Supplier Terms of Use Agreement

Last Updated: May 15, 2025

PREAMBLE

This Supplier Terms of Use Agreement (hereinafter referred to as the “Agreement”) is entered into by and between Smoke App LLC, a Florida limited liability company (hereinafter referred to as “Smoke App”, “we”, “us”, or “our”), and the entity or individual registering as a supplier on the Smoke App marketplace (hereinafter referred to as “Supplier”, “you”, or “your”).

This Agreement governs your access to and use of the Smoke App platform, technologies, and services (collectively, the “Services”) for the purpose of listing, offering, selling, and fulfilling orders for vape, tobacco, and related products (“Products”) to customers of Smoke App (“Customers”).

By completing the Supplier registration process, accessing or using the Services, or by clicking to accept or agree to this Agreement when this option is made available to you, you (1) acknowledge that you have read and understand this Agreement in its entirety; (2) represent and warrant that you have the legal authority to bind the Supplier to this Agreement; and (3) accept this Agreement and agree that Supplier is legally bound by its terms.

This Agreement incorporates by reference:

a. The Smoke App Prohibited Products List, as may be updated from time to time.

b. The Smoke App Chargeback Risk Management Procedures, as may be updated from time to time.

c. The Smoke App Inventory Sync Filtering & Tagging System documentation, as may be updated from time to time.

d. Relevant provisions from the Finix General Terms of Service, accessible at https://finix-hosted-content.s3.amazonaws.com/flex/v2/finix-pw-terms-of-service.html (the “Finix Terms”), particularly those pertaining to payment processing, settlement, reserves, and audits, as adapted and applied herein.

e. Any other policies, guidelines, or addenda provided by Smoke App to Supplier in writing or through the Services.

IF SUPPLIER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SUPPLIER MAY NOT ACCESS OR USE THE SERVICES.

Smoke App and Supplier may be referred to herein individually as a “Party” and collectively as the “Parties”.

ARTICLE 1: DEFINITIONS

Capitalized terms used in this Agreement shall have the meanings set forth in this Article 1, or as defined elsewhere in this Agreement. Any capitalized terms not defined herein shall have the meaning ascribed to them in the Finix Terms, where applicable and as adapted for the context of this Agreement.

1.1. “ACH” means the Automated Clearing House network.

1.2. “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.

1.3. “Applicable Law” means all applicable federal, state, and local laws, statutes, ordinances, rules, regulations, and orders of any governmental authority, including but not limited to those related to the sale, marketing, distribution, and taxation of Products, data privacy and security (e.g., KYC/AML requirements), and consumer protection.

1.4. “Application” means the online application and registration process completed by Supplier to use the Services.

1.5. “Bank” shall have the meaning ascribed to it in the Finix Terms, referring to the member bank(s) or financial institution(s) that sponsor Finix for payment processing services.

1.6. “Business Day” means any day other than a Saturday, Sunday, or federal holiday in the United States.

1.7. “Card” means any credit card or debit card bearing the insignia of a Card Brand.

1.8. “Card Brands” means Visa, Mastercard, American Express, Discover, and any other payment card networks for which Processor provides services.

1.9. “Chargeback” means a Transaction that is disputed by a Customer or Card issuer, resulting in a demand for the return of funds.

1.10. “Confidential Information” means any information disclosed by one Party to the other Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary,” or some similar designation, or which reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, but is not limited to, business plans, customer data, financial information, technology, and the terms of this Agreement. Confidential Information does not include information that (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving 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 without use of or reference to the disclosing Party’s Confidential Information.

1.11. “Customer Data” means any and all information about Customers, including but not limited to personal identification information, contact details, order history, and payment information, collected or processed in connection with the Services.

1.12. “Documentation” means any manuals, instructions, or other documents or materials that Smoke App provides or makes available to Supplier in any form or medium and which describe the functionality, components, features, or requirements of the Services.

1.13. “Effective Date” means the date on which Supplier accepts this Agreement by completing the registration process or by otherwise accessing or using the Services.

1.14. “Fees” means the charges payable by Supplier to Smoke App for use of the Services, as set forth in the Application, any applicable Services Schedule, or as otherwise communicated by Smoke App.

1.15. “Finix” means Finix Payments, Inc., the payment processor utilized by Smoke App.

1.16. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in intellectual property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of_the rights referred to in clauses (a) through (e) of this sentence.

1.17. “KYC/AML” means “Know Your Customer” and “Anti-Money Laundering” requirements and procedures mandated by Applicable Law.

1.18. “Marketplace” means the online e-commerce platform operated by Smoke App for the sale of Products.

1.19. “Processor” shall have the meaning ascribed to it in the Finix Terms, referring collectively to Finix and the Bank(s) involved in processing Transactions.

1.20. “Products” means the vape, tobacco, and related items listed, offered, and sold by Supplier through the Services, which must comply with this Agreement and all Applicable Laws.

1.21. “Prohibited Business” means any business type, activity, or product category deemed unacceptable by Smoke App or Processor, as detailed in the Smoke App Prohibited Products List or as otherwise communicated to Supplier.

1.22. “Prohibited Products List” means the list of products and product categories that are prohibited from being sold on the Smoke App Marketplace, as provided by Smoke App and updated from time to time.

1.23. “Reserve” means funds held by Smoke App or Processor from Supplier’s Payouts as security against potential Chargebacks, refunds, or other liabilities.

1.24. “Rules” means the operating rules, regulations, and bylaws of the Card Brands and ACH networks, as amended from time to time.

1.25. “Services Schedule” means any specific terms and conditions related to particular Services offered by Smoke App, which may be incorporated into this Agreement.

1.26. “Settlement Funds” means the funds due to Supplier from processed Transactions, after deduction of Fees, Chargebacks, Reserves, and other amounts owed.

1.27. “Supplier Account” means the account created by Supplier to access and use the Services.

1.28. “Supplier Content” means all information, data, text, images, videos, and other materials provided or uploaded by Supplier in connection with the use of the Services, including Product listings and descriptions.

1.29. “Transaction” means any sale of Products by Supplier to a Customer processed through the Services.

ARTICLE 2: SUPPLIER ONBOARDING AND ELIGIBILITY

2.1. Eligibility Requirements. To be eligible to use the Services as a Supplier, you must: a. Be a legal entity (e.g., corporation, LLC, partnership) or a sole proprietor validly existing and in good standing under the laws of your jurisdiction of formation and operation. b. Ensure all owners, principals, and authorized representatives are at least twenty-one (21) years of age. c. Hold all necessary federal, state, and local licenses, permits, and authorizations required to lawfully sell and distribute the Products you intend to offer on the Marketplace in all jurisdictions where your Products will be offered or shipped (the “Licenses”). d. Not be engaged in any Prohibited Business or offer any products on the Prohibited Products List. e. Successfully complete Smoke App’s onboarding and underwriting process, including KYC/AML checks and business verification (Know Your Business – KYB).

2.2. Onboarding Process. Supplier agrees to provide Smoke App with all information and documentation requested during the Application and onboarding process, including but not limited to: a. Legal business name, address, tax identification number (e.g., EIN), and formation documents. b. Information and government-issued identification for beneficial owners, principals, and authorized representatives for identity and age verification. c. Copies of all required Licenses. d. Banking information for Payouts. e. Any other information reasonably required by Smoke App or Processor to assess Supplier’s eligibility and risk profile.

2.3. Accuracy of Information. Supplier represents and warrants that all information provided to Smoke App and Processor is true, accurate, complete, and current. Supplier agrees to promptly update its Supplier Account and notify Smoke App in writing of any changes to such information.

2.4. Ongoing Compliance and Review. Supplier’s eligibility is subject to initial and ongoing review and approval by Smoke App and Processor, at their sole discretion. This review includes, but is not limited to, screening against relevant government watchlists, such as the list maintained by the Florida Attorney General’s office pursuant to the PACT Act, as applicable. Smoke App reserves the right to suspend or terminate Supplier’s access to the Services if Supplier fails to meet eligibility requirements, provides false or misleading information, is found on such watchlists, or if Smoke App or Processor determines, in their sole discretion, that Supplier’s activities pose an unacceptable level of risk. Supplier agrees to cooperate with periodic reviews and re-certification requests, which may include resubmission of license documents or re-verification of identity. Failure to comply with such requests can result in suspension of the Supplier Account.

2.5. Maintenance of Licenses. Supplier shall, at its sole cost and expense, maintain all Licenses in full force and effect throughout the term of this Agreement. Supplier shall promptly notify Smoke App if any License lapses, is suspended, revoked, or materially modified. Upon request, Supplier shall provide Smoke App with copies of renewed or updated Licenses.

ARTICLE 3: USE OF SERVICES

3.1. Grant of Rights. Subject to the terms and conditions of this Agreement, Smoke App grants Supplier a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for Supplier’s internal business purposes of listing, offering, selling, and fulfilling orders for Products on the Marketplace.

3.2. Supplier Account Security. Supplier is responsible for maintaining the confidentiality and security of its Supplier Account credentials. Supplier agrees to notify Smoke App immediately of any unauthorized use of its Supplier Account or any other breach of security. Smoke App will not be liable for any loss or damage arising from Supplier’s failure to comply with this section.

3.3. Supplier Responsibilities. Supplier shall: a. Comply with all terms of this Agreement, the Documentation, and all Applicable Laws and Rules. b. Use the Services only for lawful purposes and in accordance with the intended use as described in the Documentation. c. Be solely responsible for all Supplier Content, including its accuracy, legality, and compliance with this Agreement. d. Ensure that all Product listings are accurate, complete, and not misleading, including descriptions, images, pricing, and inventory availability. e. Promptly and accurately fulfill all Orders for Products in accordance with the terms agreed with Customers and Smoke App’s fulfillment policies. f. Cooperate with Smoke App in connection with any investigation, audit, or inquiry related to Supplier’s use of the Services.

3.4. Prohibited Uses. Supplier shall not, and shall not permit any third party to: a. Use the Services for any illegal, fraudulent, or unauthorized purpose. b. List or sell any Products that are on the Prohibited Products List or otherwise violate Applicable Law or this Agreement. c. Engage in any activity that interferes with or disrupts the integrity or performance of the Services or the data contained therein. d. Attempt to gain unauthorized access to the Services or their related systems or networks. e. Copy, modify, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code of the Services or any part thereof, except as expressly permitted by Applicable Law. f. Use the Services to send unsolicited or unauthorized advertising, promotional materials, spam, or any other form of duplicative or unsolicited messages. g. Introduce any viruses, worms, Trojan horses, or other malicious code into the Services. h. Circumvent or attempt to circumvent any security or age verification measures implemented by Smoke App or Processor. i. Submit Transaction instructions on behalf of third parties.

3.5. Inventory Management. Supplier is responsible for maintaining accurate inventory levels for all Products listed on the Marketplace. Supplier shall use Smoke App’s inventory synchronization tools as directed and ensure that its listed inventory reflects actual available stock. Smoke App is not responsible for any issues arising from inaccurate inventory information provided by Supplier.

3.6. Product Information and Compliance. a. Supplier is solely responsible for ensuring that all Products listed comply with all Applicable Laws, including but not limited to FDA regulations, state-specific tobacco and vape laws, packaging, labeling (including required health warnings, nicotine content, and ingredient disclosures), and marketing restrictions. b. Supplier represents and warrants that it has all necessary rights and permissions to sell the Products and that the Products do not infringe upon the Intellectual Property Rights of any third party. c. Supplier shall ensure that Product descriptions and images accurately represent the Products and include all legally required warnings and disclosures. d. Smoke App utilizes an Inventory Sync Filtering & Tagging System to identify and filter potentially prohibited products. However, Supplier remains ultimately responsible for ensuring its Product listings are compliant. Smoke App reserves the right to remove any Product listing that it deems, in its sole discretion, to be non-compliant or otherwise inappropriate.

3.7. Age Verification and Sales to Minors. a. Supplier acknowledges that Smoke App implements age verification procedures for Customers. However, Supplier agrees to cooperate fully with these measures and shall not take any action to circumvent or undermine them. b. SUPPLIER SHALL NOT, UNDER ANY CIRCUMSTANCES, SELL OR ATTEMPT TO SELL PRODUCTS TO ANY INDIVIDUAL UNDER THE AGE OF TWENTY-ONE (21) YEARS, OR SUCH HIGHER AGE AS MAY BE REQUIRED BY APPLICABLE LAW IN THE CUSTOMER’S JURISDICTION. c. Supplier agrees to comply with all requirements related to age-restricted delivery, including ensuring Products are shipped with adult signature required and cooperating with delivery partners’ age verification protocols at the point of delivery.

3.8. Third-Party Delivery Services and Process. Supplier acknowledges and agrees that Smoke App utilizes third-party delivery services, such as DoorDash, for the delivery of Products to Customers. The delivery process typically involves the following steps, which Supplier agrees to support and comply with: a. Order Preparation: Upon notification of an Order routed through the Smoke App platform, Supplier shall promptly and accurately prepare the Products for pickup in accordance with Smoke App’s fulfillment guidelines. b. Ready for Pickup: Supplier shall mark the Order as ready for pickup within the Smoke App system once prepared and within the designated delivery window. c. Delivery Initiation: Upon Supplier marking the Order as ready, Smoke App’s system will initiate a delivery request with the third-party delivery service (e.g., via API call to DoorDash Drive). Smoke App will provide necessary details to the delivery service, including pickup location (Supplier’s verified address), pickup contact, order details (flagged as regulated items), delivery location (Customer’s address), delivery contact, and strict instructions for mandatory 21+ age and identity verification (using valid government-issued photo ID) and signature upon delivery. d. Dasher Assignment and Pickup: The third-party delivery service will assign a delivery driver (e.g., Dasher) trained for age-restricted deliveries. The driver will arrive at Supplier’s location, confirm the Order, and pick up the package. Supplier shall cooperate with the driver during the pickup process. e. Delivery and Verification by Driver: The driver will proceed to the Customer’s address and use the delivery service’s approved methods (e.g., in-app ID scanning) to verify the recipient’s identity and confirm they are 21 years of age or older. Delivery will not be completed without successful verification. f. Delivery Outcome: The third-party delivery service will provide status updates to Smoke App. If verification is successful, the Order is completed. If verification fails (e.g., no valid ID, underage recipient, recipient not present), the Product will not be delivered, and will be handled according to Smoke App and the delivery service’s policies for failed/returned deliveries, which may include return to Supplier. Supplier agrees to cooperate with such return procedures. g. Supplier Cooperation for Delivery Service Approval: Supplier agrees to cooperate with Smoke App in any processes required to obtain approval from third-party delivery services (e.g., DoorDash) for Supplier to be eligible for pickup and delivery of Products. This may include providing information, completing applications, or agreeing to terms set by the delivery service. Smoke App may facilitate this process, but final approval and any direct agreements with the delivery service regarding restricted product delivery may be required between Supplier and the delivery service.

ARTICLE 4: PAYMENT TERMS, FEES, AND SETTLEMENT

4.1. Merchant of Record. Smoke App shall be the merchant of record for all Transactions conducted through the Marketplace, unless otherwise specified for certain service tiers or programs (e.g., Advanced Tier as described in the Smoke App Business Plan, where Supplier may be merchant of record for sales through their own integrated storefront).

4.2. Payment Processing. Supplier appoints Smoke App and Processor as its agent for the purpose of processing payments from Customers for Products purchased through the Marketplace. All Transactions will be processed through Finix, subject to the Finix Terms as applicable and incorporated herein.

4.3. Fees. Supplier agrees to pay Smoke App the Fees applicable to the Services used by Supplier, as set forth in the Application, a Services Schedule, or as otherwise communicated by Smoke App. Fees may include subscription fees, transaction fees, commission rates, and other charges. Smoke App reserves the right to change its Fees upon reasonable prior notice to Supplier.

4.4. Settlement. a. Subject to the terms of this Agreement, Processor will settle funds from processed Transactions to Smoke App, and Smoke App will then remit Settlement Funds to Supplier’s designated bank account. b. Payouts to Supplier will be made on a schedule determined by Smoke App (e.g., weekly), less any applicable Fees, Chargebacks, refunds, Reserves, taxes withheld, and other amounts owed by Supplier to Smoke App or Processor. c. Supplier is responsible for any bank fees or charges associated with receiving Payouts. d. Smoke App and Processor are not responsible for delays in Payouts caused by Supplier’s provision of incorrect bank account information or by issues with Supplier’s bank.

4.5. Reserves. a. Smoke App and/or Processor may, in their sole discretion, establish and maintain a Reserve by withholding a portion of Supplier’s Payouts. The amount of the Reserve will be determined based on Supplier’s risk profile, Transaction history, Chargeback rates, and other factors deemed relevant by Smoke App or Processor. b. The Reserve will be used to cover potential or actual liabilities of Supplier, including but not limited to Chargebacks, refunds, unpaid Fees, and penalties. c. Smoke App will notify Supplier of any Reserve imposed and the reasons for it. The terms of the Reserve, including its amount and duration, may be adjusted by Smoke App or Processor as deemed necessary. d. Upon termination of this Agreement, any remaining Reserve funds, after satisfaction of all outstanding Supplier obligations, will be released to Supplier in accordance with Smoke App’s policies and Applicable Law.

4.6. Chargebacks and Refunds. a. Supplier is responsible for all Chargebacks and refunds related to Transactions for its Products, regardless of the reason for the Chargeback or refund, except to the extent caused solely by Smoke App’s gross negligence or willful misconduct. b. Smoke App will manage the Chargeback dispute process in accordance with its Chargeback Risk Management Procedures and the Rules. Supplier agrees to cooperate fully and promptly with Smoke App in any Chargeback investigation or dispute, providing all necessary information and documentation within the timeframes requested. c. Smoke App may deduct the amount of any Chargeback or refund, along with any associated fees or penalties imposed by Card Brands or Processor, from Supplier’s Payouts or Reserve. If Payouts or Reserve funds are insufficient, Supplier agrees to pay Smoke App the outstanding amount immediately upon demand. d. Supplier agrees to adhere to Smoke App’s Chargeback Risk Management Procedures, which include requirements for customer verification, delivery protocols, and dispute processes.

4.7. Taxes. a. Smoke App will calculate, collect, and remit applicable sales taxes, excise taxes, and other transactional taxes on behalf of Supplier for Transactions where Smoke App is the merchant of record, as required by Applicable Law. b. Supplier is responsible for determining and fulfilling all other tax obligations arising from its sale of Products and use of the Services, including income taxes and any taxes applicable to sales where Supplier is the merchant of record. c. Supplier agrees to provide Smoke App with any information or documentation reasonably requested for tax compliance purposes, including valid tax identification numbers. d. Each Party is responsible for its own compliance with tax laws. Smoke App’s collection and remittance of certain taxes does not relieve Supplier of its overall tax responsibilities.

4.8. Audits. Smoke App and Processor reserve the right to audit Supplier’s records and business practices related to its use of the Services and compliance with this Agreement and Applicable Law. Supplier agrees to cooperate fully with any such audit, providing access to relevant records and personnel as reasonably requested. Audits may be conducted by Smoke App, Processor, or their designated third-party auditors. Any costs associated with remedying deficiencies identified during an audit shall be borne by Supplier.

ARTICLE 5: DATA SECURITY AND PRIVACY

5.1. Customer Data. a. Smoke App will collect and process Customer Data in connection with the Services. The use and protection of Customer Data will be governed by Smoke App’s Privacy Policy and Applicable Law. b. Supplier may receive access to certain Customer Data solely for the purpose of fulfilling Orders and providing customer service related to those Orders. Supplier agrees to use such Customer Data only for these authorized purposes and in compliance with Smoke App’s policies, this Agreement, and all Applicable Laws, including data privacy and security laws. c. Supplier shall not, without Smoke App’s prior written consent: (i) use Customer Data for any marketing or promotional purposes; (ii) sell, rent, lease, or otherwise disclose Customer Data to any third party (except as necessary for Order fulfillment, e.g., to a shipping carrier, and provided such third party is bound by confidentiality and data protection obligations comparable to those herein); or (iii) store or retain Customer Data longer than necessary for Order fulfillment and record-keeping as required by Applicable Law.

5.2. Data Security. a. Supplier shall implement and maintain reasonable administrative, physical, and technical safeguards to protect any Customer Data in its possession or control from unauthorized access, use, disclosure, alteration, or destruction. Such safeguards shall be no less rigorous than industry best practices and compliant with Applicable Law. b. In the event of any actual or suspected security breach involving Customer Data in Supplier’s possession or control (a “Security Incident”), Supplier shall promptly notify Smoke App in writing (and in no event later than 24 hours after discovery) and shall cooperate fully with Smoke App to investigate and remediate the Security Incident. c. Supplier shall be responsible for all costs and expenses associated with any Security Incident caused by Supplier’s breach of its obligations under this Article 5, including costs of notification, credit monitoring, and regulatory fines.

5.3. KYC/AML Compliance. Supplier acknowledges that Smoke App and Processor are required to comply with KYC/AML laws. Supplier agrees to provide all necessary information and cooperation to facilitate such compliance, both during onboarding and on an ongoing basis.

ARTICLE 6: INTELLECTUAL PROPERTY

6.1. Smoke App IP. As between Smoke App and Supplier, Smoke App owns all right, title, and interest in and to the Services, the Documentation, Smoke App’s trademarks, and all other Intellectual Property Rights embodied therein or related thereto (collectively, “Smoke App IP”). This Agreement does not grant Supplier any ownership rights in or to the Smoke App IP. Any rights not expressly granted to Supplier are reserved by Smoke App.

6.2. Supplier Content. As between Smoke App and Supplier, Supplier owns all right, title, and interest in and to Supplier Content. Supplier grants Smoke App a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers) license to use, reproduce, distribute, display, modify (for formatting or technical purposes), and create derivative works of the Supplier Content in connection with providing, operating, marketing, and improving the Services.

6.3. Feedback. If Supplier provides Smoke App with any suggestions, ideas, improvements, or other feedback regarding the Services (“Feedback”), Supplier hereby grants Smoke App a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use, incorporate, and exploit such Feedback for any purpose, without restriction or compensation to Supplier.

ARTICLE 7: WARRANTIES AND DISCLAIMERS

7.1. Supplier Warranties. Supplier represents and warrants to Smoke App that: a. It has the full power and authority to enter into and perform its obligations under this Agreement. b. This Agreement constitutes a legal, valid, and binding obligation of Supplier, enforceable against Supplier in accordance with its terms. c. Its execution and performance of this Agreement will not conflict with or violate any other agreement or obligation to which Supplier is bound, or any Applicable Law. d. All information provided by Supplier to Smoke App is true, accurate, complete, and current. e. All Products offered and sold by Supplier through the Services are safe, merchantable, fit for their intended purpose, and comply with all Applicable Laws, including but not limited to those concerning manufacturing, packaging, labeling, and safety. f. Supplier holds all necessary Licenses to sell and distribute the Products in all relevant jurisdictions, and such Licenses are valid and in good standing. g. Supplier Content, and Smoke App’s use thereof as permitted herein, does not and will not infringe, misappropriate, or violate the Intellectual Property Rights or any other rights of any third party, or any Applicable Law. h. Supplier will comply with all Applicable Laws and Rules in its use of the Services and its performance of its obligations under this Agreement, including but not limited to those related to tobacco and vape product sales, age verification, data privacy, and consumer protection. i. Supplier is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services.

7.2. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. SMOKE APP AND PROCESSOR DISCLAIM ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

Plain Text

SMOKE APP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR THAT DEFECTS WILL BE CORRECTED. SMOKE APP DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. SUPPLIER ACKNOWLEDGES THAT ITS USE OF THE SERVICES IS AT ITS SOLE RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUPPLIER FROM SMOKE APP OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

ARTICLE 8: INDEMNIFICATION

8.1. Indemnification by Supplier. Supplier shall indemnify, defend, and hold harmless Smoke App, its Affiliates, and their respective officers, directors, employees, agents, successors, and assigns (collectively, the “Smoke App Indemnitees”) 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 (collectively, “Losses”), arising out of or relating to: a. Any breach by Supplier of its representations, warranties, covenants, or obligations under this Agreement. b. Any Supplier Content, including any claim that Supplier Content infringes or misappropriates the Intellectual Property Rights or other rights of a third party. c. The Products offered or sold by Supplier, including but not limited to claims related to product liability, defects, safety, or failure to comply with Applicable Law. d. Any actual or alleged violation of Applicable Law or Rules by Supplier. e. Any personal injury, death, or property damage caused by the Products or by Supplier’s negligence or willful misconduct. f. Any failure by Supplier to properly handle or protect Customer Data. g. Any taxes, duties, or other governmental charges owed by Supplier in connection with its sale of Products or use of the Services (other than taxes Smoke App is expressly responsible for collecting and remitting under Article 4.7.a). h. Any Chargebacks or refunds associated with Supplier’s Transactions, except to the extent caused solely by Smoke App’s gross negligence or willful misconduct.

8.2. Indemnification Procedure. Smoke App will promptly notify Supplier in writing of any claim for which it seeks indemnification; provided, however, that any failure to provide such notice will not relieve Supplier of its obligations under this Article 8 except to the extent that Supplier is materially prejudiced by such failure. Smoke App will provide Supplier with reasonable cooperation in the defense of such claim, at Supplier’s expense. Supplier shall have the right to control the defense and settlement of any such claim, provided that Supplier shall not settle any claim without Smoke App’s prior written consent (which shall not be unreasonably withheld) if such settlement imposes any non-monetary obligation or admission of liability on Smoke App. Smoke App shall have the right to participate in the defense of any claim with counsel of its own choosing at its own expense.

ARTICLE 9: LIMITATION OF LIABILITY

9.1. Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMOKE APP OR PROCESSOR BE LIABLE TO SUPPLIER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, GOODWILL, OR USE, OR COST OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF SMOKE APP OR PROCESSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH DAMAGES ARE CLAIMED (WHETHER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE).

9.2. Maximum Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF SMOKE APP AND PROCESSOR TO SUPPLIER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL FEES PAID BY SUPPLIER TO SMOKE APP UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9.3. Basis of the Bargain. The Parties acknowledge that the limitations of liability and disclaimers of warranties set forth in this Agreement reflect an agreed-upon allocation of risk between the Parties and are an essential basis of the bargain, without which Smoke App would not provide the Services or enter into this Agreement on the terms provided.

ARTICLE 10: TERM, TERMINATION, AND SUSPENSION

10.1. Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect until terminated as provided herein (the “Term”).

10.2. Termination by Supplier. Supplier may terminate this Agreement for any reason upon thirty (30) days prior written notice to Smoke App. Termination will be effective upon Smoke App’s confirmation of account closure after all outstanding obligations have been settled.

10.3. Termination or Suspension by Smoke App. Smoke App may terminate this Agreement or suspend Supplier’s access to all or part of the Services, with or without notice, for any reason or no reason, including but not limited to: a. If Supplier breaches any material term of this Agreement and fails to cure such breach within ten (10) days of written notice from Smoke App (or immediately if the breach is incurable or poses an immediate risk to Smoke App, its Customers, or the Services). b. If Supplier becomes insolvent, makes an assignment for the benefit of creditors, files for bankruptcy, or has a receiver or trustee appointed for its assets. c. If Smoke App determines, in its sole discretion, that Supplier’s activities pose an unacceptable level of risk, or that Supplier is engaged in fraudulent or illegal activities. d. If required by Applicable Law, Card Brand Rules, or by Processor. e. If Supplier’s Chargeback rate exceeds acceptable thresholds as determined by Smoke App or Processor. f. For inactivity of the Supplier Account for an extended period as determined by Smoke App.

10.4. Effect of Termination. Upon termination of this Agreement for any reason: a. All rights granted to Supplier under this Agreement will immediately cease. b. Supplier shall immediately cease all use of the Services and Smoke App IP. c. Supplier shall promptly pay Smoke App all outstanding Fees and other amounts owed. d. Smoke App will pay Supplier any outstanding Settlement Funds, less any applicable deductions for Fees, Chargebacks, Reserves, or other amounts owed, in accordance with Smoke App’s standard Payout schedule and policies. e. Each Party shall promptly return or destroy (at the disclosing Party’s option) all Confidential Information of the other Party in its possession or control, subject to any record-keeping obligations under Applicable Law. f. The following Articles and Sections shall survive termination: Article 1 (Definitions), Section 4.5 (Reserves), Section 4.6 (Chargebacks and Refunds), Section 4.7 (Taxes), Section 4.8 (Audits), Article 5 (Data Security and Privacy), Article 6 (Intellectual Property), Section 7.2 (Disclaimer of Warranties), Article 8 (Indemnification), Article 9 (Limitation of Liability), Section 10.4 (Effect of Termination), Article 11 (Confidentiality), Article 12 (Dispute Resolution and Governing Law), and Article 13 (Miscellaneous).

10.5. Suspension. In addition to its termination rights, Smoke App may suspend Supplier’s access to the Services if Smoke App reasonably believes that Supplier has breached this Agreement, or that Supplier’s activities pose a risk to Smoke App, its Customers, the Services, or third parties. Smoke App will use commercially reasonable efforts to notify Supplier of any suspension and the reasons for it, and to provide Supplier an opportunity to cure the issue, where appropriate. Suspension shall not relieve Supplier of its obligations under this Agreement.

ARTICLE 11: CONFIDENTIALITY

11.1. Obligation. Each Party (the “Receiving Party”) agrees to protect the Confidential Information of the other Party (the “Disclosing Party”) from unauthorized use, access, or disclosure in the same manner that it protects its own similar confidential information, but in no event using less than a reasonable degree of care. The Receiving Party shall only use the Disclosing Party’s Confidential Information for the purposes of performing its obligations or exercising its rights under this Agreement.

11.2. Permitted Disclosures. The Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, officers, directors, agents, contractors, and legal or financial advisors (collectively, “Representatives”) who have a need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those set forth herein. The Receiving Party shall be responsible for any breach of this Article 11 by its Representatives.

11.3. Required Disclosures. The Receiving Party may disclose Confidential Information of the Disclosing Party if and to the extent such disclosure is required by Applicable Law, regulation, or court order, provided that the Receiving Party (a) promptly notifies the Disclosing Party in writing of such requirement (to the extent legally permissible) to allow the Disclosing Party an opportunity to seek a protective order or other appropriate remedy, and (b) furnishes only that portion of the Confidential Information that is legally required to be disclosed, and (c) makes reasonable efforts to obtain assurances that confidential treatment will be accorded to the disclosed information.

ARTICLE 12: DISPUTE RESOLUTION AND GOVERNING LAW

12.1. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.

12.2. Dispute Resolution; Arbitration. a. Negotiation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy. b. Binding Arbitration. If the dispute cannot be resolved by negotiation within thirty (30) days, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY ARBITRATION IN MIAMI, FLORIDA BEFORE ONE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. c. Arbitration Fees. The fees of the arbitrator shall be borne equally by the Parties, provided that the arbitrator may, in his or her discretion, award costs and attorneys’ fees to the prevailing Party. d. Confidentiality of Arbitration. The Parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.

12.3. Class Action Waiver. SUPPLIER AGREES THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Supplier agrees to waive any right to a jury trial or to participate in a class action.

12.4. Venue. Subject to the arbitration provisions above, any legal suit, action, or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida, in each case located in Miami-Dade County. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

ARTICLE 13: MISCELLANEOUS

13.1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Application (or to such other address that may be designated by the receiving Party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (with confirmation of transmission). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

13.2. Entire Agreement. This Agreement, together with all documents incorporated herein by reference (including the Application, Services Schedules, Prohibited Products List, Chargeback Risk Management Procedures, Inventory Sync Filtering & Tagging System documentation, and relevant Finix Terms), constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

13.3. Amendments. Smoke App reserves the right to modify or amend this Agreement at any time. Smoke App will provide Supplier with notice of any material changes, which may be given by posting the revised Agreement on the Smoke App website or through the Services, or by email to Supplier’s registered email address. Supplier’s continued use of the Services after the effective date of any such changes shall constitute Supplier’s acceptance of the revised Agreement. If Supplier does not agree to the changes, Supplier’s sole remedy is to terminate this Agreement and cease using the Services.

13.4. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.5. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.6. Assignment. Supplier may not assign or transfer any of its rights or delegate any of its obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Smoke App. Any attempted assignment or delegation in violation of this Section shall be null and void. Smoke App may assign this Agreement or any of its rights or obligations hereunder without Supplier’s consent.

13.7. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

13.8. No Third-Party Beneficiaries. Except as expressly provided herein (e.g., Smoke App Indemnitees), this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

13.9. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) other similar events beyond the reasonable control of the Party. The affected Party shall give notice within ten (10) days of the force majeure event to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized.

13.10. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.