TERMS & CONDITIONS
This Agreement is entered into by and between Cultivation Network, Inc. (“Company”) and the entity, organization or person accepting these Terms & Conditions (“Customer”) (this “Agreement”) effective on the date of signing.
FOR AND IN CONSIDERATION OF the mutual covenants, promises, agreements, representations, and warranties contained in this Agreement and for other good and valuable consideration private to the parties, the receipt and sufficiency of all of which is hereby acknowledged, the parties hereto agree as follows:
1. Master Agreement; Products and Services. This Agreement is intended to govern the relationship between Company and Customer and to set forth the terms upon which Company may provide products or services to Customer as Customer may from time to time request or accept and Company may from time to time agree or otherwise furnish. This Agreement is not itself an agreement by the Company to furnish any specific products or services nor is it an agreement by Customer to actually request or order the same. Instead, products or services may be furnished by Company pursuant to a written Statement of Work, as defined below, or as otherwise may be requested or accepted by Customer and agreed or otherwise furnished by Company. In all instances in which products or services are actually furnished, whether pursuant to a written Statement of Work or otherwise, the terms of this Agreement shall apply and be binding upon the parties. The terms of this Agreement are hereby incorporated by reference into every Statement of Work and every transaction between the parties, whether written or oral, express or implied, including those transactions currently in progress. This Agreement may be terminated for any reason by any party upon 90 days prior written notice; provided, termination of this Agreement shall not terminate any SOW or work in progress or products and services on order, all of which shall remain subject to the terms of this Agreement, nor shall termination of this Agreement relieve any party from any provisions of this Agreement reasonably construed as creating obligations or rights beyond termination of this Agreement, or relieve Customer from any obligation to pay for products and services furnished and accepted.
2. Statement of Work. As used in this Agreement, a Statement of Work (or “SOW”) shall refer to any order paid for through the checkout on www.cultivationnetwork.com or agreed to through a proposal, request, email chain, or other writing that describes in whole or in part the products or services requested by Customer and agreed to be provided by the Company. Customer understands that by agreeing to these terms and conditions to purchase a Product, as described on product pricing page(s) or in detail on www.cultivationnetwork.com, this plan may not always include every item the Customer would like or need, so additional charges may apply. These additional charges will be notified by email to the Customer and Customer should agree to additional charges via email reply. When purchasing a Product(s) through payment installments, Customer understands the Customer is responsible for paying the entire amount or balance due for Products purchased on www.cultivationnetwork.com, or agreed to through a proposal, request, email chain, or other writing that describes in whole or in part the products or services requested by Customer and agreed to be provided by the Company, and in accordance with the Product timeline or payment plan option as described on www.cultivationnetwork.com, upon notice or due upon completion of Product. If full payment is not received in an appropriate time frame as determined by Company, Product will be cancelled until payment is made. A Statement of Work shall be the preferred method of memorializing the parties’ agreements as to the identity of the products and services that may from time to time be furnished and related specific terms. However, the absence of a Statement of Work, or the absence of material terms therefrom, shall not preclude the Company from its right to receive agreed upon compensation for all goods or services that Customer may accept and the Company may in fact furnish, or in the absence of agreed upon compensation, fair market value.
3. Conditions of use of all products and services.
(a) Except as otherwise agreed, Customer has no right to receive a copy of the object code or source code. Customer’s sole rights shall not extend beyond a non-exclusive, non-transferable, and revocable license to use any furnished software or application in its business operations as otherwise governed by this Agreement or other agreements between the parties. None of Company’s Products or Services, or intellectual property, including work product, shall be deemed a work for hire. Under no circumstances shall Customer obtain rights in or to Company’s intellectual property in absence of an express written agreement hand-signed by Company.
(b) Customer is solely responsible for maintaining a high-speed Internet connection, as well as the necessary hardware and software to initiate and maintain compatibility with the any software or web based products or services.
(c) Company may need to make service improvements from time to time. These improvements may require that access to software, customer data, web-based products, and other products and services be temporarily limited or unavailable. Fees may apply but Company will notify Customer of those fees prior to service improvements.
4. Prohibited Uses:
Customer may not:
(a) sell, rent, lend, or lease or otherwise transfer any of its rights to use the products or services furnished by the Company, without prior written consent.
(b) create any derivative works based upon any furnished products or services, including software or applications, or copy any feature, design or graphic thereof, or reverse engineer the same;
(c) utilize the furnished products or services (i) in order to build a competitive solution or to assist someone else to build a competitive solution, or (ii) in a way that violates any criminal or civil law, or any patent, trademark, or copyright, applicable contract, or rights of third-parties.
5. Limited Warranty.
(a) Company warrants that all products and services it furnishes will substantially conform to applicable industry standards and to the terms and specifications of any applicable SOW when furnished; provided, Company makes no warranty of any kind or nature as to any products or services sold to Customer that are not manufactured or created by Company, all such products or services being sold or furnished “AS-IS” and “Where-is.” To the extent permissible, Company will pass along the any third-party warranty. Company further agrees to accept returns and exchanges of products sold to the sole extent that Company may itself obtain a return and refund or exchange without additional cost to Company. Customer acknowledges that the foregoing are the sole warranties provided by Company, and acknowledges that Company disclaims all other warranties, express or implied, including but not limited to warranties of fitness for a particular purpose or merchantability, all of which are hereby expressly disclaimed. There are no warranties which extend beyond the description on the face hereof.
(b) To the extent of products and services furnished through the Company, Customer agrees to be bound to Company as Company may be bound to such third-party and shall indemnify and hold harmless Company from any use of such third-party products or services which may give rise to any claim by such Third-party.
6. Remedies For Breach of Warranty; Limitation of Liability; Remedies of Company.
(a) In the case of any breach of the Company’s limited warranty, the sole remedy available to Customer shall be corrective action deemed reasonable and necessary by the Company or, should the Company be unable or determine not to employ corrective action, a refund of related charges to extent of such breach of warranty.
(b) Limitation of Liability: In all cases, Customer agrees that Company’s aggregate liability, and Customer’s sole and exclusive remedies under this Agreement or otherwise (in tort, in equity, or at law) relating to products and services, breach of this Agreement or any ancillary agreement or document, or otherwise arising in whole or in part from any act or omission of Company whatsoever, is strictly limited to either the remedies set forth in subsection (a), if applicable, or to monetary damages in an amount equal to the total of payments actually paid by Customer and received by Company on account of products or services from which liability arises, or $1,000, whichever is less. Customer agrees and acknowledges that the foregoing limitation of liability and remedies is agreeable, reasonable and enforceable. To the fullest extent permissible by law, Customer does hereby expressly waive any and all claims for punitive, exemplary, consequential, and incidental damages, including, but not limited to damages for delay or interruption, loss of anticipated revenues, income, profits or savings, loss of or damage to business reputation or goodwill, loss of customers, and loss of business or financial opportunity. Any legal action against Company must be commenced within 1 year of accrual or be time barred.
7. Charges; Payment terms. Customer agrees to pay all charges invoiced by Company for all Products and Services furnished and accepted by Customer, whether set forth in a Pricing Plan or SOW or not. Failure to remit payment in accordance with invoice, but otherwise not later than 45 days from date of invoice, shall result in a 10% finance charge and late fee. Failure to pay all sums due within 60 days of invoice shall permit Company to suspend any and all products and services, whether they relate to the sums unpaid or not, without notice and without termination of this Agreement or related SOW. In cases where Products or Services are billed on a subscription service or in periodic installments, Company shall be entitled to accelerate and recover all sums that would become due or accrue for the remaining term of such subscription or installment term. In cases where subscription or installment charges are not fixed, Company shall use the average billed amount for the preceding 3 periods to determine the periodic charge recoverable for the remainder of the subscription or installment term. Customer agrees to pay all costs and expenses of collection on all unpaid amounts, including actual and reasonable attorney’s fees.
8. Force Majeure. Company shall not liable for any delays or failure to perform, and no breach shall occur, in cases where such delay or failure is due in whole or in part to any occurrence, circumstance, act, or omission outside of its reasonable control, including but not limited to, acts of God, acts of war or government, utility outages or fluctuations, material shortages or unavailability, acts or omissions of third-parties, including failure of third-parties to supply products or services distributed or resold by Company (for example, services and products provided by search engines, web hosting and related services companies, including but not limited to, Google, Apple, GoDaddy, Facebook, Instagram, Twitter, Pinterest, Cart Manager, WooCommerce, Word Press, Microsoft, or any similar type shopping cart and internet products or service company), to limited internet or network connectivity, or defects in, cessation of service of, or incompatibility of third-party software, applications, products or services, including those caused by third-party upgrades or alterations, Customer’s hardware or software, or Customer’s inability to provide Company with access and information necessary to carry out Company’s performance. In the case of delays, Company shall be given a corresponding extension of time in which to perform.
9. Miscellaneous. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND ENTERED INTO IN RUTHERFORD COUNTY, TENNESSEE AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE, EXCLUSIVE OF ANY CONFLICTS OF LAWS RULES, AND THE PARTIES HERETO AGREE THAT ANY ACTION BROUGHT FOR A BREACH OF THIS AGREEMENT OR IN ANY WAY RELATING TO CONTROVERSIES BETWEEN THEM ENCOMPASSED HEREBY MAY ONLY BE BROUGHT IN A COURT OF COMPETENT JURISDICTION SITTING IN RUTHERFORD COUNTY, TENNESSEE, TO WHICH ALL PARTIES HERETO HEREBY CONSENT TO PERSONAL JURISDICTION AND VENUE. THE PARTIES HEREBY WAIVE RIGHT TO TRIAL BY JURY. Customer may not assign this Agreement without consent. This Agreement constitutes a fully integrated contract concerning the subject matter hereof, and all prior representations, negotiations, or understandings between the parties are subsumed herein. This Agreement may be modified or amended and waiver shall be effective only by a writing signed by the party to be charged. This agreement is severable. This Agreement may be executed in counterparts, with each and all counterparts constituting one and the same Agreement, and the parties hereby stipulate that a photocopy (including facsimile, PDF, jpg, png or tif) shall constitute an original and shall have the same force and effect as an original for all intents and purposes. The parties hereto further acknowledge that this Agreement is the product of arms-length negotiations and neither should be construed as the drafter hereof, but that they have each had the opportunity to consult with legal counsel before electing to enter into and execute this Agreement.