TERMS AND CONDITIONS
These terms and conditions govern your use of Greenline POS (“application”); by using this application, you accept these terms and conditions in full. If you disagree with these terms and conditions or any part of these terms and conditions, you must not use this application.
You must be at least 19 years of age to use this application. By using this website and by agreeing to these terms and conditions you warrant and represent that you are at least 19 years of age.
Last Updated: May 30, 2022
GETGREENLINE, INC. (the “Company”) operates retail point-of-service software solutions that integrates, among other things, hardware components (the “Greenline Hardware”) with a software-as-a-service platform (the “Greenline System”, and together with the Greenline Hardware, the “Greenline Platform”).
THESE TERMS GOVERN YOUR COMMERCIAL RELATIONSHIP WITH THE COMPANY, SO PLEASE READ THEM CAREFULLY.
- Services. Subject to the terms and conditions of these Terms as supplemented or superseded (as the case may be) by any Sales Agreement, the Company will provide the Customer with the Services. The Services may be amended, modified or supplemented at any time and from time to time with mutual consent and in a written form satisfactory to the Company (a “Change Order”). The Company may from time to time engage third parties (each a “Subcontractor”), such as independent contractors, affiliates, service providers, licensees and agents, to perform any part of the Services or any part of its obligations under this Agreement. The Company will: (a) remain directly responsible to the Customer for the acts or omissions of each Subcontractor; and (b) ensure that each Subcontractor is bound in writing to terms equally as protective of the Customer as the terms and conditions of this Agreement. Notwithstanding anything to the contrary herein, the Company may make changes to the Greenline Platform (including the Greenline Hardware and the Greenline System) from time to time in its sole discretion, without notice to the Customer. The Company has and shall retain sole control over the hosting, operation, provision, management and maintenance of the Greenline Platform.
- Ancillary Information. The Customer will promptly provide to the Company any and all information, documentation and/or material specified as Ancillary Information in a Sales Agreement for the purpose of providing the Services (the “Ancillary Information”). Subject to the terms and conditions of this Agreement, the Customer will retain ownership to any Ancillary Information, and grants the Company a limited, royalty-free license to use such Ancillary Information for the sole purpose of providing the Services.
- Greenline Platform. The Customer will adhere to the guidelines, policies and directives established and/or amended from time to time relating to the acceptable use of the Greenline Platform (which includes the Greenline Hardware and Greenline System) (the “Greenline Policies”). Copies of the current Greenline Policies can be found at Exhibit A of this Agreement. The Greenline Policies may be supplemented or modified by the Company at its sole discretion, and any such modification will be immediately binding on the Customer and users of the Greenline Platform. The Greenline Policies apply to all users of the Greenline Platform.
- Third-Party Services or Integration. The Company is not responsible for the operation of any software, service or integration (such terms to be construed broadly) used by the Customer (a “Greenline Integration”), whether provided by a third-party or otherwise. Where a Greenline Integration is used by the Customer to provide data or information of any kind to the Greenline Platform for the Services, the Company is not responsible for the correctness of any such data or information of any kind (including, but not limited to, accounting records). The Customer accepts sole responsibility and liability to any third-party for the accuracy of the data or information of any kind deriving from or handled by a Greenline Integration.
- Scheduled Downtime. The Company shall use commercially reasonable efforts to schedule downtime for data backups, system maintenance and Software updates outside of regular business hours, being 9am to 7pm PST, Monday to Sunday (the “Scheduled Downtime”).
- Software Support. Provided the Customer has paid all Fees due and owing under this Agreement, the Company shall provide to certain users authorized by the Customer access to customer support personnel from Monday to Friday between 8:00am and 5:30pm PST.
2. FEES, PAYMENT TERMS AND CUSTOMER OBLIGATIONS.
- Fees. The Customer will pay to the Company the fees, in the amounts, at the times and according to the terms agreed upon together or as otherwise set out in each Order Form (the “Fees”). Customer agrees that the Company may, no more than once per calendar year and at its sole discretion, adjust Fees upward to account for the rate of inflation as determined by the Bank of Canada, with each such adjustment being no more than either (a) 5%; or (b) the increase over the last 12 months of the consumer price index. All Fees payable under this Agreement are exclusive of any and all taxes, withholdings and other levies and imposts applicable thereon (“Taxes”), and such Taxes will be invoiced together with the Fees. Subject to the applicable Order Form, invoices under this Agreement are payable, without holdback or setoff, immediately upon delivery, except where such Fees invoiced are disputed by the Customer in good faith. Invoice disputes will not affect the undisputed portions of the Fees payable by the Customer. Except as expressly set out in this Agreement or the applicable Order Form, all Fees paid to the Company are non-refundable.
- Failure of Payment. Interest will accrue on amounts past due at a rate of ten percent (10%) per annum. Without limiting any other remedy available to the Company by law or equity, in the event that the Customer’s payment obligations are overdue and outstanding, the Company may, in its sole discretion: (a) terminate this Agreement immediately upon notice to the Customer, without cost or penalty; and/or (b) suspend its obligations to the Customer relating to the Services until such time as all amounts due and owing under this Agreement are paid in full.
- Customer Obligations. Customer shall at all times during the Term (as defined below): (a) set up, maintain and operate in good repair the Greenline Hardware on or through which the Greenline Platform is accessed or used; (b) determine and maintain a list of authorized users of the Greenline Platform, and ensure only such authorized users have access to the Greenline Platform, and; (c) provide all cooperation and assistance as the Company may reasonably request to enable the Company to exercise its rights and perform its obligations under and in connection with this Agreement.
- Customer Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services or Greenline Platform except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or Greenline Platform; (b) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Greenline Platform; (c) input, upload, transmit or otherwise provide to or through the Services or Greenline Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (d) download, transmit, or otherwise export any of the Greenline System or underlying information or technology; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Greenline Platform or Company’s provision of services to any third party, in whole or in part; (f) remove, delete, alter or obscure any trade-marks, specifications, Documentation, warranties or disclaimers, or any copyright, trade-mark, patent or other intellectual property or proprietary rights notices from any Services or Greenline Platform, including any copy thereof; and (g) provide any user names, passwords or other information which would permit access to the Greenline Platform or any Service to any person who does not have authorized access from either Customer or the Company.
- Customer Failure. The Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
- Customer License. The Customer represents that it has, or will within two weeks of commencement of the Services, obtained all requisite permits, licenses and authorizations from relevant municipal, provincial or federal regulatory bodies in order to legally operate in the jurisdiction(s) in which it does business (the “Permits”).
3. INTELLECTUAL PROPERTY & PRIVACY.
- Company IP. As between the parties, the Company owns all Intellectual Property Rights in the Services (and any deliverables relating thereto) and the Greenline Platform, and any information and materials relating thereto. Except as expressly set forth herein, this Agreement does not grant either party any rights (including any Intellectual Property Rights), implied or otherwise, to the other’s content or any of the other’s intellectual property.
- Service Data. To the extent that the Customer provides the Company with any information or data through its use of the Greenline Platform (the “Service Data”), the Customer will retain ownership to any such Service Data. Notwithstanding anything to the contrary herein, the Customer grants to the Company an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers) and transferable license to disclose, publicize, display, reproduce, improve and/or otherwise use any such Service Data in connection with the Greenline Platform. The Customer represents and warrants that the Service Data will be accurate and complete as of the date of delivery to the Company.
- Feedback. Any suggestions, enhancement requests, recommendations or other feedback related to the Services or the Greenline Platform, communicated by the Customer to the Company (the “Feedback”), will be deemed to be Confidential Information of the Company and owned exclusively by the Company. The Customer hereby agrees that, in communicating Feedback to the Company, the Customer: (a) is therefore not subject to any confidentiality obligations with respect to the Feedback; (b) the Feedback is not confidential or proprietary information of any third party and the Customer has all of the necessary rights to disclose the Feedback to the Company; (c) the Company may irrevocably freely use, reproduce and publicize the Feedback without restriction; and (d) the Customer is not entitled to receive any compensation or re-imbursement of any kind relating to the Feedback.
- Obligation. Receiving Party hereby acknowledges that the Disclosing Party’s Confidential Information is an asset of considerable value, the unauthorized use or disclosure of which would be damaging. Receiving Party will, during and subsequent to the Term: (a) keep the Confidential Information of the Disclosing Party confidential and use such Confidential Information solely for the purposes of exercising its rights and performing its obligations under this Agreement; (b) not directly, or indirectly, without authorization from the Disclosing Party reveal, report, publish, disclose or transfer such Confidential Information to any third party; (c) utilize procedures constituting a high degree of care to maintain the security of such Confidential Information and in no event less than a reasonable standard of care under the circumstances; (d) disclose such Confidential Information to its employees and contractors, solely on a need to know basis as reasonably required under this Agreement, provided that, any access or disclosure to the Disclosing Party’s Confidential Information that is granted by the Receiving Party to its employees and contractors will first require the Receiving Party to enter into a written agreement with each such employee and contractor that contains confidentiality obligations and intellectual property ownership terms that are in content at least as protective as the provisions hereof. If a Receiving Party is required by law, regulation, court order, or securities exchange requirement to disclose any Confidential Information of the Disclosing Party, such Receiving Party will: (i) unless legally prohibited, first notify the Disclosing Party of same in writing and without delay; and (ii) cooperate with the Disclosing Party, using commercially reasonable efforts, in obtaining a protective order preventing or limiting the disclosure; and (iii) in the absence of a protective order, to limit any such disclosure to the minimum disclosure necessary to comply with such law, regulation, court order, or securities exchange requirement.
- Return of Confidential Information. Subject to the terms of this Agreement, Receiving Party will return or irretrievably destroy the Confidential Information of the Disclosing Party within thirty (30) days after such request from the Receiving Party. If requested by the Disclosing Party, the Receiving Party will provide a statutory declaration certifying the return or destruction (as applicable) within five (5) days thereafter.
- Injunctive Relief. Each Party acknowledges and agrees that should it breach its obligations of non-disclosure under this Section, the other Party may suffer harm which may not be adequately compensated by monetary damages. In such event, the non-breaching Party may, in addition to any other remedy available in law or equity, seek specific performance and injunctive or other equitable relief without bond or proof of damages.
5. REPRESENTATIONS & WARRANTIES.
- Mutual Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (b) it has full right and authority to enter into, execute, and perform its obligations under this Agreement; and (c) the execution, delivery, and performance of this Agreement constitutes a legal, valid, and binding agreement of such party.
- Company Representations and Warranties. The Company hereby represents and warrants to the Customer that: (a) it will perform the Services in compliance with applicable laws and regulations; (b) it will perform the Services in a professional and workmanlike manner; (c) the Services will not infringe, or constitute an infringement or misappropriation of, any Intellectual Property Rights of any third party; and (d) the Services will conform in all material respects to any applicable Sales Agreement.
6. TERM & TERMINATION.
- Term. Unless terminated earlier pursuant to the terms and conditions of this Agreement, this Agreement will commence on the Effective Date and will remain in effect for a period of one (1) year (the “Initial Term”). Thereafter, the term of the Agreement will be automatically renewed for additional one (1) year renewal terms (any such subsequent renewal term referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. Collectively, the Initial Term and any subsequent Renewal Term will constitute the “Term”.
- Termination for Convenience. Either party may at any time terminate this Agreement for any or no reason immediately upon notice if there is no Sales Agreement in effect. Company may terminate this Agreement or any Sales Agreement at any time upon written notice to the Client.
- Early Termination Fee. If the Customer terminates this Agreement for any reason other than (a) in accordance with section 6.4, or (b) prior to a Renewal Term in accordance with section 6.1, Customer agrees to pay all Fees that would have been due over the remainder of the current Term (an “Early Termination Fee”).
- Termination for Cause. Either party may terminate this Agreement immediately if the other party: (a) fails to correct a material breach of its obligations under this Agreement within thirty (30) days after receipt by such other party of written notification from the notifying party of such material breach, provided however, that a breach of Greenline Policies or the confidentiality obligations set forth in Section 4 will be grounds for immediate termination of this Agreement by written notice from the non-breaching party; or (b) files a bankruptcy petition, has a bona fide petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party. The Company, in its sole discretion, may terminate this Agreement immediately if it believes the Customer does not have the requisite Permits to carry on its business in accordance with any prevailing municipal, provincial or federal laws and regulations, in which case the Customer agrees to pay any Fees that would have been due over the remainder of the then current Term. Upon termination pursuant to this Section 6.4, all Sales Agreements in effect will immediately terminate.
- Effect of Termination. Upon termination of this Agreement: (a) the Company will deliver to the Customer a final statement of account and/or invoice for Fees accrued up to and including the date of termination, and any Early Termination Fee, if applicable; (b) Customer shall, for a period of thirty (30) days following termination, be able to retrieve their Customer Data that was available to the Customer on the Greenline Platform as of the date of termination; and (c) any provision of this Agreement that imposes an obligation after termination of this Agreement will survive the termination or expiry of this Agreement, including without limitation, Sections: 2, 3, 4, 6 – 11 (inclusive). Termination or expiry of a Sales Agreement will not serve to terminate this Agreement.
The Customer will not, during the Term and for a period of one (1) year thereafter, in any capacity or manner, whether directly or indirectly, individually or jointly or in conjunction with any person: (a) induce or attempt to induce any customer, user, or partner of Company to reduce or curtail its business with Company or to terminate its relationship with same; (b) induce or encourage any employee to leave the employment of Company or authorize, assist, approve or encourage any such action by any other person; or (c) hire or attempt to hire or otherwise solicit any employee of Company, or authorize, assist, approve or encourage any such action by any other person.
The Customer (the “Indemnitor”) will defend, indemnify and hold harmless the Company and its officers, directors, contractors, and employees (together, the “Indemnitees”) against and from any and all third party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges incurred or suffered by the Indemnitees as a result of or in connection with any material non-fulfillment or breach of any warranty or covenant, or any material misrepresentation, under this Agreement by the Indemnitor. This Section will survive termination and expiry of this Agreement for a period of three (3) years.
Notwithstanding the foregoing, Customer will indemnify, defend and hold the Company and its Indemnitees harmless from and against all third party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges incurred or suffered by the Indemnitees as a result of or in connection with Customer’s use of a Greenline Integration.
- EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT, THE COMPANY HEREBY DISCLAIMS ANY AND ALL GUARANTEES, REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING THE GREENLINE SYSTEM (WHICH INCLUDES THE GREENLINE HARDWARE AND THE GREENLINE PLATFORM) AND THE SERVICES, WHETHER IMPLIED OR STATUTORY, ORAL OR OTHERWISE, ARISING UNDER ANY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION CONDITIONS AND WARRANTIES WITH RESPECT TO VALIDITY, ACCURACY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE GREENLINE SYSTEM AND THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”. THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE IN CONNECTION WITH THIRD PARTY SOFTWARE OR MATERIALS AND THEIR USE OR INCLUSION IN THE GREENLINE SYSTEM AND THE SERVICES.
10. LIMITATION OF LIABILITY.
THE COMPANY’S MAXIMUM LIABILITY TO THE CUSTOMER UNDER THIS AGREEMENT IS THE AGGREGATE AMOUNT OF FEES PAID DURING THE TWELVE (12) MONTH PERIOD PRECEEDING SUCH CLAIM.
EXCEPT WITH APPLICATION TO THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
11.1. Publicity. Neither party will publish a public announcement related to this Agreement without prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the foregoing and any confidentiality obligations under this Agreement, the Company will not be restricted from disclosing the existence, and the terms, of this Agreement with prospective investors, and the Company may publicly list the Customer as a customer and user of the Greenline Platform.
11.2. Assignment. This Agreement will not be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other party. Notwithstanding the foregoing, upon written notice to Customer, Company may assign this Agreement to a successor in interest, upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of the assets of Company, and any such assignment will not require the consent of Customer. Any assignment in violation of this Section will be null and void from the beginning and will be deemed a material breach of this Agreement.
11.3. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties hereto. No failure or delay by a party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
11.4. Choice of Law. This Agreement will be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein. The provincial and federal courts located in Vancouver, British Columbia will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Notwithstanding the foregoing, each party will be entitled to seek injunctive or other equitable relief in any jurisdiction with a reasonable connection to the subject matter of this Agreement. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.5. Force Majeure. If the Company is prevented from or interfered with in any manner whatsoever, or otherwise delayed, in performing the Services or any other obligations hereunder, by reason of any event beyond the Company’s reasonable control (an “Event of Force Majeure”), then the Company’s non-performance will not be deemed a breach of this Agreement provided that notice is given to the Customer without delay, and the Company’s obligations hereunder will be extended by such reasonable amount of time determined by the Company in good faith. Any delays in the Company’s performance of the Services as a result of an Event of Force Majeure will similarly extend the Customer’s payment obligations for such Services.
11.6. Notices. If any notice or other communication is required or permitted to be given to a party hereunder, such notice or communication will be in writing and: (a) personally delivered; or (b) transmitted by e-mail to the address provided in the Sales Agreement. All such notices or other communications will be deemed to have been given and received upon confirmation of delivery.
11.7. Currency. All monetary amounts under this Agreement are in Canadian Dollars, except where expressly provided otherwise.
11.8. Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
11.9. Severability. In the event that any covenant, provision or restriction contained in this Agreement is found to be void or unenforceable (in whole or in part) by a court of competent jurisdiction, it will not affect or impair the validity of any other covenant, provisions or restrictions contained herein, nor will it affect the validity or enforceability of such covenants, provisions or restrictions in any other jurisdiction or in regard to other circumstances. Any covenants, provisions or restrictions found to be void or unenforceable are declared to be separate and distinct, and the remaining covenants, provisions and restrictions will remain in full force and effect.
11.10. Counterparts. This Agreement, which includes any Sales Agreement, may be executed electronically and in two or more counterparts, all of which, taken together, will be regarded as one and the same instrument.
11.11. Entire Agreement. This Agreement, which includes any Sales Agreement, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement. To the extent of any conflict between this Agreement, a Sales Agreement, a Change Order, and/or the Greenline Policies, the following order of precedence will apply: (1) a Sales Agreement, (2) a Change Order; (3) this Agreement; and (4) the Greenline Policies.
(a) “Confidential information” means information that is not generally known to the public or that otherwise constitutes a trade secret under applicable law, including without limitation, pricing information related to the customer’s products and services, technical information, know-how, technology, software applications and code, prototypes, ideas, inventions, methods, improvements, data, files, information relating to customer identities and other customer information; provided that, confidential information does not include any of the foregoing information that receiving party can demonstrate: (i) has entered into the public domain through no wrongful act or breach of any obligation of confidentiality by the receiving party; (ii) was in the lawful knowledge and possession of, or was independently developed by, the receiving party prior to the time it was disclosed to, or learned by, the receiving party hereunder as evidenced by written records; (iii) was rightfully received by receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (iv) was approved in writing for release by the disclosing party. Confidential information includes such information that was disclosed by the company to the customer prior to the effective date. The customer’s confidential information will include the ancillary information. The company’s confidential information will include the services and the Greenline Platform, and any parts thereof.
(b) “Customer Data” means the Customer’s sales receipts, inventory levels and product descriptions, purchase orders, and Customer client and employee data.
(c) “Disclosing Party” means the party who discloses or otherwise divulges Confidential Information to the Receiving Party or to the Receiving Party’s employees, agents, or contractors.
(d) “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.
(e) “Receiving Party” means the party who receives or otherwise obtains Confidential Information from the Disclosing Party or from the Disclosing Party’s employees, agents, or contractors.
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