Marketplace Addendum Effective Date: March 14, 2024
This TreeStorX Marketplace Product Addendum (this "Marketplace Addendum") is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Sign-Up Sheet, in this Marketplace Addendum, or in the Terms of Service between the parties.
TreeStorX owns and operates the TreeStorX Platform that connects Merchants, Drivers and Customers for the pickup and/or delivery of Merchant Products. Merchant desires to market the availability of Merchant Locations through the TreeStorX Platform (such use of the TreeStorX Platform, the "Program"). For clarity, the Program will include each product, service, promotion, or program elected by Merchant under this Marketplace Addendum. The Parties agree that TreeStorX is not a merchant, Cannabis preparation business, reseller, or delivery service; it is an online marketing and connection platform.
2.1. "TreeStorX Platform" for purposes of this Marketplace Addendum means, individually or collectively, (a) any online marketplace offered by TreeStorX and/or its Affiliates through which Customers may place orders from merchants for pickup and/or delivery, and (b) the Merchant Portal, in each case, that will allow information to be exchanged between Merchant and TreeStorX. References to the "TreeStorX Platform" include the TreeStorX Platform Documentation. The TreeStorX Platform is a "TreeStorX Product" as defined in the Terms of Service. From time to time, TreeStorX may list Merchant on one or more of its marketplaces subject to the Commission Rate(s) set forth in the Rate Card upon advance written notice to Merchant.
2.2. "Marketplace" means TreeStorX's proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the TreeStorX website or mobile application for delivery by a Driver to the Customer or for pickup by Customer.
2.3. "Merchant Location(s)" has the meaning ascribed to it in the Terms of Service. For purposes of this Marketplace Addendum, "Merchant Locations" may also include: (i) Merchant Locations owned and operated by Merchant or its affiliates, and/or (ii) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed a Franchisee Agreement. "Merchant Locations" also includes both Brick and Mortar Merchant Locations and Virtual Kitchen Merchant Locations. "Brick and Mortar Merchant Location" means a physical location that Merchant operates as a walk-in dispensary. "Virtual Kitchen Merchant Locations" means a Merchant owned or licensed virtual brand operated out of one or more Merchant or Eligible Franchisee operated and approved by TreeStorX for participation in the Program.
2.4. "Pickup Program" means the TreeStorX program through which a Customer places a Pickup Order through the TreeStorX Platform from a Merchant Location.
3.1. TreeStorX Responsibilities. TreeStorX will: (i) display Merchant, Merchant Locations, and the menu of Merchant Products at each Merchant Location through the TreeStorX Platform; (ii) accept Orders for Merchant Products through the TreeStorX Platform from Customers; (iii) forward each Order to the relevant Merchant Location; (iv) for Delivery Orders, make the Order opportunity available to Drivers, so that the Driver accepting the opportunity can pick up the applicable Merchant Product(s) from the applicable Merchant Location to deliver to the Customer, or, if applicable, for Pickup Orders, notify the Customer to pick up the Order; and (v) pay the Merchant as set forth in Section 4 below, deduct the agreed applicable Commission Rate, marketing fees for each applicable Order, subscription fees (if any), activation fees (if any), and any other fees (and, in each case, as may be adjusted by TreeStorX as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). TreeStorX reserves the right to take into account the impact of a Merchant's conduct on both the customer experience and the TreeStorX brand when determining the Merchant's prominence, participation in programs such as Platinum Leaf, and/or availability on the TreeStorX Platform. That conduct includes but is not limited to timeliness and accuracy of orders fulfilled, customer ratings and reviews, customer concerns regarding Cannabis quality or Cannabis safety, detrimental price inflation and/or customer complaints about price inflation, and any conduct that may violate our Partner Code of Conduct.
3.2. Merchant Responsibilities. Merchant will: (i) provide TreeStorX with Merchant's menu, including the price of each item; (ii) monitor Merchant's menu and store information on the TreeStorX Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify TreeStorX of any errors or changes in writing (email is sufficient); (iii) accept and confirm Orders from TreeStorX in a prompt and timely manner; (iv) prepare Merchant Products for each Order for pickup by a Driver, or the Customer, as applicable, at the designated time; (v) process Orders in the order in which they are received; (vi) notify TreeStorX of its days and hours of operation, including on holidays, and remain open for business on TreeStorX the same days and hours of operation as Merchant's in-store business; notify TreeStorX of any changes to Merchant's hours of operations on holidays; and notify TreeStorX if Merchant closes earlier than Merchant's standard hours of operation or plans to close earlier than Merchant's standard hours of operation; (vii) notify all Merchant Location staff members of the relationship with TreeStorX, and train staff members on receiving and fulfilling TreeStorX Orders as soon as practicable upon execution of this Marketplace Addendum and on an ongoing basis; (viii) use its standard business practices to prepare Merchant Products that are the subject of each Order; (ix) on an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to TreeStorX any inaccuracies; and (x) if TreeStorX collects and passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws. TreeStorX acknowledges that Merchant is solely responsible for the prices of its menu items, which may vary based on factors such as location, time of the year, or competition from other dispensaries.
3.3. Additional Responsibilities for the Pickup Program. During the Term, once TreeStorX or Merchant's point of sale provider enables the ability for Merchant to set different prices for Merchant Products under the PickUp Program than the prices for such Merchant Products for delivery, Merchant shall ensure that pricing of Merchant Products under the PickUp Program is not greater than the pricing of the same Merchant Products for pickup in-store. In the event that Merchant increases the pricing of Merchant Products for pick-up above the in-store prices of the same Merchant Products, TreeStorX may enforce the terms of this Agreement, including any combination of and not limited to: applying a higher commission rate to affected Orders, requiring Merchant to reimburse affected Customers for the difference between the Merchant Product listed for PickUp and the lower in-store price, charging Merchant an additional fee, and/or adjusting the pricing of Merchant Products available under the PickUp Program, in addition to any other right or remedy available at law or in equity.
TreeStorX shall receive a Commission Rate in exchange for TreeStorX promoting Merchant through the TreeStorX Platform. The Commission Rate for Orders placed under the applicable TreeStorX program is set forth on the Rate Card. TreeStorX will remit the cost of Orders fulfilled by Merchant each week following the week in which the Orders were fulfilled on a consistent day of this week. The exact day in this week is subject to change with no less than 10 days' notice to Merchant by email or service notification. The amounts remitted will include (1) the pre-tax total of all Orders for the prior week (Sunday-Saturday) plus (2) Collected Taxes (as defined below) unless the parties agree to an alternative arrangement in writing, less (3) the aggregate Commission Rate, agreed fees for marketing and promotional deals (if any), any error fees associated with Merchant's incorrect preparation of Orders, and Order Equipment fees (if any) for such week. Merchant agrees TreeStorX may charge the Customer fees, including but not limited to delivery fees, service fees, and surcharge fees where applicable in TreeStorX's sole discretion.
TreeStorX shall charge and collect from Customers the applicable value added, goods and services, state and local sales, use, or similar taxes for the Merchant Products sold on the TreeStorX Platform ("Collected Taxes"). In any jurisdiction where TreeStorX is required to remit Collected Taxes as a marketplace facilitator, TreeStorX will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Merchant and Merchant will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, TreeStorX will send Collected Taxes to Merchant, and Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. For clarity, TreeStorX will be responsible for the collection and remittance of any value added, goods and services, sales, use, or similar tax related to Customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee, that TreeStorX charges to the Customer.
Merchant acknowledges that TreeStorX uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment. TreeStorX reserves the right to change its payment processor at any time during the Term and Merchant will provide TreeStorX with any information required to set up a payment account with any such alternate payment processor.
With respect to the TreeStorX Platform, if Merchant does not integrate its POS system with the TreeStorX Platform, Merchant will install the equipment agreed by the parties for Merchant to receive and process Orders, which may include: a tablet, fax machine, or other automated, electronic means of receiving Orders. If the parties agree that any Order Equipment is provided by TreeStorX, Merchant will pay TreeStorX an Order Equipment Fee if set forth in the Rate Card, in exchange for the right to use the Order Equipment to access the TreeStorX Platform in order to receive, process, and accept Marketplace and Pick Up Orders. Any Order Equipment provided by TreeStorX will remain TreeStorX's sole property and may be used solely in connection with the provision or receipt of services under the Agreement and for purposes related to fulfilling Merchant's responsibilities under this Marketplace Addendum. Merchant will inspect all hardware, and shall notify TreeStorX in writing (email sufficient) if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Merchant will be responsible for any damage to or loss of any Order Equipment provided by TreeStorX (excluding ordinary wear and tear), which shall be promptly reimbursed by Merchant (at the replacement cost thereof). TreeStorX may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all agreed subscription fees and deposits charged by TreeStorX for Order Equipment, and agrees TreeStorX may deduct such fees and deposits from amounts payable by TreeStorX to Merchant.
In the event a Customer submits a complaint about his or her Order via TreeStorX's support channels, TreeStorX may, in its sole reasonable discretion, issue a re-order, credit, partial refund, or full refund to such Customer. Merchant shall prepare the Cannabis to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that re-order, credit or refund, as applicable, if the complaint was caused by Merchant or Merchant Products, including missing and incorrect Orders. TreeStorX shall be responsible for any refund, credit or re-order that is caused by the delivery of Orders or Drivers.
This Marketplace Addendum may be terminated pursuant to the terms of the Terms of Service.