Effective Date: June 1, 2021
By submitting an Order Form or using any of the Services on behalf of an entity, company or organization (“Entity”) then becomes a Customer. By clicking the “Agree” or “I Accept” in an Order Form, registering for any Paid Services, or accessing or using the Site or any other Services, you: (a) acknowledge that you have read and understand all of this Agreement; (b) represent and warrant to us that you are 21 years of age or older and have the legal right, power and authority to enter into this Agreement, and if entering into this Agreement on behalf of an Entity, that you have the legal right, power and authority to bind that Entity; and (c) agree that you are legally bound by all of its terms and conditions. If you are not 21 years of age or older, do not have authority to or do not agree to all of the terms and conditions of this Agreement, DO NOT click “Agree” on any Order Form, as you do not have any right to establish an Account with us or use any of the Services.
4. Our Right to Make Revisions.
5. Our Paid Services.
Our Paid Services consist of: (a) cloud-based on-line software as a service offering (“KT SaaS”), allowing our customers who operate one or more licensed retail cannabis dispensaries (an “Operator”), to create and administer an account or sub account with us on the Site (an “Account”). With an established Account, authorized personnel may access and utilize certain features of our cloud hosted suite of KlickTrack proprietary point-of-sale, inventory management and other software as a service solution for under an Accepted Order Form; (b) limited licenses to download and install KlickTrack proprietary mobile software applications as identified in the Accepted Order Form (“KT App”). The KT Apps will be installed on Operator controlled devices also identified in the applicable Accepted Order Form (“Authorized Device”) for use at the licensed retail cannabis dispensary (“Dispensary”). The Dispensary will be located at the street address stated in the Accepted Order Form (“Dispensary Location”) and (c) access to copies of our published guides, manuals and on-line help for KT SaaS or KT Apps. This information may be provided in paper form, digital memory storage device, over the web or via online help through the Site to support customer’s permitted use of KT SaaS or KT Apps (“Documentation”). In addition to your compliance with this Agreement and all cannabis or marijuana laws of your State (“Laws”), use of Paid Services under your Account may also require that you comply with requirements in the Documentation.
6. Account Registration.
In order to access and use KT SaaS, KT Apps, Documentation or other Paid Services, you must create an Account by completing and submitting an Order Form [link] to KlickTrack. Information provided by you must be truthful and accurate. After you successfully complete the Account registration, we will review the information provided, If the Order is complete and compliant, we will create an Account for you. You may designate personnel in your Account Information who can access and use Paid Services on your behalf (“Authorized Personnel”) subject to the terms and conditions of this Agreement.
In addition to any information described in the preceding paragraph, you must also provide us with any information necessary for us to provide any of the Services to you. This information may be viewed, accessed or used by any of KlickTrack department or service team including, Account Teams, Technical Support and Customer Service collectively “Klicktrack Teams.” Whenever you provide us with any information, whether regarding your Account or otherwise, you agree to: (a) always provide complete, true, and accurate information and (b) maintain and promptly update all information. If you provide any information that we have reason to believe is incomplete, untrue, inaccurate, or not current, we may suspend or terminate your Account and access to any of the Services.
7. Passwords, Account Security and Updating Your Account Information.
In the administration of your Account, you are required to set up and maintain confidential passwords or other login or access credentials (“Password”). You are responsible for securing all Passwords and for all activity in connection with your Account including the actions of all Authorized Users. Never sell or transfer Passwords. If you become aware of any unauthorized use of your Account, you must immediately notify us. We are not liable for any loss or damage arising from or in connection with your failure to comply with any of these requirements.
If you fail to comply with our Account registration process, we reserve the right to suspend or terminate, or change the Account. We have the right to take actions to ensure the security of the Services, or Accounts of any of our customers, including terminating your Account, disabling or changing Passwords, or requiring additional information to authorize transactions in connection with your Account. We may rely on the authority of anyone accessing your Account or using your Passwords. We are not liable to you for any loss or damages arising from our exercise of our rights under any provisions of this Agreement, including this Provision.
8. Account Use.
(a) You are responsible for acts or omissions by anyone accessing Services on your Account including actions constituting a breach of this Agreement.
(b) Neither KlickTrack, including the Klicktrack Teams nor any of our third-party service providers, contractors and licensors (“Third Party Service Providers”) has any obligation to monitor any use of any of the Services, but may in our sole discretion do so. We may disable any access or use of any Services, including we believe are in violation of this Agreement.
(c) We do not provide any legal or regulatory advice. The Services and any related information available through KlickTrack are for informational purposes only and not as legal or regulatory advice.
(d). We do not interpret State reporting errors or provide inventory management guidance. You are responsible to work directly with your local regulatory agency to resolve inventory management or reporting issues.
9. Your Consent to Receive Electronic Communications.
(a) KlickTrack, together with our Third-Party Service Providers may provide you with notices, Revisions or updates to your Account. These may take the form of disclosures or notifications required by law, support, or reminders regarding the Services or your Account, as well as marketing, promotional or other communications (“Communication”). You consent to receive Communications electronically rather than in paper form. You agree to use electronic signatures.
(b) Communications may be posted on the Site via text messages, pushing them through the Services or to the cell number or email addresses you provide to us when you register for an Account. You agree that all electronic Communications have the same effect as paper copies and that all electronic Communications satisfy any legal requirement that Communications be in writing. Communications shall be considered received by you when sent by text, or within 24 hours of the time emailed to you unless we receive confirmation that the email was in fact, not delivered or at the time of any push notifications.
(c) You may opt out of receiving promotional emails we send to you by following the “unsubscribe” options in those emails and may opt out of promotional phone calls by informing the caller that you do not want to receive future promotional calls. However, you may only opt out of promotional text messages from us which are not part of any Paid Services.
10. Third-Party Services.
The Services may be linked, accessed, or integrated with third party services, products, solutions, software or technology (“Third Party Services”). When decisions or selections are presented to you on the Site or through any of the Services, you must elect to enable integration to link to such Third-Party Services in order to use Paid Services. We may share certain Customer Data accessed by Third-Party Services. The Services may contain third party software that requires additional terms and conditions. The additional terms and conditions may be requested from KlickTrack and are incorporated by reference into this TOS. By accepting this TOS, you are also accepting those Third-Party Services. You acknowledge we have no control over and are not responsible for any Third-Party Services. We have no liability to you for any damage or loss caused by any Third-Party Services.
11. Using Our Services.
Subject to the conditions of this Agreement and with respect to access of the KT Apps, you will be able to use Paid Services under an Accepted Order Form during the Subscription Term as defined below.
a. KT SaaS - If your Services include KT SaaS, we grant you and you accept a limited, nonexclusive, nontransferable, except revocable right during to access and use those KT SaaS features of our proprietary software as hosted by us or our Third-Party Service provider. This access is granted only under the terms of an Accepted Order form. At your authorized Dispensary Location, you will be authorized to access and use KT SaaS features of the object code form of our proprietary software as hosted by us or our Third-Party Service Provider under the terms of your Account and for your internal management of your point-of-sale transactions.
b. Paid Services - We grant you, and you accept, a limited, nonexclusive, non-sublicensable, nontransferable and revocable license to use Documentation during the Subscription Term in connection with your use of Paid Services. At expiration or termination of the Subscription Agreement, you and all Authorized Users must return to us, or at our option, destroy, all copies of Documentation. At our request, you are required to provide written certification of compliance. In order to access Paid Services under your Account, including our retail point of sale software solutions, you will first need to download and locally install a copy of an executable object code version of those KT Apps. The software will be installed only on Authorized Devices. All KT Apps made available to you, are licensed, not sold and before you download any KT Apps you will be required to agree to our End User License Agreement (“EULA”). A copy of the current version can be viewed here [link]. Any downloading, installation or use of any KT App subject to the terms and conditions of this Agreement including our EULA incorporated into this Agreement by reference.
c. For each downloadable software application selected by you in an applicable Accepted Order Form (each a “Licensed KT App”), we grant you a limited, nonexclusive, nontransferable, non-sublicensable, revocable license during the Applicable Subscription Term. You will be given access from KlickTrack File Transfer Protocol and can install and use a single copy of each Licensed KT on Authorized Devices at the Authorized Location only for your internal management of and point of sale retail transactions at your Dispensary at the Dispensary Location. You must never install any Licensed KT App where it could be used by multiple devices at the same time. You are licensed to only install and use a single instance of an executable object code version of each applicable Licensed KT App on Authorized Devices identified in the applicable Accepted Order Form. You must register each of the Authorized Devices with us as a “Register” or as a “Point-of-Sale Retail Device” when downloading any of the Licensed KT Apps.
d. If the number or identity of Licensed KT Apps installed under your Account ever exceeds the number or description of Authorized Devices in your Accepted Order Form we may (i) terminate any Accepted Order Form or this Agreement, immediately with or without notice to you, or (ii) charge you overage Fees for any device not authorized in an applicable Accepted Order Form.
e. You are not authorized to transfer, redistribute or sublicense any of the Licensed KT Apps. If you sell or transfer any device on which you have installed any one or more of the Licensed KT Apps, you must first remove all Licensed KT Apps and all Documentation, from those devices.
f. Upon expiration or termination of this Agreement, Accepted Order Form, or any Subscription Agreements all authorizations and licenses granted to you under this Agreement automatically terminate.
g. Nothing in this Agreement grants you any ownership interest or any intellectual property rights in any KT SaaS, KT Apps, Licensed KT Apps or any of our Services. KlickTrack and our third-party service providers retain all ownership to the Licensed KT Apps, KT SaaS, Documentation and all other components of the Services including all intellectual property rights.
12. Updates and Support.
(a) If we make updates to any of the Licensed KT Apps available to you, you must install those updates to continue using the Paid Services. The updates may be subject to additional terms which will be provided to you.
(b) We may provide support for KT Apps. The support may consist of limited troubleshooting, for versions of Licensed KT Apps no older than one version behind the current production version.
(c) We do not provide support or guidance regarding any third-party software, data, information or other materials including state regulatory software or databases.
13. No Assurances Regarding Compatibility of Devices or THIRD-PARTY Carriers.
We do not warrant that any of the Services or Paid Services are compatible with any of your mobile devices, specifications, networks including any point of sale or payment process requirements of your wireless, internet or related service providers or carriers. Your access to and use of the Services may be subject to terms and conditions of your agreements with your respective mobile device manufacturers, third party processors or wireless carriers.
14. Your Equipment.
You are solely responsible to: (a) obtain and maintain at your expense all hardware, equipment, information technology infrastructure, high speed Internet access and connections, utilities, telecommunications and other services needed to connect to, access or otherwise use any of the Services. (“Equipment”), (b) ensure your Equipment complies with all required specifications outlined in our Documentation; and (c) maintain such firewalls and security measures to protect your data, networks, systems and Equipment from unauthorized access; and (d) maintain the security of your Account, Passwords for all uses of your Account, Equipment, networks and systems with or without your knowledge or consent; and (e) pay all fees, costs and expenses associated or incurred in connection with your Equipment.
15. Prohibited Conduct.
You must use the Services including Paid Services in accordance with this Agreement and the EULA, and must not:
(a) provide access to any of the Paid Services under or in connection with your Account other than to Authorized Users with a valid Password to access those Paid Services during the Term. You may permit your retail customers or shoppers when present at your Dispensary at the Authorized Location to access those features designed to be accessed by your Shoppers in the Accepted Order Form. You are responsible for any acts or omissions of any of your employees, contractors or Shoppers in violation of this Agreement.
(b) reverse engineer, decompile, disassemble, decode, decrypt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, organization, internal design, algorithms or encryption devices of, or adapt, modify or create derivative works of, any KT App, KT SaaS or any other part or component of any of the Services.
(c) copy, rent, lease, lend, sell, license, sublicense, distribute, publish, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any Licensed KT App or any other part or component of any of the Services.
(d) use, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any KT App, KT SaaS, Documentation or any of the Services to any third-party, including the Internet or any timesharing, service bureau, software as a service, cloud computing or other technology or service;
(e) hack, disable, manipulate, modify, tamper or interfere with or disrupt the integrity or performance of or attempt to overburden, gain unauthorized access to, bypass, circumvent, disable, or work around any technical features or limitations (including but not limited any access or usage limitations) in the Site, any KT SaaS, KT App, Documentation or Services including any hardware, content, systems, networks or technology which constitutes any part or component of any of the Services;
(f) delete, remove or obscure any of our author attributions, legal, intellectual property rights or other proprietary rights notices or designations or those of any of our Third-Party Service Providers on or from any of the Services or any part or component thereof;
(g) download, upload, cache, store, reproduce, copy, post, distribute, display, transmit or process any data, file or content utilizing any of the Services;
(h) use any robot, spider, scraper, deep link or other automated data gathering or extraction tool, program, algorithm or methodology to access, acquire, copy or monitor the Site, the KT SaaS or any of the Services, or any data, files or content of or from time to time stored in any of the Services for any purpose;
(i) to input, post, upload, download, transmit, reproduce, or distribute, or to facilitate the inputting, posting, uploading, downloading, transmission, reproduction, or distribution of any code, file or content which contains, or activates any malware, software virus, worm, time bomb, corrupted file, Trojan horse, or any other computer code, file or program designed and intended to disrupt, damage, overburden, limit or otherwise impair the functioning of any software, hardware, network, server or communications systems or equipment;
(j) input, post, upload, download, transmit, reproduce ,or distribute, or to facilitate the inputting, posting, uploading, downloading, transmission, reproduction, or distribution of any unsolicited or unauthorized advertising or promotional materials, for the purpose of direct marketing, including unauthorized text messaging, emails or any other unsolicited or unauthorized commercial and noncommercial communication, or which otherwise violate anti-spamming or other laws or which might give rise to civil or criminal liability;
(k) manipulate or display the Site, or any other part of the Services by using framing or similar navigational technologies or allow any website that is not fully owned by you to frame, syndicate, distribute, replicate, or copy any portion of your website that provides direct or indirect access to any of the Services;
(l) conduct any competitive analysis of any of the Services or any part or component thereof in order to build any product or service which is competitive with any of the Services; or
(m) permit, authorize, assist or encourage any third party to do any of the foregoing.
(a) Violating the security of our Site or any other part of the Services is prohibited and may result in criminal and civil liability. KlickTrack through its authorized agents may investigate incidents involving violations and will cooperate with law enforcement if a criminal violation is suspected.
(b) Klicktrack Teams may at our discretion, monitor or review any access to or use of any of the Services which occurs under or in connection with your Account to determine, in our sole and absolute discretion, your compliance with this Agreement.
(c) KlickTrack has implemented technical as well as internal organizational measures intended to secure Customer Data from unauthorized access, disclosure and accidental loss. However, we do not guarantee that unauthorized parties will never be able to defeat those measures or use Customer Data or other information for improper purposes. You expressly acknowledge that that there is no such thing as “perfect security” on the Internet, and that communications with the Services will involve transmission over the Internet and networks owned or operated by third parties. You further acknowledge that your communications with the Services may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. KlickTrack, is not responsible for any communications with any of the Services, or any Customer Data, which are delayed, lost, altered, intercepted or stored during transmission across networks, including the Internet and/or your local network. Although we will take reasonable steps to help ensure the safety of Customer Data, you understand and agree that such steps do not guarantee that use of the Site or any other part or component of any of the Services. KlickTrack, makes no representation, warranty or guarantee that use of any of the Services is protected from security threats or other vulnerabilities.
(d) You must immediately notify us of any unauthorized access to or use of your Account or Password issued in connection with your Account, and any breach, or suspected breach, of security you become aware of regarding any of the Services, your Account or any Customer Data.
17. Ownership and Reservation of Rights -Customer Date, Anonymous Data, Aggregated Data
(a) As used in this Agreement, the term “Customer Data” means any data, file or content collected from, submitted or provided by you, your Authorized Users or your Shoppers on or through any of the Paid Services in connection with your Account.
(b) As between you and us, you own all Customer Data. You are solely responsible for the accuracy, quality, integrity and legality of all Customer Data.
(c) You grant to us and our Third Party Service Providers a non-exclusive, worldwide, royalty-free, fully paid up, perpetual and irrevocable, sublicensable through multiple tiers of sublicensees, right and license to : (i) host, store, cache, copy, view, process, perform, display, transmit, distribute, create derivative works of and use and to otherwise perform all acts with respect to Customer Data as we deem necessary to provide any of the Services under this Agreement; (ii) to enable our respective third-party service providers access to provide services (iii) comply with, applicable Laws; (iv) use, reproduce, transmit, distribute and display your respective trade names, trade dress, trademarks or service marks as we, or our Third Party Service Providers, deem necessary to provide any of the Services under this Agreement; and (iv) to host, store, cache, copy, view, process, perform, display, transmit, distribute, create derivative works of and otherwise use Customer Data for the purpose of deriving anonymous statistical and usage data, and data regarding the operations, features and functionality of the Services. ("Anonymous Data") and combining or incorporating Anonymous Data with similar data information derived or obtained from other KlickTrack clients, customers, users “Aggregated Data") for evaluating, improving our existing products or services, developing new products or services and generating statistics for marketing purposes.
(d) You own all your Customer Data other than the Customer Data License and expressly granted by you under this Agreement.
You may from time to time provide us with feedback regarding the Services. We welcome requests, ideas, suggestions or recommendations for potential modifications or additional features of the Services (“Feedback”). You grant us an exclusive royalty-free, fully paid-up, worldwide, transferable, sublicensable irrevocable, perpetual and unrestricted license to (a) use, copy, distribute, transmit, publicly perform, publicly display, modify, adapt, create derivative works of and otherwise exploit any Feedback, in whole or in part, anywhere throughout the world in any form or media. We also have the right to promote or incorporate any Feedback into any of the Services for any promotional, sales or marketing purposes. All decisions regarding how we use, develop, or implement Feedback, shall be within our sole and absolute discretion. You agree that we are not under any obligation of confidentiality, express or implied, with respect to any Feedback.
KlickTrack shall be the sole owners of any invention, device, work of authorship, product or service including any intellectual property rights created by or for us derived from, any Feedback and that you have no recourse against us for infringement or misappropriation of any proprietary right in or to any Feedback. You also agree that the posting of materials to any forum or interactive area on the Site or any of the Services, irrevocably waives any and all “moral rights” in such Feedback.
19. Trademarks, Service Marks and Intellectual Property, DMCA.
(a) The names or marks “KlickTrack”, and all graphics, logos, page headers, button icons, scripts and service names and other source identifying symbols or devices used by us on or in any of the Services, are our trademarks, service marks in the United States and/or other countries These marks are covered by trademark, copyright or other laws (“KT Proprietary Mark”) You cannot use any mark confusingly similar to our Proprietary Mark, without our prior written authorization from us. You must not use any meta tags or other “hidden text” utilizing any of our trademarks utilizing any of our Proprietary Marks or any of our product or service names or the names of any of our products or services without our express written consent.
(b) You hereby grant to us, our affiliates, successors, Third Party Service providers a non-exclusive, worldwide, royalty-free, fully paid up, perpetual and irrevocable right and license to: (i) include your name and/or logo in our lists of customers, any of our product or service literature, press releases, social media posts and/or other marketing materials for general promotional purposes with respect to any of the Services, and (ii) make such use of your name and/or logo as you and we may otherwise mutually agree in writing. With respect to our use of your trademarks or service marks (your “Marks”), we will comply with those of your use guidelines which you communicate to us in writing and use your Marks in a manner consistent with industry practice.
(c) KlickTrack complies with the US Digital Millennium Copyright Act of 1998 (“DMCA”), by responding to notices of alleged infringement. As part of our response, we may remove or disable access to materials residing on the Site or Services controlled or operated by us, that is claimed to be infringing. If that occurs, we will make a good faith attempt to contact the person who submitted the material in question, so that they may submit a counter notification as set forth in the DMCA. We do not control content posted on any third-party website and cannot remove content from sites we do not own or control. If you are the copyright owner of any content hosted on a third-party site, and you have not authorized the use of your content.
Notifications of claimed copyright infringement and counter- notices must be sent to our designated agent:
Service Provider: KlickTrack, Inc.
Name of agent designated to receive notification of claimed infringement: KlickTrack Designated Agent
Email address of designated agent: designatedagent@KlickTrack.com
We will respond expeditiously to claims of copyright infringement committed using any of the Services that are reported to our designated copyright agent in accordance with the DMCA. Notices must include the required information set forth in the DMCA.
Upon expiration or termination of the Term or this Agreement: (a) All rights and licenses granted to you under this Agreement including all licenses granted to you under any EULA, are automatically terminated; (b) We may delete any or all of your information and Account data, including any Customer Data stored on the Service; and (c) we shall not, under any theory of liability, be liable to you or to any third party for any compensation, reimbursement or damages arising from or in connection with any termination or suspension of any of the Services or your Account , or for any deletion of any Customer Data.
21. Interruption of Service
We will use reasonable efforts to provide Paid Services in an error and interruption free manner subject to the limitations of paragraph 24 below. We will implement and maintain reasonable administrative, physical and technical safeguards (“Safeguards”) which attempt to prevent collection, use or disclosure or access to Customer Data outside the terms of this Agreement. Incorporated by reference is our Service Level Agreement (“SLA”) [link] which more fully sets forth our responsibilities and your rights regarding service interruptions. Except for any Service Credit provided for under our SLA, neither KlickTrack nor any of our third-party services providers will be liable to you for any delay, outage, interruption or unavailability of any of the Service
22. MMS/SMS Service Requirements.
If you have an accepted order form, including access to ANY MMS/SMS marketing features, then the provisions of this section 21 apply to you
b. You confirm to us that the process you use for securing User Consent shall comply, with the Telephonic Communications Laws and that you will secure prior express consent as applicable, from your customers and potential customers, to lawfully receive automated and other calls and text messages through the Services. You are responsible for compliance with all Telephonic Communications Laws in connection with any use of any of the Services. You have not relied on KlickTrack in making any such assessments and determinations.
c. Provided (a) you have an Account with us, (b) have an Accepted Order Form subscribed for the applicable call and text messaging features of our Paid Services, and (c) are not in default in your obligations under this Agreement, we will configure applicable features of the Services to:
You must: never use any of the Services to communicate with persons under 21 years of age, violate applicable advertising regulations including those restricting display of cannabis or consumption of cannabis. In addition, you agree to take commercially reasonable steps to verify that all customers who provide User Consent are at least 21 years of age and that no use of any of the Services under or in connection with your Account involves any communication or interaction with persons under 21 years of age.
d. You acknowledge that you are responsible for determining the form, content, timing and recipients of any call or text message made under or in connection with your Account using any of the Services. Klicktrack provides the SMS Marketing service without warranty and by using the service you agree Klicktrack is not liable to you, or to any third party, for any losses or damages arising out of your use of the SMS marketing service. You agree to release Klicktrack from all direct, indirect, consequential, incidental or special damages or any other damages resulting from a statutory or regulatory violation.
23. Fees and Payment Terms.
a. Agreement to Pay. You agree to pay the fees and charges stated in the Accepted Order Form and with respect to this Agreement (“Fees”). Fees may be increased by us in accordance with this Agreement. You must pay us all Fees in accordance with the payment method designated in the applicable Accepted Order Form or which you subsequently designate in your Account. You may pay by credit card, through a third-party provider or payment processor, or via direct billing/ACH. By providing your payment information, you authorize us and our payment processor to automatically charge or debit full amount of Fees and any other charges due on a recurring basis. You must notify us in writing that you revoke that authorization. Regardless of any of the payment methods you authorize, you are obligated to pay all unpaid Account Fees and we shall have the right to collect any Fees through any lawful means.
b. Time to Pay. Services will be available to you when we receive your first Payment. Thereafter, you will receive a monthly invoice. Payment for invoices must be received by us no later than ten (10) days after the date of the applicable invoice. Your account will be charged according to your authorization. Each invoice will confirm your authorization for the Payment. If we do not receive payment within ten (10) days of issuing an invoice, that invoice is delinquent, and you are in default of your payment obligations under this Agreement. A late payment charge is payable by you on any Fees not paid when due and shall accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by applicable Laws. You must also pay all of our reasonable costs and expenses of collection including reasonable attorney’s fees. If any past due payment on your Account has not been received by us within five (5) days from the date that payment is due, or if we are unable to charge any credit card or debit any bank account you designated for those Fees, then we may suspend your Account and any access to or use of any Services until all past due payments have been received by us.
c. Third Party Providers. To the extent your payment of Fees is made through a third-party provider, you are subject to the terms and conditions of such third-party provider or payment processor.
d. Insufficient Funds. You must always ensure that you have sufficient funds or credit to pay the Fees charged by us. If an ACH payment is for insufficient or uncollected funds or for erroneous information, we may reinitiate the returned ACH debit to the applicable bank account. Any amounts owed to us that are not collected by ACH debit may be charged to any backup credit card account designated by you in the applicable Accepted Order Form or in your Account. Alternatively, we may consider the declined payment to be a late payment. All Fees are non-refundable once paid to us unless designated in the SLA.
e. Early Termination Fee. Customer acknowledges that its Services rates are based upon Customer’s commitment to purchase Services for the Term. Accordingly, if Customer exercises its rights under Section 24(f) or if Klicktrack terminates this Agreement or specific Services under Sections 24(a)-(e), immediately upon such termination, and without prejudice to Klicktrack’s other rights and remedies, Customer shall pay to Klicktrack a termination charge equal to the then-current monthly recurring fee multiplied by the remaining months in the Term plus all outstanding implementation fees. Collectively, the accelerated recurring monthly fee plus and any unpaid implementation fees are referred to as the “Early Termination Fees”. It is agreed and understood that the Early Termination Fees represent a reasonable estimate of actual damages arising out of Klicktrack’s provision of the Services.
f. Taxes. All Fees payable by you to us under this Agreement are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, royalties, know-how payments, customs, privilege, excise, value-added and property taxes (collectively "Taxes"). You are responsible for payment of any Taxes. We may add the amount of any Taxes to any invoices or charges to you and you must not withhold any Taxes from any amounts due us.
g. Overages. If you use Services that exceeds any applicable limits set forth in the Accepted Order Form, or if you upgrade your subscription for any of the Services, or otherwise change your usage of any of the Services requiring payment of additional Fees, you shall be billed and must pay the additional Fees in the manner provided in this Agreement
h. Changes in Fees. We reserve the right to change our Fees and to institute new Fees and charges, from time to time upon 14 days’ prior notice to you. If you do not agree to the additional Fees, your sole remedy is to terminate your Account by notice to us at firstname.lastname@example.org, within ten (10) days of your receipt of additional Fees or charges. You remain bound by all other terms of this Agreement including the original term. In addition, your continued use of any of the Services following the effective date of any changed or additional Fees or charges constitutes your acceptance of the Fees.
i. Bill Inquiries and Disputed Charges. If you believe that we have billed you incorrectly, you must contact us no later than ten (10) days after the closing date of the incorrect statement (“Fee Dispute Notice Period”). All Inquiries must be directed to email@example.com. All amounts not timely disputed by you within the Fee Dispute Notice Period shall be final and not subject to dispute. If you are timely and in good faith dispute any Fees invoiced by KlickTrack, you must promptly pay the undisputed portion of the Fees and within the Fee Dispute Notice Period notify us in writing of the disputed amount. In that written notice, you must provide detailed reasons for the dispute and the amount of the disputed Fees. If you were billed in error, we will issue a credit within sixty (60) days after we determine that an error was made. Credits issued have no cash value and may be applied against current invoices for future Paid Services. In the event we determine that the amount was billed correctly, you must pay the disputed amount together with interest accrued from the initial Due Date within seven (7) business days after we notify you.
24. Term; Suspension; Termination
a. Term. The provisions of this Agreement govern your access to the Site generally, but also your access to and use of any Paid Services. As used in this Agreement, “Term” means the date the first Order Form submitted to us by you referencing this TOS, becomes an Accepted Order and ending on the date upon which all Accepted Order Forms submitted to us by you or on your behalf have expired or are terminated in accordance with this Agreement
b. Subscription Order Term. The initial term of each Accepted Order Form (“Initial Subscription Term”) starts on the effective date of the Accepted Order Form or within forty-five (45) days of the creation of your Account whichever is shorter time period. Unless otherwise specified in an Accepted Order Form, each Accepted Order Form shall automatically renew for additional, successive periods of one (1) year (each a “Subscription Renewal Term”) and Fees may be increased, changed or amended, unless either you or KlickTrack gives notice of non-renewal at least thirty (30) days before the end of the Initial Subscription Term or Renewal Term. As used in this Agreement, “Subscription Term” means the Initial Subscription Term together with all Subscription Renewal Terms in the Accepted Order Form.
c. Suspension and Termination. We reserve the right, in our sole discretion, by use of any software, granted access or by any other lawful means, to suspend your Account
(i) immediately, with or without prior notice to you, if we, or any of our third-party service providers, receives a judicial or other governmental demand, order, subpoena, or law enforcement request which expressly or by reasonable implication requires us or our third-party service provider, contractor, or licensor, to do so;
(ii) immediately and without further notice, if we give you notice of a default in payment of any undisputed Fees or other amounts due under this Agreement and you fail to pay all such sums without set off or deduction within  days of the date of that notice;
(iii) immediately and without notice, if you default or breach any of the terms or conditions of this Agreement other than failure to timely pay undisputed Fees or other amounts) which is you fail to cure within fifteen (15) days after notice from us.
(iv) immediately upon notice to you of any default or breach which in our reasonable opinion is not susceptible of cure or
(v) immediately with or without notice to you if we reasonably determine that:
(A) there is an imminent threat against or an attack on any of the Services; (B) you or any of your Authorized User's use of any of the Services disrupts any of the Services or poses a security risk to us or our third-party service providers or our respective technology or service platforms; (C) you have used or are using any of the Services for fraudulent activity; (D) any governmental license, permit, or authorization necessary for your lawful ownership or operation of your Dispensary business at the Authorized Location is revoked or suspended; (E) you make an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (F) any of our Third Party Service Providers suspends or terminates our access to or use of any third-party services or products required to enable you or your Authorized Users to access or use any of the Services; or (G) provision of the Services to you is or becomes prohibited by applicable Laws.
vi. Immediately in the event of voluntary or involuntary insolvency of KlickTrack including the filing of a Suggestion of Bankruptcy by KlickTrack in any court of competent jurisdiction (collectively “Insolvency Event”). In the case of an Insolvency Event, You agree that no further Services are required and further agree that Your sole remedy for any refunds, reimbursements, credits or repayments vest solely in the Bankruptcy Court. Specifically, You waive any cause of action for monetary or equitable relief directly or indirectly against KlickTrack, its employees, officers, directors and owners except to the extent authorized by the assigned Bankruptcy Court as a result of any loss, damage and disruption of Services.
d. Effect of Expiration or Termination. Upon expiration or any earlier termination of the Term, your Account or this Agreement: (i) your rights to access and use any of the Services, and all rights, consents, authorizations or licenses granted to you under this Agreement including under the EULA automatically terminate and you must immediately discontinue any and all use of the Services; (ii) we and our third-party service providers may disable your Account and terminate you and your Authorized Users access. (iii) you will not be entitled to any refund, and shall remain obligated to pay us all unpaid Fees under this Agreement including all Early Termination Fees through the date of expiration or earlier termination. All of your other obligations under this Agreement through the date of expiration or termination including those requiring performance by you subsequent expiration or termination shall remain in effect. (iv) all of KlickTrack’s rights and remedies under this Agreement shall continue in full force and effect; (v) if the term or this Agreement is terminated for any reason other than notice of non-renewal or under the terms of subsection f belowl, then in addition to any and all other rights and remedies available to us, you must pay us all Fees, that shall have accrued under this Agreement plus a sum equal to the aggregate amount of all Fees, charges and other amounts which would have been payable to KlickTrack under this Agreement for the remainder of the unexpired Term, plus all related taxes and expenses.
You agree that all such sums shall be accelerated and due and payable by you within 7 days of any such termination; and (vi) you must immediately delete all copies of any and all KT Apps previously downloaded from any of the Services, return or if we require, destroy all KlickTrack Confidential Information, and return all KlickTrack property. With the return of property, you will provide written certification executed by an executive officer of your company, confirming that you have fully complied with all of the foregoing obligations under this provision and (vii) KlickTrack shall have no liability to you or any third party for any damage, liabilities, losses or any other consequences that you may suffer or incur as a result of, or arising from termination of your Account, the Services, the Term, or this Agreement.
(e) Expiration or Termination of Subscription Terms. The term, any subscription order term, and this Agreement or any license created under this Agreement may be terminated by us: (i) if you fail to make any payments due under this Agreement within five (5) days of the due date of that payment; (ii) on 30 days’ notice to you if you fail to perform any other material obligation required of you under this Agreement, and such failure is not cured within the 30-day period; or (iii) you file a petition for bankruptcy or insolvency, have an involuntary petition filed against you, commence an action providing for relief under the bankruptcy laws, file for the appointment of a receiver, have filed against you any action for the appointment of a receiver, or are adjudicated bankrupt or insolvent. The above basis for termination are “With Cause.”
(f) Termination by Customer. The Term may be terminated by you on 90 days’ written notice to us, if we failed to perform any material obligation. “Material Obligation” is defined as failure to provide our services but does not include interruption in services which are otherwise addressed in our Service Level Agreement and such failure is not cured within 90 days from our receipt of your notice, or a longer period if we are working diligently towards a cure.
(g) Effect of Termination. Upon termination of the Term, any subscription order, Term or this Agreement you shall no longer have any right to access or use any of the Services and must not circumvent any security mechanisms.
(h) Termination of the Term. Any subscription order, Term or this Agreement shall not limit either KlickTrack or Customer from pursuing any other remedies available to either of them. Nor shall such termination relieve you
(i) Effect of Suspension. During any suspension of your Account, the Term and this Agreement remain in effect except that any rights or licenses granted to you under this Agreement shall cease. We shall have no obligation to provide any of the Services to you under or in connection with your Account or otherwise. You and your Authorized Users may not have access to your Account or any of the Services. You shall remain liable for the prompt payment of all such Fees.
(j) No Liability. We shall have no liability to you or any third party for any damage, liabilities, losses, including lost profits or any other consequences that you may experience as a result of suspension or termination of your Account or any of the Services, or any termination of the Term, or this Agreement.
25. Data Preservation During Term; Date Preservation in the Event of Suspension or Termination.
(a) Following expiration or termination of the Term, your payment of all Fees owed, and if the termination was not a result of your breach of this Agreement: (i) we will not for the first  days following such expiration or termination, take any action to intentionally erase or delete any of your Customer Data then stored on the Services with respect to your Account. (ii) if you submit to us a written request within the first 30 days after termination, we may either provide to you a thumb drive containing a copy of all Customer Data then stored on the KT SaaS under your Account, in a format as we deem appropriate for the preservation and delivery of the information or may allow Customer Data then stored on the KT SaaS available to you during that 30-day period for export or download from such areas of the Site or File Transfer Protocol (“FTP”) site as may be provided for such purpose. If the termination was for cause under the terms above, or we delivered a copy of Customer Data to you as contemplated under the preceding provisions, neither KlickTrack nor any of our third-party service providers shall have any obligation to continue to store, maintain or otherwise process any Customer Data remaining on any of the Services. We may erase, delete or destroy any and all such Customer Data whether by removing pointers to such files or data on any host server, overwriting or otherwise.
(b) KlickTrack and our third-party service providers shall be entitled to retain archives and a copy of any and all Customer Data, consistent with state and federal law, which, you or anyone else uploads through any of the Service and which we determine to be needed to respond to any inquiries or comply with any applicable Laws, following this Agreement or to evaluate any claims.
(c) Upon Your written execution of an agreement, we will agree to store and maintain Your data providing You with access as needed at a rate of $250.00 per month.
26. Confidential Information
“Confidential Information” means, any and all information disclosed by the “Disclosing Party” to a “Receiving Party” that is either (a) marked as “confidential” or “proprietary,” or, (b) would reasonably be expected to be understood by the Receiving Party as the Disclosing Party’s Confidential Information at the time of disclosure. Confidential Information does not include information that : (i) was or is already known to the Receiving Party prior to receipt from the Disclosing Party, by reason of previously receiving that information directly or indirectly from a source other than someone who had an obligation of confidentiality to the Disclosing Party; (ii) becomes known to the Receiving Party from a source other than someone having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to any of the Disclosing Party’s Confidential Information.
The Receiving Party shall use reasonable measures and take reasonable precautions to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the Disclosing Party’s Confidential Information. Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to: (A) such employees, agents or contractors of the Receiving Party as may have a need to know in the course of their duties; and (B) legal or financial advisors or potential acquirers or financing sources of the Receiving Party on a need-to-know basis. Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by court order or by operation of law. In these cases, provided that the Receiving Party delivers reasonable notice to the Disclosing Party and uses reasonable efforts to cooperate with Disclosing Party
The Services are provided by us on an “as is” and “as available” basis. KlickTrack disclaims all express, statutory or implied warranties, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, accuracy of data and noninfringement. Because some jurisdictions may not permit the exclusion of certain warranties, some of these exclusions may not apply to you.
KlickTrack and its officers, agents, representatives and employees make no warranty that (i) that any of the Services will meet your requirements; (ii) materials, Software or Content available for download from the Site or any other part of the Services are free of infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties; (iii) that any of these services will be uninterrupted, timely, secure including free from unauthorized access consistent with the SLA, (iv) the results that may be obtained from the use of any of the Services will be accurate, complete or reliable; (v) the quality of any products, services, software, information or other material obtained by you through any of the services will meet your expectations, and (vi) any errors in any of the Services or any Software will be corrected.
28. Scheduled Downtime.
We will use reasonable efforts to schedule down time for routine maintenance of the Services as required by any of our Third-Party Service Providers. Our scheduled service times are between the hours of 12:00 am (midnight) and 4:00 am Pacific Time. There may instances of unscheduled downtime as a result of staffing shortages or business interruptions caused by third party providers. If unscheduled downtime becomes necessary, we will provide reasonable notice through the Services, or by email and we will use our best effort to give you at least 48 hours prior notice of all scheduled downtime or outages of any of the Services to which you subscribe under an Accepted Order Form. We may without incurring any liability or obligation to you, suspend any of the Services during any Scheduled Downtime including as a result of unforeseen or unavoidable staffing or vendor issues.
29. Time for Initiating Disputes Arbitration.
“Dispute” means any claim, controversy or dispute between you and us related to this Agreement or any of the Services. Any action or proceeding by you relating to a Dispute must be commenced by you within one year after the cause of action accrues or is waived by you. All Disputes will be settled by a single arbitrator in King County, Washington consistent with the Federal Arbitration Act. If the parties are unable to agree on an arbitrator, each Party will designate an arbitrator who will select the arbitrator of the proceeding. All arbitrators will be attorneys knowledgeable in the area of business law. The arbitrator will have the authority to issue an injunctive relief, monetary damages and attorney fees. The parties will share the cost of the arbitration process including all administrative, registration and arbitrator fees and costs.
30. Limitations of Liability; Indemnification
Unless set forth in the SLA, Klicktrack, its employees, officers, representatives, service providers, suppliers, licensors, and agents are not liable for any direct, special, indirect, incidental, exemplary, punitive or consequential damages or any other damages of any kind, including but not limited to, loss of use, loss of profits, or loss of data, whether in an action in contract, tort including negligence, or otherwise, arising out of (i) the use or inability to use any of the Services or any Content, Software, information or transactions provided on or through any of the Services; (ii) any claim attributable to errors, omissions, or other inaccuracies in any of the Services or any of the Content, materials, software, information, products or services on or available through any of the Services; (iii) the cost of procurement of substitute goods and services resulting from any products, data, information or services purchased or obtained or messages received or transactions entered into through or from our Site or any other part of the Services; (iv) unauthorized access to or alteration of your transmissions or data; (v) statements or conduct of any third party on our site; (vi) the delay or failure in performance resulting from an act of force majeure, including without limitation, acts of God, natural disasters, communications failures, government governmental actions, wars, strikes, labor disputes, riots, shortages of labor or materials, vandalism, terrorism, nonperformance of third parties for any reason beyond our or their reasonable control; or (vii) any other matters relating to our site or any of the services even if we or our authorized representatives have been advised of the possibility of such damages. Your sole remedy for dissatisfaction with the site or any of the services is to stop using the site and/or those services.
State law may not allow the limitation of liability, implied warranties or the exclusion or limitation of certain damages set forth above, so this limitation of liability may not apply to You. If, however, any part of this limitation of liability is found to be invalid or enforceable for any reason, in the total, aggregate liability of KlickTrack shall not exceed the amount of fees paid by You to us under this Agreement during the three (3) month period preceding the date of your notice to us of your claim of liability or as determined by a Court of competent jurisdiction in the case of an Insolvency Event as defined above. Unless determined otherwise by a Court, this liability amount is cumulative and not per alleged incident.
i. Indemnification by Klicktrack. KIicktrack will indemnify, hold harmless, and defend Customer (and its officers, directors, and employees) from and against any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third-party claim against Customer alleging that the Services infringe or misappropriate the intellectual property rights of the third party. If Customer is subject to any such third-party claim, Klicktrack will, at its option and expense: (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services to no longer infringe; or, if (a) and (b) are not commercially reasonable, (c) terminate this Agreement. Klicktrack’s obligations under this Section will not extend to any claim based on or arising from any: (i) other software, hardware, systems, network, or technology not provided by Klicktrack as part of the Services; (ii) modifications or changes to the Services by or on behalf of Customer, whether or not in violation of this Agreement; (iii) use, installation, integration, incorporation, or combination of the Services, or any component thereof, with or into any other software, hardware, system, network, or technology; (iv) Customer Data; (v) Personal Data including personal identification or protected health information; or (vi) access to or use of the Services other than as permitted by this Agreement.
ii. Indemnification by Customer. Customer will indemnify, hold harmless, and defend Klicktrack (and its officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, expenses, including reasonable attorneys’ fees, arbitrator fees and the court or arbitration costs of enforcing any right to indemnification under this Agreement, relating to or resulting from (a) Customer’s use of or access to the Services or Third-Party Services, including, without limitation, any data, information, content, or results generated through the Services or Third-Party Services; (b) Customer’s actual or alleged breach of any provision of this Agreement; (c) Customer’s actual or alleged violation of Applicable Law; and (d) any damage to property or injury to or death of any person directly or indirectly caused by Customer.
c. Indemnification Procedure. Each party must promptly notify the other in writing of any action seeking indemnification. The party seeking indemnification (the indemnitee) shall cooperate with the other party (the indemnitor) at the indemnitor’s sole cost and expense. The indemnitor must promptly assume control of the defense and must employ counsel of its choice to handle and defend the same at the indemnitor’s sole cost and expense. The indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The indemnitor must not settle any action without the indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the indemnitor fails or refuses to assume control of the defense of such action, the indemnitee shall have the right, but not the obligation, to defend against such action, including settling such action after giving notice to the indemnitor, in each case, in such manner and on such terms as the indemnitee may deem appropriate. The indemnitee’s failure to perform any obligations shall not relieve the indemnitor of its obligations under this section, except to the extent that the indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
31. Export Regulation and International Distribution Restrictions.
The Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You must not directly, or indirectly, export, reexport or release any Services, or any Software or technology included in, or comprising any Services to, or make any Services or any such Software or technology included in, or comprising any Services accessible from, any jurisdiction or country to which export, reexport, or releases prohibited by law, regulation or rule. You must comply with all applicable Federal laws, regulations and rules and complete all required undertakings (including obtaining any necessary export license or any other governmental approval) provided prior to exporting, reexporting, releasing or otherwise making any Cloud Services, or any software or technology included or comprising the Cloud Services available outside the U.S.
In addition, no software or underlying information or technology may be downloaded or otherwise exported or reexported (a) into Cuba, North Korea, Iran, Sudan, Syria or any other country for which the US maintains an embargo on exports, or (b) to a person or entity identified on lists of the US Treasury Department (e.g., specially designated nationals, denied persons or entities) or the US Commerce Department (e.g., entity list, table of denied orders), which control [such] exports. By downloading or using any Software or underlying information or technology, you agree to the foregoing and 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.
Customer may not provide access to the Company Platform or Company Software to any person or entity that is (a) identified on the Specially Designated Nationals List or Foreign Sanctions Evaders List of the Office of Foreign Assets Control, U.S. Department of the Treasury, as amended from time to time; (b) located in Cuba, Iran, North Korea, Sudan, Syria, or any other country that is subject to U.S. economic sanctions prohibiting such access; or (c) otherwise unauthorized to have such access under any Law.
32. Partial Invalidity.
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.
Customer may not assign this Agreement or assign or delegate its rights or obligations under the Agreement without Klicktrack’s prior written consent. Any assignment or attempted assignment by Customer otherwise than in accordance with this Section will be null and void.
Klicktack may assign this Agreement to a an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Klicktrack agrees to provide reasonable notice to Customer of any successor assignment.
34. Force Majeure.
Each party will be excused from performance for any period it is prevented from performing any obligation or service as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters. This provision does not include failure caused by a party's financial condition or any internal labor problems including strikes, lockouts, work stoppages or slowdowns. Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of the Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (90) days or more, either party may terminate this Agreement by giving written notice to the other. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice as soon as reasonably practicable of its inability to perform and projected duration.
35. Choice of Law and Venue.
This Agreement will be governed by the laws of the State of Washington for all disputes relating to this Agreement, each party submits to the exclusive arbitration jurisdiction in King County, Washington, and waives any jurisdictional, venue, or inconvenient forum objections.