Leafz Online Marketplace Seller Agreement
This LCP Marketplace Seller Agreement (“Agreement”) is effective as of the Effective Date
and is entered into by Leafz and Seller.
This Agreement will be effective as of the date Seller clicks the “Agree” button (the “Effective
Date”). If you are clicking the “Agree” button on behalf of Seller, you represent and warrant
that (a) you have full legal authority to bind Seller to this Agreement; (b) you have read and
understand this Agreement; and (c) you agree, on behalf of Seller, to this Agreement. If you
don’t have the legal authority to bind Seller, please do not click the “Agree” button.
1.1 “Affiliate” means a person or entity that a party, directly or indirectly, controls, that
controls a party or that is under common control with a party. For purposes of this provision, “control” means ownership of more than 50% of the outstanding voting rights or equity interests of the entity.
1.2 “Brand Features” means the trade names, trademarks, service marks, logos, domain
names, and other distinctive brand features of each party, respectively, as owned (or licensed) by such party from time to time.
1.3 “Customer(s)” means any person or entity who purchases, acquires, or deploys Products from the Store.
1.4 “Customer Charges” means the charges for Customers’ purchase and use of Products from the Store.
1.5 “Customer Sales Data” means information relating to a Customer that Leafz provides to Seller.
1.6 “Excluded Charges” means the charges (a) that arise through any fraudulent or invalid means (as determined by Leafz in its reasonable discretion), including the fraudulent use of credit cards or other means of payment; (b) that are subject to chargebacks, reversals, adjustments or rejections, whether by a bank, Customer action or otherwise, including related fees; (c) for Customer’s use of LCP; or (d) for Leafz or its Affiliate s’ use of the Products in (i) its operation of the Store, including for developing and testing the Store and addressing and assessing Customer issues; or (ii) in connection with marketing, including, demonstrating Products to prospective customers and use by sales personnel for education regarding the Product.
1.7 “LCP” means the services that comprise the Leafz Commerce Platform at
Leafz.com or such other URL as Leafz may determine (including any associated APIs).
1.8 “Leafz” means Leafz LLC, a company incorporated in Colorado with offices at 3471 Ringsby Ct., Suite 220, Denver, CO 80216, USA. 1.10 “Including” means including but not limited to.
1.9 “Payment Account” means the Seller-owned, U.S. payment account set up by Seller through the Leafz Seller management system located at the following URL:
www.leafz.com/Seller-registration/ or such other URL as Leafz may determine.
1.10 “Product(s)” means the Seller product or services identified by Seller and approved by Leafz for listing in the Store (and any related Brand Features).
1.11 “Protected Information” has the meaning described in Attachment B.
1.12 “Rev Split Base” means the Product Distribution Charges collected by Leafz minus Transaction Fees, taxes, foreign exchange costs, and Excluded Charges.
1.13 “Transaction Fee” means cumulative per-transaction charges of 15% + $2.00 referral fee and the merchant processing fee.
1.14 “Store” means “LCP Marketplace”, “Leafz Cloud Marketplace”, or other LCP online marketplace operated by Leafz, which allows the procurement by customers of product or services.
1.15 “Tax(es)” means all applicable taxes, except for taxes based on either party’s net
income, net worth, employment, or assets (including personal and real property).
1.16 “Third Party Material(s)” means any materials not owned solely by Seller or Leafz
that are included, incorporated or used in any of the Products.
1.18 “Seller” means the person or entity accepting this Agreement who is registered
with and approved by Leafz for listing of product or services via the Store in accordance with the terms of this Agreement.
1.19 “Seller Account” means an account issued by Leafz to Seller that enables the
listing of Products via the Store.
1.20 “Seller Dashboard” means the Dashboard or other online tool that may be provided by
Leafz to Seller to manage administrative functions related to the Store.
1.21 “Seller LCP Agreement” means the agreement under which Leafz has agreed to
provide LCP to Seller.
1.22 “Wind Down Period” has the meaning described in Section 11.5 (Wind Down).
2. Provision of Products.
2.1 Listing Requirements. Leafz will, on Seller’s behalf, display and make Products
available for purchase and use (as applicable) by Customers. In order for Products to be available via the Store, Seller will: (a) accept this Agreement and the Seller LCP Agreement; (b) have a Seller Account and Payment Account in good standing; (c) provide to and maintain with Leafz, an accurate and up-to-date list of all Third Party Materials (which list may be updated from time to time as described in Section 7.5.4 (Third Party Materials)), and (d) provide complete and accurate information to Leafz in the Seller Dashboard (or otherwise requested by
2.2 Merchant of Record. The parties agree that Leafz or a Leafz Affiliate, as applicable, is the merchant of record relative to the business contemplated by this Agreement.
3. Payments and Pricing.
3.1 Payment Terms.
3.1.1 Payments. Subject to Section 3.1.2 (Minimum Payment), Leafz will, on or before the last business day of each calendar month during the Term of this Agreement, pay Seller the Revenue Split for the previous calendar month. All payments of the Revenue Split will be made directly to the Payment Account. Payments will be transferred by the ACH Network (or by other means determined by Leafz) and paid to Seller in US dollars, or in other currency agreed upon by the parties from time to time.
3.1.2 Minimum Payment. Leafz will not be obligated to make a payment to Seller under Section 3.1.1 (Payments) if the Revenue Split at the time to be paid is less than $100.00 USD or foreign currency equivalent. Such unpaid Revenue Split will carry over and be included in the Revenue Split for the following calendar month.
3.1.3 Conditions. Upon the termination of this Agreement and any applicable Wind Down Period that follows, Leafz will pay any remaining Revenue Split to Seller within 90 days after termination. In no event will Leafz be obligated to make payments for any balance less than $1.00 USD or foreign currency equivalent. Leafz is not responsible for any delay, inaccuracy or non-payment caused by incorrect or incomplete information provided by Seller or a bank, or for failure of a bank to credit Seller’s account for the correct amount.
3.2 Pricing. Products will be priced and sold based on a Leafz defined billing structure.
3.3 Reports. On a weekly basis during the Term, Leafz will provide Seller with reports
of Customer Charges in the form generally made available to other Store Sellers. Leafz’s measurement of the usage metrics is final.
3.4 Refunds to Customers. The Leafz refund policy is located on the Leafz website at Shipping, Returns & Refunds.
3.5 Fraud. Seller will not, and will not authorize or encourage any third party to directly or indirectly purchase or otherwise obtain access to the Store through (a) any automated,
deceptive, fraudulent or other invalid means, (b) the use of robots or other automated query tools or computer-generated search requests, or (c) the fraudulent use of software or credit cards. Seller will cooperate with Leafz in any investigation of any of the above circumstances, regardless of whether encouraged, authorized, or perpetrated by Seller or not.
3.6 Taxes. If Seller is legally obligated to collect transaction Taxes, Seller will notify Leafz of this requirement and state each Tax as a separate line item on an invoice to Leafz. Leafz will be required to pay transaction Tax only on receipt of a tax invoice that meets all of the relevant tax authority’s requirements (to allow Leafz to obtain relief from such Tax if available). Leafz will pay Taxes separately on the Revenue Split, unless Leafz provides Seller with a valid tax exemption certificate. If Leafz is obligated to withhold any Taxes from the Revenue Split, Leafz will pay the Revenue Split net of the withheld amounts. Leafz will provide Seller with sufficient evidence of such Tax payments withheld on behalf of Seller to allow Seller to apply for a refund of the withheld Tax if available.
4.1 Seller Support of Customers. Seller will provide and maintain complete and up to date information in the Seller Dashboard. Such information, including Seller contact information, may be made available to Customers and other users of the Store. Customers will be instructed to contact Seller concerning any defects or performance issues related to Products. Seller will be solely responsible for, and Leafz will have no responsibility for handling support and maintenance of Products or any complaints about Products. Seller’s response to Customer support inquiries should be no less urgent, inclusive or responsive than the response Seller offers or provides to similarly situated customers outside of the Store. Leafz may direct Customers to Seller for Product-specific support.
4.2 Product Updates and Patches.
4.2.1 Seller will update, or will provide Leafz with updates to, as applicable, Products in the Store within five days of release of those updates to the public (or through any other online marketplace) and within 24 hours if those updates include critical content, as determined by Leafz.
4.2.2 If Leafz requests a critical content or security matter be resolved, Seller will respond to Leafz within 24 hours of such request with either a resolution or a written resolution plan, contact information for person(s) managing the resolution, and the estimated time for delivery of a resolution. Leafz may choose to hide or prohibit access to any Product until Seller provides any content/security resolution determined necessary by Leafz.
4.2.3 Failure to provide the information, support, or updates for Products described in this Section 4.2 (Product Updates and Patches) may result in consequences including less prominent Product exposure or placement in the Store, removal of the Product from the Store, or Leafz’s termination of this Agreement.
4.3 Redeployments. So long as Customers pay the applicable, required Customer Charges, Customers are allowed unlimited deployments of each deployable Product.
5. Seller Responsibilities.
5.1 Authorized Purpose. Seller will use the Store only for purposes that are permitted by (a) this Agreement, and (b) any applicable law or regulation (including any laws regarding the export of data or software to and from the United States or other relevant countries).
5.2 Prohibited Actions. Seller will not engage in any activity with the Store that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of Leafz; Leafz Affiliates; or any third party, including LCP users, Store users, or any network operator.
5.3 Seller Responsibility for Products. Seller is solely responsible for (and Leafz has no responsibility to Seller or any third party for) (a) any Products, including their interaction with the Store, Store APIs, or LCP; or (b) the consequences of any Seller actions (including any loss or damage which Leafz may suffer) related to the Products, including with respect to Seller’s use of the Store, Store APIs, or LCP, except to the extent resulting solely from an unforeseeable malfunction (e.g., a bug) of the Store, Store APIs, or LCP. Except as described in this Agreement, Seller has no responsibility for the Store.
5.4 Damaged Products. Seller agrees to replace, at their own cost including shipping, any damaged or non-conforming Products. Such replacements shall be shipped within two (2) business days of notification from Leafz.com’s customer service department or notification from the Customer.
5.5 Seller Responsibility for Breach. Seller is solely responsible for (and Leafz has no responsibility to Seller or any third party for) any breach by Seller of its obligations under this Agreement, any applicable third party contract or terms of service between Seller and its Customer(s), or any applicable law or regulation, and for the consequences of any such breach, including any loss or damage which Leafz or any third party may suffer.
5.6 Product Display. Leafz may use and publish performance measurements for Products, such as return or refund rates. Leafz may display Products to Customers in a manner determined by Leafz.
5.7 Product Information. Seller will be responsible for providing Leafz with all information and materials necessary to sell and deploy the Products via the Store, including accurate and complete Product information and support information for Customer. Leafz may immediately hide, prohibit access to, or remove any Products from the Store if Seller fails to comply with this Section 5.6 (Product Information).
5.8 Restricted Content and Store Use. Leafz may upon 30 days prior notice impose generally applicable Seller Use Policies (“VUP”) related to Product content and Seller’s use of the Store. Leafz will email Seller if it imposes any VUP, and the VUP will be binding on Seller on the date stated in the email notice to Seller.
5.9 Security and Privacy.
5.9.1Protections. Seller will protect the privacy and other legal rights of Customers. Seller will only gather information (including LCP account information) from Customers that is necessary to provide Products to them and only use gathered information when and for the limited purpose(s) for which the Customer has given Seller permission to do so. Seller may use Customer information obtained from the Store to sell or distribute products or services
outside of the Store only to the extent permitted by Customer and Leafz. If Customers provide Seller or a Product with, or Seller or a Product accesses or uses, usernames, passwords, or other login information or personal information, Seller must inform Customers that the information will be available to Seller or Product, and Seller must provide a legally adequate privacy notice and protection for those Customers, provided that if a Customer has entered into a separate agreement with Seller that allows Seller or Product to store or use Customer personal or sensitive information then, to the extent the terms of that separate agreement are consistent with the terms in this Agreement, nothing in this Section prohibits such separate agreement terms from governing Seller’s use of such information as well.
5.9.2 Leafz Provided Information. Leafz may provide Customer Sales Data to Seller. Notwithstanding any provision to the contrary in this Agreement, Seller may only use Customer Sales Data for attributing sales of the Product to Seller personnel, analyzing the performance of the relevant Product, and supporting the relevant Product.
Seller’s compliance with this Section 5.9 (Security and Privacy) and (b) any other circumstances related to the breach.
5.9.4 Information Security Attachment. If Seller has access to Protected Information in connection with this Agreement, Seller will comply with Attachment B in addition to this Section 5.8 (Security and Privacy).
6. License Grants.
6.1.1 Grant to Leafz. Seller grants to Leafz and its Affiliates a non-exclusive, worldwide, and royalty-free (except for payment of Revenue Split by Leafz) license to distribute, deploy, reproduce, perform, display, configure, and use the Products in connection with (a) a Customer’s use and deployment of the Product, (b) the operation and marketing of the Store, and (c) the marketing of LCP products and services that interact with the Products.
6.1.2 Limitations. Except for the license rights granted by Seller in Sections 6 (License Grants) Leafz obtains no right, title or interest from Seller (or its licensors) under this Agreement to any of the Products.
6.1.3 Customer License. Seller will grant Customers a non-exclusive, worldwide, royalty-free, license to use the Product. Seller will provide Leafz (in a manner and format specified by Leafz) with Seller’s standard end user license agreement (“EULA”) for the Product. If Seller provides the EULA via a URL link, Seller will ensure that the link is functional and points to the EULA. In no event will Seller’s EULA limit Leafz’s or Customers’ rights under, or described in, this Agreement or any Customer facing terms of service for the Store.
6.2 Brand Features.
6.2.1 Ownership. Leafz and Seller each owns all right, title and interest, including all intellectual property rights, in its own Brand Features. Except as expressly provided in this Section 6.2 (Brand Features) neither party grants any right, title or interest in any Brand Features of the other party. Except as expressly stated in Section 6.2.3 (Store Brand Features) nothing in this Agreement gives Seller a right to use any of Leafz’s Brand Features. Any use of a party’s Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
6.2.2 Seller Brand Features. Seller grants to Leafz and its Affiliates a limited, non-exclusive, worldwide, royalty-free license to use and display Seller Brand Features (a) in connection with the marketing, distribution and sale of the Product through the Store and its availability for use on LCP, including by including Seller’s name or Brand Features in online or in promotional materials for the Store and verbally referencing Seller as a provider of the Products, or (b) as otherwise necessary to exercise Leafz’s or its Affiliates ‘ rights under this Agreement. If a Product is removed from the Store, Leafz and its Affiliates will stop using the Brand Features associated solely with the discontinued Products, except as necessary to allow Leafz to effectuate the Wind Down Period.
6.2.3 Store Brand Features. Leafz grants to Seller a limited, non-exclusive, worldwide, royalty-free license to use the Store Brand Features for the Term of this Agreement solely for marketing purposes specifically related to the Store with the prior approval of Leafz and in accordance with Leafz’s guidelines set forth in its Intellectual Property policy.
7. Seller Representations & Warranties.
7.1 Anti-Bribery. Seller represents and warrants that it will comply with all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including Government Officials, to obtain or keep business or to secure any other improper commercial advantage. “Government Officials” include any government employee; candidate for public oce; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, Seller will not make any facilitation payments, which are payments to induce Officials to perform routine functions they are otherwise obligated to perform. Seller will use commercially reasonable and good faith efforts to comply with Leafz’s due diligence process, including providing requested information.
7.2 Discrimination. Seller represents and warrants that it is an equal opportunity employer and does not discriminate on the basis of age, race, creed, color, religion, sex, sexual orientation, gender identity, national origin, disability, marital or veteran status, or any other basis that is prohibited by applicable law.
7.3 Equal Employment Opportunities. Because Leafz is an equal employment opportunity employer and a U.S. federal contractor or subcontractor, Seller warrants that it will, to the extent applicable, comply with the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a), all of which are incorporated into this Agreement by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. As applicable, Seller will also abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
7.4 Employment; Occupational Health and Safety. Seller represents and warrants that it will comply with all other applicable employment and occupational health and safety laws and regulations.
7.5 Product Representations and Warranties.
7.5.1 Applicable Law. In connection with the Agreement, Seller represents and warrants that Seller and the Products comply and will comply with applicable laws, including all applicable privacy, data security, and data protection laws.
7.5.2 Rights and Infringement. Seller represents and warrants that Seller owns or has valid and enforceable licenses to the intellectual property, including patent, trademark, trade secret, copyright and other proprietary rights, in and to the Products to allow their sale and distribution in the Store and use by Customer. Seller represents and warrants that the Product does not violate any person’s rights, including intellectual property, privacy, and security rights. If Seller reasonably determines, or becomes aware of any allegation that any Product, its use, sale or distribution, infringes the intellectual property of any individual or entity, Seller will notify Leafz immediately.
7.5.3 Viruses. Seller also represents and warrants that Products do not include any viruses, spyware, Trojan horses, or other malicious code of any kind.
7.5.4 Third Party Materials .
a. If Seller makes use of Third Party Materials, Seller represents and warrants that Seller has the right to distribute the Third Party Material. Seller further represents and
warrants that, as of each Product’s listing via the Store, Seller (i) has provided in writing to Leafz the names and license information for all Third Party Materials, and (ii) there are no Third Party Materials that Leafz has not approved.
b. Seller will comply with, and will cooperate in any manner necessary (as determined by Leafz) to assist Leafz in complying with, any obligations contained in any licenses related to Third Party Material. Seller will not cause to be listed on the Store any product that is not a Product. Leafz retains the right to reject the inclusion in a Product of Third Party Material on any grounds.
8. Confidential Information and Publicity.
8.2 Duty. The recipient will not disclose the discloser’s Confidential Information, except to employees, Affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it Confidential. The recipient will use the discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement, and will ensure that such people and entities use the discloser’s Confidential Information only to exercise rights and fulfill obligations under this Agreement while using reasonable care to protect the Confidential Information. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations. The recipient may disclose Confidential Information when required by law after giving reasonable notice to the discloser, if permitted by law.
8.3 Return. Upon termination of this Agreement, and if requested by a party, the other party will use commercially reasonable efforts to return or destroy all Confidential Information of such requesting party.
8.4 Independent Development. Each party recognizes that the other party may in the future develop or purchase products or services related to or similar to the subject matter of Confidential Information disclosed under this Agreement. Accordingly, the recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that this right to Residuals does not represent a license under any intellectual property and/or proprietary rights of the discloser. The term “Residuals” means information that is retained in the unaided memories of the recipient’s employees or contractors as permitted herein who have had access to the discloser’s Confidential Information. Memory is unaided if the employee or contractor has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.
9. Product Takedowns.
9.1 Removal by Seller. Seller may remove any Product from the Store at any time by providing Leafz with (a) at least 30 days prior notice and (b) a transition or migration plan for Customers. All such removed Products are subject to the obligations in Section 11.5 (Wind Down).
9.2 Removal by Leafz. While Leafz is not obligated to monitor the Products or product-specific content, if Leafz is notified by Seller, becomes aware, or determines that a Product or Seller Brand Feature: (a) violates the intellectual property rights or any other rights of Leafz or any third party; (b) violates any applicable law or is subject to an injunction; (c) is pornographic, obscene or otherwise violates Store policies or other terms of service as may be updated by Leafz from time to time; (d) may create liability for Leafz; (e) is deemed by Leafz to have a virus or to be malware, spyware or other malicious code; (f) violates this Agreement (g) is impacting the integrity of Leafz’s or Customer’s network or servers (e.g., Customers are unable to access the Product or otherwise experience difficulty); (h) is not meeting acceptable standards, including based on performance measurements such as return and/or refund rates, as determined solely by Leafz.
9.3 Cure. Leafz will use commercially reasonable efforts to provide 7 days’ notice to Seller instructing Seller to cure its failures before Leafz removes a Product from the Store unless the agreement is terminated or in Leafz’s opinion the provision of such notice is restricted by applicable law or would otherwise harm Leafz, or such failure is not reasonably capable of cure.
10. Seller Account Credentials.
Seller is responsible for maintaining the confidentiality of any Seller Account credentials. Seller will be solely responsible for all actions related to its credentials, including all Products that are distributed through the Store. Leafz may limit the number of Seller Accounts issued to Seller.
11. Term and Termination.
11.1Term. This Agreement will start on the Effective Date and continue until terminated (the “Term”).
11.2 Termination for Convenience. Either Party may terminate this Agreement on 30 days
11.3 Termination by Leafz. Under the following circumstances Leafz may immediately terminate this Agreement if, in Leafz’s opinion, the provision of notice under Section
11.2 (Termination for Convenience) is restricted by applicable law; would otherwise harm Leafz, Seller or Customers; or such circumstance is not reasonably capable of cure:
11.3.1 Seller has breached any provision of this Agreement or another agreement with Leafz;
11.3.2 Leafz is required to do so by law (e.g., Seller is a person or entity barred from using LCP or the Store under the laws of the United States or other countries, including the country in which Seller is resident/domiciled or from which Seller uses LCP or the Store);
11.3.3 Seller has a Product that violates any applicable law;
11.3.4 Seller ceases to have a Seller Account and Payment Account in good standing; or
11.3.5 Leafz no longer provides the Store. Where applicable, to effectuate the termination of this Agreement under Section 12 (Term and Termination), the Parties waive any provisions, procedures, and operation of any applicable law that requires a court order to terminate this Agreement.
11.4 Effects of Termination.
11.4.1 Subject to Section 11.5 (Wind Down) as applicable, upon termination of this Agreement: (a) all Products will be removed from the Store; and (b) Seller must cease Seller’s use of any Seller Account credentials except as needed to fulfill Seller’s obligations during the Wind Down Period.
11.4.2 Survival. All terms of this Agreement will remain valid and enforceable, as applicable with respect to the removed Product, during any Wind Down Period. The obligations in Sections 3.4 (Refunds to Customers), 3.5 (Right to Offset Payment), 5.9 (Security and Privacy), 9 (Confidential Information and Publicity), 11.5 (Wind Down), 13 (Limitations of Liability), 14 (Indemnification) and 16 (General Legal Terms), and any remaining payment obligations under this Agreement will survive any expiration or termination of this Agreement.
11.5 Wind Down.
11.5.1 Except where prohibited by law and unless otherwise requested by Leafz, when a Product is removed from the Store a wind down period starting from the date of Product removal will apply (the “Wind Down Period”). The Wind Down Period will be 6 months unless Leafz requests a shorter Wind Down Period.
11.5.2 Subject to Section 11.5.3, during the Wind Down Period the terms of the Agreement will continue to apply as to the removed Product, including the following: (a) Seller will continue to allow the procurement of Products via the Store by existing Customers and will continue to support any existing Customers, in each case in accordance with the terms of this Agreement; and (b) all licenses granted under this Agreement with respect to the removed Product will continue in force.
11.5.3 During the Wind Down Period the listing for the removed Product will be removed from the Store and users of the Store who have not already acquired the Product may not acquire the removed Product through the Store.
11.5.4 After the Wind Down Period expires, no user of the Store may acquire the removed Product through the Store. Leafz will have no responsibility or liability for use of the Product after the end of the Wind Down Period.
11.6 Waiver. Where applicable, to effectuate the termination of this Agreement under Section 11 (Term and Termination), the Parties will waive any provisions, procedures, and operation of any applicable law that requires a court order to terminate this Agreement.
12. LIMITATIONS OF LIABILITY.
12.1Liability. IN THIS SECTION 13 (LIMITATIONS OF LIABILITY), “LIABILITY” MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT, OR OTHERWISE, INCLUDING FOR NEGLIGENCE.
12.2 Limitations. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 13.3 (UNLIMITED LIABILITIES):
12.2.1 Liability Type. NEITHER PARTY, NOR ITS AFFILIATES OR LICENSORS, WILL HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY (A) INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; OR (B) LOST REVENUES, PROFITS, SAVINGS, OR GOODWILL.
12.2.2 Liability Amount. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PER INCIDENT ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO $15 THOUSAND OR THE TOTAL CUSTOMER CHARGES FOR THE 12 MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE RELATED CLAIM, WHICHEVER IS GREATER.
12.2.3 Exceptions to Limitations. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (A) DEATH, PERSONAL INJURY, OR TANGIBLE PERSONAL PROPERTY DAMAGE RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS; (B) IT’S FRAUD OR FRAUDULENT MISREPRESENTATION; (C) IT’S BREACH OF SECTIONS 5.9 (SECURITY AND PRIVACY), 7.5 (PRODUCT REPRESENTATIONS AND WARRANTIES),
OR 8.1- 8.3, (CONFIDENTIAL INFORMATION); (D) ITS OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION); (E) IT’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (F) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13.1 Seller will, at the Seller’s own expense, maintain comprehensive general liability insurance including, without limitation, product liability insurance, all risks coverage, and business interruption insurance in amounts no less than One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) aggregate. This policy shall not have any CBD or Health Hazard exclusions. Seller will provide proof of such insurance with endorsements in favor of Seller as named additionally insured, primary and non-contributory, and a waiver of subrogation. Seller will provide CBD.CO with a certificate of insurance as well as evidence of the above upon demand.
14.1 Indemnity. To the maximum extent permitted by applicable law, Seller will defend and indemnify Leafz, its Affiliates and their respective directors officers, employees, agents and Customers against any and all losses, liabilities, damages, costs, fees (including legal fees) and expenses relating to any third-party allegation or third-party legal proceeding arising from or related to: (a) the procurement and deployment of Product via the Store, including any claims of violation of applicable law or the violation of the privacy or security rights of any Customers or other third parties, but not including anything to the extent arising out of or accruing solely from the Store and its design, (b) Seller’s use of the Store or any Customer information or data, including Customer Sales Data, (c) any Product infringing any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates a person’s rights of publicity or privacy, or (d) Seller’s breach of any Seller warranty under this Agreement.
14.2 Remedies. If an injunction preventing continued use of Products is threatened or granted, Seller will do the following at its sole expense:
14.2.1 procure the right to continue providing the Products in compliance with this Agreement; or
14.2.2 modify the Products to make them non-infringing without materially reducing their functionality; or
14.2.3 remove the affected Product under Section 9.1 (Removal by Seller) and, if possible, replace the Products with non-infringing, functionally-equivalent alternatives.
14.3 Exclusions. The indemnity provided by Seller under this Agreement does not extend to claims to the extent arising solely from breach by Leafz of its material obligations hereunder.
15. Modifications to the Agreement.
Leafz may make changes to this Agreement from time to time. Leafz will post any modifications to the Terms URL, and unless otherwise noted by Leafz or this Section 15, changes to the Agreement will become effective when they are posted to the Terms URL. Leafz will provide at least 30 days’ advance notice before the change becomes effective for material changes by posting a notice to the Terms URL. If Seller does not agree to the revised Agreement, Seller should within 30 days of the posted changes (a) notify Leafz of its rejection of the modifications in total, (b) terminate this Agreement under Section 11.2 (Termination for Convenience), and (c) stop using the Store. So long as Seller timely and properly rejects the modifications in total and terminates the Agreement, then the terms of the Agreement before the notified modification will continue to apply, including during any Wind Down Period.
16. General Legal Terms.
16.1 Notices. All notices must be in English, in writing (e.g., email) and addressed to the other party’s Legal Department. The address for notices to Leafz’s Legal Department is
Legal@Leafz.com. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
16.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under this Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
16.3 Change of Control. During the Term, if a party experiences a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction other than in the context of an internal restructuring or reorganization of Leafz and its Affiliates); (a) that party will give written notice to the other party within 30 days after the change of control; and (b) the other party may immediately terminate this
Agreement any time between the change of control and 30 days after it receives that written notice.
16.4 Other User Rights & Subcontracting. Leafz may use Affiliates, consultants, and
other contractors in connection with its performance of obligations and exercise of rights
under this Agreement. These Affiliates, consultants, and contractors will be subject to the
same obligations as Leafz. Either party may subcontract any of its obligations under
this Agreement, but will remain liable for all subcontracted obligations and its
subcontractor’s acts or omissions.
16.5 Force Majeure. Neither party will be liable for failure or delay in performance to the
extent caused by circumstances beyond its reasonable control.
16.6 No Waiver. Neither party will be treated as having waived any rights by not
exercising (or delaying the exercise of) any rights under this Agreement.
16.7 Third Party Beneficiaries. Seller acknowledges and agrees that all Affiliates of
Leafz are third party Beneficiaries to this Agreement and that such Affiliates are entitled
to directly enforce, and rely upon, any provision of this Agreement that confers a benet
on (or rights in favor of) them. Other than this, no other person or entity will be a third
party Beneficiary to this Agreement.
16.8 Counterparts. The parties may execute this Agreement in counterparts, including
facsimile, PDF, and other electronic copies, which taken together will constitute one
16.9 Amendments. Any amendment must be in writing. Except for amendments made
under Section 15 (Modifications to the Agreement), any amendment must also be signed
by both parties and expressly state that it is amending this Agreement.
16.10 Entire Agreement. This Agreement states all terms agreed between the parties
relating to its subject matter, and completely replaces any prior agreements between
Seller and Leafz in relation to the Store. If any Products have been listed in the Store
before the Effective Date, then, as of the Effective Date, such Products will be governed
by this Agreement. In entering into this Agreement, neither party has relied on, and
neither party will have any right or remedy based on, any statement, representation or
warranty (whether made negligently or innocently), except those expressly stated in this
16.11 Severability. If any term (or part of a term) of this Agreement is invalid, illegal or
unenforceable, the rest of this Agreement will remain in effect.
16.12 Equitable Relief. Nothing in the Agreement will limit either party’s ability to seek
16.13 EXPORT RESTRICTIONS. PRODUCTS MAY BE SUBJECT TO UNITED STATES
EXPORT LAWS AND REGULATIONS. SELLER WILL COMPLY WITH ALL APPLICABLE
EXPORT AND RE-EXPORT LAWS AND REGULATIONS, INCLUDING (a) THE EXPORT
ADMINISTRATION REGULATIONS (“EAR”) MAINTAINED BY THE U.S. DEPARTMENT OF
COMMERCE, (b) TRADE AND ECONOMIC SANCTIONS MAINTAINED BY THE U.S.
TREASURY DEPARTMENT’S OFFICE OF FOREIGN ASSETS CONTROL, AND (c) THE
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (“ITAR”) MAINTAINED BY THE U.S.
DEPARTMENT OF STATE. SELLER WILL PROVIDE LEAFZ WITH ALL ACCURATE
INFORMATION NEEDED TO COMPLY WITH ALL APPLICABLE EXPORT CONTROL LAWS
RELATED TO THE DISTRIBUTION OF PRODUCTS IN THE STORE.
16.14 Conflicting Languages. If this Agreement is translated into any other language, and
there is a discrepancy between the English text and the translated text, the English text
16.15 Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR SELLER’S RELATIONSHIP WITH LEAFZ UNDER THIS AGREEMENT
OR THE PRODUCT WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S
CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR
STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT
TO PERSONAL JURISDICTION IN THOSE COURTS. SELLER AGREES THAT LEAFZ IS
ALLOWED TO APPLY FOR INJUNCTIVE RELIEF IN ANY JURISDICTION.
16.16 Costs. Each party is solely responsible for all costs and expenses incurred by it in
connection with its performance under this Agreement.