIBER; (c) is rightfully received by the SUBSCRIBER from a third party without a duty of confidentiality; (d) is disclosed by APCNA to a third party without a duty of confidentiality on the third party; (e) is disclosed under operation of law; provided that SUBSCRIBER timely notifies APCNA and APCNA is given the opportunity to protest such disclosure; or (f) is disclosed with APCNA’s prior written approval.
6. DIGITAL ASSETS AVAILABILITY. During the Term of Access, Digital Assets will be made available under the terms and conditions recited herein. SUBSCRIBER acknowledges that APCNA with ten (10) days prior notice may discontinue, without any liability, at its discretion and without cause, SUBSCRIBER Access to Digital Assets. Further, at any time during the Term of Access and with thirty (30) days notice to the SUBSCRIBER, APCNA can make any changes, enhancements, alterations or improvements, at its discretion, to the Digital Assets or Access, which APCNA deems necessary. SUBSCRIBER must accept any changes, enhancements, alterations or improvements in order to maintain Access for the current Term of Access if the SUBSCRIBER refuses to accept the foregoing.
7. COMMERCIAL PRACTICES FOR DIGITAL ASSETS. During the Term, SUBSCRIBER shall engage in business, commercial or marketing practices and activities in connection with the Digital Assets that: a) avoid deceptive, misleading, or unethical practices that may be detrimental to APCNA or its services or products; b) do not make any representations, warranties or guarantees to any third party or entity on behalf of APCNA concerning its services or products; c) cause APCNA to assume any costs, expenses, liabilities and responsibilities for SUBSCRIBER’s customers and customer-relations; d) use reasonable efforts to promote and sell the APCNA services and products in a manner consistent with good business practices and to comply with all authorizations granted hereunder; and e) comply with all applicable, in existence as of the Effective Date and which come into the existence during the Term of Access, federal, state and local city and county laws, rules, ordinances, standards, guidelines and regulations, and using all reasonable measures to cooperate with APCNA should non-compliance, whether actual or perceived, arise.
8. INDEMNITY/WARRANTIES/DISCLAIMERS/LIMITATION OF LIABILITY. SUBSCRIBER shall indemnify and hold APCNA harmless from and against all claims, costs, liabilities, damages, and judgments (including reasonable attorney’s fees and court costs) that APCNA may suffer or incur arising out of third- party claims due to the: (i) SUBSCRIBER’s unauthorized use, misuse or mis-appropriation of Digital Assets in connection with any SUBSCRIBER business or commercial activity; (ii) SUBSCRIBER’s breach of the authorizations or obligations recited herein; or iii) SUBSCRIBER’s business or commercial arrangements with any third party or customer in connection with Digital Assets. Further, in the event SUBSCRIBER exceeds any authorizations herein, mis-uses, mis-appropriates or infringes any Digital Assets or APCNA Property, APCNA shall be entitled to pursue any and all available equitable or legal relief. b) DOWNLOAD, ACCESS, AND/OR USE OF DIGITAL ASSETS ARE PROVIDED “AS IS,” AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, USABILITY OR RELIABILITY OF ANY INFORMATION, OR NON-INFRINGEMENT. c) EXCEPT WHERE OTHERWISE RECITED, APCNA’S ENTIRE LIABILITY FOR ANY CLAIM BY SUBSCRIBER FOR ANY KIND OF LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT, OR ANY BREACH HEREOF BY APCNA, OR FROM THE ACCESS OR USE OF DIGITAL ASSETS SHALL BE LIMITED TO ACTUAL AND PROVABLE DAMAGES UP TO ONE HUNDRED DOLLARS ($100.00); AND IN NO EVENT, SHALL APCNA’S ENTIRE LIABILITY EXCEED THE ONE HUNDRED DOLLARS ($100.00), AND NO OTHER DAMAGES ARE AVAILABLE. EXCEPT WHERE OTHERWISE RECITED AND WITH RESPECT TO DIGITAL ASSETS OR APCNA PROPERTY, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF THIS AGREEMENT, BREACH OF WARRANTY OR ANY ACT OF NEGLIGENCE OR THE POSSESSION, USE, ACCESS OR DOWNLOAD OF THE DIGITAL ASSETS, OR THE SUBJECT MATTER HEREIN OR ANY OTHER CLAIMS MADE IN CONNECTION WITH THIS AGREEMENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ASSOCIATED WITH OR ARISING FROM LOSS OF PROFIT OR REVENUES. SOME STATES DO NOT ALLOW SUCH LIMITATION, AND IN THAT EVENT THIS SECTION SHALL BE MODIFIED TO COMPORT WITH THAT PARTICULAR STATE’S REGULATORY STATUTE.
9. TERMINATION. Either party may, at any time and without cause, terminate this Agreement with thirty (30) days written notice. However, if SUBSCRIBER breaches this Agreement, SUBSCRIBER shall correct such breach within five (5) days after written notice from APCNA; and if no cure occurs, APCNA, at its option, may terminate this Agreement. Upon any termination or expiration of this Agreement: i) all rights granted to SUBSCRIBER hereunder, shall immediately terminate; ii) SUBSCRIBER shall immediately, at the option of APCNA, delete, with written confirmation, or return, any Digital Assets and APCNA Property in the SUBSCRIBER’s possession or control to APCNA; and (iii) SUBSCRIBER’s Access will immediately cease.
10. OTHER. a) The parties hereto are independent contractors with respect to each other. Each party is not and shall not be deemed to be an employee, agent, partner or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other. b) This Agreement constitutes the entire and complete agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written understandings or agreements concerning the subject matter hereof. Sections 5, 7, 8, 9 and 10 shall survive termination of this Agreement. c) All amendments or modifications of this Agreement shall be binding upon the parties so long as the same shall be in writing and executed by each of the parties hereto. d) SUBSCRIBER shall comply with all applicable Internet laws and regulation. e) SUBSCRIBER shall not, without the prior written consent of APCNA, assign or delegate this Agreement, or any rights or duties hereunder, directly, indirectly, by operation of law, or otherwise to any third party. In the event of any permitted assignment hereunder, the assignee shall accept, without modification, in its entirety all the terms and obligations recited herein. f) Neither party shall be deemed to have breached this Agreement by reason of delay or failure in performance or force majeure resulting from causes beyond the reasonable control, and without the fault or negligence, of the party. g) This Agreement shall be governed by the laws of the State of Colorado; and if a claim or controversy arises, such claim or controversy shall be submitted to the competent courts of Denver, Colorado. With regard to any claims hereunder for damages, the prevailing party shall also be entitled to reasonable attorney’s fees and arbitration costs. All limitations of liability as recited herein shall apply.