ZOLTRAIN MASTER SERVICES AGREEMENT
THIS ZOLTRAIN MASTER SERVICES AGREEMENT (this “Agreement”) governs all Services (as defined below) set forth in one or more orders (“Orders”) entered into by and between Zol Solutions, Inc., with offices at 1624 Market Street, Suite 226 #68364, Denver, CO 80202 (“ZolTrain”) and the entity listed in the initial Order (“Customer”) and governs Customer’s use of and access to the Services.
1. DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.
2. TERM. This Agreement begins on the date the first Order referencing this Agreement is executed by the parties (the “Effective Date”) and will continue in effect so long as any Order remains in effect, unless terminated as specified herein (“Term”). The term of each Order will begin as specified in the Order and will continue for the initial term stated in the Order or, if no term is stated, for 1-year (the “Initial Term”) and will automatically renew for successive terms of equal length (each a “Renewal Term”), unless either party provides termination notice 60 days prior to the end of the Initial Term or then-current Renewal Term. With respect to ZolTrain, such notice shall be provided to firstname.lastname@example.org. The term of each Order will end upon termination of this Agreement.
3. ORDERS. All Services performed by ZolTrain under this Agreement will be strictly as set forth in Orders under this Agreement. No Order will be valid or binding on either party unless signed by authorized representatives of both parties. Once signed by authorized representatives of both parties, each Order will become a part of this Agreement. In the event of a conflict between the terms of an Order and the other terms of this Agreement, the other terms of this Agreement will control, except where and to the extent an Order expressly indicates it is intended to control.
4. ZOLTRAIN SERVICES.
4.1 GENERALLY. During the Term, subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees, ZolTrain will provide to Customer the Services identified in one or more Orders referencing this Agreement. The “Services” consist of all subscriptions, licenses, products, services, and other offerings set forth in one or more Orders entered into by ZolTrain and Customer, including the features and functionality provided through ZolTrain’s product education platform (the “Platform“), including any Training Content and Professional Services (each as defined below), and any ancillary services related to the foregoing.
4.2 Platform Access. Subject to the terms of this Agreement, including Customer’s payment of all applicable Fees, ZolTrain hereby grants Customer the right to access and use the Platform, during the Term, to provide educational training relating to Customer’s products and services. Access to and use of the Platform will be through an account on the Platform provided for Customer (“Account”). Customer will be permitted to authorize its employees and contractors to access the Platform under Customer’s Account (each a “User”). Customer will designate a User as the administrator of Customer’s Account (the “Admin”). Until the Admin is designated by Customer, the Admin will be the first User added to Customer’s Account. Customer may allow its Users to access and use the Platform solely under Customer’s Account for purposes of exercising the rights granted to Customer under this Agreement. Customer will ensure that all information about each User provided to ZolTrain is and remains accurate and complete during the Term. Customer will advise Users of the restrictions set forth in this Agreement and will be solely responsible for all acts and omissions of its Users just as if each were those of “Customer” under this Agreement. Customer will implement commercially reasonable measures to protect the security and confidentiality of all Users’ credentials associated with Customer’s Account and to prevent unauthorized access to or use of the Platform through any User credentials. Customer will notify ZolTrain promptly of any such unauthorized access to or use of the Platform or if any User credentials are lost, stolen, or otherwise compromised.
4.3 Customer Content. As between ZolTrain and Customer, Customer owns all data, information, and content that Customer may upload to the Platform or otherwise provide to ZolTrain (collectively, “Customer Content”), including Customer’s registration information, Account information, User credentials, and any other Account passwords, usernames, or other personal information, that Customer provides, uploads, or transfers to the Platform or generates through Customer’s Account. By providing Customer Content, Customer grants ZolTrain a non-exclusive, royalty-free, license to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display Customer Content throughout the world solely as necessary to perform ZolTrain’s obligations under this Agreement. Except as expressly provided by this Agreement, Customer is solely responsible for the nature of all Customer Content. Customer represents, warrants, and covenants that Customer Content: (a) does not violate this Agreement or any applicable laws, rules, or regulations (collectively, “Applicable Laws”); (b) is not libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) does not constitute an infringement or misappropriation of the IPR (as defined below) or other rights of any third party; (d) is not an advertisement or solicitation of funds, goods, or services; (e) is not false, misleading, inaccurate, or incomplete; or (f) could not be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or a disruptive advertisement. ZolTrain is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any Customer Content. Customer represents and warrants that Customer has all right, title, interest, and consent in Customer Content necessary to allow ZolTrain to use Customer Content for the purposes for which Customer provides Customer Content to ZolTrain. Customer Content
4.4 ZolTrain Content. As between ZolTrain and Customer, excluding in all cases Customer Content and Training Content, ZolTrain owns all information, data, datasets (including the structure, organization, selection, coordination, and arrangements thereof), all other content, and all reports and other materials available via the Services, including all text, audio, video, photographs, illustrations, graphics, and other content or media provided through the Platform or otherwise provided by or on behalf of ZolTrain (“ZolTrain Content”). All ZolTrain Content is provided “as is” and ”with all faults” and Customer is solely responsible for verifying the accuracy, completeness, and applicability of all ZolTrain Content prior to making use of that ZolTrain Content. Subject to Customer’s compliance with this Agreement, Customer may use ZolTrain Content provided to Customer through the Platform solely for Customer’s internal business purposes in connection with Customer’s permitted use of the Platform in accordance with this Agreement. Customer agrees that Customer will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any ZolTrain Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any ZolTrain Content; or (c) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with any ZolTrain Content. ZolTrain has not verified the accuracy of, and will not be responsible for any errors or omissions in, any ZolTrain Content. Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any ZolTrain Content, or any IPR therein or related thereto.
4.5 Professional Services and Training Content.
(a) Training Content. As between ZolTrain and Customer, excluding in all cases any ZolTrain Background IPR, Customer owns all Training Content. ZolTrain will perform professional services to create Training Content (as hereinafter defined) as set forth in the applicable Order (“Professional Services”). For purposes of this Agreement, “Training Content” means the custom training and educational content (e.g., training videos, educational slideshows, quizzes) to be created or actually created by ZolTrain for Customer under this Agreement, including items specifically designated or characterized as training content in an Order. The parties acknowledge and agree that in the performance of Professional Services, ZolTrain may use certain IPR that is (a) developed, owned, acquired, or licensed by ZolTrain independent of or prior to the Effective Date of this Agreement; or (b) developed, owned, acquired, or licensed by ZolTrain during the Term of this Agreement, but which is not (1) specifically and exclusively designed for Customer, or (2) based on any IPR of Customer (collectively, “ZolTrain Background IPR”). Subject to the terms of this Agreement, ZolTrain hereby assigns to Customer all right, title, and interest worldwide in and to Training Content and all IPR thereto (excluding in all cases any ZolTrain Background IPR embodied or incorporated therein). To the extent any ZolTrain Background IPR is incorporated into any Training Content, ZolTrain hereby grants to Customer a non-exclusive, non-transferable (except as provided in Section 20 (Additional Terms)), non-sublicensable, perpetual, irrevocable, worldwide, fully-paid right and license to use such ZolTrain Background IPR solely as incorporated into the Training Content. During the Term and for a period of one (1) year thereafter, Customer will not use any Training Content in connection with any service or offering that is directly or indirectly competitive with the Services, without ZolTrain’s prior written consent.
(b) Trademark License. During the Term of this Agreement, ZolTrain is authorized to use Customer’s name and the other marks, logos, and identifiers of Customer that Customer may approve in advance in writing (“Customer Marks”), on or in connection with performance of ZolTrain’s obligations under this Agreement (including in performing Professional Services or otherwise creating Training Content). ZolTrain will promptly cease use of any Customer Marks (and destroy all materials bearing any Customer Marks) upon written notice from Customer. All rights in and to Customer Marks, and all goodwill associated with Customer Marks and any use of Customer Marks, will remain the sole property of Customer.
(c) Disclaimer. ZolTrain does not endorse, represent, or guarantee the reliability, accuracy, or legality, of any Training Content, and has not performed any investigation into the foregoing with respect to any Training Content. ZolTrain shall, therefore, not be liable for any decisions made based upon any Training Content (whether available on the Platform or otherwise provided through the Services). Any reliance upon Training Content is at Customer’s sole risk. Customer is solely responsible for consulting with its legal counsel to ensure that all Customer Content and Training Content complies with all Applicable Laws, including, for the avoidance of doubt, all applicable cannabis laws, rules, regulations, and ordinances (“Cannabis Laws”). Without limiting the generality of the foregoing, except as expressly set forth in this Agreement, ZolTrain makes no, and hereby disclaims all, representations or warranties regarding Customer Content’s or Training Content’s compliance with Cannabis Laws and any other Applicable Laws. Customer acknowledges and agrees that Customer is solely responsible for any violation of Cannabis Laws and other Applicable Laws through its use and distribution of Training Content, (ii) shall review and vet all Customer Content and Training Content to ensure such Training Content complies with all Cannabis Laws and any other Applicable Laws.
4.6 Third Party Offerings. The Services may provide Customer the option to obtain access to functionality, products, and other things provided by third-party providers (collectively, “Third Party Offerings”), including software to facilitate the transfer of data through an integration between the Platform and certain Customer owned or operated websites, mobile applications, or other software applications. All Third Party Offerings are provided by third parties and are not included in the Services. To the extent specified in an Order, ZolTrain will use commercially reasonable efforts to facilitate an integration with applicable Third Party Offerings set forth in an Order. Notwithstanding the foregoing, in any event, ZolTrain does not control any Third Party Offerings and is not responsible or liable for Customer’s access to or use of any Third Party Offerings, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third Party Offerings. Customer’s use of and access to any Third Party Offering is solely between Customer and the third-party provider of that Third Party Offering. Customer’s access to and use of any Third Party Offering is subject to any additional terms, conditions, or agreements provided or entered into in connection with the applicable Third Party Offering (each, a “Third Party Agreement”). The terms of any Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Offerings provided under that Third Party Agreement but will not otherwise apply to Customer’s access to or use of the Platform. Except as set forth in this Agreement, in the event of a conflict between the terms of this Agreement and a Third Party Agreement, the terms of the Third Party Agreement will control with respect to Customer’s access to and use of any Third Party Offering provided under that Third Party Agreement. This Agreement will continue to control in all other respects.
5. ZOLTRAIN TECHNOLOGY. Customer acknowledges that the Services, including the Platform, ZolTrain Content, and all software, hardware, data, datasets, information, ZolTrain Background IPR, all other technology used by or on behalf of ZolTrain to provide the foregoing, and any updates, upgrades, new versions, modifications, or enhancements to any of the foregoing (collectively “ZolTrain Technology”), constitute the valuable IPR of ZolTrain. As an express condition to the rights granted to Customer under this Agreement, and in addition to the other conditions in this Agreement, Customer will not and will not permit any third party to: (1) use or access any ZolTrain Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any ZolTrain Technology; (3) sublicense, distribute, sell, rent, lend, loan, lease, convey, sublicense, assign, pledge, or otherwise transfer or in any way encumber any ZolTrain Technology or any portion thereof; (4) use any ZolTrain Technology for the benefit of any third party or make any ZolTrain Technology available to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any ZolTrain Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of ZolTrain Technology; (7) access or utilize any ZolTrain Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any ZolTrain Technology or attempt to gain unauthorized access to any ZolTrain Technology; (9) alter, obscure or remove any copyright notice, copyright management information, or proprietary legend contained in or on any ZolTrain Technology; or (10) access or use ZolTrain Technology or any component thereof in order to build a competitive product or service. All use of any ZolTrain Technology will be in accordance with any documentation for the applicable ZolTrain Technology provided by ZolTrain. As used in this Agreement, “IPR” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information. All rights and restrictions in this Agreement applicable to any ZolTrain Content apply to all data, information, and other elements comprising ZolTrain Content, including any enhancements, corrections, or other updates provided by ZolTrain from time to time. ZolTrain and its licensors own and will continue to retain all right, title, and interest, including all IPR, in and relating to all ZolTrain Technology. If Customer makes, acquires, creates, or conceives any developments, modifications, or improvements (“Improvements”) to ZolTrain Technology (, Customer agrees to and hereby does assign to ZolTrain any and all right, title, and interest in and to such Improvements, including all IPR therein or relating thereto. Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any ZolTrain Technology, or any IPR therein or related thereto. Except as expressly stated in Section 4 (ZolTrain Services), ZolTrain grants Customer no rights or licenses in or to ZolTrain Technology, whether by implication, estoppel, or otherwise.
6. FEES. Customer shall pay ZolTrain all fees specified in each Order (“Fees”), as and when due. Unless otherwise provided in an applicable Order, all recurring Fees will be due and payable by Customer in advance of the initial period specified in the applicable Order and each applicable renewal period thereunder. All other Fees will be due and payable as set forth in the applicable Order, or as indicated by ZolTrain if not set forth therein. If Customer has specified a credit card, debit card, online payment account, mobile services account, or other payment method as an applicable payment mechanism under this Agreement, Customer grants ZolTrain the right to charge the applicable payment mechanism(s) that Customer provided to ZolTrain for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to ZolTrain (including upon any termination, expiration, or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1.5% per month or the maximum amount permitted under Applicable Laws. If ZolTrain requires use of collection agencies, attorneys, or courts of law for collection of Customer’s account, Customer will be responsible for those expenses. Customer will be responsible for any and all use, sales, and other taxes imposed on any Services, ZolTrain Content, Customer Content, or Training Content provided under this Agreement, or Customer’s use thereof, or arising from this Agreement, excluding taxes based on ZolTrain’s net income.
7. TERMINATION. This Agreement and any Order may be terminated by either party immediately upon written notice if the other party materially breaches any provision of this Agreement or any such Order and fails to cure such breach within 30 days after receiving notice thereof from the non-breaching party. Termination of this Agreement will automatically terminate each Order under this Agreement but will not relieve either party of any rights or obligations accruing prior to such termination. Upon any expiration or termination of this Agreement or any Order: (a) all Fees owed under this Agreement or the applicable Order(s) prior to such expiration or termination will be immediately due and payable; and (b) all rights and licenses granted to Customer with respect to any Services will terminate and Customer will cease all access to and use of the Services, Platform, ZolTrain Content, and Customer Content. The following Sections will survive expiration or termination of this Agreement for any reason: 1, 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, and 20.
8. SUSPENSION OR DISCONTINUATION. ZolTrain reserves the right to immediately suspend Customer’s access to the Services where: (1) Customer is past due on any payment obligation hereunder and fails to pay all amounts owed within 10 days after receiving notice thereof from ZolTrain; or (2) ZolTrain reasonably believes that Customer’s use of the Services may be in violation of this Agreement or Applicable Laws or present a risk of harm, loss, or liability to ZolTrain or any other customer or third party. In such cases, without limiting its obligations under subsection ‘(1)’ of the preceding sentence, ZolTrain will use commercially reasonable efforts to (a) limit the extent and duration of any suspension, (b) notify Customer of any suspension (in advance if possible), and (c) reinstate any suspended Services as soon as possible.
9. REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to ZolTrain that: (a) Customer has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Customer’s behalf; (c) Customer has the legal right and authority to perform Customer’s obligations under this Agreement and to grant the rights and licenses described in this Agreement; (d) Customer’s use of and access to the Platform, ZolTrain Content, Training Content, and Customer Content, will comply with all Applicable Laws and will not cause ZolTrain itself to violate any Applicable Laws; and (e) Customer Content is and will remain accurate, complete, compliant with all Applicable Laws, and non-infringing of the IPR or other rights of any third party.
10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT. EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THIS AGREEMENT (INCLUDING, AS TO ZOLTRAIN, TRAINING CONTENT, ZOLTRAIN CONTENT, AND ANY OTHER ZOLTRAIN TECHNOLOGY), INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, AND MERCHANTABILITY. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ALL SOFTWARE, HARDWARE, EQUIPMENT, COMMUNICATIONS LINES, NETWORKS, DATA, INFORMATION, CUSTOMER CONTENT, AND ANY OTHER CONTENT PROVIDED BY CUSTOMER OR ANY THIRD PARTY FOR USE BY ZOLTRAIN IN PERFORMING THE SERVICES.
11.1 By Customer. Customer will indemnify and hold harmless ZolTrain, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all losses, liabilities, costs, judgments, awards, settlements, penalties, damages, fines, expenses, costs, and fees (including attorneys’ fees and costs of collection) (“Losses”) incurred in connection with any claim, allegation, action, or suit (“Claim(s)”) brought against any of them by a third party insofar as the Claim arises out of or relates to (a) any Customer Content, or ZolTrain’s permitted use of the foregoing, infringing, misappropriating, or violating any IPR, privacy right, contract right, or any Applicable Laws; or (b) Customer’s products, services, or other offerings.
11.2 By ZolTrain. ZolTrain will indemnify and hold harmless Customer, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all Losses incurred in connection with any Claims brought against any of them by a third party insofar as the Claim arises out of or relates to the Services or Customer’s permitted use of the Services infringing, misappropriating, or violating the third party’s IPR. Should any Claim relating to the Services infringing, misappropriating, or violating a third party’s IPR be made, or in ZolTrain’s reasonable opinion be likely to be made, in addition to ZolTrain’s indemnification obligations under this Section, ZolTrain may, at its option and expense: (a) procure for Customer the right to continue using the applicable Services; (b) replace or modify the applicable Services so as to no longer infringe; or (c) terminate each applicable Order or this Agreement. ZolTrain’s obligations under this Section will not extend to, and ZolTrain shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (i) failure by Customer to comply with the terms of this Agreement or any documentation or instructions provided by ZolTrain; (ii) Customer Content, Training Content, or ZolTrain Content; (iii) any specifications or instructions provided by Customer; (iv) any additions, changes, or modifications to ZolTrain Technology, unless provided by ZolTrain; (v) any products, services, or other offerings not provided by ZolTrain; or (vi) any systems, networks, databases, hardware, and software provided under any license or agreement other than this Agreement. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ZOLTRAIN’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND THE SERVICES.
11.3 Conditions. As a condition to obtaining indemnification from the other party under this Section, each party will: (a) give the other party prompt notice of any Claim for indemnification, provided, however, that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that such indemnifying party is materially prejudiced by such failure; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings, provided that any settlement that involves more than the payment of money and a full release of the indemnified party will require the indemnified party’s advance written consent; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any Claim for indemnification. Notwithstanding the foregoing, the indemnified party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such party’s expense through counsel of such party’s choice.
12. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF PROFIT, REVENUE, BUSINESS INTERRUPTION, TIME, OPPORTUNITY, OR GOODWILL. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE FEES PAID BY CUSTOMER TO ZOLTRAIN IN THE 12 MONTHS IMMEDIATELY PRECEEDING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION WILL NOT APPLY AS TO ANY DAMAGES OR OTHER LIABILITY BASED ON OR RESULTING FROM: (1) A PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION); (2) A PARTY’S BREACH OF SECTION 4.3 (CUSTOMER CONTENT), 4.4 (ZOLTRAIN CONTENT), 4.5 (PROFESSIONAL SERVICES AND TRAINNG CONTENT), 5 (ZOLTRAIN TECHNOLOGY), OR 14 (CONFIDENTIALITY); (3) CUSTOMER’S INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF ZOLTRAIN’S OR ANY THIRD PARTY’S IPR; (4) CUSTOMER’S FAILURE TO COMPLY WITH APPLICABLE LAWS; OR (5) CUSTOMER’S PAYMENT OBLIGATIONS. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. CONFIDENTIALITY. Each party (“Recipient”) may receive Confidential Information (as defined below) from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from unauthorized use or disclosure such Confidential Information with the same degree of care that it affords its own Confidential Information, but in no event with less than reasonable care, and to only use the Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The terms and conditions of this Agreement shall constitute the Confidential Information of each of the parties. Customer Content shall constitute Customer’s Confidential Information and ZolTrain Content shall constitute ZolTrain’s Confidential Information. The following information will not be considered Confidential Information of Discloser: (a) information that is publicly available through no fault of Recipient; (b) information that was known by Recipient prior to commencement of discussions regarding the subject matter of this Agreement free of any obligations of confidentiality; (c) information that was independently developed by Recipient without use of or reference to Discloser’s Confidential Information; and (d) information rightfully disclosed to Recipient by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose Discloser’s Confidential Information to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure. If Customer provides any feedback, comments, or ideas to ZolTrain regarding ZolTrain Technology or improvements thereto, Customer agrees that ZolTrain will be free to use, disclose, and exercise any rights in the same in connection with its products and services with no financial, credit, confidentiality, or other obligation to Customer. Upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all of Discloser’s Confidential Information (and all copies thereof) in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section shall continue for three (3) years after the expiration or termination of this Agreement, except that such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under Applicable Laws.
14. EXPORT CONTROLS. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Customer will indemnify and hold ZolTrain harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this Section.
15. DISPUTE RESOLUTION. The parties will attempt to settle all claims, allegations, controversies, and disputes related in any way to this Agreement (“Disputes”) through good faith discussions between the parties. Any and all Disputes that cannot be resolved between the parties shall be resolved through binding arbitration under this Section. Either party may refer the Dispute to arbitration. Any such arbitration will be conducted in accordance with the rules of the American Arbitration Association (the “AAA Rules”), in Denver, Colorado, and presided over by a single arbitrator selected by the parties in accordance with the AAA Rules. All arbitrator candidates must be neutral as to each party and have substantial experience in the software and cannabis industries. Each party will bear its own expenses and will share equally in fees of the arbitrator. The parties will provide each other with all requested documents and records related to the dispute in a manner that will minimize the expense and inconvenience of both parties. Discovery will not include depositions or interrogatories, except as the arbitrator may expressly allow upon a showing of need. The parties and the arbitrator will be guided in resolving discovery disputes by the Colorado Rules of Civil Procedure. If disputes arise concerning discovery requests, the arbitrator will have sole and complete discretion to resolve such disputes. The parties agree that time-is-of-the-essence principles will guide the hearing and that the arbitrator will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator will deliver a written opinion setting forth findings of fact and the rationale for the award within 30 days following conclusion of the hearing. The award of the arbitrator, which may include legal and equitable relief, but which may not include punitive damages, will be final and binding upon the parties, and judgment may be entered upon it in accordance with Applicable Laws in any court of competent jurisdiction. In addition, the arbitrator will have the discretion to award the prevailing party all or part of its attorneys’ fees and costs, including fees associated with arbitration, if the arbitrator determines that the positions taken by the other party on material issues of the dispute were without substantial foundation. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. This Agreement will control if there is a conflict between the terms of this Agreement and the AAA Rules.
16. CHOICE OF LAWS; VENUE. This Agreement will be governed by the laws of the State of Colorado, without regard to conflicts of law principles thereof. Subject to Section 15 (Dispute Resolution), each party hereto: (a) consents to and waives any objections to personal jurisdiction, service of process, and venue in the state courts located in Denver, Colorado; and (b) agrees that any claim, action, suit, or proceeding arising out of or relating to this Agreement will be filed and prosecuted only in such courts.
17. INJUNCTIVE RELIEF. Without prejudice to the parties’ right to proceed with arbitration, nothing in this Agreement will limit either party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. Each party acknowledges and agrees that due to the unique nature of ZolTrain Technology and the IPR relating thereto, there can be no adequate remedy at law for any breach by Customer of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with ZolTrain resulting in irreparable harm, and therefore, that upon any such breach of this Agreement or threat thereof, Customer will not oppose any attempt by ZolTrain to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm (and agrees to support the waiver of any requirement that ZolTrain be required to post a bond prior to the issuance of any such injunction or other appropriate equitable relief).
18. FEDERAL GOVERNMENT ACTION. The parties each expressly acknowledge and agree that (a) they are fully aware that, notwithstanding the State of Colorado’s Cannabis Laws, all individuals involved and entities engaged directly or indirectly in the cultivation, possession, production, sale, or transportation of cannabis or cannabis products, risk criminal or civil prosecution, or forfeiture under federal law, and face other risks associated with engaging in an industry that is illegal under federal law; (b) the cannabis industry in Colorado today exists in what some have called “terra incognita”, in conflict between federal and state law, both of which criminalize the use, possession, cultivation, transportation, and furnishing of cannabis, but Colorado law creates certain immunities from criminal prosecution under Colorado law only; (c) all individuals and entities engaged in the cultivation, possession, production, preparation, sale, or transportation of cannabis and cannabis products may still be arrested by federal officers and prosecuted under federal law, and in the event of federal arrest, seizure, or prosecution of a party in connection with the Services of this Agreement (each a “Federal Action” and such party, the “Defending Party”), the Defending Party shall and hereby does waive any and all claims against the other party in connection with such Federal Action against such Defending Party and agrees to be individually responsible for its own attorneys’ fees associated with defending any such Federal Action; and (d) the parties also hereby mutually and expressly agree to waive federal illegality as a defense to any claim or contract enforcement action relating to or arising out of this Agreement.
19. NOTICES. All notices, consents, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested, to the other party; or (4) facsimile transmission, provided that an original copy of a transmission will be delivered by some other means permitted under this Agreement. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Either party may change its address for notice by giving notice of the new address to the other party.
20. ADDITIONAL TERMS. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, epidemic, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power, or telecommunications under third-party control. The names, logos, and other trademarks and service marks of each party are and will remain the property of each party. During the Term, ZolTrain may include Customer’s name and logo as a customer who uses the Services, in ZolTrain’s standard marketing materials in which it references other customers. This Agreement includes each Order entered into hereunder, each of which is incorporated into and made a part of this Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all agreements or understandings, whether written or verbal, between the pparties as to the subject matter of the Agreement. Except as noted herein, this Agreement may be amended or changed only by a writing signed by both parties. Neither party may assign this Agreement or any right, interest, or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of such party’s assets or equity through purchase, merger, or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under Applicable Laws. If any provision of this Agreement is held by san arbitrator or a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Laws and the remaining provisions of this Agreement will continue in full force and effect. Neither party will not be liable for any failure to perform under this Agreement, to the extent that such party’s failure results from causes beyond such party’s reasonable control. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. The words “include,” “includes” and “including” will mean “include,” “includes,” or “including,” in each case, “without limitation.” This Agreement may be executed simultaneously in one or more counterparts (including by electronic signature), each of which when executed will be deemed to be an original, but all of which will constitute one and the same agreement.