Retailer Subscription Agreement
Legal Terms & Conditions for Retailers Using the Olla eCommerce Platform
Last Updated: April 20, 2021
This Olla subscription Agreement (these “Terms” or this “Agreement”) is made between you, the customer (“Retailer”) and Fynd Inc. dba Olla (“Company” or “Olla”). It governs your access to and use of Olla’s services, products, support, expertise, technology, software, websites, and other services in relation to Olla’s cannabis eCommerce platform (the “Olla Platform”), made available to the Retailer’s direct consumers through integration into the Retailer’s website.
The Olla Platform may be used in accordance with the these terms within the Olla Subscription Agreement and the applicable terms (if any) outlined on the Olla Site (Olla Terms of Service) (collectively, the “Agreement”). This agreement shall be in effect as of the data that the retailer signs up for Olla. Company may change the Agreement from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account, or by posting notice on the company site. The revised agreement will become effective upon your review and acceptance of the revised Agreement on the Olla Platform after being prompted, or your use after the Update Notice will constitute acceptance of the revised agreement. If you feel any change to this revised Agreement unacceptable to you, you may discontinue use of the services or cancel services by emailing firstname.lastname@example.org
If your Sales Contract contains additional terms and conditions, then those terms and conditions govern to the extent they conflict with any of these terms. If you are agreeing to these terms on behalf of an entity, you represent that you possess the authority to bind that organization, otherwise you must not sign up for the Olla Platform.
We provide an eCommerce platform for retailers
The Olla Platform offers a solution for cannabis retailers to display and make available their inventory for their direct, third party consumers to browse and submit reservations for purchase. Company is not a courier, or pickup service and maintains no direct relationship with cannabis products. Retailers are fully responsible for the delivery and fulfillment of all products offered by the Retailer through the Olla Platform.
You will only use the Services in accordance with the terms set forth herein. We may suspend or terminate provision of the Services, in whole or in part, where we believe it is being used in a manner that breaches this agreement or creates risk of personal injury, property damage, or legal liability for Olla, you or any third party, or may cause Olla to loose the services of one of our third-party service providers. You represent and warrant that any information you provided to use about your (or, if you are acting on behalf of another, that person’s) business, products, or services is accurate and complete.
We are constantly changing and improving our services. We may add or remove functionality or features, and we may suspend or stop part of the Services altogether.
All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Olla stores and processes its own information of a similar type. As part of providing the Services, we may transfer, store and process Customer Data in the United States. By using the Services, you consent to this transfer, processing and storage of Customer Data.
Subject to the terms hereof, Company will provide Retailer with reasonable technical support services in accordance with the terms set forth in this Agreement.
Company will provide Technical Support to Customer via both online chat and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays and Company Holidays (“Support Hours”). Customer may initiate a support chat during Support Hours by utilizing our in-application live chat, or any time by emailing email@example.com. Company will use commercially reasonable efforts to respond to all support messages or emails within one (1) business day.
2. Restrictions and Responsibilities
Retailer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Retailer agrees to truthfully represent that during the use of the Olla Platform, it is legally permitted to sell cannabis products, by means of proper licensing, legal authorization, and any and all local, state, provincial, and federal regulatory authorities and laws. Retailer agrees to immediately notify Company and immediately cease use of the Olla Platform in the event there is a change in status of its legal ability to sell cannabis products.
Retailer agrees to comply with all applicable local, state, and federal regulations regarding the sale, promotion, marketing, distribution and other related activities pertaining to the sale and distribution of cannabis products.
Customer shall be responsible for obtaining and maintaining any Retailer Hardware Kit equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. Confidentiality and Proprietary Rights
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Company owns all rights, title, and interest in: a) the Olla Platform, and all improvements, modifications and updates thereto, by any technology, software, websites, inventions, developed in connection with the Olla Platform, c) all feedback provided by the Retailer relating to the Services, and d) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data, Retailer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Company utilizes industry standards data storage, security and protection measures in the delivery of the Olla Platform.
4. Payment and Fees
Customer will pay Company the then applicable fees described in the Sales Contract for the Services and Implementation Services in accordance with the terms therein (the “Fees”).
Olla will collect payment for the fees automatically via ACH or Credit Card. Fees are exclusive of taxes, which you’re responsible for, unless Retailer provides Company with a valid tax exemption certificate authorized by the proper taxing authority. You hereby authorize Olla or it’s payment processor to initiate entries to your business bank checking accounts, or credit cards on file with Olla (using your business address on file) in order to pay any amounts that you owe to Olla (including for any Renewal Terms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. Other payment terms will be as set forth in the applicable Service Sales Contract, if applicable. Retailer accepts that Company shall not be compensated for the sale or procurement of cannabis and shall not be a party to any transaction between Retailer and Retailer’s direct customers.
Customer will pay Company the then applicable fees described in the Sales Contract for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Sales Contract or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Payment obligations are non-cancelable and fees paid are non-refundable.
Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Company may at times choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. Term and Termination
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Sales Contract, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. Warranty and Disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. The Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.
For any questions or concerns regarding this agreement, you may contact us at: