MASTER SERVICES AGREEMENT (MSA) 2018
Jacksam Corporation / dba Convectium 

This Master Services Agreement (MSA) (the “MSA”) is entered into by and between Convectium, a JackSam Corp., a company duly organized and existing under the laws of the state of Delaware (“Manufacturer”) and any company, or individual (“Customer”), that signs this MSA.

 R E C I T A L S

WHEREAS, Customer desires to engage Manufacturer to supply equipment, certain branded vaporizers and/or related products and may request that Manufacturer provide such products using Customer’s graphic designs; and

WHEREAS, Manufacturer desires to supply Customer with such vaporizers, equipment and/or related products according to the terms of this Agreement.

NOW, THEREFORE, in consideration of the above and the mutual promises contained herein, Customer and Manufacturer agree as follows:

AGREEMENT

1.                  DEFINITIONS

Unless otherwise defined in this Agreement, capitalized terms used in this Agreement will have the following meanings:

            “Accepted Purchase Order” means a Purchase Order accepted by Manufacturer as provided in this Agreement.

            “Contract Year” mean any annual period beginning on the Effective Date or any anniversary of the Effective Date, and ending the day immediately preceding the next anniversary of the Effective Date.

            “Delivery” or “Deliver” means to deliver Products ordered by Customer in a particular Accepted Purchase Order to the Delivery Point.

             “Delivery Point” means the location identified in the applicable Accepted Purchase Order.

 “Products” means Manufacturer’s vaporizers, equipment or related products.

             “Purchase Orders” means written or electronically transmitted purchase orders for the Products issued by Customer to Manufacturer.         

2.                  GENERAL

2.1              Custom Designs.  To the extent mutually agreed to in an applicable Accepted Purchase Order, Manufacturer will assist Customer in the development of graphic designs to be applied to Products (“Designs”).  The price for developing the Designs will be as specified in the applicable Accepted Purchase Order.  Customer hereby grants Manufacturer a license to use, reproduce and modify the Designs as necessary to design and manufacture the Products bearing the Designs.  The Designs, and all copyrights and trademarks therein, will be the sole property of Customer.  Manufacturer hereby assigns, all right, title, and interest in and to the Designs, and all copyrights and trademarks therein, to Customer. 

2.2              Purchase Orders.  Customer will order Products by issuing Purchase Orders to Manufacturer, in writing or by electronic means.  Manufacturer will accept or reject Customer’s Purchase Orders within ten (10) working days after it receives them.  Failure to deliver a response to Customer within such ten (10) day period will be deemed rejection of the Purchase Order.  In the case of conflict between this Agreement and any Accepted Purchase Order, the terms of this Agreement will prevail.

2.3              Reverse Engineering.  Customer shall not, nor shall it assist any third party, in reverse engineering the Products.  Further, during the term of this Agreement and for a period of one (1) year following the expiration of the Term, Customer shall not manufacture or distribute, or have a third-party manufacture or distribute, products that are based on the Products.

2.4              No Illegal Conduct. Customer shall comply with all applicable laws, rules, regulations, and other governmental requirements.  Customer shall refrain from any activities that are illegal or unethical, which might bring Manufacturer into disrepute, which constitute or could cause a serious conflict of interest, or which might have the appearance of impropriety.  Customer shall co-operate fully with Manufacturer in any investigation or evaluation related to the foregoing.

2.5              No Misrepresentations. Customer shall not make any false or misleading representations regarding Manufacturer or the Products.  Customer shall not make any representations, warranties or guarantees with respect to the specifications, features or capabilities of the Products that are not consistent with Manufacturer’s documentation accompanying the Products or Manufacturer’s literature describing the Products.  No representations made by Customer are binding upon Manufacturer.

3.                  QUALITY AND INSPECTION

3.1              Quality Requirements.  Manufacturer will manufacture the Products according to its standards for its own Products.

3.2              Incoming Inspection.  Customer may inspect Product Delivered under this Agreement for deficiencies in workmanship or material either at the Delivery Point and/or at its destination.  Customer may return defective or non-conforming Products to Manufacturer within ten (10) days of Delivery.  Failure to return defective or non-conforming Products to Manufacturer within such ten (10) day period will constitute acceptance of the Products for all purposes.

3.3              Agency Approvals.  Customer will be responsible for obtaining agency and regulatory approvals for sale of Products to Customer’s customers; provided, however, that Manufacturer will provide Customer all information and assistance reasonably requested by Customer for the purpose of obtaining such approvals. 

4.                PRICING

4.1              Pricing.  The price of each Product will be set forth in the applicable Accepted Purchase Order.

4.2              Taxes.  Customer shall be responsible for all applicable sales (in the state of California), use, value added, duty, import or export, excise or similar taxes. Customer may avoid paying sales tax only on items that are to be resold with a valid resellers permit issued by the California State Board of Equalization.

4.3              Customer Solely Responsibility for its Resale Price.  Customer will have absolute discretion to set the price of the Products paid by its customers.  

5.                  DELIVERY, CARRIER, RISK OF LOSS & EXPORT

5.1              Delivery.  Manufacturer will Deliver the Products ordered in a particular Accepted Purchase Order to the Delivery Point.

5.2              Carrier; Risk of Loss.  Manufacturer will use its Preferred Carrier; alternatively, Manufacturer may select a common carrier at its discretion.  Customer shall be responsible for all transportation fees and costs as set forth on the Purchase order.  All title and risk of loss or damage will pass to Customer upon Delivery.

5.3              Exporter/Import.  Each party agrees to comply fully with the import/export control laws of the United States and with the U.S. Export Administration Regulations when acting as the Importer/Exporter of Record.

6.                  PAYMENTS

6.1              Payments.  Customer will pay Manufacturer all amounts as specified in the applicable Accepted Purchase Order.   

6.2              Payment Dates.  Unless otherwise specified in the applicable Accepted Purchase Order, all amounts will be due and payable prior to the shipment of Products.  All payments will be made in immediately available funds in lawful money of the United States of America to a bank account designated by Manufacturer.

6.3              Late Payment.  Any amount not paid by its applicable due date will be subject to interest at the lesser of (i) 1.5% per month and (ii) the maximum rate permitted by applicable law.  Should Customer fail to make timely payments hereunder, Manufacturer may, at its discretion, suspend further performance under this Agreement, without limiting any other remedies it may have pursuant to this Agreement.  Should it become necessary to institute collection proceedings for amounts invoiced to Customer and unpaid following the applicable due date, Customer shall pay all reasonable out-of-pocket costs and expenses incurred by Manufacturer in connection with such proceedings, including without limitation reasonable attorney’s fees, without regard to whether a suit is filed by Manufacturer. 

7.                  WARRANTIES

7.1              Title.  Manufacturer represents and warrants that all Products will be delivered with good and marketable title, and will be free from all mortgages, liens, and security interests of any kind.

7.2              Disclaimer of Warranties.  MANUFACTURER PROVIDES THE PRODUCTS AND DESIGNS ON AN “AS IS,” “WHERE IS” BASIS AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

8.                  INDEMNIFICATION.  Customer will, at Customer’s expense, indemnify, hold harmless and, at Manufacturer’s request, defend Manufacturer, any of its subsidiaries, affiliates, directors, officers, employees, agents, independent contractors, and customers, from and against any and all loss, cost, liability or expense (including, without limitation, costs and reasonable fees of attorneys and other professionals) arising out of or in connection with a claim: (i) that a Product caused injury or damage to a person or property; (ii) that the sale or distribution of the Products by or through Customer is in violation of any law or regulation; or (ii) that a Design infringes or violates any patent, copyright, trade mark right, trade secret, or other proprietary right of any third party.

9.                  LIMITATION OF LIABILITY. IN NO EVENT WILL MANUFACTURER BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION LOST PROFITS, OR CLAIMS OF EITHER PARTY’S CUSTOMERS FOR SUCH DAMAGES, WHETHER OR NOT MANUFACTURER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  IN NO EVENT SHALL MANUFACTURER’S TOTAL AGGREGATE LIABILITY FOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EXCEED THE AMOUNT PAID BY CUSTOMER TO MANUFACTURER UNDER THE APPLICABLE ACCEPTED PURCHASE ORDER GIVING RISE TO THE ACTION OR CLAIM.

10.              GENERAL TERMS

10.1          Force Majeure.  Except for payments obligations, neither party will be deemed in default of this Agreement to the extent that performance of its obligations are prevented by reason of any act of God, fire, natural disaster, act of government, or an act that is beyond the reasonable control of either party (“Force Majeure Event”), provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to continue to so perform or cure.  In the event the Force Majeure Event lasts for more than sixty (60) days, then the party that is not subject to the Force Majeure Event may terminate this Agreement by providing notice to the other party.

10.2          Publicity.  Unless otherwise agreed by the parties in writing, no press releases, conferences, interviews or other public announcements, in whatever form, will be made or given by either party in relation to this Agreement.

10.3          No Third-Party Beneficiaries.  This Agreement is for the sole benefit of Customer and Manufacturer and their permitted assigns and nothing herein expressed or implied will give or be construed to give to any person, other than Customer and Manufacturer and such assigns, any legal or equitable rights hereunder, except that the indemnified parties in Section 8 are intended third party beneficiaries to the extent of such indemnification.

10.4          Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement or portion thereof to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible to effect the intent of the parties and the remainder of this Agreement will continue in full force and effect.

10.5          No Waiver.  All rights and remedies conferred under this Agreement or by any other instrument or law will be cumulative and may be exercised singularly or concurrently.  Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.6          Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement and will be deemed given when: (i) delivered personally; (ii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (l) day after deposit with a commercial overnight carrier, with written verification of receipt or (iv) by verified email.  All communications will be sent to addresses set forth below or such other address as may be designated by a given party by giving written notice to the other party pursuant to this Section.

10.7          Governing Law.  This Agreement shall be construed, governed, and enforced according to the laws of the State of California, excluding its conflicts of laws principles. 

10.8          Interpretation.  This Agreement has been negotiated by the parties and their respective counsel.  This Agreement will be fairly interpreted according to its terms and without any strict construction in favor of or against either party.  The headings and captions are included for reference purposes only and do not affect the interpretation of the provisions hereof.

10.9          Complete Agreement.  This Agreement, including all Accepted Purchase Orders issued hereunder, constitutes the entire agreement between the parties in connection with the subject matter hereof, and terminates and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, between the parties.  No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.

IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the Effective Date.