Terms & Conditions - Software

TERMS & CONDITIONS
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This SaaS Services Agreement (the “Agreement”) constitutes an addendum to the quote provided by Company to Customer (the “Quote”) and the Quote constitutes an integral part of this Agreement and is included herein by reference.
This Agreement is entered into on the day the Quote is signed, the day this Agreement is electronically accepted or the day the Customer starts using the Service, whichever comes first, (the “Effective Date”) between Vigia AG with a place of business at Seefeldstrasse 229, 8008, Switzerland (“Company”), and the customer with details as outlined in the Quote or as otherwise communicated to the Company (“Customer”), from hereon jointly referred to as the “Parties” and individually as a “Party”. This Agreement supersedes any other written or oral agreements between the Parties.

1 SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company grants to Customer a non-exclusive, non-transferable and non-licensable license to use the Cannavigia Compliance Suite strictly for its internal business purposes (the “Service”).
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1.2 The Service shall include the specific modules, number of administrators, number of desktop users, number of mobile users, number of IOT devices, number of other modules or services and other items as outlined in the Quote or as per the Customer’s most recent invoice from time to time. Each user module purchased entitles the Customer to one individual using the Service on one device at a time.

1.3 The Service shall further include reasonable technical support in accordance with the terms set forth in Exhibit A, as amended from time to time.

1.4 Company may, at its sole discretion, change the specific items and technical capabilities included inthe Service from time to time.

2 RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data (the “Protected Software”) related to the Service; modify, translate, or create derivative works based on the Service or the Protected Software (except to the extent expressly permitted by Company or authorized within this Agreement); use the Service or any Protected Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; conduct any load testing or penetration testing of the Protected Software or remove any proprietary notices or labels.

2.2 Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Company’s published policies then in effect (the “Policies”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Agreement or the Policies, as amended from time to time, or otherwise from Customer’s use of Services. AlthoughCompany has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, IoT range extenders, software, operating systems, networking, web servers, IOT range extenders and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3 CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each Party understands that the other Party has disclosed or may disclose business, technical or financial information relating to its business (hereinafter referred to as “Proprietary Information”. Proprietary Information of Company includes assets, including but not limited to, non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). Each Party agrees: (i) to take reasonable precautions to protect Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any Proprietary Information. Each Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that a Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the other Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the other Party or (e) is required to be disclosed by law.

3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.

3.3 Company shall own and retain all right, title and interest in and to (a) the Services and Protected Software, all improvements, enhancements or modifications there to, (b) any software, applications, inventions or other technology developed in connection with implementation services or support, and (c) all intellectual property rights related to any of the foregoing.

3.4 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and Protected Software and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for the development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4 PAYMENT OF FEES
4.1 Customer will pay Company the applicable fees for the Services and implementation services outlined in the Quote and as amended from time to time in the Customer’s most recent invoice, in accordance with the terms of the Quote and this Agreement and Company’s payment modalities offered from time to time (the “Fees”).

4.2 If Customer’s use of the Services exceeds what has been agreed in the Quote, or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.

4.3 Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time, upon thirty (30) days prior notice to Customer (which may be sent by email).

4.4 If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the date of the billing statement in question in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

4.5 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

4.6 Customer is responsible for all taxes associated with Services in Customer’s jurisdiction, other than taxes based on Company’s net income.

5 TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the initial term as specified in the Quote and shall be automatically renewed for additional periods of the same duration as the initial term (collectively, the “Term”), unless the Customer requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 In addition to any other remedies it may have, the Company may terminate this Agreement upon thirty (30) days’ notice, or without notice in the case of non-payment or if the Customer breaches this Agreement or the Policies as amended from time to time.

5.3 Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6 WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the implementation services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAYBE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON,COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OFDATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TOTHE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8 MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of Switzerland without regard to its conflict of laws provisions.

EXHIBIT A
Support Terms

9 Support Portal
9.1 Support is only available for paid Services provided by Company, not for trial versions or other free versions of any Service. Support is only available to Customers who are not in breach of their duties under the SAAS Services Agreement.
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9.2 Company will only provide support for its Services as defined in the SAAS Services Agreement, not for any other software, hardware or other types of Customer Equipment.

9.3 Company will provide technical support to Customer through the Company Support Portal; customers are able to request meetings and telephone support via the Support Portal.

9.4 The Support Portal is monitored, and Support is available from Monday to Friday between 9:00am –6:00pm UTC and from Monday to Friday between 9:00am – 6:00pm Indochina Time in English, German and Thai language.

9.5 Company will use reasonable efforts to respond to all tickets within one business day. The Support Portal may be unavailable during scheduled maintenance time.

9.6 Customer agrees that technical support is subject to a fair use policy and that Company may refer Customer to its consulting department for requests that exceed fair use of technical support services.

9.7 Company also provides a detailed handbook, frequently asked questions and short video clipsshowing how to perform steps within the software.
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10 Filing Tickets through the Support Portal
10.1 The Customer will notify the Company of any issues or disruptions through the Support Portal.

10.2 The Customer must ensure that each ticket contains at least the following – Customer Name Email Topic Summary Issue Description Screenshots or Supporting Documents. The Company will use reasonable efforts to respond to all tickets within one business day during the Support Portal hours listed in Section 9 above.

11 Additional Chargeable Services
11.1 Remote Support on a Customer software instance – Company does not have access to any Customer software instances. In some cases, it might be helpful for the Customer to receive support directly on their instance through remote access software. This service is not included in the standard support package, is only available on request and after prior authorization by the Customer and is charged at regular consulting rates.

11.2 Training – Company offers hourly training sessions on all aspects related to the Services. This service is not included in the standard support package, is available on request and charged at regular consulting rates.

11.3 Onboarding Package – Company offers an eight-hour onboarding package made up of the following sessions –Kick Off Call Set up Facility Inventory & Pre-Cultivation Cultivation Post-Harvest & Final Product Reports, App & QR Codes Wrap Up, Support Each session consists of 45 minutes of training and 15 minutes of Q&A. Each session is recorded, and recordings are shared with the Customer. Additional training videos are provided in advance of each session so the Customer can prepare in advance of the call. During the Onboarding Package sessions, the following areas are covered – CultivationCreate projects; Use the planning feature; Create plant batches; Perform tasks on the plants; Move, split or merge batches; Harvest and process batches; Create cultivars; Create recipes. Quality Inventory Facility Create test management and testing methods; Create and find reporting; Create and find samples; Create and work with containers; Create internal trainings; Create custom roles; Create tasks and uploads SOPs; Record observations. Perform goods in, goods out; Create and work with articles; Add contacts; Add contact person. Set up company profile; Add and edit areas; Add and create equipment and equipment categories; Create and print QR codes. Company suggests conducting the onboarding over a four-week time period with two sessions per week, other schedules can be accommodated upon request. All onboardings are conducted using Microsoft Teams or comparable videoconferencing software. The Customer must ensure to attend all scheduled onboarding calls, sessions can only be rescheduled with at least two business days notice. The Customer is responsible for meeting the technical requirements necessary for a Microsoft Teams call including sufficiently fast internet connection, camera and microphone equipment and having Microsoft Teams software installed prior to each onboarding session. To ensure compliance with GDPR regulations and marketing contact guidelines, the Customer gives its consent to receive follow-up emails and additional information when purchasing an Onboarding Package.The Onboarding Package is not included in the standard support package, is available on request and charged at a package rate.