END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is a legal contract between The Apothecary, LLC dba Grow West Cannabis Company (“Grow West,” “We,” “Us” or “Our”) and you (“You”). By using Our mobile application, You are agreeing to the terms in this Agreement.
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING OR INSTALLING OR USING OUR SOFTWARE APPLICATION FOR SHOPPING AND ORDERING PRODUCTS FROM THE GROW WEST CANNABIS COMPANY ACCOMPANIED BY THIS AGREEMENT (THE “APP”). BY DOWNLOADING AND/OR USING THE APP, YOU AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT.
Section 1. License Grant.
The App is copyrighted and it is licensed under the terms and conditions of this Agreement. TO BE CLEAR, THIS APP IS LICENSED TO YOU, NOT SOLD. Subject to You remaining in full and ongoing compliance with the terms and conditions of this Agreement, including payment of any applicable license and service fees, We hereby grant to You, and You accept, a personal, limited, nonexclusive, non-transferable, non-assignable, revocable license to use the App during the Term in machine-readable, object code form only on one (1) device, and only as authorized in this Agreement. For purposes of this Agreement, the term “App” includes Our software, and any enhancements, updates, maintenance releases, modifications, revisions, or additions (collectively “Updates”) to the App provided by Us and made available to You. Notwithstanding the foregoing, We shall be under no obligation to provide You with any Updates to the App.
Section 2. Scope of Use.
2.1. The license to use the App is conditioned on the following license restrictions, and any use of the App in violation of any of these restrictions, or any of the other terms of this Agreement is a breach of this Agreement.
2.2.strong> You must be at least twenty-one (21) years of age at the time of download to use the App. Installation of the App on a network server solely for distribution to other computers is strictly prohibited.
2.3. Except as this Agreement expressly permits, You shall not, and shall not permit any other person to: (a) copy the App, in whole or in part; (b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the App or any part thereof; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the App available to any other person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) reverse engineer, disassemble, decompile, decode or adapt the App, or otherwise attempt to derive or gain access to the source code of the App, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the App; (f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, warranties, disclaimers, or Intellectual Property Rights (as defined below), proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the App; (g) use the App in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law (including any laws regarding the export of data or software to and from the US or other countries); (h) use the App for purposes of: (1) benchmarking or competitive analysis of the App; (2) developing, using or providing a competing software product or service; or (3) any other purpose that is to Our detriment or commercial disadvantage; or (i) use the App in any manner or for any purpose or application not expressly permitted by this Agreement.
2.4. The App may contain technological measures designed to prevent unauthorized or illegal use. For instance, the App may be protected by digital rights management software (“DRM Software”). In such case, you hereby agree, acknowledge and consent to the following regarding the DRM Software: (i) the installation of the App will cause the DRM Software to be installed on your computer or mobile device; (ii) the DRM Software may limit the number of installations of the App; (iii) the DRM Software may install on your computer or mobile device additional components required for copy protection; and (iv) during the installation and/or the first launch of the App, an online connection may be required to unlock the App through the DRM Software. In no event shall We be liable to You in connection with the components that may be installed on your computer or mobile device by any DRM Software. You acknowledge and agree that: (a) We may use these and other lawful measures to verify your compliance with the terms of this Agreement and enforce Our rights, including all Intellectual Property Rights, in and to the App; (b) notwithstanding any other remedy at law or equity, We may deny any person access to and/or use of the App if, in Our sole discretion, We believe that such person’s use of the App would violate any provision of this Agreement; and (c) We and Our personnel may collect, maintain, process and use diagnostic, technical, usage and related information, including information about your computers, mobile devices, systems and software, that We may gather periodically to improve the performance of the App or develop Updates.
2.5 To use the App on a computer or mobile device, You must have access to an electronic communication network. The connection costs (including but not limited to mobile providers’ and/or carriers’ costs), shall be exclusively borne by You. You acknowledge that the quality of the App, the response time or access to certain features may depend on the capacities of Your communication network. Grow West may in no case be held responsible for reduced user comfort. You acknowledge that the App may not be available for use on all computers or mobile devices or through all carriers or network service providers.
Section 3. Term / Termination.
3.1. The term of this Agreement will commence on the date You download the App (“Effective Date”) and will continue in effect until You or We terminate your account (the “Term”).
3.2. You may terminate this Agreement by uninstalling the App.
3.3. We may terminate this Agreement at any time if You: (i) violate any provision in this Agreement or (ii) fail to pay any fee associated with the App, and do not cure the failure within ten (10) days following receipt of Our written notice of default.
3.4. In the event that either party files for protection under U.S. bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any U.S. bankruptcy or insolvency act or has any such petition filed against it which is not discharged within one hundred eighty (180) days of the filing thereof, then the other party may terminate this Agreement effective immediately upon written notice to such party.
3.5. Upon the termination of this Agreement: (a) all rights, licenses and authorizations granted to You hereunder will immediately terminate and You shall: (1) immediately cease all use of and other activities with respect to the App; (2) within fifteen (15) days, deliver to Us, or at Our written request, destroy, and permanently uninstall the App from your device; and (3) pay all amounts due and payable (if any) by You to Us of any kind no later than ten (10) days after the effective date of the termination of this Agreement.
Section 4. Disclaimer.
4.1. YOU EXPRESSLY ACKNOWLEDGE THAT TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW YOUR USE OF THE APP IS AT YOUR OWN RISK.. EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE APP IS PROVIDED ON AN “AS IS” BASIS AND WE MAKE NO REPRESENTATION OR WARRANTY TO YOU, EXPRESS OR IMPLIED, WITH RESPECT TO THE APP, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE APP’S CONDITION, QUALITY, FITNESS FOR USE OR THAT THE APP IS APPROPRIATE FOR YOUR PARTICULAR PURPOSE OR WILL MEET YOUR PERSONAL REQUIREMENTS, OR ANY REPRESENTATION OR WARRANTY RESPECTING THE APP’S MERCHANTABILITY.
4.2. YOU UNDERSTAND AND ACKNOWLEDGE THAT NO INTERNET SERVICE IS COMPLETELY SECURE FROM THREAT AND THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR CONFIDENTIAL INFORMATION AND/OR PROPERTY.
Section 5. Limitation of Damages.
5.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED GROW WEST AND ITS AFFILIATES, THEIR LICENSORS AND ASSOCIATED SERVICE PROVIDERS AND THEIR SUBCONTRACTORS AGAINST ANY THIRD PARTY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES AND ALL COSTS (INCLUDING LAWYERS’ FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO YOUR FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THIS AGREEMENT OR (B) YOUR USE OR MISUSE OF THE APP.
5.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR MAXIMUM AGGREGATE MONETARY LIABILITY UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND INFRINGEMENT) SHALL NOT EXCEED $1,000.00.
Section 6. Intellectual Property Rights.
You acknowledge and agree that: (a) the App is licensed, not sold, to You, and You do not and will not have or acquire any ownership interest in the App, or in any related Intellectual Property Rights; (b) We are, and will remain, the sole and exclusive owner of all right, title and interest in and to the App, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to You under this Agreement; and (c) nothing herein transfers or assigns, or will be deemed to transfer or assign, any such Intellectual Property Rights in the App to You. For purposes of this Agreement, “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, or other intellectual property rights laws in any jurisdiction in the world.
Section 7. General Terms.
7.1. Except as otherwise expressly provided herein, no amendment of this Agreement shall be binding upon either party hereto unless such amendment is set forth in a writing and executed by both parties hereto. Any waiver of any breach of any provision of this Agreement shall only be effective if in a writing and executed by both parties hereto and only to the extent specifically set forth in such writing.
7.2. You shall not assign this Agreement or any part thereof to a third party, and any such assignment, or attempted assignment, will be null and void.
7.3.This Agreement constitutes the entire understanding between the parties hereto with respect to the subject matter hereof. The parties hereto agree that this Agreement supersedes and replaces any and all other agreements, whether oral or in writing, regarding the subject matter hereof.
7.4. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and authorized assigns. No other person or entity is an intended third party beneficiary of, or shall be deemed to be a third party beneficiary of, any of the terms and conditions of this Agreement.
7.5. In the event any one or more of the provisions contained in this Agreement should be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and the parties hereto agree to negotiate in good faith to replace such invalid, illegal or unenforceable provision with a replacement provision to carry out the intent of such provision to the fullest extent lawful.
7.6. This Agreement is governed by and construed in accordance with the internal laws of the State of Maryland without regard to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Maryland.
7.7. We shall not be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond Our control, including significant failure of a part of the power grid, significant failure of the Internet, failure of third party tools and services used to provide the App, natural disaster, war, riot, insurrection, pandemic, terrorist activity and events related thereto, strikes or other organized labor action, or other events of a similar magnitude or type.
7.8. In disputes concerning this Agreement, We shall be entitled to the costs of collection, enforcement, and injunctive relief, including reasonable attorneys’ fees and court costs, and all necessary expenses, regardless of whether litigation is commenced.
7.9. The definitions in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” Unless otherwise specifically indicated, the word “or” shall be deemed to be inclusive and not exclusive.
7.10 You understand and acknowledge that We may use third party service provider(s) as We deem necessary or desirable to provide tech support services to You under this Agreement. Such tech support providers may be located overseas.
7.11 The App is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the App and Your use of the App. The App may not be re-exported, downloaded or otherwise exported to, or installed by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.