Terms & Conditions
Last updated 11/14/2019
FLOWHUB MASTER SERVICE AGREEMENT
This Master Service Agreement (“Agreement”) will apply to the sale of Services from Flowhub Holdings, Inc. (“Flowhub”) to its customer (“Customer”), unless Flowhub and Customer enter into or have entered into another agreement regarding the Services contemplated herein, and such agreement is in effect as of the Effective Date (“Existing Agreement”), in which case the terms and conditions of the Existing Agreement will govern the sale of those Flowhub Services. Absent an Existing Agreement, this Agreement is effective as of the date an Order Form or Purchase Order is executed (“Effective Date”).
1.1 Order Forms. During the Term, and subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees, Flowhub will provide to Customer the Services identified in one or more Order Forms executed by both parties (each, an “Order Form”). All Order Forms are incorporated into and made part of this Agreement. To the extent of any conflict between this Agreement and an Order Form, this Agreement will control, except to the extent the Order Form expressly identifies a provision of this Agreement to be superseded.
1.2 License. Subject to the terms of this Agreement, including Customer’s payment of all applicable Fees and all applicable limits specified in each Order Form, during the Term of this Agreement Flowhub grants to Customer a non-exclusive, non-transferable, non-sublicensable right to: (a) access and use the Platform as specified in the applicable Order Form; and (b) install and use the App solely to operate, and as installed on, those Nugs specified in the applicable Order Form. All access to and use of the Services will be solely by Customer for Customer’s own internal business purposes and at all times in accordance with this Agreement and any applicable separate agreement or documentation accompanying the Services or provided by Flowhub.
1.3 Restrictions. In addition to the other restrictions in this Agreement, Customer will not and will not permit any third party to: (a) modify, make derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Services; (b) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber the Services or any portion thereof; (c) use, evaluate or view the Services for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Services; (d) utilize the Services in any way that could damage, disable, overburden, impair or compromise Flowhub’s systems or security or interfere with other users; or (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Services.
1.4 NUGs. Flowhub will deliver any Nugs within a reasonable time after execution of the applicable Order Form to the location specified in the Order Form. Title to the Nugs will remain with Flowhub and Customer acquires no right, title, or interest in the Nugs. Customer will pay a monthly recurring Fee, at the rate specified in the Order Form, to possess and use the Nugs during the Term. Customer will, at its expense, keep and maintain the Nugs in a good state of repair, normal wear and tear excepted, and will use the Nugs only for their intended purpose and in accordance with Flowhub’s instructions. Customer will bear all risk of loss, damage, destruction, and theft of or to the Nugs from any cause whatsoever (“Loss”) until the Nugs have been returned to Flowhub and will notify Flowhub in writing within ten (10) days of any Loss. To secure its obligations under this Section, Customer will pay a security deposit, at the rate specified in the Order Form, which Flowhub may use, in whole or in part, as reimbursement for any Loss. Customer shall not remove the Nugs from the address specified on the Order Form without Flowhub’s prior written approval. Customer shall allow Flowhub to enter Customer’s premises at all reasonable times to locate and inspect the state and condition of the Nugs.
1.5 Support. Flowhub will provide the support services described in Exhibit A. Any updates, upgrades, new versions, or new releases of or to the Services provided by Flowhub will be treated as part of the “Services” for purposes of this Agreement.
1.6 Use of the Services. Customer may grant access and authority in relation to the Services to employees or contractors of Customer’s organization (“Users”), provided that Customer will remain responsible and liable for all actions or omissions of its Users in connection with the Services. Customer may purchase implementation, configuration, and support Services from Flowhub but, notwithstanding any such Services, Customer will be solely responsible for: (a) configuring or determining how the Services will be configured for Customer’s use, including but not limited to product labeling, automatic patient verification, patient management, inventory management, staff management, delivery management, point of sale, online ordering, and Tax withholding calculations, in compliance with Applicable Law; (b) providing for and maintaining any systems, software, hardware, web browser and internet service necessary to access and use the Services; and (c) ensuring Customer’s employees, contractors, and any other person interacting with the Services is legally able to do so in Customer’s jurisdiction. Flowhub may provide Customer professional, advisory, or support Services regarding the foregoing, but any such Services will not constitute legal advice and Customer’s use of the Services will not create an attorney client relationship between Customer and Flowhub. Flowhub makes no representation, warranty, or covenant that the content available on or through the Services is appropriate in every or any jurisdiction and recommends that Customer consult with independent counsel regarding Customer’s use and configuration of the Services in compliance with Applicable Laws.
2. Fees and Payment
2.1 Customer will pay Flowhub the amounts set forth in each Order Form under this Agreement (“Fees”). All Fees will be invoiced as indicated in the applicable Order Form. If the applicable Order Form does not specify payment terms for the Fees, Customer will pay all Fees on the date of invoice. Unless otherwise indicated in the applicable Order Form, all Fees will be paid monthly in advance, on the first day of each calendar month during the Term (with the first month’s Fees prorated, if necessary, due on the Effective Date) without any set-off, offset, or deduction whatsoever, in immediately available U.S. dollars. If Customer has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer grants Flowhub the right to charge the credit card or debit the bank account provided to Flowhub for all Fees incurred under this Agreement. Except as otherwise set forth herein, all Fees will be non-refundable once paid to Flowhub (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Flowhub may change any portion of the Fees upon any renewal of this Agreement. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Tax”). Customer shall pay all Tax associated with its purchases hereunder, excluding taxes on Flowhub’s net income.
3. Intellectual Property
3.1 Ownership. The Services and all components thereof are licensed and not sold. Flowhub and its licensors exclusively own all rights, title, and interest in and to the Services and all additions and modifications to the Services, including all intellectual property rights therein. Except as expressly granted in this Agreement, Flowhub grants no rights or licenses to Customer (whether by implication, estoppel, or otherwise) in or to the Services or any intellectual property rights therein or relating thereto. Any rights not expressly granted to Customer hereunder are reserved by Flowhub.
3.2 Customer Data. “Customer Data” means all data, information, and other content imported to the Services or otherwise provided to Flowhub or its contractors by or for Customer in connection with Customer’s use of the Services. Customer exclusively owns and retains all rights, title and interest in and to the Customer Data, except for pre-existing Services components contained in such Customer Data (e.g., product categories). Customer hereby grants to Flowhub and its authorized representatives and contractors a non-exclusive and non-transferable right and license to use, process, store, and transmit, and disclose Customer Data solely to provide the Services to Customer and fulfill other obligations described in this Agreement. Customer further authorizes Flowhub to anonymize Customer Data and to aggregate Customer Data with similar data from other Flowhub customers in a manner that does not identify Customer or include any Personal Data, to further develop and provide services for Flowhub customers.
3.3 Third-Party Services. The Services may provide Customer the ability to access data, services, and/or software developed, provided, or maintained by Customer or third-party service providers (collectively, “Third-Party Services”). Flowhub is not responsible for any Third-Party Services, including the connection thereto or the data exchanged with or collected by such Third-Party Services. Customer acknowledges that the access or use of any such Third-Party Services is solely at its own risk and hereby waives any and all claims against Flowhub with respect to such Third-Party Services.
3.4 Customer Name and Logo Use. During the Term, Flowhub may use Customer’s name and logo in Flowhub’s standard marketing materials and customer lists.
4. Term and Termination
4.1 Term. This Agreement will commence on the date the Effective Date and, unless earlier terminated in accordance with Section 4.2, remain in effect so long as any Order Form remains in effect (collectively, the “Term”).
4.2 Termination. Either party may terminate an Order Form upon written notice if the other party is in material breach of this Agreement or an Order Form and such breach remains uncured for thirty (30) days following the breaching party’s receipt of written notice of such breach. Flowhub may terminate this Agreement on thirty (30) days prior written notice to Customer. Flowhub further reserves the right to immediately suspend Customer’s access to the Services if any outstanding amounts are 45 days overdue, where it believes that Customer’s use of the Services may be in violation of this Agreement or Applicable Law, present a security risk, or otherwise place Flowhub at risk of harm, loss, or liability. Flowhub may immediately terminate this Agreement if Customer: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency Law; (d) makes or seeks to make a general assignment for the benefit of its creditors; (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property; or (f) breaches its representations and warranties under Section 6.2.
4.3 Effect of Termination. Upon any termination or expiration of this Agreement (a) Customer will pay immediately for the remaining value of the unfulfilled term; (b) all rights and licenses granted to Customer hereunder will immediately terminate; and (c) Customer will immediately, at Customer’s risk and expense, (i) cease all use of the Services; (ii) at the option of Flowhub, return to Flowhub or destroy, all Services and Confidential Information; and (iii) return all Nugs to Flowhub’s principle place of business. At Flowhub’s request, an officer of Customer will certify in writing to Customer's compliance with the terms of this Section. The relevant portions of Sections 1.3, 2, 3, 4.3, and 5 through 10 will survive termination or expiration of this Agreement.
5.1 Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (a) designated as confidential; (b) of a nature such that a reasonable person would recognize it as confidential; or (c) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (i) information that is publicly available through no fault of the party that was obligated to keep it confidential; (ii) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (iii) information that was independently developed by a party; and (iv) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (x) solely to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (y) to its affiliates in connection with its corporate and financial reporting requirements. Each Recipient will return to Discloser, or destroy (if requested), all of Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon Discloser’s written request or the expiration or termination of this Agreement. If Customer provides any feedback, comments, or ideas to Flowhub regarding the Services or improvements thereto, Customer agrees that Flowhub will be free to use, disclose, and exercise any rights in the same in connection with its products and services.
6. Warranties and Disclaimer
6.1 Mutual Warranties. Each party represents, warrants, and covenants that: (a) it has and will have the legal right and authority to enter into this Agreement and grant the rights provided herein; (b) this Agreement will be enforceable against it; and (c) the entry into and performance of this Agreement by it do not contravene other agreements, Applicable Law, or orders to which it is subject.
6.2 Customer Warranties. Customer represents, warrants, and covenants that: (a) it is and will remain in full compliance with all Applicable Laws, including obtaining and maintaining all licenses, permits, authorizations, and approvals required to conduct a cannabis business in its jurisdiction; (b) it is not, has not, and will not (i) distribute cannabis to minors; (ii) allow its revenue to pass to criminal enterprises, gangs, or cartels; (iii) allow its cannabis to be diverted to states where cannabis is illegal; (iv) use its business as a cover or pretext for trafficking other illegal drugs or other illegal activity; (v) use firearms or violence in its cultivation and/or distribution of cannabis; (vi) allow its customers to drive under the influence after leaving its stores; (vii) grow its cannabis on public lands; or (viii) sell or allow possession of cannabis on federal property.
6.3 CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED BY FLOWHUB AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND. FLOWHUB EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS OR IMPLIED, REGARDING THIS AGREEMENT AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FLOWHUB DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, SECURE, COMPLETE, ERROR-FREE, OR FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
7.1 By Customer. Customer will indemnify, hold harmless, and defend Flowhub (and its officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) incurred in connection with or as a result of (a) Customer’s use of or access to the Services, including, without limitation, any data, information, content, or results generated through the Services; (b) Customer’s actual or alleged breach of any provision of this Agreement; (c) Customer’s actual or alleged violation of Law; and (d) any damage to property or injury to or death of any person directly or indirectly caused by Customer.
7.2 By Flowhub. Flowhub will indemnify, hold harmless, and defend Customer (and its officers, directors, and employees) from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third-party claim against Customer alleging that the Services infringe or misappropriate the intellectual property rights of such third party. If Customer is, or Flowhub reasonably believes that Customer will become, subject to any such third party claim, Flowhub will at its option and expense: (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services to no longer infringe; or, if (a) and (b) are not commercially reasonable, (c) terminate this Agreement. Flowhub’s obligations under this Section will not extend to any claim based on or arising from any: (i) other software, hardware, systems, network, or technology not provided by Flowhub as part of the Services; (ii) modifications or changes to the Services by or on behalf of Customer, whether or not in violation of this Agreement; (iii) use, installation, integration, incorporation, or combination of the Services, or any component thereof, with or into any other software, hardware, system, network, or technology; (iv) Customer Data; or (v) access to or use of the Services other than as permitted by this Agreement.
7.3 Procedure. Each party’s indemnification obligations above are subject in each instance to the indemnified party (a) promptly giving notice of the claim or liability to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnified party will have the right to approve any material liability imposed on and borne by the indemnified party in connection with such settlement); and (c) providing to the indemnifying party all available information and reasonable assistance.
8. Limitation of Liability
8.1 EXCEPT FOR A PARTY'S BREACH OF SECTIONS 5 OR 6 AND EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON THE BASIS OF WHICH ANY CLAIM FOR DAMAGES IS BROUGHT, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT OR STATUTE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PARTY'S BREACH OF SECTIONS 5 OR 6, AND EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, AND CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 2, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER UNDER OR IN RESPECT OF THIS AGREEMENT EXCEED THE EQUIVALENT OF TWELVE (12) MONTHS OF FEES PAID OR PAYABLE FOR SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE LIABILITY.
9. Binding Arbitration
9.1 The parties will attempt to settle all claims, allegations, controversies, and disputes related in any way to this Agreement (“Disputes”) through good faith discussions between the parties. Any and all Disputes that cannot be resolved between the parties shall be resolved through binding arbitration under this Section. Either party may refer the Dispute to arbitration. Any such arbitration will be conducted in accordance with the rules of the American Arbitration Association (the “AAA Rules”), in Denver, Colorado, and presided over by a single arbitrator selected by the parties in accordance with AAA Rules. All arbitrator candidates must be neutral as to each party and have substantial experience in the software and cannabis industries. Each party will bear its own expenses and will share equally in fees of the arbitrator. The parties will provide each other with all requested documents and records related to the dispute in a manner that will minimize the expense and inconvenience of both parties. Discovery will not include depositions or interrogatories, except as the arbitrator may expressly allow upon a showing of need. The parties and the arbitrator will be guided in resolving discovery disputes by the Colorado Rules of Civil Procedure. If disputes arise concerning discovery requests, the arbitrator will have sole and complete discretion to resolve such disputes. The parties agree that time of the essence principles will guide the hearing and that the arbitrator will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator will deliver a written opinion setting forth findings of fact and the rationale for the award within 30 days following conclusion of the hearing. The award of the arbitrator, which may include legal and equitable relief, but which may not include punitive damages, will be final and binding upon the parties, and judgment may be entered upon it in accordance with applicable Law in any court of competent jurisdiction. In addition the arbitrator will have the discretion to award the prevailing party all or part of its attorneys’ fees and costs, including fees associated with arbitrator, if the arbitrator determines that the positions taken by the other party on material issues of the dispute were without substantial foundation. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. This Agreement will control if there is a conflict between the terms of this Agreement and the AAA Rules.
10. General Provisions
10.1 Definitions. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
(a) “App” means Flowhub’s mobile software application, installed on each Nug.
(b) “Applicable Law” means all Laws except Title 21 United States Code §§ 801 et seq. and any other federal Law pertaining to cannabis, solely to the extent that such federal Laws conflict with state or local cannabis Laws.
(c) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, including all Tax Laws.
(d) “NUG” means a mobile device, with an installed copy of the App, ordered by Customer for use with the Services.
(e) “Personal Data” means information that can be used to uniquely identify, contact or locate a natural person, including but not limited to name, address, email address, or phone number.
(f) “Platform” means Flowhub’s hosted software platform with point of sale, inventory management, and grow management functionality.
(g) “Services” means those products, subscriptions, licenses, services, and other offerings ordered by Customer under this Agreement, including, where applicable, the Platform, the App, and Nugs, and all user documentation, information, and materials associated therewith.
10.2 Assignment. Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, however, Flowhub may assign this Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger or other transaction without the Customer’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement.
10.3 Notice. To be effective, any notice required to be given under this Agreement will be given in writing, addressed to the applicable party (at the address in the Order Form) and hand delivered, which is effective upon delivery; sent by reputable overnight courier, which is effective on the business day following deposit with such courier; or sent by the United States mail, first class postage prepaid, which is effective on the third business day after deposit in the United States mail.
10.4 Governing Law. This Agreement will be governed by the laws of the State of Colorado, without regard to conflicts of law principles thereof.
10.5 Third-Party Beneficiaries. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party.
10.6 Entire Agreement. This Agreement (together with any Order Forms) constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in a writing duly executed by authorized representatives of both parties. Electronic signatures will have the same weight and effect as original signatures.
10.7 Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
10.9 Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement.
After going live, Flowhub’s product support team will be your resource for any and all technical inquiries. They can be reached at flowhub.desk.com or by calling 844-FLOWHUB. They are available to answer inquiries 7 days a week from 8 a.m. to 8 p.m. MST. Flowhub will endeavor to answer email inquiries within 24 hours and substantively respond to calls within 3 hours. We have a constant goal of a 95% call answer rate and all voicemails with content generate a case to be followed-up with by our support team.