Merchant Agreement

Last Updated: August 3, 2021

This Merchant Agreement (this “Agreement”) is entered into by and between Courier Plus, Inc. dba Dutchie (“Dutchie”) and the entity or person placing an order for or accessing the Services (as defined below) (“Merchant” or “you”).  This Agreement consists of the terms and conditions set forth below, any additional terms that references this Merchant Agreement and any dutchie ordering forms or online sign-up form or subscription flow that references this Merchant Agreement(the “Order Form”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Merchant” reference your company.

1. Access to the Services

1.1 Right to Access Service.  Subject to the terms of this Agreement, Dutchie hereby grants Merchant a non-exclusive, non-transferable, non-sublicensable right during the Term (as defined below) to access and use the retail management, point-of-sale platforms and other related products and services as set forth in the applicable Order Form (the “Services”).  

1.2 Modification of Agreement.  Dutchie reserves the right to change or modify portions of this Agreement at any time. If dutchie does so, it will post the changes on this page and will indicate the date this Agreement was last revised. Dutchie will also notify Merchant, either through the Services user interface, in an email notification, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Merchant’s continued use of the Services after the date any such changes become effective constitutes acceptance of the new Agreement.

1.3 Account Registration.  Merchant may need to register for a merchant account in order to use the Services. Account information must be accurate, current, and complete, and will be governed by Dutchie’s Privacy Policy (currently available  Merchant agrees to keep this information up-to-date so that Dutchie may send notices, statements, and other information by email or through Merchant’s account. Merchant must ensure that any user IDs, passwords, and other access credentials for the Services are kept strictly confidential and not shared with any unauthorized person.  Merchant will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials.  Merchant must notify Dutchie promptly of any breach of security or unauthorized use of its account.  

1.4 Hardware.  Merchant shall be responsible for obtaining and maintaining any hardware, equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, tablets, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"), and Merchant shall be solely responsible for maintaining the security of the Equipment.  To the extent Merchant has purchased any hardware or if Merchant is otherwise provided hardware by Dutchie pursuant to an applicable Order Form (“Purchased Hardware”), Merchant agrees and acknowledges that additional terms set forth in such Order Form, including any hardware warranty and return policies set forth therein shall apply to Merchant’s purchase of such Purchased Hardware.

2. Restrictions and Responsibilities

2.1 General Restrictions.  Merchant will only use the Services and Hardware for lawful purposes and as expressly permitted herein and in the applicable Order Form and agrees that it will not: (i) 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 Services, Hardware or any software, documentation or data related to the Services (collectively, “Dutchie Technology”); (ii) modify, translate, or create derivative works based on any Dutchie Technology; (iii) use any Dutchie Technology for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels; (v) use any Dutchie Technology at any location other than that set forth in the applicable Order Form; (vi) sell, assign, sublicense or otherwise transfer any right in any Dutchie Technology; or (vii) modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks, in each case, except to the extent expressly permitted by Dutchie or authorized within the Services.  In addition, Merchant shall not use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Dutchie’s provision of the Services. 

2.2 Merchant Responsibilities. Merchant represents, covenants, and warrants that (a) it is legally organized under and is and will be in compliance with all applicable local, state, provincial, and federal laws and regulations, (b) Merchant has active and valid permits or licenses issued by the applicable local, state, provincial and/or federal regulatory authority related to the sale of cannabis and is in compliance with all local, state, provincial, and federal laws and regulations related to the sale of cannabis, as amended from time to time, of the jurisdiction in which it operates; (c) Merchant has obtained any and all additional authorizations, approvals, consents, licenses or permits required by respective local government regulatory or licensing authorities relating to the sale of cannabis; (d) Merchant is located in a jurisdiction where access to the Services is not prohibited; (e) Merchant’s products, marketing materials, and packaging are in compliance with all applicable state, local, provincial and federal laws and regulations, and (f) Dutchie’s Services and the Services are in compliance with all local, provincial, and state laws and regulations.  Merchant agrees to immediately notify Dutchie and cease use of the Services if there is a change in the status of its legal authorization to sell cannabis, including expiration, suspension, cancellation, revocation, nonexistence or invalidation of any cannabis-related license or permit.  Upon reasonable request, Merchant shall provide to Dutchie any permits, business licenses, or other related information for Dutchie to verify Merchant’s compliance with legal and regulatory requirements.

2.3 Merchant Brand Information.  Merchant agrees to comply with all applicable truth-in-advertising, Health Canada Act requirements, Cannabis Act requirements, and other advertising and consumer protection laws and regulations with respect to the marketing of Merchant’s products listed through use of the Services and Merchant agrees that (a) Merchant is solely liable for information ("Merchant Brand Information") it provides to Dutchie regarding the listing of Merchant products through the Services, (b) Dutchie has no duty to verify or research the Merchant Brand Information provided by Merchant, and (c) Dutchie has no liability with respect to the display or advertising of such Merchant Brand Information, including but not limited to third party claims, governmental actions, or consumer actions or complaints.

2.4 No Regulatory, Legal or Other Advice.  Dutchie does not provide any legal or regulatory advice.  The Services and related information and materials made available by Dutchie are for informational purposes only, and are not intended to provide, and should not be relied on, for legal or regulatory advice. Merchant acknowledges and agrees that it will consult its own legal or regulatory advisors before engaging in any transaction.  Dutchie does not interpret state reporting errors or provide inventory management guidance. Merchant is solely responsible for and will contact and work directly with their local regulatory agency to resolve matters related to reporting and/or inventory management.  In addition, Dutchie does not provide support or guidance related to any third party software, data, information or other materials, including but not limited to state regulatory software and databases.

3. Confidentiality; Proprietary Rights

3.1 Confidentiality.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business and technology (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Dutchie includes, without limitation, all Software and other non-public information and documentation regarding features, functionality and performance of the Services. The Receiving Party agrees: (i) to take at least reasonable precautions to protect such 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 such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving 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 Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 Merchant Data.  As between the parties, Merchant retains all right, title, and interest (including any intellectual property rights) in and to the Merchant Data (as defined below).  Merchant grants Dutchie a non-exclusive, sublicensable, worldwide, royalty-free right to collect, use, modify and process Merchant Data solely to provide the Services to Merchant and as otherwise expressly set forth herein.  Merchant agrees to: (a) maintain a privacy policy on its website and/or mobile application, as applicable; and (b) provide all required disclosures required by applicable laws to its Customers (as defined below) and obtain any necessary rights, releases, and consents to permit Merchant Data to be collected, used, and disclosed in the manner contemplated by this Agreement. “Merchant Data” means data and information collected or processed by Dutchie on behalf of Merchant the course of providing services to Merchant, which may include Personal Information of the Merchant’s customers or guests (each, a “Customer”).  Merchant Data includes data or information collected by Dutchie when a Customer enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt, and may further include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) payment information; (iv) Customer purchase history; (v) location information; and (vi) medical cannabis card, medical exemption or other similar information. “Personal Information” means any information that relates to an identified or identifiable individual. Depending on the applicable privacy laws and regulations, Personal Information may include, but is not limited to a name, address, contact details, unique identifiers, payment card information, biometric identifiers and information, preferences, history and profile data, IP addresses and location-based information.

3.3 Dutchie Technology.  Dutchie shall own and retain all right, title and interest in and to (a) the Dutchie Technology, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services, Hardware, or support, (c) any implementation services and/or training provided by Dutchie to Customer pursuant to an Order Form (“Professional Services”). and (d) all intellectual property rights related to any of the foregoing. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Dutchie or any third party is granted to you in connection with the Services.

3.4 Aggregated Data.  Notwithstanding anything to the contrary, Dutchie shall have the right to collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies and Dutchie will be free to (i) use such information and data, including Merchant Data, (during and after the term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Dutchie offerings, and (ii) to create anonymized or aggregated data from Merchant Data (including Personal Information) that does not identify Merchant, any Customers or any other identifiable individual (collectively, “Aggregated Data”). Such Aggregated Data may include data analyses generated across Dutchie, our merchant customers and our partners and may be used for any lawful purposes, including, to use, disclose, compile, distribute and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Services, the development of new Services or otherwise. Dutchie shall own and retain all right, title and interest to such Aggregated Data, including all intellectual property rights therein, without any obligation to Merchant or any restriction of any kind.

3.5 Feedback.  If Merchant elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Dutchie (collectively, “Feedback”), Merchant hereby grants Dutchie a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Dutchie will not identify Merchant as the source of the Feedback. Nothing in this Agreement limits Dutchie’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

4. Fees and Payment

4.1 Fees.  Merchant agrees to pay all fees in the currency and payment period specified in the applicable Order Form.  Dutchie’s fees are exclusive of all sales, use, value-added, withholding and other taxes or duties, and Merchant will promptly pay or reimburse Dutchie for all taxes arising out of this Agreement. Merchant hereby confirms that Dutchie can rely on the Merchant corporate address in applicable Sales Order as being the place of use for sales tax purposes, unless Merchant provides, prior to invoicing by Dutchie, a list of other place(s) as being the place(s) of use. If Merchant is legally entitled to an exemption from the payment of any taxes, Merchant will promptly provide Dutchie with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. If Merchant is located outside the United States and required to pay or withhold any tax in respect of any payments due to dutchie hereunder, Merchant will gross up payments actually made such that Dutchie receives sums due hereunder in full and free of any deduction for any such tax. Except as expressly provided in this Agreement, payments are non-refundable and non-creditable and payment obligations non-cancellable.  Dutchie’s fees are fixed during the Initial Term (as defined below); however, Dutchie may increase its fees for any Renewal Term (as defined below) by providing written notice to Merchant at least sixty (60) days prior to the commencement of such Renewal Term. All undisputed fees due are payable in United States dollars, unless otherwise agreed to between the parties in writing. 

4.2 Credit Card Payment Terms. If Merchant elects to pay via credit card, then Merchant is solely responsible for either (a) enabling auto-recharge on Merchant’s payment instrument or (b) ensuring that Merchant’s payment instrument has a sufficient positive balance to cover all fees due.  If, for any reason, Merchant has a negative balance on its account(s), then Dutchie reserves the right to suspend access to the Services.
Invoicing Payment Terms. If Merchant elects to receive invoices and pay in arrears as agreed by Dutchie, then invoices will be sent to via email in accordance with the Order Form.  Except as otherwise set forth in an Order Form, Merchant will make all of the undisputed fees hereunder within seven (7) days of the date of the invoice.  If Merchant is overdue on any payment of undisputed fees and fails to pay within ten (10) business days of a written notice, then Dutchie may assess, and Merchant agrees to pay a late fee of either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less. 

4.3 Disputes.  Merchant must notify Dutchie in writing of any good-faith invoice dispute within twenty (20) days of the applicable invoice date and reasonably cooperate with Dutchie in resolving any dispute. If the parties are unable to resolve a dispute within ten (10) days of Merchant’s notice, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any provision in this Agreement that would limit seeking these remedies on account of a payment dispute. For clarity, any undisputed amounts must be paid in full in accordance with this Section.

4.4 Payment Processing.  If Merchant uses the Services for payment processing, Merchant acknowledges that payment processing is performed by a third-party processor ("Processor"). Dutchie is not a bank, payment institution, or money services business and the processing and settlement of transactions is carried out solely by Processor.  Merchant is solely responsible for transactions processed by Processor, verifying the identity of Merchants and of the eligibility of a presented card used to purchase Merchant’s products and services, and Dutchie does not guarantee or assume any liability for transactions authorized and completed that may later be reversed or charged back.  Merchant is solely responsible for all reversed or charged back transactions regardless of the reason for, or timing of the reversal or chargeback and for compliance with all associated applicable laws and regulations.

5. Term; Termination

5.1 Term.  Subject to earlier termination as provided below, this Agreement shall continue for the initial term specified in the Order Form, and shall automatically renew for additional periods of the same duration as the initial term in the Order Form unless either party provides the other party with written intention to not renew at least thirty (30) days’ before the end of the then-current term (the “Initial Term” and each “Renewal Term” shall collectively be referred to as the “Term”).

5.2 Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).

5.3 Effect of Termination.  Upon termination, Merchant’s right to use the Services shall immediately terminate, and each party shall return to the other all Proprietary Information. Upon termination, Dutchie may permanently delete all of your data control in Dutchie’s sole discretion. 

5.4 Survival.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of fees, confidentiality obligations, warranty disclaimers, indemnification obligations and limitations of liability.

6. Warranty and Disclaimers

6.1 Performance Warranties.  Dutchie shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services materially in accordance with the Documentation. The remedies set forth in this Agreement shall be Dutchie’s entire liability and Merchant’s sole remedy related to the performance of the Services.


7. Indemnification

7.1 Dutchie Indemnification.  Dutchie will indemnify, defend, and hold Merchant harmless from and against any claim, demand, suit, or proceeding (“Claim”) made or brought against Merchant by a third party alleging that the use of the Dutchie Technology as permitted hereunder infringes or misappropriates a valid United States or Canadian patent, copyright or trade secret.  Notwithstanding the foregoing, Dutchie will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) breach of this Agreement by Merchant, (ii) any combination of the Dutchie Technology with other products, equipment, software, uses or data not supplied by Dutchie, (iii) any modification of the Dutchie Technology by any person other than Dutchie or its authorized agents or contractors or (iv) any activity after Dutchie has provided Merchant with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services. If Dutchie reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, Dutchie may procure, at Dutchie’s expense, for Merchant the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event that neither of the foregoing options are commercially practicable, Dutchie may, in its sole discretion, terminate this Agreement upon written notice to Merchant and refund to Merchant any prepaid amounts for unused Services.  This Section 7.1 states Dutchie’s sole responsibility and Merchant’s sole remedies for any infringement or violation by Dutchie of any intellectual property rights.

7.2 Merchant Indemnification.  Merchant will indemnify, defend, and hold Dutchie harmless from and against any Claim made or brought against Dutchie by a third party arising from Merchant’s breach of this Agreement or use of the Services (excluding Claims covered by Section 7.1).

7.3 Indemnification Procedure.  Each party’s indemnification obligations are dependent upon the indemnified party providing the indemnifying party with (a) prompt notice of any such Claim, (b) the sole and exclusive authority to defend and/or settle any such Claim (provided that the indemnifying party may not settle any Claim without the indemnified party’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases the indemnified party of all liability) and (c) reasonable cooperation with the defense of such Claim.


9. Miscellaneous

9.1 Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Oregon and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in Portland, Oregon or the United States District Court for the District of Oregon, and both parties submit to the personal jurisdiction of these courts. 

9.2 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the other party’s advanced written consent, except that each party may assign this Agreement without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be void.

9.3 Notices. Any notice or communication under this Agreement must be in writing. Merchant must send any notices under this Agreement (including breach notices and warranty and indemnity claims) to Dutchie, in English to Dutchie may send notices to the email addresses on Merchant’s account or, at Dutchie’s option, to Merchant’s last-known postal address. Dutchie may also provide operational notices regarding the Service or other business-related notices through conspicuous posting of the notice on Dutchie’s website or the Service. Each party consents to receiving electronic notices. Dutchie is not responsible for any automatic filtering Merchant or its network provider may apply to email notifications.

9.4 Subcontractors. Dutchie may use subcontractors and permit them to exercise the rights granted to Dutchie in order to provide the Services under this Agreement. These subcontractors may include, for example, Dutchie’s hosting providers. However, subject to all terms and conditions of this Agreement, Dutchie will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Services if and as required under this Agreement. 

9.5 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

9.6 Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

9.7 Export. Each party will comply with all applicable export control laws. Merchant represents and warrants that it is not on any government list of prohibited or restricted parties or located in (or a national of) a country subject to a government embargo or that has been designated by the government as a “terrorist supporting” country.

9.8 Publicity.  Merchant agrees that Dutchie may refer to Merchant’s name and trademarks in Dutchie’s marketing materials and website, including but not limited to displaying the Merchant’s logo, solely for the purpose of identifying Merchant as a customer of Dutchie.

9.9 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

9.10 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. 

9.11 Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Dutchie Technology or any other subject matter covered by this Agreement.  The failure of Dutchie to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and Dutchie, even though it is electronic and is not physically signed by you and Dutchie, and it governs your use of the Services.  The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Merchant (including as part of any purchase order or other business form used by Merchant) are for administrative purposes only, and have no legal effect.