Terms & Conditions –The Statement of Work/Proposal document shall be referred to as the Agreement.
1. Payment. Client will pay Company the payment amount stated in the Agreement for the Services throughout the Term of the Agreement. The payment date (“Payment Date”) for this Agreement will be the same as the Effective Date. All monthly payments are due on the Payment Date of each successive month throughout the Term (defined below). Client will pay a late fee of five percent (5%), compounded monthly, for any amount unpaid ten (10) days after the payment due date. Client will also pay interest on the unpaid amount at one and one-half percent (1.5%) per month or maximum rate permitted by law. If client elects to pay via credit card or ACH, payments will be automatically switched to auto pay after first paid invoice.
2. Responsibilities of Client for Onboarding Each Location. In order for Terrayn to successfully provide the services, at time of onboarding of a location Client must provide the following information for that location: (a) name, phone number and email address for the primary contact, (b) address, phone number and business hours, (c) edit level access to Google Analytics and Google Search Console, (d) access to the website including username and password, (e) links to the business social media accounts, and (f) full access to Google My Business. In addition, in order for Terrayn to provide accurate analytics for Client, Terrayn also needs access to the location’s Point of Sale System including gross sales/receipts, average order value and number of transactions for current and prior periods.
3. Term; Termination. If either Party wishes to terminate this Agreement after the Initial Term or during a Renewal Term, such Party must provide at least thirty (30) days’ written notice to the other Party. If a Party does not terminate any Renewal Term on the first of the month, then, the monthly rate for the last Renewal Term will be prorated for the number of days of the final Renewal Term during which Client receives Services hereunder. Agreements shall commence on the Effective Date and remain in effect for a period of 6 (six) months (“Initial Term”). Agreements will automatically renew at the end of each term for an additional 6 (six) months if Terrayn does not receive written notice of Client’s intent to not renew at least 30 (thirty) days prior to the end of then-current term. Client retains the right to cancel the contract during a renewal term only if they have provided Company all information/access as outlined in Paragraph 2 above no less than 90 days prior to giving cancellation notice. Company may terminate this Agreement for convenience, at any time, upon providing thirty (30) days’ written notice to Client. Thirty (30) days after Client receives such notice, all rights and responsibilities hereunder shall terminate, except for any obligations which must survive to fulfill their essential purpose(s). The Initial Term and any Renewal Terms shall be referred to as the “Term”.
4. Proprietary Information. All work performed, or information provided, by Company for Client’s benefit under this Agreement, including without limitation all notes, reports, documentation, drawings, computer programs, inventions, creations, processes, marketing techniques, works, devices, models, work-in-progress, and all deliverables (collectively, “Materials”) are the sole property of the Company, and Company retains all right, title, and interest therein, including but not limited to all Intellectual Property Rights (defined below). Client receives no right to use the Materials, beyond what is contemplated in this Agreement, and agrees not to challenge the validity of the Company’s ownership in the Materials. Client agrees to assist Company with the assignment of any such rights to Company that are retained or granted to Company under this Agreement. “Intellectual Property Rights” means any patent rights (including the exclusive right to make, use, and sell), copyright rights (including the right to use, reproduce, modify, distribute, publicly display, and publicly perform the copyrighted work), trademark rights (including trademark, trade names, service marks, and trade dress), trade secrets, know-how, rights of publicity, rights of privacy, moral rights, goodwill, and any other similar rights or intangible assets recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations, or reissues of the foregoing. Company or its licensors respectively retain all right, title, and interest in and to the Materials and Services, including without limitation all methods, procedures, and software or programs used to provide the Services and any logos and trademarks that may be reproduced through the Service. In addition, this Agreement does not grant Client any Intellectual Property Rights in or to the Materials or Services, or any of the components of the Materials or Services. Client hereby assigns to the Company all right, title, and interest in any and all Intellectual Property Rights, including, but not limited to, any such rights in and to any photographic images and videos or audio recordings made by the Company, or any other Materials created, through Company’s provision of the Services, which also includes, but is not limited to, any royalties, proceeds, or other benefits derived from such Intellectual Property Rights or Materials.
As between Company and Client, Client shall own all intellectual property rights in or to all Client Data and Output (each as defined below), and nothing contained in this Agreement shall be construed to convey any intellectual property rights in or to the Client Data and Output to Company. Client Data and Output are deemed the Confidential Information of Client under this Agreement. Notwithstanding anything to the contrary in this Agreement, the T&Cs or any agreement by and between Company and a third-party organization (e.g., Metrc LLC) for access to the Client Data, Client grants Company the limited rights to use, compile, process, and store Client Data to the extent necessary to provide the Subscription Services and Professional Services (collectively, the “Services”) to Client under the terms of the Agreement and to De-identify Client Data. “De-identified” means that the data is anonymized and cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular company, or individual person, including by aggregation and by removing, without limitation, the following identifiers: company names and the names of individuals, addresses, phone numbers, e-mail address(es) and any other information which could reasonably identify, when taken in the aggregate, a specific company, organization, or individual. Client Data that has been De-identified shall not be deemed Confidential Information or Client Data (i.e. Company may perpetually copy, modify, display, and otherwise use such De-identified data for any purpose permitted under applicable law). Notwithstanding the foregoing, Company will implement technical safeguards business processes that prohibit and prevent the re-identification of Client Data that has been De-identified. “Client Data” means all data or information accessed on behalf of Client through the Services. “Output” means all data, information, and metrics derived directly from the Client Data that are generated by the Services in response to calculation and report queries made by or on behalf of Client by Company.
5. License. Subject to the terms and conditions of this Agreement, and as long as Client is not in breach of its obligations hereunder, Company grants to Client a revocable, non-exclusive, non-transferable (except in accordance with Section 12), personal subscription to access and benefit from Company’s Services. Client agrees not to: (i) copy, modify, or create derivative works of Company’s Services or any other software, methods, and procedures utilized by Company; (ii) license, sub-license, sell, resell, market, reproduce, transfer, assign, or distribute Company’s Services or any information provided by Company to Client in any way (except in accordance with Section 12); or (iii) access Company’s Services to build a competitive product or service. Client shall not distribute any Materials to anyone, but its own employees, who shall only access such information on a need-to-know basis. If a change to, or termination of, an agreement maintained by Company or its licensors and vendors or contractual partners precludes provision or availability of any portion of the Services provided under this Agreement, then Company shall notify Client, and: (i) the rights and obligations of all Parties with regard to the affected portion of the Service(s) shall be terminated effective from the date that Company is precluded from providing such portion of the Service(s); and (ii) within thirty (30) days of such notice, Company and Client shall discuss in good faith whether any price adjustment to the Service(s) that has/have been affected is warranted in light of a potential material change, provided, that, notwithstanding any such discussions, no price adjustment shall become effective until it is set forth in an amendment to this Agreement that is approved and signed by Company and Client. Client will comply with this Agreement and in the event of Client’s breach, including without limitation any copyright infringement, Company may suspend or terminate Client’s access to the Services, in addition to such other remedies as Company may have at law or pursuant to this Agreement.
6. Confidential Information. “Confidential Information” means any and all information delivered by one Party to another in connection with the Services, including Materials, that is marked as confidential or proprietary or that a reasonable person would determine is confidential in nature, including without limitation, trade secrets. All Hyperlocal processes, questionnaires, forms, and any other documentation or information sent by Company to Client is considered Confidential Information, regardless of whether it is marked as such. Client also agrees to not disclose any of Company’s Confidential Information it has access to due to the nature of this Agreement, except where such Confidential Information: (i) is already public known, ascertainable, or available; (ii) was disclosed to such Client by a third-party that did not breach any legal obligation by disclosing such Confidential Information, or; (iii) was previously known to or ascertained by Client independent of any information provided or made available through the Services. Notwithstanding the foregoing, Company or Client may disclose Confidential Information to the extent required by applicable law. It is the responsibility of Client to put measures in place that protect any Confidential Information transferred to Client as a result of the use of the Service and Client shall be solely responsible for all damages flowing from a data breach or any other unauthorized intrusion of Confidential Information transferred to Client as a result of the use of the Services.
7. Representations. Client recognizes and agrees that: (i) the Materials are the property of Company or its vendors and licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Client does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Client’s contemplated use of the Services. Company receives all right to use any data provided by Client through use of the Services. Company shall provide the Services in good faith and will take commercially reasonable efforts to provide the Services in a timely and professional manner. Except for the express warranties specified in this agreement, the services are provided “as is” and “as available,” and company makes no representations or warranties, either express or implied, and disclaims without limitation any implied warranties of merchantability, fitness for a particular purpose, accuracy of data reported, security of data, availability (e.g. “up time”), non-infringement of intellectual property rights or compliance with any applicable state and local laws, rules and regulations pertaining to the operation of a marijuana-related business. Without limiting the generality of the foregoing: (I) Company has no obligation to indemnify or defend client against claims related to infringement of intellectual property rights; (II) Company does not guarantee the accuracy of data reported, or availability of the services; (III) company does not warrant that the services will perform without error or immaterial interruption or be complete or correct, and (IV) Company does not warrant that the services comply with applicable state and local laws, rules and regulations pertaining to the operation of a marijuana-related business, and Company has no obligation to indemnify or defend client against claims related to alleged violations of applicable state and local laws, rules and regulations pertaining to the operation of a marijuana-related business.
8. General Compliance with Laws. Client will keep fully informed of state and local laws, rules and regulations including, without limitation, those that pertain to the operation of a marijuana-related business, or which in any way pertain to the services provided by Company for Client pursuant to this Agreement. Client understands and agrees that it will have full and complete responsibility for supervising Company’s services to ensure compliance with applicable state and local laws, rules and regulations pertaining to the operation of a marijuana-related business and will be responsible for ensuring that Company’s services are in full compliance with those applicable state and local laws, rules and regulations.
9. Limitation of Liability; Indemnification. In no event: (a) will company’s liability arising out of or related to this agreement to client or any third-party exceed the amount paid or owed by client to company for the service(s) at issue; and (b) will company be liable for any consequential, indirect, special, exemplary, incidental, or punitive damages; and (c) will company be liability for client’s (or any third party’s) legal fees and costs. The liabilities limited by this section apply: (i) to liability for negligence, gross negligence, willful misconduct, and reckless behavior; (ii) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) even if company is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iv) even if the client’s remedies fail for their essential purpose. If applicable law limits the application of the provisions of this section, company’s liability will be limited to the maximum extent permissible. Company shall have no liability to client in the event of any security or data breach or lost data, or violation of applicable state and local laws, rules and regulations pertaining to the operation of a marijuana-related business. Client shall indemnify, defend, and hold harmless Company, its vendors, licensors, contractors, employees, agents, insurers, attorneys, subcontractors, and their subsidiaries, affiliates and heirs, and its and their directors, officers, members, employees, insurers, shareholders, owners, attorneys and agents from and against all losses, liabilities, judgments, awards, settlements, damages, fines, injuries, penalties and costs (including legal fees and expenses), including but not limited, personal injury (including death) and real and/or tangible property damage, arising out of Client’s acts or omissions under this Agreement, the use of the Services by Client and its employees, contractors, affiliates, assigns, and agents, and alleged or actual violations of applicable state and local laws, rule and regulations pertaining to the operation of a marijuana-related business.
10. Independent Contractor Status. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other nor may either Party bind the other in any way.
11. Notice. All notices required or permitted under this Agreement will be provided in writing and delivered to the other Party at the following addresses, or as may otherwise be specified in writing by either of the Parties:
i. ATTN: Trevor Shirk66 S Logan St, Suite 101 Denver, CO 80209.
ii. With Copy To: Kutak Rock, 1801 California St, Unit 3000, Denver, CO 80202 ATTN: Reid Page
Client: Client’s address according to the Agreement – all such notices must be delivered via FedEx or certified mail, return receipt requested, and shall be deemed received once delivered to the above address(es).
12. Governing Law. The internal laws of the State of Colorado, without regard for its laws and rules regarding the conflict of laws, shall govern all matters arising out of or relating to this Agreement. The prevailing party in any such dispute arising under this Agreement shall be awarded its reasonable attorneys’ fees and costs.
13. Assignment; Delegation. Client may not assign any of its rights under this Agreement or delegate any performance under this Agreement, except with the prior written consent of the Company. Company may assign any or all its rights and obligations under this Agreement at its sole discretion. Any purported assignment of rights or delegation of performance in violation of this Agreement is void.
14. No Waiver. Neither Company nor Client will be deemed to have waived any of their rights under this Agreement by lapse of time or by any statement or representation other than: (i) by an authorized representative; and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. Notwithstanding anything herein to the contrary, Client must bring any claim it believes it has within one (1) year of when the facts underlying the claim occurred, or else the claim is forever barred.
15. Force Majeure. To the extent caused by an event outside of its reasonable control, no delay, failure, or default of Company’s performance will constitute a breach of this Agreement.
16. Amendment. This Agreement may only be amended through a written agreement executed by authorized representatives of Company and Client.
17. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted and revised to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other agreements, whether written or oral, between the Parties.
The above listed terms & conditions apply to Terrayn Co. and Targeted Laser SEO d/b/a Strattex Solutions contracts.