Customer Terms of Service

This Software Service and License Agreement (this “Agreement”) is entered into as of the Effective Date set forth in the Order Form, by and between you as the “Customer” of the offered Services (as defined hereinafter) contemplated by the terms contained herein and Mosaic Software LLC (“Mosaic” or the “Company”) with its principal place of business at 21 Georgetown Road, Boxford, Massachusetts 01921 (individually the “Party” or together, the “Parties”). These Customer Terms of Service (“Customer Terms”) apply to your access to and use of the software listed in the Order Form (the “Software”) in your capacity as a customer. By clicking “I Accept” or by accessing or using the Software, you agree to be bound by these Customer Terms and all other terms, policies, and guidelines applicable to Mosaic’s Services (as defined hereinafter).

WHEREAS, Mosaic is a software company providing solutions to brands and dispensaries in the legalized marijuana, CBD, & Hemp industries providing e-commerce, app and loyalty rewards solutions (the “Services”);

WHEREAS, Customer is a wholesaler, dispensary and/or retailer providing services to customers/patients in its home state(s);

WHEREAS, Customer desires to use Mosaic Software for use in its customer commerce interactions;

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. LICENSE & SERVICES.

1.1. License.

Subject to Customer’s strict compliance with all terms and conditions set forth in this Agreement, including but not limited to timely payment as set out in this Agreement, Mosaic grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, right to use the Software geographically limited to the United States of America and Canada and the location specified herein, for internal business purposes, solely as set forth in this Section. This license grants Customer the right to:
(a) make available the Software for use with an unlimited number of users during the Term (as defined hereinafter) of this Agreement; or
(b) access and use the Software as hosted on Mosaic’s cloud servers, currently hosted on Amazon AWS, an open, flexible, enterprise-grade cloud computing platform, or a functional equivalent as Mosaic may decide in its sole discretion, using user credentials as provided by Mosaic. Customer will not receive access to or any rights to the source code or object code of the Software.

1.2. License granted.

The Software is licensed to Customer for an unlimited number of users at the number of locations specified in the Order Form, and for the limited purpose of utilizing the Software, as specified herein.  Any use by Customer not covered under the terms of this Agreement is strictly prohibited and shall invalidate the limited warranty and any obligation of Mosaic hereunder.

1.3. Custom Service & Development.

Mosaic will provide custom software development and modifications to the Software (“Development”)  for Customer’s operations to adapt it to Customer’s needs subject to the Parties’ written agreement signed by both Parties (“Service Order”), which will include the scope of the Development to be performed as well as pricing. The Parties agree that all Service Orders will be subject to and automatically incorporated in this Agreement, and any Software will be subject to the License as set out herein.

2. USE RESTRICTIONS.

Customer shall not directly or indirectly:

(a) use the Software or related documentation outside of the scope agreed to in this Agreement, Order Form or a Service Order;
(b) use, including making Software and related documentation beyond the scope of the license granted under Section 1;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or related documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, unbundle, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software or related documentation, including any copy thereof;
(g) except as expressly set forth in Section 1 copy the Software or related documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
(i) use the Software in violation of any state or local law, regulation, or rule; or
(j) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Mosaic’s commercial disadvantage.

3. CUSTOMIZATIONS AND CUSTOMER MATERIALS.

Mosaic may, in its sole discretion, customize, modify, and adapt the Software during the Term of the Agreement. Such customizations, modifications or adaptations may be based on Customer’s comments, feedback, or any content Customer provides to Mosaic during the Term of this Agreement, whether resulting from or relating to Customer’s use of the Software or otherwise.
If Mosaic in its sole discretion decides to use any of Customer’s comments, feedback, or any content Customer provides to Mosaic, Customer hereby grants to Mosaic a fully paid-up, perpetual and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of Customer materials, including documents, data, specifications, content solely to develop the Software and otherwise as necessary to improve the Software for the benefit of Customer and for Mosaic’s general development and commercialization of the Software.

4. RESPONSIBILITY FOR USE OF SOFTWARE & CUSTOMER DATA.

4.1 Responsibility for Use of Software.

Customer is responsible and liable for all uses of the Software including direct or indirect access to the Software provided or facilitated by the Customer. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software by the Customer or by any other person to whom Customer may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.  Customer will only use the Software in accordance with the instructions and directions of Mosaic.

4.2 Customer Data.

Customer Data means information, data, Customer-contributed content, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or Customer’s customers, by or through the Mosaic Software (“Customer Data”).  For the avoidance of doubt, Customer Data does not include data or any other information resulting from the Customer’s use and/or the Customer’s customers use of the Software or Mosaic Services that is used by Mosaic in an aggregate and anonymized manner, including, but not limited to, compiling performance and statistical information related to the provision and operation of the Software or Mosaic Services (the “Managed Data”).  Customer acknowledges that Mosaic shall retain all intellectual property rights and full ownership of any Managed Data.

5. FEES AND PAYMENT.

5.1. Fees and Expenses.

Customer agrees to compensate Mosaic for the Software and Services as set forth on the Order Form and to compensate the Company for all Service Orders as set forth in such Service Order(s) (collectively, the “Fees”).

5.2. Payment.

Mosaic will regularly invoice Customer for all Fees by auto-payment via ACH, E-Check, credit card, or any mutually agreed method required as set forth on Schedule A.  Mosaic will regularly invoice Customer for all Fees set forth on the Order Form regardless of receiving a Mosaic invoice if Customer has not formally canceled Services.  A 3% charge will be levied on any use of credit cards.  All billing and payments will be in US dollars only.  A late fee of $75 will be assessed for any invoice more than fourteen (14) days past due; and $250 for any invoice more than thirty (30) days overdue.  If any Fees are not paid within seven (7) days of Customer’s receipt of an invoice due date, Mosaic has the right to terminate the Services upon written notice to Customer.  Such termination may include a termination of access to the Software; provided however, that if Customer pays any outstanding invoice in full within sixty (60) days from the termination of Services, Mosaic will provide Customer access to the Software within seven (7) days from its receipt of payment in full with a reinstatement fee of $1,000.  Customer is solely responsible for any damages it may incur resulting from an interruption of the Services based on non-payment of an invoice.  Fees are not subject to setoff for any reason, and all payments are non-refundable unless otherwise explicitly stated within the Order Form.

6. TERM AND TERMINATION.

6.1. Term.

The term of this Agreement will commence on the Effective Date and will continue for a term of one (1) year (the “Initial Term”).  Unless terminated by Customer or Mosaic, the term of this Agreement will renew automatically for successive thirty (30) day periods (together with the Initial Term, the “Term”).  Any additional term thereafter requires a written agreement executed by both Parties.

6.2. Termination.

Either Party may terminate this Agreement for any reason by giving thirty (30) days’ written notice. Termination by Customer must be sent to billing@mosaic.green. Customer’s obligation to pay Fees actually incurred for Services and Development provided shall survive termination of this Agreement. Mosaic will inform Customer of termination in writing with the aforementioned thirty (30) days’ notice period.  Any portion of a paid billing period is non-refundable to Customer, i.e., there are no pro-rata refunds.  If this Agreement is terminated, each Party’s obligations under Sections 2, 4, 6, 7, 8, 9 and 10 herein will survive the termination of this Agreement.

7. OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS.

Customer acknowledges and agrees that the Software and any related documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software or related documentation under this Agreement, or any other rights thereto other than to use the Software or related documentation in accordance with the license granted, and subject to all terms, conditions, and restrictions of this Agreement. Mosaic reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to the Customer in this Agreement. Customer shall take commercially reasonable steps to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. Customer shall promptly notify Mosaic if Customer becomes aware of any infringement of Mosaic’s intellectual property rights in the Software and fully cooperate with Mosaic in any legal action taken by Mosaic to enforce its intellectual property rights. For purposes of this section, intellectual property rights means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

8. CONFIDENTIALITY.

During the course of this Agreement, either Party may have access to or receive confidential, proprietary or trade secret information from the other Party including, without limitation, ideas, trade secrets, procedures, methods, systems, research, business plans, customers, data, finances, and concepts, and any information relating to the Software, and the underlying software, hardware, and other technology used by Mosaic in operation of the Software, as well as information entered by Customer during its use of the Software, whether disclosed orally or in writing or by any other media (“Confidential Information”). Both Parties acknowledge that Confidential Information contains valuable trade secrets and other proprietary information of the other Party, and that any such Confidential Information will remain the sole and exclusive property of the Party disclosing the Confidential Information.  The receiving Party will use the Confidential Information provided hereunder only for purposes directly related to the purpose for which it was provided and will further restrict disclosure of Confidential Information solely to its employees, affiliates, and permitted customers on a “need to know” basis.  The receiving Party will ensure that all users of the Software will be bound by this confidentiality provision, or a substantially similar provision protecting Confidential Information.  The receiving Party is responsible for the unauthorized disclosure of Confidential Information by its employees, affiliates, and permitted customers for the time provided herein. The receiving Party shall not disclose such Confidential Information to any other party without the prior written consent of the disclosing Party and shall otherwise protect the Confidential Information with no less restrictive measures than it uses to protect its own confidential and proprietary information of a similar nature.  Information will not be deemed “Confidential Information” if such information: (a) was in the public domain at the time it was communicated to the receiving Party or subsequently enters the public domain through no fault of the receiving Party; (b) was in the receiving Party’s possession free of any obligation of confidence at the time it was communicated to the receiving Party; or (c) was developed by the receiving Party independent of any Confidential Information.  Upon the disclosing Party’s request, or upon termination of this Agreement, the receiving Party shall either destroy or return to the disclosing Party all Confidential Information.  The confidentiality obligations under this paragraph shall survive for two (2) years after the return of the Confidential Information, provided that in the event of any trade secret, such confidentiality obligations shall survive for as long as such trade secrets are protected by applicable law.

9. REPRESENTATIONS AND WARRANTIES.

9.1. Mosaic’s Representations and Warranties.

Customer acknowledges that Mosaic Software is hosted on Amazon AWS cloud servers or other comparable servers, at Mosaic’s sole discretion.  Customer acknowledges that Mosaic is responsible for keeping its subscriptions to the cloud provider up to date.  Operation and system availability of Amazon AWS’s servers is outside of Mosaic’s control, and subject to Amazon AWS’s terms of use.  Customer hereby explicitly acknowledges and accepts these terms and the use of Amazon AWS.
Mosaic warrants to Customer that the Software and professional services provided hereunder shall be performed by skilled and qualified personnel, in a professional manner in accordance with the standards of the computer services industry.  Mosaic shall give Customer notice of any scheduled system downtime and agrees not to perform scheduled system downtime during regular business hours.  Mosaic will regularly back up Software data, including any Customer Data input into the Software.  Customer agrees that in the event of any loss or damage to Customer Data Mosaic will, to the best of its abilities, restore the most recent version of any lost or damaged data to the extent technically possible.  Mosaic may use any available Customer backups, to the extent available. Customer understands that in the event of a Software or system failure, Customer Data may not be fully recoverable.
MOSAIC MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE LEGALITY OF CUSTOMER’S BUSINESS AND ITS USE OF THE SOFTWARE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 9.1, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.  MOSAIC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  MOSAIC DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE PROVIDED ERROR FREE, SECURE, VIRUS FREE, OR WITHOUT INTERRUPTION. MOSAIC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

9.2. Customer Representations and Warranties.

Customer represents and warrants to Mosaic that Customer and its users will not (i) knowingly engage in any unethical, illegal, deceptive or misleading practices in connection with the use of the Software; or (ii) provide, or knowingly allow its users to provide, content or other material to be displayed or otherwise transmitted in connection with or through the Software which: (a) is defamatory, libelous, obscene, or pornographic; and (b) contains any viruses, worms, or other computer programming routines that are intended to damage, or interfere with the Software. Customer will take commercially reasonable steps to ensure its users comply with this Section 9.2.

10. INDEMNIFICATION, LIMITATION OF LIABILITY.

10.1. Company Indemnity.

Mosaic agrees, at its sole expense, to indemnify, defend and hold harmless Customer and its members, partners, owners, officers, directors and employees (collectively, “Customer Indemnified Parties”), from and against, and reimburse the same for, any and all actions, suits, proceedings, judgments, settlements, losses, claims, damages, costs or liabilities, including, without limitation, reasonable attorneys’ fees and costs of suit (collectively, “Claims”) which Customer Indemnified Parties may incur or for which they may become liable at any time arising out of or incurred as a result of a material violation of any third party’s intellectual property rights.

10.2. Customer Indemnity.

Customer agrees, at its sole expense, to indemnify, defend and hold harmless Mosaic and its officers, directors, agents, and employees (collectively, the “Customer Indemnified Parties”), from and against, and reimburse the same for, any and all Claims which the Company Indemnified Parties may incur or for which they may become liable at any time arising out of or incurred as a result of (i) breach of any Customer Representations or Warranties; (ii) the acts or omissions of Customer Indemnified Parties; and/or (iii) Customer’s breach of this Agreement.  Customer shall further defend, hold harmless and indemnify the Company Indemnified Parties from and against, and reimburse the same for, any third-party Claims alleging that Customer’s participation in this Agreement violates an existing contract between Customer and the third-party claimant.  This provision is not subject to Section 10.3; if there is any conflict between this provision and any other provision in this Agreement, this provision shall govern.

10.3. LIMITATION OF LIABILITY.

EXCEPT AS OTHERWISE SET FORTH HEREIN, NO PARTY HERETO OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, OR PERSONNEL SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHER LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, REGARDLESS OF THE BASIS OR TYPE OF CLAIM, AND WHETHER SUCH DAMAGES WERE BASED ON BREACH OF CONTRACT, TORT, OR OTHERWISE, AND WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER ANY PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOSAIC AND ITS RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, OR PERSONNEL SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, RESULTING FROM (i) ACCESSING TO OR USE OF OR INABILITY TO ACCESS OR USE THE SOFTWARE; OR (ii) FOR THE USE OF THE SOFTWARE IN VIOLATION, KNOWINGLY OR UNKNOWINGLY, OF ANY STATE OR LOCAL LAW, REGULATIONS OR RULES.  EXCEPT IN CONNECTION WITH EACH PARTY’S INDEMNIFICATION OBLIGATIONS, THE CUMULATIVE LIABILITY OF A PARTY TO THE OTHER PARTY FOR ALL CLAIMS, SUITS, CONTROVERSIES, BREACHES OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY RELATING TO SUCH EVENTS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO MOSAIC FOR THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE CLAIM.  THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

11. Export Regulation.

The Software and its related documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Customer shall not, directly or indirectly, export, re-export or release the Software or related documentation to, or make the Software or related documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Customer shall comply with all applicable local laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or related documentation available outside the US.

12. GENERAL.

12.1. No Assignment or Delegation.

Customer may not delegate, assign, subcontract or transfer any of its rights or obligations under this Agreement to any third party, by operation of law or otherwise, without the prior written consent of the Mosaic. Mosaic will not unreasonably withhold its prior written consent if Customer desires to assign this Agreement to (a) an entity with or into which the Customer may hereafter merge or consolidate or to which the Customer may transfer all or substantially all of its assets, if said entity shall by operation of law or expressly in writing agree to be bound by the terms hereof or (b) an Affiliate only if such Affiliate agrees in writing to be bound by the terms hereof.  “Affiliate” means any parent, subsidiary or other entity that controls, is controlled by, or is under common Control of the Customer. For the purposes of this definition, “Control” means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, (ii) direct or indirect ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity or (iii) identity of managers and executives between the respective entities, where no other connection exists. The Customer acknowledges that any assignment that would result in use of the Software beyond the scope contemplated herein may be subject to additional fees.
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

12.2. Governing Law & Jurisdiction.

This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non convenience. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

12.3. Independent Contractors.

The Parties are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the Parties.  Except as otherwise specifically provided in this Agreement, neither Party will have or represent that it has the right, power or authority to bind, contract or commit the other Party or to create any obligation on behalf of the other Party.

12.4. Notices.

All notices and consents required under this Agreement must be in writing, must be personally delivered or sent by overnight courier to the appropriate Party at the address set forth on the first page of this Agreement, signature confirmation of delivery requested, and will be effective upon receipt.

12.5. Severability.

If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the Parties to the fullest extent possible.

12.6. Waivers.

The failure of either Party to enforce any provision of this Agreement, unless waived in writing by such Party, will not constitute a waiver of that Party’s right to enforce that provision or any other provision of this Agreement.

12.7. Amendments.

This Agreement may not be modified or amended except by a writing that has been executed by Mosaic and Customer.

12.8. Electronic Signatures.

In the event that any signature to this Agreement is delivered by “PDF” transmission, such signature shall create a valid and binding obligation of the Party executing the same with the same force and effect as if such “PDF” signature page was an original thereof.

12.9. Entire Agreement.

This Agreement supersedes any and all agreements, oral or written, between the Parties with respect to the rendering of Services and, together with the Order Form and the Schedule A hereto and any Service Orders hereafter attached, contains all the covenants and agreements between the Parties with respect to the rendering of such Services.

SCHEDULE A

LICENSE Fees, PAYMENT INFORMATION:

Licensing/ Payment Terms:

	Item	Due Date	Description
1.	License Fees	Monthly payments to be received by Mosaic no later than the first day of the month for which a monthly license Fee is due.	Software Services contacted as outlined in the Order Form

 

Payments by check shall be made payable to Mosaic Software LLC and mailed to the address below. Please include a copy of the invoice being paid.

Mosaic Software LLC
21 Georgetown Road
Boxford, Massachusetts 01921

Auto-payment via ACH, E-Check, credit card, or any mutually acceptable form of auto payment is required as set forth on this Schedule A.  If credit card is preferred a 3% credit card fee will be assessed.

Bank Information via Auto ACH, Auto Debit, or Auto Wire: 

Mosaic Software LLC

Main Street Bank
Bank Account #:  0892222786
Bank Routing # (AB A/TRC):  211370752