Mobile Application End User License Agreement
(NEA Full Spectrum Medicine LLC)
This Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and NEA Full Spectrum Medicine LLC (“Company”). This Agreement governs your use of the “NEA Full Spectrum” application, (including all related documentation, software, licenses, and rights, the “Application”) regardless of whether such Application is promulgated on the Apple App Store, the Amazon Appstore, the Samsung Galaxy Store, Google Play, the Microsoft Store, or any other platform for distribution of the Application. The Application is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON, AND SEPARATELY OTHERWISE BY USING THE APPLICATION, YOU IRREVOCABLY (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE HEREBY INSTRUCTED TO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THE APPLICATION PURSUANT TO THE LICENSE GRANTED BY THIS AGREEMENT OR OTHERWISE. COMPANY RETAINS ALL RIGHTS TO, AT ANY TIME AND IN ITS SOLE DISCRETION, REVOKE ANY LICENSE GRANTED BY THIS AGREEMENT.
- License Grant. Subject to the terms of this Agreement, and in connection with the representation and warranty of the End User that the End User will comply with all applicable Law in connection with the License and use of the Application (which End User hereby represents and warrants to Company as a material inducement to Company entering into this Agreement), Company hereby grants you a limited, freely-revocable, non-exclusive, and nontransferable license (the “License”) to:
- download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation; and
- License Restrictions. You shall not:
- copy the Application, except as expressly permitted by this Agreement or the License;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter, or obscure or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy or part thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application;
- use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and military or aerospace applications, weapons systems, or environments;
- use the Application to violate or contravene any Law, or use the Application to aid you or any other person in violation of or contravention of any Law (in all cases whether directly or indirectly).
- Acknowledgment of Company’s Business and Applicable Law. In connection with your use of any right pursuant to this Agreement, you acknowledge the following: Company is engaged in the business of operating a licensed medical marijuana business (the “Business”) pursuant to one or more permits (“Authorizing Permits”) issued by the Arkansas Medical Marijuana Commission (“AMMC”). Company’s Business is operated pursuant to Amendment 98 of the Constitution of the State of Arkansas of 1874, known and cited as the “Arkansas Medical Marijuana Amendment of 2016” (the “AMM Amendment”); and all consents, licenses, registrations or permits issued, granted, given or otherwise made available by or under the authority of any governmental authority issued to or held by Company in connection with the Business, including the Authorizing Permits and the initial and continued approval to operate the Business pursuant to the terms of the Authorizing Permits issued by the AMMC and/or the Arkansas Alcoholic Beverage Control Division (the “Approval to Operate”) (collectively, the “Governmental Authorizations”) pursuant to any local, principal, municipal, state, federal or foreign law (including common law), statute, code, ordinance, rule, regulation, order or charge of any governmental authority, including, for the avoidance of doubt, medical marijuana laws of the State of Arkansas, including the AMM Amendment (“Law(s)” provided, however, that the definition of “Law” or “Laws” in this Agreement expressly excludes any Law with respect to the illegality of the possession, cultivation, manufacturing, distribution and sale of marijuana and the transacting of proceeds relating thereto under the federal laws of the United States), including but not limited to those set forth in this Agreement.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest or right in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted pursuant to Section 2, and in all cases subject to all terms, conditions, and restrictions, of or under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Geographic Restrictions. The Content and Services are based in the state of Arkansas in the United States and provided for access and use only by persons located in the United States. You agree that you will only make an agreement for purchase or delivery while you are physically located in the State of Arkansas. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws. You further acknowledge that you may not be able to use all or some of the Content and Services while outside the State of Arkansas and that use of all functions of the Application thereto may not be legal outside the State of Arkansas. If you access the Content and Services from outside the State of Arkansas, you are responsible for compliance with local laws.
- Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, software or other information promulgated therewith, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
- the Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement. You further agree that your use of the Application may be limited or restricted if an update has been published with respect to the Application but you have not implemented the Update.
- Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
- Term and Termination.
- The term of Agreement commences when you download the Application and acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this 10.
- You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
- Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
- Upon termination:
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
- Termination will not limit any of Company’s rights or remedies at law or in equity or any rights which have accrued to Company under this Agreement.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; or
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
- Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation (and otherwise shall not do any of the foregoing in any event without the Company’s prior written consent).
- US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Severability. If any provision of this Agreement is illegal or unenforceable under any applicable law (including any Law), the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Arkansas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arkansas. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
- Waiver of Jury Trial. TO THE EXTENT AUTHORIZED BY LAW, COMPANY AND END USER EACH ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, END USER AND COMPANY EACH IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. END USER AND COMPANY CERTIFY AND ACKNOWLEDGE THAT: (I) NO REPRESENTATIVE OF THE OTHER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (II) EACH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (III) EACH PARTY MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY; AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION AND OTHERWISE IN THIS AGREEMENT.
- Waiver of Certain Defenses. EACH PARTY ACKNOWLEDGES THAT ARKANSAS HAS ENACTED CERTAIN LEGISLATION TO GOVERN THE CANNABIS INDUSTRY; AND (II) THE POSSESSION, SALE, MANUFACTURE, AND CULTIVATION OF CANNABIS PRODUCTS IS ILLEGAL UNDER FEDERAL LAW. EACH PARTY WAIVES ANY DEFENSES BASED UPON ILLEGALITY OR INVALIDITY OF CONTRACTS FOR PUBLIC POLICY REASONS AND/OR THE SUBSTANCE OF THIS AGREEMENT OR ANY ANCILLARY AGREEMENT VIOLATING FEDERAL LAW. EACH PARTY HEREBY VOLUNTARILY AND UNCONDITIONALLY WAIVES, IN RELATION TO THIS AGREEMENT OR ANY ISSUE THEREUNDER: (A) ANY RIGHT OF REMOVAL OR APPEAL TO THE UNITED STATES FEDERAL DISTRICT COURTS, INCLUDING WITHOUT LIMITATION WAIVING THE RIGHT TO REMOVE TO FEDERAL COURT BASED ON DIVERSITY OF CITIZENSHIP; AND (B) ANY RIGHT TO COMPEL OR APPEAL ARBITRATION, TO CONFIRM ANY ARBITRATION AWARD OR ORDER, OR TO SEEK ANY AID OR ASSISTANCE OF ANY KIND IN THE UNITED STATES FEDERAL DISTRICT COURTS.
- Dispute Resolution and Binding Arbitration.
(a) To the extent that either End User or Company is involved in any controversy, claim or dispute of any nature arising out of or relating to this Agreement or the Application, including the determination of the scope or applicability of this agreement to arbitrate (each, a “Dispute”), each of End User and Company hereby agree to engage good faith attempts to resolve such Dispute upon the written request of the other party, setting forth with reasonable particularity the subject and substance of the Dispute. The recipient of such notice shall respond in writing within twenty (20) days with a statement of its position and recommended solution to the Dispute. If the Dispute is not resolved by this exchange or correspondence, then representatives of each party with full settlement authority will meet either in person or via Zoom, at a mutually agreeable time and place within fifteen (15) calendar days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the Dispute. Each of End User and Company agrees as a material inducement to enter this Agreement (allowing End User to benefit from the use of the Application and allowing Company to increase access to its Business from the promulgation of the Application) that End User and Company will comply with the informal dispute resolution procedure prior to commencement of any action or arbitration permitted by this Agreement.
(b) Except as qualified below, if the Dispute is not resolved by these negotiations, such Dispute shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association then in effect in Little Rock, Arkansas (the “Arbitration Rules”). End User and Company hereby submit and consent to the exclusive jurisdiction of the state courts situated in Pulaski County, Arkansas to compel arbitration, to confirm an arbitration award or order, or to handle other court functions which may be necessary in connection with the Arkansas Uniform Arbitration Act. By entering into this Agreement, End User and Company are waiving, by this acknowledgment, their constitutional right to have any Disputes decided in a court of law or before a jury and waive the right of appeal, and instead of relying on said rights, End User and Company are solely and knowingly accepting the use of arbitration as a means of efficient resolution of any Disputes. The Parties agree that this clause has been included to rapidly and inexpensively resolve any Disputes between them with respect to this Agreement.
(c) In the event the right to arbitrate any dispute, claim or controversy (including a Dispute) arising out of or relating to this Agreement is rendered invalid or unenforceable, the dispute, claim or controversy arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state courts situated in Pulaski County, Arkansas, unless otherwise agreed upon by End User and Company. Notwithstanding, End User and Company agree that any action for declaratory or equitable relief, including, without limitation, seeking preliminary or permanent injunctive relief, specific performance, other relief in the nature of equity to enjoin any harm or threat of harm to such party’s tangible or intangible property, may be brought at any time, including, without limitation, prior to or during the pendency of any arbitration proceedings initiated hereunder.
- Class Action Waiver. End User and Company agree to arbitrate solely on an individual basis and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. End User and Company agree that the arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. All claims will be resolved individually by binding arbitration on an individual basis. Claims made and remedies sought as part of a class action, private attorney general, or other representative actions are subject to arbitration on an individual (non-class, non-mass, non-representative) basis. The arbitrator cannot conduct class-wide proceedings. THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS BASIS. YOU, AS THE END USER, AND US, AS THE COMPANY, CANNOT COMBINE OR JOIN ANY CLAIMS WITH CLAIMS OF OTHER THIRD PARTIES. EACH PARTY TO THIS AGREEMENT AGREES THAT IT IS VOLUNTARILY AND KNOWINGLY WAIVING ANY RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM.
- Loyalty Program Disclosures. Our Loyalty Program is offered in compliance with our Compassionate Care Plan on file with the State of Arkansas. Our Compassionate Care Plan is promulgated in compliance with the AMM Amendment and remains subject to change at any time to remain in compliance with Law (including without limitation the AMM Amendment).
- Certain Marijuana Disclosures. PLEASE CONSUME MARIJUANA PRODUCTS RESPONSIBLY. OUR MARIJUANA PRODUCTS ARE FOR QUALIFIED PATIENTS ONLY AND MAY ONLY BE USED, POSSESSED AND CONSUMED IN CONNECTION WITH THE PERMISSIONS OF THE AMM AMENDMENT. OUR PRODUCTS HAVE NOT BEEN ANALYZED OR APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION (“FDA”) FOR ANY PURPOSE. OUR PRODUCTS ARE NOT APPROVED BY THE FDA TO TREAT, CURE OR PREVENT ANY DISEASE. THERE IS LIMITED INFORMATION ON THE SIDE EFFECTS OF USING MARIJUANA PRODUCTS, AND THERE MAY BE ASSOCIATED HEALTH RISKS. MARIJUANA USE DURING PREGNANCY AND BREAST-FEEDING POSES POTENTIAL HARMS. IT IS AGAINST THE LAW TO DRIVE OR OPERATE MACHINERY WHEN UNDER THE INFLUENCE OF CANNABIS PRODUCTS. KEEP CANNABIS PRODUCTS AWAY FROM CHILDREN. THERE MAY BE HEALTH RISKS ASSOCIATED WITH CONSUMPTION OF CANNABIS PRODUCTS. MARIJUANA PRODUCTS CAN IMPAIR CONCENTRATION, COORDINATION, AND JUDGMENT. THE IMPAIRMENT EFFECTS OF EDIBLE MARIJUANA PRODUCTS MAY BE DELAYED BY TWO HOURS OR MORE. IN CASE OF ACCIDENTAL INGESTION, CONTACT POISON CONTROL HOTLINE 1-800-222-1222 OR 9-1-1. OUR MARIJUANA PRODUCTS MAY BE ILLEGAL OUTSIDE OF ARKANSAS.
- Your Comments and Concerns. This Application is operated by NEA Full Spectrum Medicine LLC, an Arkansas limited liability company which may be contacted at 12001 Highway 49 North, Brookland, Arkansas 72417. All notices of copyright infringement claims should be sent to the above address or to [email protected]. All other feedback, comments, requests for technical support, and other communications relating to the Website should be sent to the above mailing address or email address.