VapeTM Software - End User License Agreement (EULA)

Welcome, and thank you for choosing VapeTM, a trusted leader in automated vaping solutions. Before you begin using our vending machine software, it’s important to understand your rights and responsibilities. This End-User License Agreement (EULA) outlines the terms under which JBW Vapor Distribution, LLC (doing business as VapeTM) grants you access to its licensed system—including all related software, hardware, and services.

JBW VAPOR DISTRIBUTION, LLC (DBA VAPETM) 

END-USER LICENSE AGREEMENT (“EULA”) 

VAPE VENDING MACHINE SOFTWARE LICENSE AGREEMENT OF JBW VAPOR DISTRIBUTION, LLC ("LICENSOR") 

NOTICE -- READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACCEPTING 

CLICKING “ACCEPT” INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, CLICK “REJECT.” 

Last updated on and effective as of: April 28th, 2025 

This is a legal agreement between each user that accepts this EULA (each, a “Licensee”) and Licensor. Licensor owns the VapeTM vending machines (the “Machine”), and associated or incorporated hardware and software made available with this EULA including, without limitation, any associated computer software (the “Software”), media, printed materials, and "online" or electronic documentation (collectively, the “Licensed System”). Licensor provides to Licensees the right to access and use the Licensed System pursuant to the terms of this EULA. For purposes of this EULA, the term “Affiliate” means a person or entity controlling, controlled by, or under common control with a stated party.  

RECITALS: 

A. The Licensed System is available through Licensor directly. Licensor provides the Licensed System to Licensee for commercial use. The right to access and use the Licensed System is subject to acceptance of this EULA by a Licensee and the terms and conditions set forth herein. Notwithstanding the foregoing, with respect to the sale of Machine, the Licensor and Licensee may enter into a separate agreement, and in such instances, the Licensee agrees to be bound by the terms and conditions of such agreement in addition to the obligations outlined in this EULA. 

B. The Licensed System is protected by applicable federal, state, local and foreign laws, rules, regulations and treaties, including, without limitation, United States and foreign copyright laws and international copyright treaties. 

NOW, THEREFORE, in exchange for the mutual promises set forth in this EULA, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 

1. Grant of License.  

a. Grant of License. Subject to Licensee’s acceptance and compliance with this EULA, Licensor hereby grants Licensee, for the term of this EULA (as set forth in Section 2), a limited, non-exclusive, non-transferable, non-assignable, revocable license for Licensee’s business purposes to access and use the Licensed System pursuant to this EULA, including any associated computer software, media, training videos, printed materials, and online or electronic documentation (“Documentation”). 

b. System Fee. The fee for the Licensed System, including the subscription fee for any Software included in the Licensed System, is payable on a per Machine basis and shall be as set forth on Licensor’s invoice therefor (the “Fee”). The Fee is net and is not subject to trade or other discounts and is not inclusive of local, state or federal taxes or costs of special packaging and insurance (“Applicable Taxes and Surcharges”), which, when applicable, shall be paid by Licensee.  

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2. Term and Termination 

a. Term. Unless terminated earlier as permitted under this EULA, this EULA shall remain in effect for so long as Licensee (or the entity purchasing subscriptions on Licensee’s behalf) has at least one active Software subscription (the “Term”). Software subscriptions are purchased on a per Machine basis. Each Machine includes a complimentary one (1) year subscription effective as of the initial purchase or lease date.  Thereafter, for each Machine, Software subscriptions can be renewed on an annual basis by submitting to Licensor the then-current annual renewal fee via the then-current renewal process. 

b. Termination. Without prejudice to any other rights, Licensor may terminate this EULA, in whole or in part immediately upon delivery of written notice of termination to Licensee if Licensee fails to comply with any of the terms and conditions of this EULA. 

c. Suspension. Notwithstanding the termination right available to the Licensor under Section 2(b) of this EULA, the Licensor may immediately suspend the Licensee’s access to the Licensed System if Licensee (a) fails to pay any Fee in accordance with the timeline provided in the applicable invoice; or (b) engages in any unauthorized use or access, including engaging in any abuse or impermissible activity in connection with the Licensed Systems.  

d. Effect of Termination. In the event of the termination of this EULA, the license granted hereunder shall terminate and Licensee shall immediately cease accessing and using the Licensed System. Termination of this EULA shall be without prejudice to any other right or remedy to which Licensor may be entitled under this EULA or applicable law. Termination of this EULA shall not relieve Licensee from its obligations arising hereunder before termination of this EULA (including its payment obligations) or which survive termination of this EULA. 

3. Description of Other Rights and Limitations 

a. In connection with the license of the Licensed System by Licensor to Licensee hereunder, the parties acknowledge and agree that Licensor is expressly not selling to Licensee, and Licensee is not acquiring any right, title or interest in or to, any patents, copyrights, trade secrets, trademarks, service marks, trade names, the company name of Licensor, or any intellectual property associated with the Licensed System (collectively, “Licensor Intellectual Property”) but that Licensee will be granted a non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty free, revocable license by Licensor to use the Licensed System in the form provided by Licensor and for no other purposes, and Licensee will use such Licensed System strictly in accordance with this EULA and any additional Licensor standards, policies and procedures as specified by Licensor from time to time. 

b. Restrictions on Use. Licensee shall not: 

(i) make the Licensed System available to, or use the Licensed System for the benefit of, anyone other than Licensee, except expressly permitted in this EULA; 

(ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Licensed System or any features or functionality of the Licensed System, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; 

(iii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Licensed System or any part thereof; 

(iv) reverse engineer, decompile, or disassemble the Licensed System, except and only to the extent that such activity is expressly permitted by applicable law; 

(v) interfere with or disrupt the integrity or performance of the Licensed System; 

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(vi) copy the Licensed System or any part, feature, function thereof; 

(vii) combine the Licensed System or any part thereof with, or incorporate the Licensed System or any part thereof in, any other programs; 

(viii) export or use the Licensed System in violation of any U.S. law, including Department of Commerce export administration regulations or Bureau of Alcohol, Tobacco, Firearms and Explosives regarding the sale of nicotine or electronic nicotine delivery systems; 

(ix) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Licensed System, including any copy thereof; 

(x) use the Licensed System in a manner which infringes or violates any of the intellectual property, proprietary, or other rights of any third party; 

(xi) use the Licensed System for purposes of competitive analysis of the Licensed System, the development of a competing software product or service, or any other purpose that is to the Licensor's commercial disadvantage; or 

(xii) access and use the Licensed System in any manner that is inconsistent with the terms of this EULA. c. Additional Obligations.  

(i) Licensee shall comply in full with all federal, state, local and foreign laws, rules and regulations in connection with its access to, and use of, the Licensed System, including but not limited to any laws pertaining to age-verification and sale of vapes and e-cigarettes.  

(ii) The Licensed System may be accessed and used only in a form and manner approved by Licensor in its sole discretion, and only in accordance with the terms and conditions of this EULA. 

(iii) Licensee acknowledges that the Licensed System will be used to provide certain services and/ or products to Licensee’s customers (“Customers”). For clarity, the Licensee shall be solely responsible for its Customers (including the use of the Licensed System).  

4. Notice of Defects; Claims. Licensee agrees to accept delivery of the Licensed System upon opening the packaging unless it does not conform to the description herein or is materially defective. Claims for rejected material on account of errors, shortages, or defective material in order to be considered by Licensor, must be made in writing by Licensee to Licensor within five (5) days after delivery of Licensed System. All Licensed Systems delivered shall be conclusively deemed accepted and conforming unless rejection is made or notice of nonconformity is given in writing within such five (5) day period. Licensor will not accept return of the Licensed System for credit or replacement without its previous written authority for such return. If Licensed System appears defective, Licensee shall discontinue its use and notify Licensor promptly so that Licensor may investigate. Licensor will not allow any claim for labor or expense occasioned by the use of defective Licensed System, nor be responsible for damage beyond Licensor’s price of defective Licensed System. If Licensor and Licensee are unable to reach settlement of any claim relating to Licensed System covered hereby, Licensee must institute legal action against Licensor within one (1) year after such claim arises and, thereafter, all such claims shall be barred notwithstanding any statutory period of limitations to the contrary.  

5. Returned Licensed System. Licensed System to be returned will be accepted only if such return is authorized by Licensor in writing. Licensed System returned under such authority will be subject to Licensor’s regular inspection. If found saleable without requiring reconditioning or further work, credit will be issued at the price in effect on the receiving date, or the original invoice date, whichever is the lower. No credit will be issued on Licensed System failing to pass inspection or for Licensed System produced to meet specifications.  

6. Licensee Data. 

a. For the purposes of this EULA, “Licensee Data” refers to any information, data, images or content either provided by the Licensee to the Licensor in connection with the Licensed System or uploaded by the Licensee or Customer to the Licensed System, including but not limited to (i) basic contact information of the Licensee, including location of the VapeTM vending machines; (ii) any information or content uploaded to the Software for the purposes of advertisement (to the extent permitted by Section 7) or for providing coupon codes; and (iii) any other information collected via or uploaded to the Software, including any 

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Customer-provided information. For clarity, as between the parties, the Licensee shall (y) own all rights, title and interest, in and to all of the Licensee Data; and (z) have the exclusive responsibility and liability for the Licensee Data. 

b. Licensee hereby represents and warrants that (i) it shall have, the right to use, distribute and/ or otherwise provide the Licensor with the Licensee Data, through the Licensed System, including through the Software; (ii) the Licensee Data will not infringe, misappropriate or violate the intellectual property rights of any third parties; and (iii) the Licensee Data and Licensor’s permitted use thereof will not violate any federal, state, local and foreign laws, regulations, rules and ordinances. 

c. Licensee hereby grants to the Licensor, and Licensor accepts from the Licensee, a worldwide, non-exclusive, royalty-free, non-revocable license to access, store, copy, display, use and transmit the Licensee Data, for the benefit of the Licensee and/ or the provision of the services to Licensee pursuant to this EULA (for instance, providing dashboard alerts to the Licensee). For avoidance of doubt, the said license grants the Licensor the right to monitor all use of the Licensed System by Licensee, including but not limited to, for purposes of determining compliance with the obligations and restrictions of use set forth in this EULA.  

d. Notwithstanding anything to the contrary, Licensee hereby authorizes Licensor: (i) to anonymize Licensee Data and to combine it with data from other customers into a new aggregate dataset; and (ii) to use such anonymized Licensee Data as a component of such new aggregate dataset for any legal business purpose, including without limitation for distribution to third parties. 

e. Licensor reserves the right to remove any Licensee Data from the Licensed System, in its sole discretion, that either violates or has the potential to violate this EULA, including Section 3(b), Section 3(c), and Section 6(b). 

7. Licensor Data and Advertisements. 

a. For the purposes of this EULA, “Licensor Data” refers to any information, data, images, or content either provided by Licensor to the Licensee in connection with the Licensed System or uploaded by the Licensor to the Licensed System, including but not limited to (i) banners, welcome screens, screensavers or any other display content; and (ii) banners, images, videos or other promotion messages for the purposes of advertisement. For avoidance of doubt, Licensor Data excludes Licensee Data. As between the parties, (x) the Licensor shall own all rights, title and interest, in and to all of the Licensor Data; (y) the Licensor shall have exclusive control and absolute discretion with respect to Licensor Data, including the timing and manner in which such Licensor Data is displayed on the Licensed System; and (z) Licensee shall have no rights in the Licensor Data, and cannot modify, remove, sell, redistribute, or otherwise exploit the Licensor Data, except for the sole purpose of displaying it on Licensed System for its Customers.  

b. Unless allocation of advertising and promotional rights is otherwise expressly addressed in the applicable purchase order or invoice, Licensor, in its sole discretion, shall have the right to (i) upload and display advertisements and promotional messages on the Licensed System and (ii) subject to Section 7(c), allocate time and space for Licensee to upload and display its own advertisements and promotional messages on the Licensed System. For clarity, any data, image, audio, video or other information uploaded by Licensor for the purposes of advertisement shall be treated as Licensor Data. 

c. To the extent expressly stated in the applicable purchase order or invoice or otherwise permitted by Licensor, Licensee shall have the right to upload and display its own advertisements on the Licensed System for its Customers in accordance with any requirements set forth by the Licensor, including the nature, frequency, timing and the manner in which such advertisements are displayed on the Licensed System. For clarity, any data, images, audio, video or other information uploaded by Licensee for the purposes of advertisement, in accordance with Section 7, shall be treated as Licensee Data.  

8. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, ACCESS TO AND USE OF THE LICENSED SYSTEM, INCLUDING ANY SOFTWARE INCORPORATED THEREIN OR ANY SUPPORT SERVICES PROVIDED (INCLUDING BUT NOT LIMITED TO TROUBLESHOOTING, SOFTWARE UPDATES AND PATCHES), IS PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS EULA, NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE LICENSED SYSTEM AND ANY SUPPORT SERVICES PROVIDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRGINGEMENT, TITLE, QUIET 

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ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT.  FURTHER, LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE LICNESED SYSTEM AND ANY SUPPORT SERVICES PROVIDED WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE, NOR THAT THE LICENSED SYSTEM WILL MEET THE LICENSEE’S BUSINESS REQUIREMENETS. LICENSOR DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY BUSINESS INTERRUPTION OR ANY LOSS OF LICENSEE DATA. FOR THE AVOIDANCE OF DOUBT, THE LICENSED SYSTEM MAY OFFER OR INCLUDE ADDITIONAL FUNCATIONALITY VIA THIRD-PARTY SOFTWARE PRODUCTS AND SERVICES, INCLUDING THIRD-PARTY PAYMENT PROCESSING AND AGE VERIFICATION SOFTWARE AND SERVICES (COLLECTIVELY, “THIRD-PARTY SYSTEMS”). SUCH THIRD-PARTY SYSTEMS ARE GOVERNED BY SEPARATE TERMS AND CONDITIONS AND LICENSEE IS SOLELY RESPONSIBLE FOR REVIEWING AND COMPLYING WITH SUCH SEPARATE TERMS AND CONDITIONS. LICENSOR DOES NOT ACCEPT ANY RESPONSIBILITY FOR SUCH THIRD-PARTY SYSTEMS. LICENSOR SHALL NOT BE RESPONSIBLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH LICENSEE’S USE OR RELIANCE UPON ANY THIRD-PARTY SYSTEM. 

9. LIABILITY CAP AND LIMITATION OF LIABILITY 

a. LIABILITY CAP. LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF THIS EULA BY LICENSOR OR ANY DISSATISFACTION BY LICENSEE WITH RESPECT TO THE LICENSED SYSTEM IS TO DISCONTINUE OPERATING, ACCESSING AND USING THE LICENSED SYSTEM. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS AGREEMENT (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE TOTAL FEES ACTUALLY PAID TO LICENSOR BY LICENSEE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

b. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, NEITHER LICENSOR NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE, UNDER ANY CIRCUMSTANCES, LIABLE TO LICENSEE OR ANY OTHER PERSON, FIRM OR ENTITY (WHETHER IN AN ACTION ARISING FROM CONTRACT, TORT OR OTHER LEGAL THEORY) FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES RESULTING FROM THE ACCESS OR USE OF THE LICENSED SYSTEM, OR OTHERWISE, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES. 

10. Misuse by Licensee. Notwithstanding anything to the contrary contained in this EULA, Licensee shall not be entitled to any remedy under this EULA or otherwise, and Licensor shall have no liability whatsoever, if any defect deficiency, error or problem with the Licensed System arises from or results from violation of this EULA by Licensee or any employee, agent, volunteer, contractor, Affiliate, representative, successor or assign of Licensee, or from accident, abuse, misapplication, abnormal or unauthorized installation, operation, access or use of the Licensed System by Licensee or any employee, agent, contractor, representative, successor or assign of Licensee. 

11. Intellectual Property Ownership. 

a. General. The Licensed System and all Licensor Intellectual Property is the intellectual property of and is owned by Licensor and/or its licensors. The structure, design, and organization of the Licensed System are the exclusive property, valuable trade secrets and confidential information of Licensor and/or its licensors and title to the Licensed System shall at all times remain with Licensor and/or its licensors. Except as expressly stated herein, this EULA does not grant Licensee any intellectual property rights in the Licensed System, or any component or element thereof, and all rights not expressly granted to Licensee under this EULA are reserved to and retained by Licensor and/or its suppliers. Notwithstanding anything contained in this EULA to the contrary, Licensor reserves the right to make available, distribute or release the Licensed System under different license terms or to stop distributing, making available or releasing the Licensed System at any time.  

b. Marks. Licensee shall ensure that it utilizes the trademarks, service marks, trade names, or the company name of Licensor (collectively, “Marks”) and all other Licensor Intellectual Property in a manner which complies with the intellectual property rights of Licensor and/or its Affiliates and this EULA. Licensee agrees to comply with all federal, state, local and foreign laws, rules, regulations and treaties, pertaining to 

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the proper use and designation of marks in any country where the Marks could be in commerce. Licensee also agrees not to (i) use the Marks as any trade name, corporate name, or Internet domain name, (ii) use the Marks in conjunction with any other marks, or (iii) use the Marks in any manner other than as they are appear, in an unaltered form, on the Licensed System (including the Software) as delivered by Licensor, in each case, without the prior written approval of Licensor. Licensee agrees that Licensor is the exclusive owner of the Marks and all the goodwill associated therewith, and all other content (including, without limitation all logos, graphics, colors, color combinations, works of authorship, audio works, visual works, and other content and materials) provided to Licensee. Licensor shall retain all right, title and interest in and to the Marks, the goodwill associated therewith, and all registrations granted thereon. Any and all uses of the Marks by Licensee shall inure to the benefit of Licensor. Licensee shall have no rights to the Marks or any confusingly similar variation thereof. Licensee acknowledges the validity of the Marks. Licensee acknowledges that it is estopped and that it will forebear from taking any action to challenge the validity or enforceability of the Marks. Any and all rights not expressly granted to Licensee under this EULA are hereby reserved to and retained by Licensor. During the term of this EULA and thereafter, Licensee agrees that it will not in any way impair Licensor's rights in the Marks, or any confusingly similar marks, or its right to use thereof or the goodwill of the business connected with such use and symbolized by the Marks.  Licensee will cooperate fully and in good faith with Licensor, at Licensor’s expense, for the purpose of securing and preserving Licensor’s rights including rights in the Marks and rights in any dispute, and agrees to give Licensor prompt notice of any known or suspected infringements of the Marks, and cooperate with the efforts of Licensor to police the Marks, at Licensor’s expense. 

c. Licensee Obligations. Licensee agrees to notify Licensor immediately of any pirating, infringement or imitation of the Licensed System, Licensor Intellectual Property Rights, or Marks of Licensor which comes to the attention of Licensee during the Term.  

12. Indemnity. Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, arising in connection with or related to: (i) the breach of this EULA by Licensee; (ii) Licensee’s use of any Third-Party System; (iii) the acts and omissions of Licensee and its Affiliates, employees, agents and representatives (individually, a “Licensee Affiliated Party” and collectively, the “Licensee Affiliated Parties”) in connection with access to and use of the Licensed System; (iv) the violation, infringement or misappropriation by Licensee or any Licensee Affiliated Party, of the intellectual property, proprietary or other rights of any third party; (v) violation by Licensee and/or Licensee Affiliated Parties of Section 19 (Compliance with License and Laws); (vi) Licensee Data (including violation of the obligations set forth in Section 6 of this EULA by Licensee or Licensee Affiliated Parties); (vii) non-payment of Applicable Taxes and Surcharges by Licensee; (viii) any claims brought against the Licensor by Customers in connection with such Customer’s access to and use of the Licensed System; and (ix) gross negligence, intentional misconduct or fraud by Licensee or Licensee Affiliated Parties. If any claim is commenced against Licensor under this paragraph, Licensor will provide notice of the claim and copies of all related documentation to Licensee, and Licensee will assume control of the defense of such claim at its cost and expense. Notwithstanding the foregoing, Licensee will not settle any claim in any way that assesses blame against the Licensor or that provides a remedy other than the payment of money without Licensor’s prior written consent. Such notice of claim and related documentation will be provided as promptly as possible; provided, that in no event shall Licensee be relieved of its indemnification obligations hereunder unless the failure to provide notice promptly hereunder results in, and then only to the extent of, actual prejudice to the rights of Licensee. Licensor may, at its own cost and expense, participate, through its attorneys or otherwise, in the investigation, trial and defense of such claim and any appeal. In such a case, Licensee will reasonably cooperate with the Licensor’s attorneys. For the avoidance of doubt, Licensee Affiliated Parties shall include any third-party for which the Licensee purchases a subscription for, or otherwise provides access to, the Licensed System. 

13. Export Rules. Licensee agrees that access to and use of the Licensed System will not be provided by Licensee or any employee or agent of Licensee to any citizen of a country to which access or use thereof is barred, or to which exports or shipments are barred, by the United States government. Further, the Licensed System will not be shipped, transferred or exported by Licensee or any employee or agent of Licensee into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Licensed System is identified as export controlled items under the Export Laws, Licensee represents and warrants that is not a citizen, or otherwise located within, an embargoed nation and that Licensee is not otherwise prohibited under the Export Laws from receiving access to or using the Licensed System. All rights to access and use the Licensed System are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this EULA. 

14. Applicable Law. This EULA is governed, construed and enforced in accordance with the laws of the State of Ohio, without giving effect to any principles of conflicts of laws. Jurisdiction and venue for all actions arising under this EULA shall be in the federal and state courts located in the State of Ohio. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this EULA. 

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15. Entire Agreement. This EULA and any Documentation is the entire agreement between a Licensee and Licensor relating to the subject matter of this EULA and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter of this EULA.  

16. Notices and Questions. All notices and demands hereunder shall be in writing and shall be served by personal service, electronic mail, or by mail at the address of the receiving party set forth in this EULA (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt.  

Should a Licensee have any questions concerning this EULA, or if Licensee desires to contact Licensor for any reason, please contact Licensor by email at Megan@VapeTM.com, by mail at VapeTM, attn: Megan, 3901 Superior Ave., Cleveland, OH 44114. The initial Licensee contact address for purposes of this Section 15 shall be the address provided when establishing an account for the Software. 

17. Confidentiality. Licensee acknowledges that Licensee or a Licensee Affiliated Party may receive or become aware of confidential information (including, trade secrets) of Licensor. The term “Confidential Information” as used herein means all trade secrets or confidential or proprietary information of either party relating to such party’s business and technology, including without limitations, its products, customer lists, candidate profiles (both sample and actual), business development and marketing plans, intellectual property, proprietary processes, financial information, Documentation, any document or communication between the parties that is specifically designated as “Confidential Information” or which is reasonably understood to be confidential given the nature of the information and the circumstances of disclosure, and this Agreement. Licensee agrees to maintain and protect, and cause all Licensee Affiliated Parties to maintain and protect, the confidentiality of all Confidential Information of which it becomes aware and not disclose any Confidential Information to a third-party, except as required by law (for example, under a court order or subpoena), to any person, firm, or entity other than the Licensee Affiliated Parties who have a need to know such Confidential Information for purposes of the license granted to Licensee hereunder, and Licensee shall preserve and protect, and cause all Licensee Affiliated Parties to preserve and protect, the confidentiality of all Confidential Information of which it becomes aware using the same degree of care that it uses to protect its own trade secrets, but never less than reasonable care. Further, Licensee shall not use or disclose, and shall cause all Licensee Affiliated Parties not to use or disclose, any Confidential Information for any purpose not permitted by this EULA. Licensee agrees to formulate and adopt appropriate safeguards in light of its own operating activities to ensure protection of the confidentiality of all Confidential Information of which it becomes aware. The restrictions on disclosure set forth above shall not apply when, and to the extent that, Confidential Information: (a) is part of the public domain through no action or failure to act by Licensee; (b) is made available to the general public by Licensor or a third party who is lawfully in possession of such information, not as a result of any action or failure to act on the part of Licensee; (c) was previously known to Licensee free of any obligation to keep it confidential; (d) is subsequently disclosed to Licensee free of any obligation to keep it confidential; or (e) is independently developed by Licensee or a third party other than in breach of this EULA. In addition, Licensee will not be considered to have breached its obligations under this EULA to the extent Confidential Information is required to be disclosed by court order or order of a governmental authority or by applicable law, provided Licensee, to the extent practicable, advises Licensor in writing prior to making such disclosure so that the Licensor may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information. Violations of this Section 16 are likely to cause irreparable harm and therefore Licensor may seek immediate injunctive relief without the need of posting bond in the event of a violation of this Section 16. 

18. Dispute Resolution. The parties will attempt to settle any claim or controversy arising out of this EULA through consultation and negotiation in good faith in a spirit of mutual cooperation. If those attempts fail, then the dispute will be mediated by a mutually accepted mediator to be chosen by the parties within forty-five (45) days after written notice by either party to the other demanding mediation. No party may unreasonably withhold consent to the selection of a mediator. The parties will share the cost of the mediation equally. By mutual agreement, the parties may postpone mediation until some specified but limited discovery about the dispute has been completed. The parties may also agree to replace mediation with some other form of alternative dispute resolution. Any dispute which cannot be resolved by the parties through negotiation, mediation or other form of agreed alternative dispute resolution within one hundred eighty (180) days following the date of the initial demand for it by one of the parties may then be submitted to the courts for resolution in accordance with Section 13. Nothing in this Section 17 will prevent a party from resorting to judicial proceedings if: (a) interim, injunctive or other equitable relief from a court is necessary to prevent serious and irreparable injury to one party or to others; or (b) litigation is required to be filed prior to the running of the applicable statute of limitations. The use of any alternative dispute resolution procedure will not be construed under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party. All of the above alternative dispute resolution procedures shall be confidential. 

19. Force Majeure. Licensor shall not be responsible for delays or failure of performance resulting from acts beyond the reasonable control of Licensor. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failures, Internet or telecommunications failures, earthquakes, pandemic or other disasters.  

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20. Compliance with License and Laws. Licensee shall comply with, and all cause all Licensee Affiliated Parties to comply with, all federal, state, local and foreign laws, regulations, rules and ordinances in connection with its access to, and use of, the Licensed System, including but not limited to any laws pertaining to privacy, age-verification, and sale of nicotine and electronic nicotine delivery systems. In the event that any part of this EULA is determined to violate any applicable federal, state, local or foreign laws, rules or regulations, then the remaining provisions of this license shall remain in full force and effect and shall be enforced to fullest extent permitted by law and the parties agree to negotiate in good faith revisions to the provision or provisions that are in violation. In the event the parties are unable to agree to modified terms as required to bring the entire EULA into compliance, either party may terminate this EULA by not less than ten (10) days prior written notice to the other party.  

21. Updates to the EULA. Licensor reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this EULA for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to Licensee. Licensee can review the most current version of this EULA at https://vapetm.vapevendingsoftware.com/login. Licensee is responsible for checking this EULA periodically for changes. Licensee’s continued use of the Licensed System following any revision to this EULA constitutes Licensee’s complete and irrevocable acceptance of any and all such changes. 

22. Survival. Sections 1b, 2d, and Sections 4 to 24 shall survive the termination or expiration of the EULA for any reason. 

23. Headings. The titles and headings of the various sections and paragraphs in this EULA are intended solely for reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this EULA. The opening two paragraphs and the Recitals to this EULA are incorporated herein. 

24. Forms. No provisions in either party’s purchase orders, or in any other business forms employed by either party, will supersede the terms and conditions of this EULA. 

25. Waiver/Assignment. A waiver of any provision of this EULA shall only be effective if in a writing signed by the party against which the waiver is claimed. This EULA may not be assigned by Licensee without the prior written consent of Licensor. This EULA may be assigned by Licensor, by operation of law or otherwise, without the consent or approval of Licensee or any other person, firm or entity.