ROSHI SAAS AGREEMENT

TERMS OF SERVICE

These Roshi SAAS Agreement Terms of Service with the applicable Order Form together constitute the Roshi SAAS Agreement by and between Roshi Solutions, Inc., a Delaware corporation (“Roshi”) and Customer (as defined below) setting forth the terms and conditions governing Customer’s access to and use of the Roshi supply chain management platform (the “Services”).  Customer and Roshi may each be referred to herein as a Party and collectively as the “Parties.”  Capitalized terms have the definitions set forth herein or the applicable Order Form.

By (1) executing a subscription order that references or incorporates these Terms of Service, or (2) clicking a box in an online purchasing portal indicating acceptance (either such method constituting the “Order Form”), Customer agrees to these Terms of Service as well as the terms set forth in such Order Form.

For purposes hereof, “Customer” means the party executing the Order Form accepting this Agreement.  If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, then the term “Customer” shall refer to such entity and its Affiliates (as defined below), and by their signature below, such individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and Customer may not use the Services.  For purposes hereof, the term “Affiliate” means any entity controlled by, controlling or under common control with the referenced party.

1. Term. 

The term of Services will (i) begin upon the Effective Date and include the Transition Period plus the Subscription Period (together, the “Initial Term”), and (ii) will automatically renew for successive periods equal to the expiring Subscription Period (each a “Renewal Period” and all such Renewal Periods, together with the Initial Term, the “Term”), until Customer gives Roshi written notice of non-renewal in accordance with Section 12(a)(i) or the Term is otherwise terminated in accordance with the terms of this Agreement.

The “Transition Period” means the 29 calendar days immediately following the Effective Date.

In the event that Customer resumes Services after a termination or suspension, such that the Services do not need to be re-implemented and/or Customer is otherwise not required to pay an Implementation Fee, then there will not be a Transition Period and the initial Subscription Period will begin immediately upon the Effective Date.

2. Services

(a) Access to Services.

(i) Subject to Customer’s compliance with the terms and conditions of this Agreement, during the Term Roshi will make the Services and Content (as defined below) available to Customer pursuant to the terms hereof.

(ii) The Services are solely for use by Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services (“Users”). Such use is limited to Customer’s internal business functions. As part of the registration process, Roshi will assign to the Customer one administrative user name and password for Customer’s account.  Customer may then use its administrative account to assign individual usernames and passwords to its Users. The total number of Users may not exceed the limit (if any) set forth in the Order Form except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the fees payable hereunder.

(iii) Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and accounts.

(iv) Roshi will use commercially reasonable efforts to give Customer advance notice of any planned downtime; however, Customer understands and acknowledges that Roshi makes no warranty or assurance as to uptime or availability of the Services.

(b) Content. Roshi may from time to time make available through the Services, solely for Customer’s internal business purposes in connection with its use of the Services, information and data obtained from publicly available sources or third-party content providers (such information and data, “Content”).

(c) Documentation. Roshi may from time to time provide, solely for Customer’s internal business purposes in connection with its use of the Services, physical or electronic user manuals, handbooks, and guides for the Services (the “Documentation”).

(d) Implementation & Support.  Subject to the payment of the Implementation Fee, Roshi will use its commercially reasonable efforts to assist the Customer in implementing the Services.  Once implemented, Roshi will provide the Customer with standard support for the Services at no additional charge.  All support requests and technical inquiries should be sent by email to [support@roshi.me].  Roshi will use commercially reasonable efforts to reply to support requests within one business day of receipt.

(e) Service Suspension. Notwithstanding any other provision herein, Roshi may suspend Customer’s access to any portion or all of the Services if: (i) Roshi reasonably determines that there is a threat or attack on any of the Services or Roshi’s systems or networks, (ii) any vendor or business partner of Roshi suspends or terminates Roshi’s access to or use of any third-party services or products required to enable Customer to access or use the Services, (iii) a government authority suspends or terminates Roshi’s access to the applicable state inventory tracking system or revokes any other necessary regulatory permissions or credentials of Roshi, (iv) a government authority suspends or terminates Customer’s access to the applicable state inventory tracking system or revokes any other necessary regulatory permissions or credentials of Customer, (v) Customer remains delinquent in the payment of any fees or other amounts due under this Agreement 10 days after receipt of written notice thereof, or (vi) Roshi has reason to believe that Customer or any of its Users is in violation of any provision of this Agreement or that continued use of the Services by Customer poses a systems, security or legal risk to Roshi, Customer, or any other customer, vendor or business partner of Roshi (any such suspension, a “Service Suspension”).  Roshi shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. In the event of a Service Suspension pursuant to clause (i), (ii), or (iii) above in excess of 24 hours, Customer will be entitled to a refund of the amount of the Service Fee applicable to the portion of the Term subject to such Service Suspension (determined on a pro rata basis)

(f) Right to Modify Services; No Future Services Guaranteed. Roshi may from time to time, in its sole discretion, and with or without notice, change some or all of the functionality or any component of the Services or make any modification for the purpose of improving the performance, correcting problems, or adding, removing or revising features.  Customer agrees that its subscription to the Services hereunder is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Roshi regarding future functionality or features.

3. Customer Responsibilities and Restrictions. 

(a) Customer Responsibilities.  Customer will (i) use Services and Content only in accordance with this Agreement and the Documentation, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of Services, Content and Documentation, and notify Roshi promptly of any such unauthorized access or use, (iii) be solely responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services, (iv) comply with terms of service of any Non-Roshi Products (as defined below), and (v) maintain the security of Customer’s and its Users’ login credentials to the Services.

Customer is responsible and liable for all uses of the Services, Content and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.

(b) Customer Usage Restrictions.  Customer will not: (i) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, allow access to or otherwise make available the Services, any Content, or Documentation to any third party, (ii) use any Services, Content or Documentation for the benefit of anyone other than Customer, (iii) use the Services or any Non-Roshi Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Services or any Non-Roshi Product to store or transmit malicious code (such as viruses, worms, time bombs and Trojan horses), (v) attempt to interfere with or disrupt the integrity or performance of the Services, (vi) attempt to gain unauthorized access to the Services or Content or any Roshi systems or networks, (vii) use or attempt to use any data mining, robots, or similar data gathering and extraction tools to gather Content or any data other than Customer Data, (viii) permit direct or indirect access to or use of any Services, Content or Documentation in a way that circumvents a contractual usage limit, (ix) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (x) copy Content or Documentation except as specifically permitted by Roshi in writing, (xi) frame or mirror any part of the Services, Content or Documentation, other than as specifically permitted by Roshi in writing, (xii) disassemble, decompile, reverse engineer, adapt or otherwise attempt to gain access to any software component of the Services, to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or to modify, translate or create any derivative works based on any part of the Services, (xiii) access or use the Services, Content or Documentation in any way to build or support, or assist any third party in building or supporting, products or services competitive to Roshi, (xiv) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, or (xv) use the Services, Content or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Roshi or any person.

In addition to the foregoing restrictions, Customer shall not enable, facilitate or otherwise permit, and shall make every reasonable effort to prevent, any access, use or other action prohibited herein.

 

4. Non-Roshi Products.

Roshi or third parties may make available certain third-party software applications or other products intended to interoperate with the Services (a “Non-Roshi Product”).  Any use by Customer of a Non-Roshi Product, and any exchange of data between Customer and any Non-Roshi provider, product or service, is solely between Customer and the applicable Non-Roshi provider and is subject to the terms and conditions of such Non-Roshi provider. Roshi does not warrant or support Non-Roshi Product, unless expressly provided otherwise in a writing signed by Roshi.  Roshi is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Roshi Product or its provider. Roshi cannot guarantee that the Services will interoperate as expected with any Non-Roshi Product or that if the Services do so interoperate, that they will continue to do so.

5. Fees and Payment

(a) Fees. Customer shall pay Roshi the Implementation Fee and all Service Fees without offset or deduction. Fees must be paid by ACH/eCheck or credit card in US dollars.  All fees are non-refundable and all payment obligations hereunder are non-cancelable, except as may be specifically permitted otherwise by the terms of this Agreement or as otherwise required by applicable law.

(b) Implementation Fee. The Implementation Fee is due and payable upon the Effective Date.

(c) Service Fees. The Service Fee for any Subscription Period is due and payable on the first day of such Subscription Period, which (i) for an initial Subscription Period, will be the Effective Date and (ii) for a Renewal Period, will be the first day after the expiration of the initial Subscription Period. For clarity, whether Customer has elected a one-month, a six-month or a one-year Subscription Period, all fees for such subscription shall be due and payable on the first day of such Subscription Period.  If the due date for any Service Fee falls on a weekend or holiday, such Service Fee shall instead be due and payable on the last business day preceding such date.

(d) Late Payments. If Customer fails to make any payment when due, without limiting Roshi’s other rights and remedies: (i) Roshi may charge interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, (ii) Customer shall reimburse Roshi for all reasonable costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees, and (iii) if such failure continues for 10 days or more, Roshi may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full.

(e) Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Roshi’s income.

6. Proprietary Rights and Licenses

(a) Customer Data. Roshi acknowledges that, as between Roshi and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to such information of Customer’s that is submitted or posted by or on behalf of Customer to the Services (“Customer Data”); provided that Customer Data does not include Aggregated Data or Feedback (as such terms are defined below).  Customer hereby grants to Roshi a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Roshi to provide the Services to Customer. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data.

Customer acknowledges and is aware that as part of the Services, certain Customer Data and information will be provided to or shared with state regulatory, tax or other authorities (through, for example, the Metrc system) so that Customer’s inventory can be tracked or otherwise monitored by applicable state authorities and technology systems (such data being referred to herein “Regulatory Data”).  Customer understands and agrees that Customer’s rights and obligations vis-a-vis the state with respect to Regulatory Data are controlled by applicable state rules and requirements (including relevant public records laws) which are outside the control of Roshi and as to which Roshi provides no assurances.

(b) Aggregated Data. Notwithstanding any other provision herein, Roshi may monitor Customer’s use of the Services and may collect and analyze data and other information relating to the use and performance of the Services and related systems (including, without limitation, Customer Data that is input into Roshi’s systems and data derived therefrom).

For purposes hereof, “Aggregated Data” means data and information related to or derived from Customer Data and Customer’s use of the Services; provided that such data is aggregated and/or de-identified such that it cannot reasonably be used to identify Customer.  As between Roshi and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Roshi. Roshi is free to disclose and use, without attribution, compensation or any other obligation to Customer or any other person, any and all Aggregated Data for any legitimate interest or purpose, including without limitation to improve and enhance the Services and for other development, marketing or promotional purposes in connection with the Services and other Roshi offerings.

(c) Reservation of Rights. For the duration of the Term, Customer shall have the non-exclusive right to access and use the Services  in accordance with and subject to the terms set forth in this Agreement.  Subject to such limited rights of use and access, Roshi reserves all of its right, title and interest to the Services (and all underlying technology, software, patents, know-how), Content, Documentation, and Aggregated Data, including all related intellectual property rights (“Roshi IP”).   No rights are granted to Customer hereunder other than as expressly set forth herein.

Customer may not copy or use trademark, logo or other proprietary information (including images, text, page layout or form) of Roshi, its content providers or its Affiliates without express written consent of Roshi.

(d) Feedback. If Customer or any of its employees, contractors or other agents provides any feedback, ideas, comments, questions, modifications, improvements and suggestions regarding the Services, Content or Documentation or any Roshi IP (“Feedback”), such Feedback is and at all times shall remain Roshi’s sole and exclusive property.  Customer hereby assigns to Roshi, on Customer’s behalf and on behalf of its employees, contractors and/or agents, all right, title and interest to such Feedback.  Roshi is free to disclose and use, without attribution, compensation or any other obligation to Customer or any other person, such Feedback (including any ideas, know-how, concepts or techniques contained in the Feedback) for any purpose whatsoever.

7. Confidential Information

(a) Confidential Information; General.

(i) “Confidential Information” means any and all non-public business, technical, financial or other confidential or proprietary information, whether or not marked as confidential,  disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), in connection with the Services or in connection with any testing or discussions relating to the Roshi platform. Each Party will use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) safeguard such Confidential Information, (ii) not to disclose or otherwise convey any such Confidential Information to any other party, (iii) not to use any Confidential Information of the other Party for any purpose other than in connection with the provision of the Services or as otherwise expressly permitted herein, and (iv) to limit access to Confidential Information to those of Receiving Party’s employees and contractors who need such access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to Receiving Party that are not materially less protective than those herein.

(ii) Confidential Information of Roshi includes, but is not limited to, information regarding the Services, Content, Documentation, Aggregated Data, and the terms and conditions of this Agreement (including pricing).  Confidential Information of Customer includes, but is not limited to, Customer Data, Customer supply chain structures and constraints, information regarding Customer’s business partners, suppliers and customers, and the pricing terms of this Agreement.  Confidential Information of each party includes information regarding business processes and plans, proprietary technology and technical information, products plans and designs and trade secrets.

(iii) Confidential Information does not include information that (A) is or becomes (without breach hereof) generally available to the public, (B) was in the possession of the Receiving Party or known by it prior to disclosure by the Disclosing Party or is disclosed to the Receiving Party by a third party not in violation of any obligations of confidentiality to the Disclosing Party, or (C) is independently developed by the Receiving Party.

(iv) Notwithstanding the foregoing, each Receiving Party may disclose Confidential Information to the extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or regulation; provided that in the event a Receiving Party receives a subpoena or other government request for Disclosing Party’s Confidential Information (other than Regulatory Data), which request would reasonably be understood to be specifically targeted towards the Disclosing Party (as opposed to a broad request for information in connection with, for example, an audit of Receiving Party or its systems) and outside of the ordinary course of business, such Receiving Party shall use commercially reasonable efforts, to the extent practicable and legally permissible, to provide Disclosing Party with advance written notice so that Disclosing Party may seek, at its expense, a protective order or other appropriate remedy.  In the event that Disclosing Party is unable to obtain a protective order or other remedy, then, to the extent practicable and legally permissible, Receiving Party shall reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in obtaining assurance that confidential treatment shall be accorded such Confidential Information. Roshi may also disclose Confidential Information in accordance with Section 7(b) below.  Nothing shall prevent either Party from disclosing the terms of or pricing under this Agreement in any legal proceeding arising in connection with this Agreement.

(b) Regulatory Exceptions. Customer acknowledges and agrees that as a provider of a third-party system permitted to integrate with state regulatory cannabis inventory tracking systems (“Permitted System”), Roshi is required to share certain information with state authorities.  Customer agrees and acknowledges that Roshi may, without consent of or notice to Customer, share any Regulatory Data or other Customer Confidential Information with relevant state regulators, authorities, or other state agents (“State Agents”) either (i) upon request by any such State Agent or (ii) to the extent that Roshi reasonably believes that such disclosure is required by law, regulation or rule or Roshi’s terms of service as a Permitted System.  Customer understands and acknowledges that some states have reserved the right to access Customer’s Roshi account to retrieve certain Regulatory Data and other Customer Confidential Information and that Roshi shall not restrict such access.  However, in the event that Roshi receives a subpoena or other government request for Customer Confidential Information other than Regulatory Data, which request would reasonably be understood to be specifically targeted towards the Customer (as opposed to a broad request for information in connection with, for example, an audit of Roshi or its systems) and outside of the ordinary course of business, then any disclosure by Roshi will be governed by the process and procedure set out in Section 7(a)(iv).

 

8. Limited Warranty; Disclaimers

• Roshi warrants that the Services will perform materially in accordance with the Applicable Service Specifications set forth in the Order Form. If the Services do not perform as warranted, Customer must provide Roshi with written notice including a detailed description of the deficiency in the Services.  For any breach of this services warranty, Customer’s exclusive remedy and Roshi’s entire liability shall be the correction of the deficient Services that caused the breach of warranty, or, if Roshi cannot substantially correct the deficiency in a commercially reasonable manner, Customer may terminate the this Agreement for cause in accordance with Section 12(a)(iv) and be refunded the amount of the Service Fee applicable to the portion of the Term after the effective date of such termination (determined on a pro rata basis).
• EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8(a) ABOVE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ROSHI DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ROSHI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ROSHI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, BE SECURE, FREE OF HARMFUL CODE, OPERATE WITHOUT INTERRUPTION OR ERROR, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR FUNCTIONAL WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES.
• ROSHI STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY NON-ROSHI PRODUCTS.

9. Customer Representations.

Customer represents (i) that Customer shall at all times use the Services only in connection with (A) the cultivation, manufacture, distribution, transportation, and sale of cannabis or cannabis products, in each case, in full compliance with all applicable state and local law and regulation, or (B) the legal cultivation, manufacture, distribution, transportation, and sale of non-cannabis products, and (ii) that Customer shall at all times while using the Services have the appropriate licenses, permits, authorizations, and approvals required to legally conduct such business activities in their state, county, city, and any other relevant jurisdiction. Any use of the Services in a manner or for a purpose that violates applicable state or local law or regulation (or any federal law other than those directly regulating cannabis), that is fraudulent or deceptive, or that is not in compliance with the terms of this Agreement and the Documentation, shall be deemed an “Unauthorized Use”.

10. Indemnification

(a) Customer Indemnification. Customer hereby agrees to indemnify and hold harmless Roshi against any damages, losses, liabilities, settlements and expenses (including costs and attorneys’ fees) in connection with any third party claim or action arising out of or relating to any alleged (i) misrepresentation by Customer of data or information, or (ii) Unauthorized Use by Customer. Customer may not settle any claim against Roshi unless Roshi consents in writing to such settlement. Roshi will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice, with Customer to bear the reasonable attorney’s fees and expenses of any such counsel and defense.

(b) Roshi Indemnification.  Roshi will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights, and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Roshi in writing of, such claim, provided that Customer (a) promptly gives Roshi written notice of such claim (or threat of such claim), (b) gives Roshi sole control of the defense and settlement of such claim (except that Roshi may not settle any claim against Customer unless such settlement unconditionally releases Customer of all liability), and (c) gives Roshi all reasonable assistance, at Roshi’s expense, in the defense of such claim.  If an infringement or misappropriation claim is made or appears likely, Roshi may, in its discretion and at no additional cost to Customer, (i) modify the Services so as to reduce the risk of infringement (while substantially preserving their functionality), (ii) obtain a license for Customer’s continued use of the Services, or (iii) terminate Customer’s subscription for the Services upon 30 days’ written notice and refund Customer the portion of the Service Fee applicable to the remainder of the Term. The above defense and indemnification obligations do not apply if the claim arises from (x) the use or combination of the Services with products, data, or processes not provided by Roshi, if the Services or use thereof would not infringe without such combination, or (y) any modification or use of the Services in breach of this Agreement.

(c) Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claims described in this section.

11. Limitation of Liability

IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AFFILIATES) HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR FROM CUSTOMER’S USE OR INABILITY TO USE THE SERVICES, FOR (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, OR (ii) DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

EXCEPT FOR FEE AMOUNTS DUE TO ROSHI UNDER SECTION 5 HEREOF, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY (WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR FROM CUSTOMER’S USE OR INABILITY TO USE THE SERVICES, UNDER ALL LEGAL OR EQUITABLE THEORIES EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO ROSHI BY CUSTOMER FOR SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, LESS ANY REFUNDS OR CREDITS RECEIVED BY CUSTOMER FROM ROSHI.

NOTHING IN THIS SECTION 11 LIMITS OR PRECLUDES LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

12. Termination

(a) Termination and Non-Renewal.

(i) The Customer may elect not to renew its subscription to the Services by providing written notice to Roshi at least 30 days prior to the expiration of the then-current Subscription or Renewal Period and Roshi may elect not to renew Customer’s subscription to the Services by providing written notice to Customer at least 90 days prior to the expiration of the then-current Subscription or Renewal Period.  In either such case of non-renewal, the Term and this Agreement will terminate as of the last day of such Subscription or Renewal Period.

(ii) Roshi may at any time terminate the Term and this Agreement if (A) any vendor or business partner of Roshi suspends or terminates Roshi’s access to or use of any third-party services or products required to enable Customer to access or use the Services, (B) a governmental authority suspends or terminates Roshi’s access to the relevant state inventory tracking system or revokes any other necessary regulatory permissions or credentials of Roshi, or (C) Roshi determines in good faith that continuing to provide Services in Customer’s jurisdiction or to Customer presents unacceptable legal, systems, security or other risk to Roshi, Customer, or any other customer, vendor or business partner of Roshi; provided that Roshi will provide Customer with at least 30 days’ advance written notice of such termination to the extent legally permissible and practicable; and provided further, that Customer shall be refunded the amount of the Service Fee applicable to the portion of the Term after the effective date of such termination (determined on a pro rata basis).

(iii) Roshi may terminate the Term and this Agreement for cause, effective on written notice to Customer, if: (A) Customer fails to pay any amount when due hereunder, and such failure continues more than 30 days after Roshi’s delivery of written notice thereof, (B) a government authority suspends or terminates the Customer’s access to the applicable state inventory tracking system or revokes any other necessary regulatory permissions or credentials, or (C) Roshi reasonably believes that Customer (1) is likely to cause legal liability or negative regulatory impact to Roshi, (2) has misrepresented any data or information or engaged in fraudulent or deceptive practices, or (3) is using the Services for an Unauthorized Use.  In such case, Customer will not be entitled to any refund of Service Fees.

(iv) Either Party may terminate the Term and this Agreement for cause (i) upon 30 days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; provided that, if Customer terminates pursuant to this provision, Customer shall be refunded the amount of the Service Fee applicable to the portion of the Term after the effective date of such termination (determined on a pro rata basis).

(c) Effect of Expiration or Termination. Upon expiration of the Term or earlier termination of the Agreement, Customer shall no longer have rights to access or use the Services; however, at Customer’s request, Roshi will make Customer Data available for electronic retrieval by Customer for a period of 30 days after such expiration or termination.  Thereafter Roshi may delete or render inaccessible any stored Customer Data.

(d) Survival.  All provisions of this Agreement which by their nature should survive expiration of the Term or termination of this Agreement will survive any such expiration or termination, including, without limitation, the requirements and restrictions of Section 3, any payment obligations pursuant to Section 5 or any other provision herein (including any interest or collection costs that may become due in accordance with such provision after the date of expiration or termination), the Sections 6, 7, 8, 10, 11, 12(c), and the general provisions of Section 13.

13. Miscellaneous

(a) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and (i) if to Roshi, to the address or email address listed below, or (ii) if to Customer, to the address or email address set forth on the Order Form, or in either case, to such other address that may be designated in writing by a Party to the other. All Notices must be delivered by personal delivery, email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid).  Notwithstanding the foregoing, Roshi may provide notice of any modifications to this Agreement (including changes in pricing) for subsequent Renewal Periods via posting to the Roshi platform in accordance with Section 13(h) below.

Notice to Roshi should be delivered to:

Roshi Solutions, Inc.

5100 B-1 Clayton Road #228

Concord, CA 94521

Attn: Celia Carter, CEO or Jason West, CTO

By email: notices@roshi.me

 

(b) Governing Law. This Agreement will be governed by, interpreted, and construed in accordance with the laws of the State of California, without regard to any state’s conflicts-of-law rules.

(c) Venue; Jurisdiction. The sole and exclusive venue for resolution of all disputes hereunder shall be Alameda County, California. The parties expressly consent to personal jurisdiction in California and waive any challenges to the jurisdiction of, and exclusive venue in, the courts located in Alameda County, California. Regardless of the foregoing, either Party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of Roshi’s intellectual property or proprietary rights.

(d) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.

(e) Use of Customer Logo. Customer agrees (i) that Roshi, with the prior written consent of Customer, may identify Customer as a recipient of Services and use Customer’s logo in sales presentations, marketing materials, and press releases, and (ii) develop a brief customer profile for use by Roshi for promotional purposes.

(f) General.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be modified or eliminated to the minimum extent necessary so as to effect the intent of the Parties, and the remainder of  this Agreement will otherwise remain in full force and effect.  This Agreement is not assignable, transferable or sublicensable by either Party without the written consent of the other Party; provided, however, that a Party may assign this Agreement to any Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or  substantially all of such Party’s assets or its business. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has authority of any kind to bind the other in any respect whatsoever.

 

(g) Entire Agreement. 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.  In the event of any conflict among the following documents, the order of precedence shall be: (1) the Order Form, (2) these Terms of Service, and (3) the Documentation.

 

(h) Amendment and Modification.  Roshi may update, amend, modify or revise the terms of this Agreement (including but not limited to with respect to pricing) for a subsequent Renewal Period by providing Customer with written notice (which may be delivered by posting to the Roshi platform), in either case  at least 45 days prior to the commencement of such Renewal Period.  By continuing its subscription to the Services for such Renewal Period, Customer accepts the updated Agreement.  Any other amendment or modification to, or waiver of, the terms of this Agreement must be set forth in a writing signed by both Parties, which may be by electronic signature (e.g., DocuSign or other electronic signature technology) or by clicking a link (e.g., “I agree”) on the Roshi online ordering portal specifically indicating acceptance.  No failure or delay in enforcing any right under this Agreement shall constitute a waiver of that right.

Last Updated April 9, 2023