Label Review Services Agreement
IMPORTANT: PLEASE READ THIS SERVICES AGREEMENT CAREFULLY. THE COMMITMENTS OF INKBRITE AND YOUR OBLIGATIONS ARE GOVERNED BY THE TERMS OF THIS SERVICES AGREEMENT. BY CLICKING “AGREE” OR ACCEPTING THE SERVICES, YOU ARE AGREEING TO THE TERMS OF THIS SERVICES AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS SERVICES AGREEMENT, YOU WILL NOT HAVE ANY RIGHTS TO OBTAIN THE SERVICES.
This Services Agreement is a legal, binding and enforceable agreement between Inkbrite Incorporated (“Inkbrite”) and the company or natural person agreeing to its terms (“Client”), related to certain services associated with California Cannabis Industry Packaging and Labeling Reviews.
Services to be Performed. Inkbrite, on a non-exclusive basis to Client, will review Client’s submitted packaging label(s) against certain checklists that Inkbrite maintains based on California laws and regulations (the “Services”). Inkbrite will perform the Services as an independent contractor and will have no authority to commit Client to any legally binding obligation without the express consent of Client. In providing the Services, Client typically will communicate or interact with Inkbrite electronically, which may include use of one or more websites maintained by Inkbrite. In using any such website, Client agrees not to transmit, transfer or install any malicious software, such as contain viruses, worms, trojan horses, defects or destructive items.
Confidentiality. Inkbrite agrees to maintain the confidentiality of the business plans of Client unless and until they become publicly disclosed or available (other than due to the fault of Inkbrite). However, Client acknowledges that Inkbrite operates in a relatively narrow industry and will be working with a variety of clients in the industry, some of whom may compete directly with Client. Nothing herein will limit the ability of Inkbrite to be engaged by, or to provide services to, any business, whether or not that business competes with Client. This applies whether or not knowledge of Client’s business plans may contribute to Inkbrite’s general expertise concerning, and awareness about, the industry in which Client operates.
Compensation. Inkbrite will provide Client, its affiliates and related persons with an introductory, complimentary review of a single packaging label, free of charge. This promotion is available at Inkbrite’s discretion. Client represents and warrants, in accepting such complimentary review, that none of it, its affiliates or related persons has previously requested or received such complimentary review of a single packaging label free of charge. For additional label reviews conducted by Inkbrite (which will be conducted under this Services Agreement), as well as design and sourcing services conducted by Inkbrite (which will be conducted under a different agreement), Client will pay Inkbrite the amounts indicated on pro-forma invoices, supplied and agreed to via email. Amounts hereunder will be due and payable in advance of commencement of relevant Services.
Usage Licenses. Client hereby grants Inkbrite the sublicensable right to use the trademarks and other intellectual property rights of Client inherent in the materials supplied by Client to Inkbrite for purposes of the Services. Inkbrite may display the work produced for the Client while performing the Services in Inkbrite’s portfolio and related marketing materials.
Certain Acknowledgements and Agreements. Client acknowledges and agrees as follows:
· Client certifies that it is a licensed cannabis operator in the state of California.
· The sale by Client of its products may not be legal in certain states or consistent with applicable federal laws. Inkbrite takes no responsibility for the uses to which Client may put packaging and/or labels that relate to the Services. Inkbrite encourages Client to work closely with counsel of Client’s choosing as to the legal risks associated with its business.
· The Services involve Inkbrite providing proposed edits of labels for Client’s products, based on its marketing judgment and based on certain checklists that Inkbrite maintains that reflect certain California regulatory requirements, the application of which does not require the exercise of legal judgment as to which Client should involve its legal counsel. The laws of States other than California are not considered by Inkbrite in its review. Inkbrite is not a law firm and Client acknowledges and agrees that it will rely on its own lawyers, and not Inkbrite, for legal judgments.
· Client is solely and completely responsible for the accuracy, completeness and receipt of clearances/permissions of all information, graphics, photographs, illustrations, images, text, logos, trademarks, etc. supplied by Client related to Client’s products, whether supplied for labels or otherwise, including that use of same will not violate any third party rights. Inkbrite is authorized to use all of same for the purposes of providing the Services.
· Client maintains full responsibility for reviewing and approving all labels for its products, notwithstanding the input of Inkbrite, including, without limitation as to compliance with applicable laws, including laws governing labeling and health claims.
Warranties, etc. Inkbrite has not priced its Services to contemplate the risks to Client from a failure of Client to receive a review of packaging and/or labels that fully meets its needs. Accordingly, INKBRITE’S SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OTHER THAN ITS PROMISE TO PERFORM ITS SERVICES IN A COMPETENT AND PROFESSIONAL MANNER. IN THE UNLIKELY EVENT THAT INKBRITE DOES NOT PERFORM ITS SERVICES IN THAT MANNER, INKBRITE’S AGGREGATE LIABILITY WILL NOT EXCEED AMOUNTS PAID TO INKBRITE HEREUNDER FOR THE SPECIFIC RELEVANT SERVICES. ACCORDINGLY, AS TO THE INITIAL, COMPLIMENTARY REVIEW OF A LABEL, SUCH AGGREGATE LIABILITY CAP WILL BE ZERO. IN NO EVENT WILL INKBRITE BE LIABLE FOR LOST PROFITS, LOST BUSINESS, OR INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT (SUCH AS NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Indemnification. Client will indemnify and hold Inkbrite (and its equity holders, employees and other agents) harmless from any liabilities or costs (including reasonable attorneys’ fees) resulting from any third party claims in any way related (1) to the provision of Services by Inkbrite, or (2) to products sold by Client, whether or not including packaging or labels that involved the Services.
Termination. This Services Agreement will terminate upon the completion of all Services, upon mutual agreement of Inkbrite and Client, or by either Inkbrite or Client if the other has materially breached this Services Agreement and failed to remedy such breach within 30 (7 in the case of a payment default) days’ notice and opportunity to cure. All indemnities and monetary obligations described herein will survive such termination.
Arbitration. If there is any disagreement that cannot be resolved between Client and Inkbrite, such dispute will be settled by binding arbitration by a single arbitrator in San Francisco, California in accordance with the rules of the Judicial Arbitration and Mediation Service (JAMS). Any party receiving an award in arbitration may have judgment entered on the award in any court having jurisdiction. The prevailing party in any dispute will be entitled to receive from the other party its reasonable attorneys’ fees and costs.
Miscellaneous. This Services Agreement is intended to set forth the complete agreement between Inkbrite and Client concerning the subject matter hereof, superseding any previous negotiations, agreements and representations concerning the subject matter hereof. This Services Agreement will be governed by the substantive laws of California. In the event of a force majeure event affecting Client or any relevant manufacturer, the relevant performance by Client under this Services Agreement will be excused.
Click-Through Execution. It is acknowledged and agreed that this Services Agreement is being executed electronically by means of “click-through” execution and that such electronic execution shall create a binding contract enforceable against the other party as if this Services Agreement had been manually executed. No party will challenge the binding and enforceable nature of this Services Agreement on the basis of its electronic execution. The person executing this Services Agreement by means of “click-through” execution represents and warrants that he or she is authorized to execute this Services Agreement on behalf of Client by electronic means.
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