Last Updated: 04/02/2024
This Ad Services Agreement (the โAgreementโ) is entered into by and between Courier Plus, Inc. d/b/a Dutchie (โDutchie,โ โwe,โ โus,โ or โourโ) and the entity creating an account for or placing an Order for the Ad Services on behalf of itself and/or its Affiliates (โBrand,โ โyouโ or โyourโ). This Agreement governs your (including your Affiliatesโ and your Authorized Usersโ) access to and use of the Ad Services, including the Ad Platform.
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1.1 Generally. During the Term and subject to the terms of this Agreement, we will make the Ad Services available to you to allow you to run Campaigns on Ad Services Properties made available by us. We reserve the right to determine all aspects of the Ad Services, and may modify, restrict, or discontinue any features or functionality offered through the Ad Services at any time without notice. Except as expressly provided in an Order, we do not guarantee that your Ads will be displayed on or made available through any particular Ad Services Properties, nor do we guarantee that your Ads will appear in any particular position or rank.
1.2 Ad Platform Access. During the Term and subject to the terms of this Agreement, we grant you a limited, non-transferable, non-sublicensable, non-exclusive, revocable right to access and use the Ad Platform in connection with your use of the Ad Services.
1.3 Authorized Users. To the extent that you allow Authorized Users to access the Ad Platform, you must require that they keep their user IDs and passwords for the Ad Platform strictly confidential and do not share such information with any unauthorized person. Authorized Users may be assigned with certain permissions, including the ability to fund your Wallet, initiate Campaigns and access Ad Services Data, and you are responsible for designating Authorized Usersโ permissions. You are responsible for any and all actions taken using Authorized Usersโ accounts and passwords, including, without limitation, any Orders placed by, any Fees incurred by, or any bidding or targeting decisions made by, an Authorized User on your behalf. You agree to immediately notify us in the event that you become aware of any unauthorized use.
1.4 License to Ad Content. During the Term you grant us a limited, non-exclusive, fully paid and sublicensable right and license to use, store, display, reproduce, modify, create derivative works, perform and distribute your Ad Content for the purpose of providing you with the Ad Services. For the avoidance of doubt, nothing in this Agreement will restrict other legal rights we may have to Ad Content (for example, under separate licenses you may provide to us).
1.5 Orders. From time-to-time during the Term, you may place Orders for Campaigns under which we will serve Ads on Ad Services Properties made available by us. Each Order will specify details applicable to the Campaign, such as (a) the daily budget parameters; (b) the start and end dates of the Campaign; and (c) the maximum cost for the applicable metric. The effective date of each Order will be the earlier of (a) our acceptance of the Order; or (b) the display of the first Ad impression specified in an Order.
1.6 Removal and Suspension. In connection with the management and operation of the Ad Services, we may reject or remove any Ad Content or suspend any Campaign at our discretion if (a) the Ad Content or Campaign violates this Agreement; (b) your Ad Platform account has been, or our controls identify that it may be, used for deceptive or fraudulent means or in violation of applicable Law; (c) we believe the Ad Content or Campaign would expose us to liability or could harm our or our customersโ reputation or business relationships; (d) you fail to pay Fees as they become due; or (e) for other risk management reasons determined by us in our sole discretion.
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2.1 Ad Policies. From time-to-time, we may make Ad Policies available to you. Your use of the Ad Services will comply with the Ad Policies, which are incorporated into this Agreement. We may make changes to Ad Policies at any time, and such changes will become effective upon their posting to the Ad Platform or upon notice to you.
2.2 Responsibilities. You will ensure that nothing in the Ad Content or your or your Authorized Usersโ use of the Ad Services will (a) be false, misleading, defamatory, harassing, or threatening; (b) constitute unfair competition or unfair commercial practice; (c) violate any applicable Law; or (d) infringe or misappropriate the Intellectual Property Rights of any third party.
2.3 Restrictions. You are your Authorized Users are not permitted to use the Ad Services (including, for the avoidance of doubt, the Ad Platform) for any purposes beyond the scope of the access or use granted in this Agreement. Except as expressly set forth in this Agreement, you and your Authorized Users shall not at any time, directly or indirectly, or permit any third party to (a) use the Ad Services in violation of this Agreement, applicable Law or the Ad Policies; (b) copy, modify, or create derivative works of the Ad Services, in whole or in part; (c) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Ad Services; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Ad Services, in whole or in part; (e) use the Ad Services to store, transmit, upload or post any libelous or otherwise unlawful or tortious material or any data for which you or they do not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with use of the Ad Services; (f) remove any proprietary notices from the Ad Services; (g) interfere with, or disrupt the integrity or performance of, the Ad Services or any data or content contained therein or transmitted thereby; (h) use the Ad Services to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Ad Services; (i) access or search the Ad Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than the features of the Ad Services provided by us for use expressly for such purposes; (j) permit, authorize, assign or transfer access to the Ad Services to any third party without our prior written consent; (k) use any means to generate fraudulent or invalid clicks or impressions on any advertisements contained within the Ad Service Properties; (l) use any device, software or routine to interfere or attempt to interfere with the proper working of the Ad Services; or (m) intentionally misuse or use the Ad Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates the terms of this Section 2.3, any intellectual property right or other right of any person, or any applicable Law.
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3.1 Wallet Funding and Deduction. In connection with your use of the Ad Services, you will be required to fund your Wallet in the amounts sufficient to satisfy your Order. As the applicable metric(s) associated with your Order are met (based solely on our measurements), we will deduct corresponding Fees form the Wallet. To the extent that the amounts in your Wallet are insufficient to fund your Campaign, you agree to promptly fund your wallet with additional funds. In the event that you fail to do so, we reserve the right to suspend or terminate the remainder of your Campaign. Except as expressly provided in this Agreement, Fees are non-refundable and non-creditable, and payment obligations are non-cancellable. Any unpaid Fees will accrue interest at a rate equal to the lesser of 1.5% per month or the highest rate permitted by applicable Law.
3.2 Wallet Funding Against Invoice. If you are manually funding your Wallet against an invoice, we will provide you with an invoice. All amounts invoiced are due and payable upon receipt and may be satisfied via wire or ACH in accordance with the instructions provided on the invoice.
3.3 Wallet Funding via Automatic Payment. If you are funding your Wallet automatically via credit card or ACH, you authorize us to charge your authorized payment method in order to fund your Wallet. Automatic payments will be processed by a third-party processor, and you consent to the disclosure of your payment information to such third-party processor. You agree to keep your authorized payment method and billing information up to date. In order to update your authorized payment method, you may contact billing@dutchie.com.
3.4 Taxes. Fees are exclusive of all sales, use, value-added, withholding and other taxes or duties. You will promptly pay or reimburse us for all taxes arising out of this Agreement. You acknowledge that the imposition and calculation of applicable taxes will be in accordance with the Laws of the jurisdiction where the Ad Services are performed. If you are legally entitled to an exemption from the payment of any taxes, you will promptly provide us with legally sufficient tax exemption certificates for each taxing jurisdiction for which you claim an exemption.
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4.1 License. During the Term and subject to the terms of this Agreement, we grant you a limited, non-transferable, non-sublicensable, non-exclusive, revocable right and license to use Ad Services Data.
4.2 Restrictions. You may use Ad Services Data solely to plan and manage Campaigns exclusively through the Ad Services and to evaluate the performance of your Campaigns and the Ad Services for your internal purposes only. You may only use Ad Services Data as expressly permitted in this Section 4, and you will not, and will not permit any of your Authorized Users to, associate Ad Services Data with any personal data or use or disclose (or enable any third party to use or disclose) any Ad Services Data (including, without limitation, Performance Data) in any other way or for any other purpose.
4.3 Disclosed Data. You will ensure that any Authorized User or Brand employee to which you disclose, or which otherwise receives or collects Ad Services Data, is bound and abides by written confidentiality obligations and use and disclosure restrictions at least as restrictive as those placed upon you under this Agreement.
4.4 Injunctive Relief. You agree that in the event of your or your Authorized Usersโ breach of this Section 4, damages suffered by us will not be fully compensated in money damages alone and, accordingly, we will, in addition to all other available remedies, be entitled to injunctive relief against such breach without any requirement for posing any bond or undertaking.
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โWe will have the right to collect and analyze data and other information relating to the use and performance of the Ad Services and related systems and technologies. We will be free to (a) use such information and data to improve and enhance the Ad Services and for other development, diagnostic and corrective purposes in connection with the Ad Services and other products and services developed and commercialized by us; and (b) to create anonymized and/or aggregated data that does not identify you, your Authorized Users or any other identifiable individual. We may use such anonymized and/or aggregated data for any lawful purposes, including to use, disclose, compile, distribute and public anonymous statistical or analytical data regarding the performance, provision and operation of the Ad Services, the development of the products and services, or otherwise. We will own and retain all right, title and interest to such data, including all intellectual property rights therein, without any obligation to you or any restriction of any kind.
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6.1 Obligations. Each party agrees that it will (a) protect the confidentiality of the other partyโs Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care; (b) not use any Confidential Information of the other party for any purpose outside the scope of this Agreement; (c) not disclose Confidential Information of the other party to any third party (provided that we may disclose your Confidential Information to our Advertising Partners for the limited purpose of provide you with the Ad Services); and (d) limit access to the other partyโs Confidential Information to those of its and its Affiliatesโ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements containing protections no less stringent that those herein.
6.2 Disclosure. Each party may disclose the Confidential Information of the other party if required to do so under any applicable Law, subpoena or legal process; provided, however, that (a) the receiving party will provide the disclosing party with prompt notice of any request that it disclose Confidential Information sufficient to allow the disclosing party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by Law, the receiving party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (b) the receiving party will refer the request to the disclosing party and will provide reasonable assistance to the disclosing party, at the disclosing partyโs cost, in opposing such disclosure or seeking a protective order, unless the receiving party is explicitly prohibited from doing so by Law or court order; and (c) in no event will the Receiving Party disclose Confidential information to a party other than a government agency except under a valid court order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the disclosing party refuses to provide their consent or fails to respond to the receiving partyโs inquiries in connection with the request to disclose the Confidential Information.
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7.1 By Brand. You represent and warrant that (a) you are duly organized, validly existing and in good standing under the Laws of the jurisdiction in which you are organized; (b) you have all necessary rights, licenses, consents and authorizations to enter into this Agreement, to use the Ad Content and to perform your obligations, exercise your rights, and grant the licenses provided under this Agreement; (c) you, your Affiliates and your Authorized Users will at all times comply with all Laws applicable to the performance of your obligations and exercise of your rights under this Agreement; and (d) all information you provide to us under this Agreement is true, accurate, and complete, and you will promptly update or correct that information if it changes.
7.2 Disclaimer. To the fullest extent permissible by Law, you acknowledge and agree that the Ad Services, including all technology, tools, services, software, functionality, materials and information made available on or provided in connection with the Ad Services are provided โas is.โ Your use of the Ad Services is at your own option and risk. We do not warrant that any Ad Service Properties, the Ad Platform, or any technology, tools, services, software, functionality, materials or information provided in connection with the Ad Services will meet your requirements or be available, uninterrupted, defect-free, or error-free, and we will not be liable for the consequences of any interruptions or errors. Except as expressly set forth in this Agreement, and to the fullest extent permissible by Law, we disclaim any guarantees about timing, positioning, adjacency, accuracy, targeting and performance of (as applicable), the Ad Services, Ads and Campaigns (including the quantity or quality of clicks or impressions, which you acknowledge may be manipulated by third parties) and Ad Services Data. Except as expressly set forth in this Agreement, and to the fullest extent permissible by Law, each party disclaims all warranties and conditions of any kind, whether express, implied or statutory, with respect to this Agreement, including all implied warranties or conditions or merchantability, fitness for a particular purpose, title and non-infringement.
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8.1 By Brand. You will indemnify, defend and hold us, our Advertising Partners, and each of our respective officers, directors, employees, agents and affiliates, harmless against any and all liabilities, damages, losses, costs and expenses (including legal fees) arising from or related to any third-party claim, suit, action or proceeding arising from or related to your or your Authorized Usersโ (a) use of the Ad Services; (b) Ad Content (including any actual or alleged infringement or misappropriation of any intellectual property right); (c) breach of this Agreement; and (d) gross negligence or willful misconduct.
8.2 By Dutchie. We will indemnify, defend and hold you harmless against any and all liabilities, damages, losses, costs and expenses (including legal fees) arising from or related to any third-party claim, suit, action or proceeding alleging that the Ad Services infringes or misappropriates any third-party intellectual property right. Notwithstanding the foregoing, we will not be liable for any liabilities, damages, losses, costs or expenses arising out of the foregoing to the extent such claims result from (a) our use of the Ad Content; (b) your or your Authorized Usersโ use of or access to the Ad Services not in accordance with the terms of this Agreement; (c) modification to the Ad Services (other than by us) without our written consent; or (d) the combination, operation, or use of the Ad Services with other applications, products, services, hardware or materials where the Ad Services would not by itself be infringing.
8.3 Procedure. The indemnified party will notify the indemnifying party in writing upon becoming aware of any indemnifiable claim, give the indemnifying party sole control of the defense or settlement of such a claim, and provide the indemnifying party (at the indemnifying partyโs expense) with any and all information and assistance reasonably requested by the indemnifying party to handle the defense or settlement of the claim. The indemnifying party will not accept any settlement that (a) imposes an obligation on the indemnified party; (b) requires the indemnified party to make any admission; or (c) imposes liability not covered by these indemnification obligations or places restrictions on the indemnified party without its prior written consent.
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To the extent permitted by applicable Law, and with the exception of Excluded Claims, in no event will either party be liable (a) for any indirect, incidental, punitive or consequential damages, or loss of profits, revenue, data or business opportunities arising out of related to this Agreement, whether in contract or tort and regardless of the theory of liability; or (b) any other damages in excess of the Fees paid or payable by you during the 12 month period preceding the event giving rise to the liability.
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10.1 Term. The term of this Agreement begins on the date of your registration for the Ad Platform or use of the Ad Services and will end when terminated by either party (โTermโ).
10.2 Termination.
A. You may terminate this Agreement for any reason and at any time by cancelling your Ad Services account.
B. We may terminate this Agreement for any reason and at any time by providing you with notice and closing your Ad Services account.
10.3 Effect of Termination. Upon any termination of this Agreement, we will stop placing your Ads, and you must cease use of the Ad Services and delete (or at our request, return) all Ad Services Data and Confidential Information or other materials of ours in your possession. To the extent that your Wallet contains a balance as of the effective date of termination, we will deduct any accrued Fees and return the remainder (if any) to you. In no event will termination of this Agreement relieve you of your obligation to pay any Fees payable to us for Ad Services provided to you. The exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by Law or otherwise.
10.4 Survival. The following Sections will survive any termination of this Agreement: 3 (Fees and Payment), 4 (Ad Services Data) (with the exception of Section 4.1), 5 (Aggregate and Anonymized Data), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Term and Termination), 12 (Miscellaneous), and 13 (Definitions).
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You grant us the right to add your name and company logo to our website and for use in our promotional materials.
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12.1 Entire Agreement. This Agreement, together with our Privacy Policy, the Ad Policies and any Orders placed by you or on your behalf represents our entire agreement with respect to the subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order will control.
12.2 Modification. We reserve the right to change or modify portions of this Agreement at any time. If we do so, we will post the changes on this page and will indicate the date this Agreement was last revised. We will also notify you, either through the Ad Platform, an email notification, or through other reasonable means. Any changes will become effective the next business day after being posted, except that changes addressing new functionality of the Ad Services or changes made for legal reasons may become effective immediately. Your continued access to or use of the Ad Services after such modification constitutes your acceptance to the changes and consent to be bound by the updated Agreement. If you do not agree to the updated Agreement, you must stop accessing and using the Ad Services by terminating the Agreement in accordance with Section 8.2.A.
12.3 Waiver. Either partyโs failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
12.4 Governing Law; Venue. This Agreement is governed by the laws of the Commonwealth of Massachusetts and the United States without regard to conflicts of law provisions. Jurisdiction and venue for actions related to this Agreement will be state and federal courts located in Suffolk County, Massachusetts, and both parties hereby submit to the personal jurisdiction of such courts.
12.5 Assignment. Neither party may assign this Agreement without the other partyโs advance written consent, except that either 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 (provided that in the case of Brand, the assignment is not to a competitor of Dutchie). Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be void. This Agreement will bind and inure to the benefit of each partyโs permitted successors and assigns.
12.6 Relationship. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship.
12.7 Notices. Any notice under this Agreement must be given in writing, and each party consents to receiving electronic notices. We will provide notice to you through any email address we have on file for you or through the Ad Services, and you will provide notice to us via email to legal@dutchie.com.
12.8 Feedback. We welcome any ideas and/or suggestions regarding improvements or additions to the Ad Services. Under no circumstances will any disclosure of any Feedback to us be subject to any obligation of confidentiality or expectation of compensation. By submitting Feedback to us, you waive any and all rights in the Feedback, and we are free to implement and used the Feedback if desired, as provided by you or your Authorized Users or as modified by us, without obtaining permission or license from you or from any third party.
12.9 Force Majeure. Except for your payment of Fees under this Agreement, neither party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage, act of God, electrical, internet or telecommunication outage that is not caused by the obligated party, government restrictions, pandemic, or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
12.10 Third-Party Beneficiaries. The Advertising Partners are express third party beneficiaries under this Agreement, and you acknowledge and agree that they have the right to enforce the terms of this Agreement against you. With the exception of the Advertising Partners, there are no third-party beneficiaries to this Agreement.
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Capitalized terms not otherwise defined in this Agreement shall have the following meanings:
Ad
means advertisements or promotional content in any form, including, without limitation, text-based, graphical, interactive, mobile, video, audio, or rich media, and all included Ad Content.
Ad Content
means all Ads, Campaign Details, trademarks, copyrightable works under applicable Law, information, data, photographs, images, videos, and any other materials and items provided or made available by you or your Affiliates under this Agreement or through the Ad Platform.
Ad Policies
means the policies, guidelines, specifications, and other information regarding use of the Ad Services made available to you from time-to-time.
Ad Platform
means the self-service platform made available to you by us and our Advertising Partner(s) in connection with the Ad Services which provides you with the ability to submit orders for Ads on a self-service basis and manage associated Campaigns.
Ad Services
means the tools and services made available to you under this Agreement, including as may be provided through the Ad Platform, which enable you to place Ads on Ad Services Properties and to manage and receive Ad Services Data.
Ad Services Data
means Performance Data, Dutchie Data, and all other data provided, made available, or collected in connection with the Ad Services, but excluding Campaign Details and any data that you would lawfully have without your participation in the Ad Services.
Ad Services Properties
means a website, application, device, or other online or physical point of presence containing Ad placements made available for purchase or delivery through the Ad Services at our discretion.
Advertising Partnersย
means the third-party service providers engaged by us in connection with providing the Ad Services.
Affiliate
means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity. As used in the preceding sentence, โcontrolโ means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or otherwise.
Authorized Users
means your employees, contractors, representatives, agents or other persons acting on your behalf in connection with this Agreement which have been provided with access to the Ad Platform, and which may include, without limitation, any advertising agency engaged by you in connection with the Ad Services.
Campaign
means an Ad campaign purchased or managed by you through the Ad Services.
Campaign Details
means details provided by you, whether through the Ad Platform or otherwise, regarding a Campaign.
Claim
means any third-party claim, suit, action, demand or judgment.
Confidential Information
means all confidential information disclosed by a disclosing party to the receiving party, whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (c) is received from a third party without breach of any obligation owed to the disclosing party; or (d) was independently developed by the receiving party. For the avoidance of doubt, and without limitation, the following shall be deemed our Confidential Information: Ad Services Data, all information relating to our technology, Ad inventory availability, targeting data, audience data, and pricing data.
Dutchie Data
means any data that is (a) our preexisting data used or made available by us or our Affiliates through the Ad Services, including, without limitation, pricing information, placement supply cost, inventory data, and targeting and audience data; (b) gathered during delivery of an Ad or Campaign that identifies or allows identification of us, any user or device, our Affiliates or any Ad Service Properties; or (c) collected regarding users or devices on any Ad Service Properties other than Performance Data.
Excluded Claims
means your liability (a) under Section 8 (Indemnification); (b) arising from or related to your breach of Sections 2.2 (Your Obligations // Responsibilities), 2.3 (Your Obligations // Restrictions), 3 (Fees and Payment), 4 (Ad Services Data), 6 (Confidentiality) or 7 (Representations and Warranties); or (c) arising from or related to your gross negligence or willful misconduct.
Feedback
means any suggestions, comments, improvements, information, ideas or other feedback or related materials relating to the Ad Services you or your Authorized Users provide to us.
Fees
means the applicable fees and charges assessed to you in connection with your use of the Ad Services, which are deducted from your Wallet by us based on fulfillment of applicable billing metrics.
Intellectual Property Rights
means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret or other intellectual property rights Laws, and all similar or equivalent rights or forms or protection, in any part of the world.
Law
means any statute, law, ordinance, regulation, rule, order or other requirement of any federal, state or local government, including those pertaining to cannabis, hemp, CBD and other cannabinoids, as amended from time-to-time, but excluding any federal law, rule, or regulation of any government authority that identifies or classifies the growing, production, manufacture, sale and/or possession of cannabis as a crime or otherwise prohibited, except to the extent that U.S. federal law conflicts with U.S. state and local laws regarding these substances.
Losses
means any liability, damage, loss or expense (including reasonable attorneysโ fees and costs of litigation).
Order
means the Dutchie-approved form or online process by which you place orders for Ads.
Performance Data
means any data regarding the performance of an Ad or Campaign under this Agreement gathered during delivery of such Ad or Campaign or provided by the Ad Platform in connection with the delivery of an Ad or Campaign but excluding Dutchie Data and Campaign Details.
Wallet
means the digital wallet made available to you in connection with the Ad Services used to deposit funds related to a Campaign and from which Fees will be deducted as applicable metrics are achieved, as more particularly described in your Order.
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