1. This document contains very important information regarding your rights and obligations, as well as conditions, limitations and exclusions that might apply to you. Please read it carefully.
By placing an order for products or services from this website, you affirm that you are of legal age to enter into this agreement, and you accept and are bound by these terms and conditions. You affirm that if you place an order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these terms and conditions.
You may not order or obtain products or services from this website if you: (i) do not agree to these terms and conditions; (ii) are not the age of majority in your province or territory of residence; or (iii) are prohibited from accessing or using this website or any of this website’s contents, products or services by applicable law.
These terms and conditions (these “Terms”) apply to the purchase, sale and use of products and services (the “Services”) through www.xactag.com (the “Site”). These Terms are subject to change by Xact Agriculture & Forestry Inc. (referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referred to on the Site. You should review these Terms before purchasing any product or services that are available through this Site. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
2. Order Acceptance and Cancellation. You agree that your order is an offer to buy, under these Terms, all Services listed in your order. All orders must be accepted by us or we will not be obligated to sell the Services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered. You acknowledge that we are under no obligation to provide Services under the terms of this Agreement until all stated fees and charges have been paid in full.
3. Prices and Payment Terms.
(a) All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for the Services will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. All applicable taxes and charges will be added to your total price and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information; however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
(b) Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. Payment may be made by way of wire transfer, credit card or such other method as we may consent to in writing. If making payment through credit card, you represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honoured by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
(c) All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all harmonized sales tax (HST), goods and services tax (GST), provincial sales tax (PST), use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental, or regulatory authority on any amounts payable by you hereunder.
(d) All Services rendered by us under this Agreement are provided on a non-refundable basis. This includes, but is not limited to, all pre-paid subscription fees hereunder. In the event you cancel your subscription hereunder, no refunds will be issued for any prepaid amounts paid by you. In addition, if your account is cancelled by us for violation of this Agreement, all payments made to us will be completely non-refundable.
4. Disclaimers.
(a) This Site and all Services obtained through it are made available on an “as is” and “as available” basis, without any representation, warranty or condition of any kind, express or implied, or any guaranty or assurance the Site will be available for use, or that all Services will be available or perform as described. To the extent permitted by law, we disclaim all implied representations, warranties and conditions relating to the Site, all content, products and Services obtained through the Site, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or noninfringement.
(b) We endeavor to provide the Services error-free and to correct any defects in the Services notified to us within a reasonable time frame. Notwithstanding the foregoing, you acknowledge that we do not warrant that the Services will meet your requirements or that the operation of the of the Site will be uninterrupted or error-free; nor do we make any warranty as to the result that may be obtained from the use of the Site or Services or as to the accuracy, reliability, suitability or content of the Site or Services. You agree that access to and use of the Site and the information, Services, and content available on it is at your own risk. We are not responsible for any errors or omissions in any information provided or any reliance on such information, Services or content. Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of your use of the Site. You understand, acknowledge and agree that you are assuming the entire risk as to the quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of any and all features and functions of the Site and Services, including, without limitation, content associated with your use of the Site and Services.
5. Limitation of Liability.
(a) IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR AGGRAVATED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU FOR THE PRODUCTS AND SERVICES SOLD THROUGH THE SITE DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY CLAIM.
6. Indemnification. You will defend, indemnify, and hold harmless Xact Agriculture & Forestry Inc., our affiliates, related entities and licensors, and each of their respective employees, officers, directors, shareholders and representatives from and against any and all claims, liabilities, losses, damages, expenses and costs (including, but not limited to, reasonable legal fees) caused by or arising from (i) your access to, or use of, the Site or Services, (ii) your violation of this Agreement; (iii) any breach by you of applicable laws; and (iv) your infringement of any intellectual property or other right of any third party.
7. Intellectual Property Use and Ownership.
(a) You acknowledge and agree that all Services, content and materials made available through or in connection with the Site are protected by either our rights, or the rights of our licensors or other third parties, of copyright, trademarks, service marks, patents, or other proprietary rights and laws. You may not use any of the marks, logos, domains and/or trademarks that you may find on or in connection with the Site or Services, unless such use is in accordance with this Agreement or you have our prior written permission.
(b) We grant you a non-exclusive, non-transferable right to access and use the Services during the Term (as defined herein), in accordance with the terms and conditions herein. Such use is limited to your internal use.
(c) You shall not use the Services for any purposes beyond the scope granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any third party to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) We reserve all rights not expressly granted to you in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Services.
(e) For the purposes of this Agreement, “Customer Data” means all information, data, materials, works, expressions and other content (including all soil data), in any form or medium, that are uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of yourself through the use of the Services. You hereby grant us a non-exclusive, royalty-free, worldwide licence to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for us to: i) provide the Services to you; and ii) compile statistics, metrics and data for service improvements, algorithm improvements, marketing and promotional purposes. Our privacy policy shall apply to our use of any Customer Data.
(f) Notwithstanding anything to the contrary in this Agreement, we may monitor your use of the Services and collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You acknowledge that we may compile Aggregated Statistics based on Customer Data input into the Services. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such use of the Aggregated Statistics is in compliance with our privacy policy.
(g) Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend your access to any portion or all of the Services if: (i) we reasonably determine that (A) there is a threat or attack on any of the Services; (B) your use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of ours; (C) you are using the Services for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) our provision of the Services to you is prohibited by applicable law; (ii) any vendor of ours has suspended or terminated our access to or use of any third-party services or products required to enable you to access the Services; or (iii) you fail to make any payments as required hereunder (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). We shall use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Services following any Service Suspension. We shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of a Service Suspension.
8. Term and Termination.
(a) Term. The term of this Agreement begins on the effective date of the Services, as set forth in the order confirmation and shall remain valid until the termination date as set forth in the order confirmation.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) We may terminate this Agreement, effective on written notice to you, if you: (A) fails to pay any amount when due hereunder; or (B) breach any of your obligations under (confidentiality) or (use);
(ii) We may terminate this Agreement, effective on written notice to you, if the you materially breach this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 15 days after the we provide you with written notice of such breach; or
(iii) We may terminate this Agreement, effective immediately upon written notice to you, if you: (A) become insolvent or is generally unable to pay, or fail to pay, your debts as they become due; (B) file or have filed against you, a petition for voluntary or involuntary bankruptcy or otherwise become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) make or seek to make a general assignment for the benefit of your creditors; or (D) applies for or has appointed a receiver, trustee, custodian, liquidator, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Termination. Upon expiration or earlier termination of this Agreement, you shall immediately discontinue use of the Services. No expiration or termination will affect your obligation to pay all fees that may have become due before such expiration or termination or entitle you to any refund.
(d) Survival. This Section 8 (Term and Termination), Section 3 (Price and Payment), Section 4 (Disclaimers), Section 5 (Limitation of Liability), Section 6 (Indemnification), Section 7 (Intellectual Property and Ownership) and Section 9 (Miscellaneous) shall survive any termination or expiration of this Agreement.
9. Miscellaneous
(a) Privacy and Data Security. We will employ security measures in accordance with applicable law and with our data privacy and security policy, as amended from time to time, a current copy of which can be found on our website. The privacy policy sets forth our rights and responsibilities with regards to personal and business information. Except as otherwise provided herein and therein, in no event will we be liable under or in connection with any loss, damage, corruption or recovery of data, or any breach of data or system security.
(b) Entire Agreement. This Agreement, together with the order confirmation and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(c) Notices. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (other than routine communications having no legal effect) (each, a “Notice”) in writing and addressed to the other party at the addresses set forth in the order confirmation (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment), if delivered by email; (c) when sent, if sent by facsimile (with confirmation of transmission) on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day; or (d) on the 3rd day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
(d) Force Majeure. No 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 of you to make payments to us hereunder), when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the impacted party’s (“Impacted Party”) reasonable control including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, tsunami, fire, earthquake, explosion; (iii) epidemics, pandemics, and outbreaks; (iv) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (v) government order, law, or actions; (vi) embargoes or blockades in effect on or after the date of this Agreement; and (vii) other similar events beyond the reasonable control of the Impacted Party.
(e) Waiver. Our acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive our right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Neither party’s failure to exercise or delay in exercising any of its rights under these terms will constitute or be deemed a waiver or forfeiture of those rights.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Saskatchewan and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Saskatchewan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Saskatchewan.
(h) Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Saskatchewan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(i) Assignment. You may not assign or otherwise transfer any of your rights, or delegate, subcontract, or otherwise transfer any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of us, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, delegation, or subcontract in violation of this Section is null and void. No assignment, transfer, delegation, or subcontract will relieve the assigning or delegating Party of any of its obligations hereunder. We may assign this Agreement without your consent: (i) to a parent or direct or indirect subsidiary, (ii) in an acquisition of the assets including the Services, in whole or in part, (iii) to a successor in a share purchase agreement or by way of merger. Any assignment in violation of this section will be void.
(j) Successors and Assigns. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
