This agreement (“Agreement”) is made by and between Treez, Inc. (hereinafter, “Treez” “we” or “us”) and you (hereinafter “you” or “Company”), and governs your access to and use of the Treez Services. This Agreement may be updated from time to time in accordance with Section 10 below. Treez and you hereby agree as follows:
API Documentation – The documentation, data, and information that Treez provides to you regarding the use of the Treez API, as it may be updated by Treez from time to time in its sole discretion, available at: https://code.treez.io/docs.DEFINITIONS. Capitalized terms shall have the meanings set forth below, or as otherwise defined in the body of this Agreement.
Application – Any software application, website, product, or service you create or offer using the Treez API (defined below).
Confidential Information – Confidential Information means any information, technical data, or know-how concerning Treez, including, but not limited to, that which relates to research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, reports and audits, business plans or finances, and the existence of on-going discussions between the parties. You acknowledge that Confidential Information may contain material, non-public information of Treez, and are aware, and have been advised, that applicable securities laws may prohibit any person having material, non-public information including but not limited to, the API Documentation, Customer Data, and End User PII, from disclosing the same.
Customer Data – Any data or content uploaded, posted, transmitted or otherwise made available by End Users via the Treez Services, including messages, files, comments, profile information and anything else entered or uploaded into the Treez Services by an End User of the Treez Services, through the Treez API or otherwise.
Data Privacy Addendum – The additional terms attached as Exhibit A hereto.
End User – An individual or entity that uses the Treez Services.
End User PII – Any personally identifiable information about an End User.
Intellectual Property Rights – All past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademarks, service marks, trade dress, logos, trade names, domain names, URLs and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (c) trade secret rights; (d) patent and industrial property rights, including patents; (e) other proprietary rights in intellectual property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in (a) through (e) of this paragraph.
Order Form – A document that is signed and agreed to by both parties which describes the Treez Services that you are purchasing, including the fees, rate limits (and/or quantities purchased), and any other details specifically related to those services.
Publish/Published/Publishing – The making of any Application available to any End User.
Treez API – The application programming interface (“API”) and any accompanying source code, executable applications, and other materials made available by Treez to you in connection with this Agreement.
Treez Brand – The Treez brand and brand assets, including but not limited to, the trademarks TREEZ and MONEY GROWS ON TREEZ, and all other product and service names, trademarks, service marks, branding and logos made available for use by Treez in connection with this Agreement.
Treez Services – All services provided by Treez through its software, websites, and/or mobile applications, which includes services related to point-of-sale, inventory management, and cultivation platforms.
2.2 License to Treez. Treez shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Treez Services and/or the Treez API any suggestions, enhancement requests, recommendations or other feedback Treez receives from You.
4.1 Your Reliance on API. Treez is ever-evolving and we need the flexibility to occasionally make changes to the Treez API, including backwards incompatible ones. We will try to give notice of these changes, but may not always be able to. Also, parts of the Treez API are undocumented, including certain methods, events, and properties. Given that these undocumented aspects of the Treez API may change at any time, you should not rely on these behaviors.
4.2 Your Compliance with Terms. You must comply with all restrictions set forth in this Agreement, including in the Data Privacy Addendum attached hereto as Exhibit A, in all uses of the Treez Materials. If Treez believes, in its sole discretion, that you have violated or attempted to violate any term or condition of this Agreement, the license afforded you pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to you.
4.3 Applicable Laws, Regulations, or Agreements. You may not use the Treez API in violation of any law or regulation, or the rights of any person, including but not limited to, Intellectual Property Rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement or Treez’ other agreements to which you are subject.
4.4 Your Access to the Treez API. In order to use and access the Treez API, You will need to obtain API credentials (a “Token”) from Treez. You may not share such Token with any third party, shall keep such Token and all login information secure, and shall use the Token as your sole means of accessing the Treez API. You may not distribute or allow access to the Treez API to any third party.
4.5 Scope of Acceptable Use. You agree not to:
(a) use the Treez Brand to endorse or promote any product or service without Treez’ prior written permission;
(b) modify or alter any part of the Treez Brand;
(c) use the Treez Materials for any unauthorized or otherwise improper purposes, as determined in Treez’ sole discretion, or in any manner that would violate this Agreement, any law, or regulation;
(d) remove any legal, copyright, trademark or other proprietary rights notices contained in or on the Treez Materials;
(e) sell, lease, share, transfer, or sublicense the Treez API, or derive income from the use or provision of the Treez API, other than in connection with the Application(s);
(g) use the Treez Materials in a manner that fails to comply or is inconsistent with the API Documentation or any other Treez policy of which you have been notified by Treez from time to time;
(g) use the Treez Materials in or for a product or service that competes with products or services offered by Treez, or attempts to replicate or replace the essential user experience of the Treez Services, as determined by Treez in our sole discretion;
(h) separately extract and provide or otherwise use data elements from the Treez API or the Customer Data to enhance the data files of third parties without the prior written consent of Treez in each instance;
(i) use any means to disguise or obscure the origin of any requests to the Treez API;
(j) attempt to circumvent any security measures or technical limitations of the Treez Materials or otherwise exploit any defects in the Treez Materials;
(k) modify, decompile, extend, subset or superset the Treez API or otherwise alter the Treez API to any extent;
(l) modify any of the Customer Data (including, but not limited to, any destination linkback URLs);
(m) modify, create derivative works of, reverse engineer, decompile, decrypt, or disassemble the Treez Services, or any technology thereof, except and only to the extent any foregoing restriction is prohibited by applicable law;
(n) store any information from the Treez API or the Treez Services in any manner not in compliant with Section 6 and Section 7 below;
(o) use the Treez Materials in a manner that adversely impacts the stability of Treez servers; or
(p) publish any Applications unless they have been authorized by Treez in the manner required by Treez from time to time.
4.6 Rate Limits. You will respect and comply with the technical and policy-implemented limitations of the Treez API and the restrictions of this Agreement in designing and implementing Applications. Without limiting the foregoing, You shall not violate any explicit rate limitations on calling, as set forth in the API Documentation or the applicable Order Form, or otherwise utilizing the Treez API. You will not attempt to exceed or circumvent limitations on access, calls and use of the Treez API, or otherwise use the Treez API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement or the API Documentation. You are responsible for monitoring and tracking your Treez API usage at all times. You agree to be responsible for all costs associated with your violation of this section.
4.7 Fees. You will pay all fees as and when described in Exhibit B, which is attached hereto and incorporated into this Agreement, or the applicable Order Form. You are responsible for paying all taxes, assessments, charges, and other fees that may be levied on or applicable to the sale or license of goods or services, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities associated with your subscription to the Treez Services, which for clarity does not include any taxes based on Treez’s income.
4.8 Your Application Responsibilities. You acknowledge that you are solely responsible, and that Treez has no responsibility or liability of any kind, for the content, development, operation, support, or maintenance of Applications, including without limitation any use of Applications by End Users or any other party. Without limiting the foregoing, you will be solely responsible for: (a) your use of any Customer Data; (b) the technical installation and operation of Application(s); (c) creating and displaying information and content on, through or within Applications; (d) ensuring that Applications do not violate or infringe the Intellectual Property Rights of any third party; (e) ensuring that Applications are not offensive, profane, obscene, libelous, targeted toward minors, or otherwise illegal; (f) ensuring that Applications do not contain or introduce malicious software into a Treez Service, the Treez API, or any Customer Data; and (g) ensuring that Applications are not designed to or utilized for the purpose of spamming any End Users.
5.2 Deletion at Termination. If we terminate your use of the Treez API for any reason, then you must permanently delete all Confidential Information, Customer Data, End User PII, and any other information that you stored pursuant to your use of the Treez API, except when doing so would cause you to violate any law or obligation imposed by a governmental authority.
6.2 Reporting. You must promptly, and no later than three (3) business days after the discovery of any such deficiencies, intrusions, or access, report any security deficiencies in, or intrusions to, Your Systems to Treez in writing via email to [email protected] or subsequent contact information provided by Treez. This includes any unauthorized access, use, disclosure, or destruction of Application user data. You will work with Treez to immediately correct any security deficiency and prevent its recurrence, and will immediately disconnect any intrusions or intruder. In the event of any security deficiency or intrusion involving the Application, the Treez API or Customer Data, you will make no public statements regarding such deficiencies or intrusions (e.g., press, blogs, social media, bulletin boards) without prior written and express permission from Treez in each instance.
7.2 Termination by You. You may terminate this Agreement at any time by giving Treez at least fifteen (15) business days prior written notice of termination and immediately discontinuing your use of the Treez API.
7.3 Termination by Treez. Treez may, at its sole discretion, change, suspend, discontinue, or otherwise terminate your access and use of the Treez API, the Treez Services, and /or the Treez Brand at any time for any reason upon at least one business day written notice to you. Treez may immediately terminate this Agreement in the event of your material breach.
7.4 Effect of Termination. Upon termination of this Agreement:
(a) All rights, license, and access granted to you will terminate immediately;
(b) You will promptly destroy all API Documentation and any other Treez information in your possession or control or otherwise on Your Systems that was received under this Agreement. You must permanently delete all Customer Data and End User PII that you may have stored pursuant to your use of the Treez API. Treez may request, and you shall provide, a written certification stating that you have permanently deleted such files.
7.5 Survival. In addition to those sections that can be reasonably construed to survive termination of this Agreement, the following sections shall so survive: 1, 2.2, 3, 4.5, 4.6, 4.7, 4.8, 5, 7.5, 11, 12, 13, and 14, 15.
8.2 Display, distribute, or otherwise make available Customer Data, End User PII, or any Application to any person or entity that you reasonably believe will use Customer Data to violate the Universal Declaration of Human Rights (located at http://www.un.org/en/documents/udhr/), including without limitation Articles 12, 18, or 19. You will not conduct and your Application will not provide analyses or research that isolates a small group of individuals or any single individual for any unlawful or discriminatory purposes. Exemptions to these restrictions may be requested for exigent circumstances and are subject to prior written approval from Treez.
11.2 Data Protection. To the extent your Applications transmit Customer Data outside an Application, you represent and warrant that you have notified all users of such Applications that their Customer Data will be transmitted outside the Application and that Treez is not responsible for the privacy, security, or integrity of such Customer Data. You further represent and warrant that to the extent your Applications store, process, or transmit Customer Data, neither you nor your Applications will, without appropriate prior user consent or except to the extent required by applicable law: (a) modify the content of Customer Data in a manner that adversely affects the integrity of Customer Data; (b) disclose Customer Data to any third party; or (c) use Data for any purpose other than providing the Application functionality to users of such Application. You shall maintain and handle all Customer Data in accordance with privacy and security measures that preserve the confidentiality and security of all Customer Data and that comply with all applicable privacy laws and regulations.
11.3 Indemnity. You will indemnify, defend and hold harmless Treez, Treez affiliates, and their respective officers, directors, employees, stockholders, agents, contractors and representatives from and against all damages, assessments, costs, fees, expenses, charges, penalties, fines, settlements, losses and other liabilities of any kind or nature, including reasonable attorneys’ fees and legal costs, arising from any claim, proceeding, action or suit, whether private, civil, criminal, administrative, or investigative (“Claims”) regardless of any available or collectible insurance, to the extent the Claims arise out of, in connection with, or relate to (i) allegations concerning your breach of this Agreement, (ii) an Application, or (iii) your negligence, gross negligence, willful misconduct, or fraud.
13.2 LIMITATION ON LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL TREEZ BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST CUSTOMER DATA, OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY RECEIVED BY TREEZ FROM YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, FIVE HUNDRED ($500) U.S. DOLLARS, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE JURISDICTIONS, TREEZ’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13.3 Dispute Resolution. This Agreement and any claim, cause of action or dispute arising out of or related to this Agreement shall be governed by the laws of the state of California, United States, regardless of your country of origin or where you access the Treez Service, and notwithstanding any conflicts of law principles. You and Treez agree that all claims arising out of or related to this Agreement must be resolved exclusively in the state and federal courts located in San Francisco, California. You and Treez hereby submit to the personal jurisdiction of such courts and hereby waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts for the purpose of litigating all such claims. Notwithstanding the above, you agree that Treez shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. In the event of litigation between the parties arising out of or related to this Agreement, the prevailing party will be entitled to recover its attorneys' fees and costs incurred.
Treez hereby acknowledges and agrees that Company will not have any obligation in connection with specific Confidential Information to the extent that such information (a) is in the public domain through no act or failure to act on the part of the Company; (b) was rightfully in Company’s possession prior to disclosure; (c) is approved by Treez for disclosure without restriction; (d) is independently developed by Company without use of or reference to Confidential Information; or (e) is required to be disclosed by a court or law, provided that Company shall only disclose such information to the extent necessary.
15.2 Entire Agreement. This Agreement and any documents incorporated into this Agreement by reference, constitute the entire agreement between you and Treez regarding the Treez APIs and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
15.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
15.4 No Informal Waivers, Agreements, or Representations. Treez’ failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. No representations, statements, consents, waivers or other acts or omissions by Treez shall be deemed legally binding on Treez, unless documented in a physical writing hand siged by a duly appointed officer of Treez.
15.5 Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive, or other equitable relief, or to enjoin or restrain the operation of the Treez Services, or any Treez Materials, or other material used or displayed through the Treez Services.
15.6 Assignment and Delegation. You may not assign or delegate any rights or obligations under this Agreement, including in connection with a change of control. Any purported assignment and delegation shall be ineffective unless approved in writing by Treez. We may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Treez, Inc. for any third party that assumes our rights and obligations under this Agreement.
15.7 Force Majeure. Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service due to causes beyond its reasonable control and without its fault or negligence.
15.8 Non-publicity. Neither you, nor any of your employees or agents, shall refer to Treez or make any news release, public announcement or other public disclosure regarding your use of the Treez Services under this Agreement without Treez’ prior written consent.
In the course of providing services (“Services”) to Company pursuant to the API Usage Agreement and subsequent related agreements between the Company and Treez (collectively, the “Agreement”), Treez may process Personal Information on behalf of Company. To the extent the CCPA (defined below) is applicable to such data processing, the Company and Treez (the “Parties”) hereby agree that the terms and conditions set out below shall apply, with respect to the Processing of Company Personal Information (defined below), in addition to the terms of the Agreement. Where there is a conflict between the provisions of the Agreement and this Addendum as with respect to the Processing of Personal Information, the provisions of this Addendum shall prevail. Except where the context requires otherwise, references in this Addendum to “the Agreement” are to the Agreement as amended by, and including, this Addendum.
“Company Personal Information” means Personal Information Processed by Treez (or a Sub-processor) in the course of providing Services under the Agreement.
“Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information.
“Data Protection Laws” data protection or privacy laws applicable to the processing of Company Personal Information, including, without limitation, CCPA.
“Deidentified” means information that cannot reasonably identify, relate to, describe, or be directly or indirectly linked to an individual, and subject to the provisions of Section 2.4 of this Addendum.
“Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.
“Process” or “Processing” means any operation or set of operations that are performed on Personal Information or on sets of Personal Information, whether or not by automated means.
“Sell” and “Sale” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating personal information by a business to another business or a third party for monetary or other valuable consideration
“Service Provider” means an entity that processes information on behalf of a business and to which the business discloses personal information for a business purpose pursuant to a written contract, provided the contract prohibits the entity receiving the information from retaining, using, or disclosing the personal information for any purpose other than for the specific purpose of performing the services specified in the contract or as otherwise permitted under Data Protection Laws.
“SOW” means a statement of work, work order, task order, and schedule of work or similar document under the Agreement.
“Sub-processor” means any person (including any third party, but excluding an employee of Treez) appointed by or on behalf of Treez to Process Company Personal Information under the Agreement.
Capitalized terms not defined below will have the meaning set forth in the Agreement.
2.2 Company shall have the sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Company acquired the Personal Information. This includes but is not limited to the following:
(a) To the extent required by applicable Data Protection Laws, Company shall provide any necessary notices to individuals, provide opt-out rights to individuals and/or obtain consent/opt-in to the Processing, and shall maintain a record of such notices and/or consents.
(b) With respect to any individual requests that Company conveys to Treez, Company shall be solely responsible for: (i) verifying the identity of the individual as required by applicable Data Protection Laws and (ii) determining whether a request should be complied with or whether any exceptions for compliance with the request apply and Treez shall rely exclusively on such determination by the Company and shall have no liability with respect to it.
2.3 Treez’s Processing of Company Personal Information.
(a) not retain, use, or disclose Company Personal Information for any purpose other than for the specific purpose of performing the Services specified in the Agreement and any applicable SOWs;
(b) not Sell Company Personal Information;
(c) not retain, use or disclose the Company Personal Information outside of the direct business relationship between Company and Treez; and
(d) not use Company Personal Information received in connection with the Services provided to Company for another business or person unless doing so is necessary to: (i) detect data security incidents or (ii) protect against fraudulent or illegal activity.
2.4 Deidentified Information. To the extent Treez Processes any Deidentified Personal Information to which it gained access in connection with its relationship with Company (including without limitation Company Personal Information that has been Deidentified by Treez) Treez represents and undertakes as follows:
(a) Treez shall not make any attempts to re-identify the Deidentified Personal Information.
(b) Treez has implemented and will maintain technical safeguards that prohibit re-identification of Deidentified Personal Information within the Company Personal Information.
(c) Treez has implemented and will maintain business processes that specifically prohibit re-identification of information and prevent inadvertent release of Deidentified Personal Information.
(d) Treez will periodically reassess its technical safeguards and processes to ensure that they are still adequate to prevent the re-identification of information or the inadvertent release of Deidentified Personal Information.
4.2 Treez will provide reasonable assistance to Company to enable Company to respond to requests to exercise individual rights under the CCPA or other applicable Data Protection Laws as follows:
(a) If Treez receives a request from Company to provide access to the Company Personal Information of one or more individuals, which is Processed by Treez, then, to the extent Treez is able to verify the identity of such individual based on information provided by Company, Treez will, without undue delay and where feasible within ten (10) Business days, provide Company with access to such information using a mutually acceptable format or mechanism. The information will be provided in a commonly used and machine-readable format as agreed upon between the Parties in an SOW that may be securely saved or downloaded by the Company.
(b) If Treez receives a request from Company regarding the opt out of a Sale (as such term is defined under CCPA) of Personal Information of one or more individuals, the Parties will discuss in good faith whether such requests are relevant to the Processing of Company Personal Information by Treez and the best manner to address such requests.
(c) If Treez receives a request from Company to return or delete the Company Personal Information of one or more individuals, which is Processed by Treez, then, to the extent Service Provider is able to verify the identity of such individual based on information provided by Company, and unless deletion is prohibited under Data Protection Laws, Treez will, without undue delay and where feasible within ten (10) business days, deidentify the Company Personal Information or aggregate the Company Personal Information, at Company's election. Without derogating from the provisions of Section 3.2(b) above, to the extent that: (i) Treez is required to retain such Company Personal Information by law; (ii) such Company Personal Information is necessary for defense of legal claims against Treez; or (iii) such Company Personal Information is required to help ensure security and integrity, Treez shall retain such Company Personal Information and shall continue to apply to such information the confidentiality obligations and use restrictions in this Addendum and/or in the Agreement and shall use the information only as necessary and proportionate for the purposes for which it was retained.