TELUS Agriculture Solutions Inc.
MASTER SERVICES AGREEMENT
Last Modified: June 11, 2020
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE CLICKING ON “ACCEPT”, OR BY ACCESSING OR USING THE SERVICES (AS DEFINED BELOW). BY DOING SO, YOU ARE ENTERING INTO A BINDING LEGAL CONTRACT WITH TELUS AGRICULTURE SOLUTIONS INC. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT”, ACCESS OR OTHERWISE USE THE SERVICES.
This Agreement is between TELUS Agriculture Solutions Inc. doing business as Farm at Hand (“FAH”) and you, as the customer (“Customer”), being the party who signs, agrees to, enters into, or accepts any request for Services (as defined below) of any kind executed or made between FAH and the Customer, whether via an online form or other electronic means, or by paper copy, including, without limitation, any order form, sign up form, purchase order, click-through form, statement of work, work order, appendix, schedule, memorandum of understanding, or other agreement, document, record or instrument (each and all of the foregoing referred to in this Agreement as an “Order Form“, whether or not such Order Form incorporates this Agreement by reference). References to FAH shall also, where the context requires, include any licensor, supplier, service provider, partner, joint venturer, affiliate, or other entity having a direct or indirect contractual or business relationship with FAH and engaged in providing the Services (as defined below), or that may be engaged in providing the Services in the future (collectively, each a “FAH Service Provider”). Farm at Hand is a registered business name of TELUS Agriculture Solutions Inc.
Along with our Privacy Policy this Agreement defines the legal relationship between FAH and Customer.
By accepting this Agreement, the Customer warrants and represents that the Customer has the full legal authority of Customer to enter into this Agreement and bind Customer to its terms and conditions.
In this Agreement, references to “Customer” means any user accessing the Services through the Customer’s credentials or passwords, including third parties such as financial institutions, insurers, dealers, resellers, distributors, professional advisors or consultants (including agronomists and similar scientific or technical personnel) and any other parties comprising Customer, or which with the authority of Customer, or on Customer’s request or behalf, accesses the Services or Customer Data.
This Agreement shall govern the terms and conditions of all dealings between Customer and FAH, written, oral or otherwise, and all products, materials, data, information, and/or services, which shall include any products or services, including software as a service, provided to Customer, or to Customer’s affiliates, parents, subsidiaries or other entities designated by Customer or by FAH, or to FAH by third parties, and then provided to Customer (and further shall include any of the Services provided by FAH without charge, or made accessible in any way, in whole or in part, to Customer), as set forth in any Order Form or otherwise by agreement between Customer and FAH (collectively, the “Services“). References to the Services shall, as applicable, include access to Customer Data and to software provided as a service.
Each Order Form provides for, among other things, the Services to be provided by FAH to Customer. The Services may include a subscription or a license to use the proprietary technology, software and services of FAH, enabling Customer to have access to any or all of the Services as set forth in an executed Order Form or as otherwise ordered or requested by Customer, or made available to Customer by FAH.
Customer agrees to contract electronically with FAH and to be bound by all electronic contracts and transactions between Customer and FAH (including this Agreement and any applicable Order Forms, whether online or in paper form). Customer, or its authorized users of the Services, may be required to confirm Customer’s ongoing acceptance of this Agreement from time to time, including upon executing a new Order Form, or logging on to the Services.
Customer hereby confirms its acceptance of this Agreement, and consents to (i) the use of Customer Data as set out in this Agreement, including anonymization and aggregation of Customer Data; and (ii) in addition to regular correspondence and messages related to delivery of the Services, to being sent and receiving commercial electronic messages in the form of e-mails, direct messaging on social media platforms, SMS and other messaging to mobile devices and voice mail, or similar technical means, from FAH (including FAH’s affiliates, licensors or suppliers with which Customer does not have a current contractual or business relationship) related to the Services and other offerings, products, services, technological improvements or developments, or other matters which may be of interest to Customer. The foregoing consents shall survive the expiry or termination of this Agreement, provided that Customer may opt out or unsubscribe from such commercial electronic messages at any time before or after termination of this Agreement, unless such messages are reasonably required by FAH to provide the Services Customer has requested or ordered.
TERMS AND CONDITIONS:
1. DEFINITIONS
Capitalized words and phrases in this Agreement shall have the following meanings, unless otherwise expressly defined elsewhere in this Agreement, and there may be other defined terms also capitalized appearing elsewhere in this Agreement:
“Confidential Information” means any information whether oral, or written, of a secret, proprietary or confidential nature, concerning either Party or its business operations, and includes proprietary aspects of the Services and Customer Data.
“Customer Data” means information collected by FAH about Customer and Customer’s business activities, land and operations which is identifiable as being about Customer or its business activities, land and operations, and which is not a matter of public record and not Intellectual Property as referred to below. For greater certainty this excludes any data which was made anonymous and not identifiable to Customer.
“Intellectual Property Rights” means any and all intellectual property rights existing from time to time in any applicable jurisdiction under patent law, trade secrecy law, confidential or proprietary information law, copyright law, moral rights law, privacy law, publicity law, trade mark-law, unfair competition law or unfair trade practices law, or other similar law, and shall include the decisions of courts of law and other public or regulatory authorities, and shall further include all rights to claim damages or other remedies with respect to the infringement, violation or misappropriation of any of the foregoing.
“Party” means either Customer or FAH, and “Parties” means both Customer and FAH.
“Person” means any individual, company, corporation, firm, partnership, joint venture, association, organization, trust, trade union, governmental body, public body or other legal entity in each case whether or not having a separate legal identity.
“Suspend” or “Suspension” will mean the act by FAH of restricting or suspending access to the Services, including access to Customer Data.
2. TERM
a) Term of this Agreement: Unless otherwise agreed in writing by the Parties, and subject to termination as provided in this Agreement, the term of this Agreement shall be indefinite, provided that this Agreement shall expire in any event six months after the last Order Form between the Parties has expired or has been terminated.
b) Term of Order Form:
i) Unless an applicable Order Form states otherwise, the term of each Order Form, and of the subscription(s) or license(s) granted pursuant to such Order Form, shall commence on the date such Order Form is entered into, and continue in effect for an initial term of one (1) year, or such other initial term as the Order Form may provide;
ii) Following completion of the initial term, each Order Form will be automatically renewed for further additional terms, each of one year, or the longer term specified in the Order Form, whichever is greater, unless terminated earlier in accordance with this Agreement;
iii) If at the completion of the initial term, Customer decides to terminate any Order Form, and terminate the Services provided pursuant to such Order Form, Customer must provide FAH with at least fifteen (15) days’ prior notice in writing before the expiry of the initial term or the then-current additional term of the Order Form, failing which the Order Form will automatically renew;
iv) Customer may cancel all Services or any particular portion of the Services pursuant to the foregoing. Additionally, Customer may cancel any or all Services at any time upon thirty (30) days’ notice in writing as long as all Services and work-in-progress has been paid in full by the Customer. In case of such cancellation, FAH will not reimburse any amount paid in advance;
v) FAH may, at its option, terminate this Agreement or any Order Form at any time with thirty (30) days’ notice in writing to the Customer;
vi) Where so provided in any Order Form, and if applicable to the Services provided, if, during any one-year term, or a year of any longer term of more than one year, the Customer has fewer acres in a year than those that are currently included in the initial term or any additional term, then those acres will be adjusted accordingly on an annual basis for future years’ fee calculations. If the Customer gains acres in the future from the acres Customer has during a year in the initial term or any additional term, fees will be calculated for those additional acres based on that future current year rate;
vii) If any required payment is not made on time by Customer as agreed with FAH then any discounts in this Agreement or any Order Form may be null and void, at the sole discretion of FAH, and FAH may exercise its rights under this Agreement arising from failure to pay.
3. SERVICES
a) The Services FAH agrees to provide to Customer shall be as described in one or more Order Forms entered into by the Parties from time to time. An Order Form may define a “Scope of Services” which will describe and limit the Services FAH agrees to provide or permit Customer to have access to. FAH shall have no obligation to provide Services other than as described in a duly executed Order Form between the Parties, or outside the parameters of any stated Scope of Services.
b) Except as otherwise expressly stated in an Order Form or other written documentation signed by FAH, the Services are licensed or provided on a subscription basis, and not sold. Customer does not own the Services. FAH retains exclusively all rights not expressly granted to Customer under this Agreement.
c) The Services will be available to Customer on a commercially reasonable basis, less:
i) scheduled maintenance times, which, where reasonably possible, shall be scheduled outside regular business hours, and
ii) disruptions to the Services for force majeure or other reasons beyond the reasonable control of FAH.
d) Where, as part of the Services, FAH has agreed to host or archive Customer data or other Customer information, documents, records or materials of any kind (collectively, “Customer Materials”) on behalf of Customer, the following provisions will apply: FAH will retain Customer Materials that FAH has agreed to host or archive on behalf of Customer during the term of the applicable Order Form (including any renewals) and for one (1) month following the expiry or termination, howsoever caused, of the applicable Order Form regarding hosting or archiving Customer Materials, following which FAH shall have no obligation to retain Customer Materials on behalf of Customer, and may delete or destroy such Customer Materials without further notice to Customer, and without any liability whatsoever to Customer. Customer is strongly advised and recommended to carefully archive and maintain Customer’s own backups of Customer Materials, and Customer represents and warrants that it will do so and has done so, if applicable. In no event will FAH be liable to Customer for any loss of Customer Materials, data or failure of Customer’s own backups.
e) During the term of any Order Form providing for the hosting or archival of Customer Materials as part of the Services, but not thereafter, FAH will make commercially reasonable efforts to recover Customer Materials accidentally or inadvertently deleted, corrupted or lost by Customer if it is reasonably possible to do so, provided that such data recovery may require the payment to FAH of additional fees and charges. FAH provides no warranty, condition or guarantee that efforts to recover Customer Materials will succeed.
f) In the event FAH receives a request or demand from Customer or any third party to preserve and/or produce Customer Materials or other records, documents or data related to Customer, FAH will comply with all applicable laws and legal obligations related to such request or demand and may do so without any liability to Customer. Where permitted by law to do so, FAH may inform Customer of any such request or demand from a third party. Any costs or expenses incurred by FAH in complying with any such request or demand will be paid by Customer immediately.
g) Any suggestions Customer provides to FAH with respect to the Services or any related or underlying software, or any changes or improvements to either the Services or such underlying software, shall immediately become the exclusive property of FAH. All Intellectual Property Rights in any suggestions Customer provides are waived by Customer to the extent that Customer has such Intellectual Property Rights.
h) Customer acknowledges and agrees that certain aspects of the Services are, or may be, supplied by, provided by or made available by third parties and FAH has no control over the actions of such third parties. FAH shall have the right to terminate, without liability to Customer, all or any portion of the Services where the actions, errors or omissions of any one or more third parties make the Services or such portion thereof no longer available or otherwise commercially unreasonable to provide. FAH will make commercially reasonable efforts to provide Customer with notice of any termination or change pursuant to the foregoing, but Customer acknowledges and agrees that FAH may not receive notice from such third parties and therefore may not be able to provide notice to Customer.
i) In the event FAH is requested by Customer to render services, deliver products, or incurs costs in relation to matters not included in the Services, FAH may invoice Customer at FAH’s then standard time and materials rate for such non-included service(s), provided FAH is willing and available to perform such services and, where applicable, Customer’s credit card is accepted for payment or, where acceptable to FAH, Customer otherwise agrees to pay all such payments promptly as provided herein. FAH expressly accepts no obligation to perform any such non-included services.
4. BILLING AND PAYMENT
FAH will bill the Customer for, and the Customer shall pay, all charges specified in the Order Form or elsewhere in this Agreement and all government charges and applicable taxes relating to the Services. Except where FAH has agreed to other arrangements, all payments to FAH will be made in advance by cheque or debit, or, if approved by FAH; credit card, and payment terms shall be as stated by FAH. Customer authorizes FAH to process any and all payments by the credit card provided by Customer or on its behalf, and Customer consents to FAH’s collection, use and disclosure of Customer’s personal information for billing and payment purposes, and as reasonably required to provide the Services. Each Order Form will set out the applicable fees (the “Fees”) for the Services set out in the Order Form. Invoices will be sent to Customer’s billing address in the applicable Order Form and may be delivered by email. Email sent by FAH to Customer will be deemed received immediately upon sending by FAH unless FAH receives a message stating that email to Customer has not been delivered. Customer agrees to maintain a valid and operational email address for the purposes of this Agreement. Customer’s payments shall be due in full within thirty (30) days after delivery of each invoice, unless stated otherwise. Any and all Fees not paid when due shall bear interest at the lesser of 2% per month (compounded to 26.82% per year annually) or the maximum interest rate permitted by applicable law, calculated from the billing date, on any amounts not received by FAH by the due date shown on the bill. Customer shall be responsible for any sales, use, P.S.T. or H.S.T. (where applicable), G.S.T. or comparable taxes assessed or imposed upon the Services provided or the amounts charged under this Agreement. FAH reserves the right to increase the Fees on a year to year basis.
5. CUSTOMER AGREEMENT WITH FAH
a) Customer agrees that it will comply in all respects with all provisions of this Agreement, including all documentation such as Order Forms incorporated into this Agreement, and including all obligations to pay money owing FAH.
b) Customer agrees, and warrants and represents to FAH that: (i) Customer has all requisite legal or corporate capacity, legal authority and all required approvals permitting Customer to enter into and be bound by this Agreement; (ii) by entering into this Agreement or by receiving the Services, or by providing Customer Data, Customer will not be in breach of any obligation or duty to any Person, whether legal, equitable, fiduciary or otherwise; and (iii) all Customer Data provided by Customer will be legal and fully in compliance with this Agreement.
c) Customer will comply with all acceptable use policies or other similar policies of FAH posted or communicated to Customer from time to time.
d) Customer will access and use the Services for lawful purposes only and in accordance with terms and conditions of this Agreement. Without limitation, Customer will not, and Customer will not permit any of its users or any other Person to:
i) modify, translate, reverse engineer, decompile, disassemble, alter, copy, disseminate, distribute, publish or broadcast the Services or any related, included or associated Software, or create compilations or derivative works based on the Services or any such software, or assist or allow anyone to perform any one or more of those acts;
ii) remove, alter or obliterate any proprietary notices, labels, or marks on the Services;
iii) obtain by any means whatsoever information regarding the personal identification or password of any other Person which is a customer or licensee of FAH;
iv) interfere with the Services, or any applications, software, programs, information, documents, records or data managed or stored by FAH;
v) develop or use applications, software or programs at any time which adversely affect or impact other customers, the Services, the Internet, or any computer network;
vi) undertake or carry out any activity which actually or potentially creates liability or damage to FAH, or damage to, or that interferes with the Services, FAH’s computer systems, FAH’s other customers or licensees, or any FAH Service Provider (including any FAH Service Provider with which Customer may not have a current business or contractual relationship);
vii) use, transmit or store anything obscene, illegal, tortious, defamatory, harassing or offensive, or which breaches or violates any law related to privacy, or which appropriates rights of personality, or which violates the rights of any individual with respect to their personal information or rights of privacy, or that constitutes hate literature or pornography, or that constitutes a chain letter, multi-level marketing arrangement or pyramid scheme, or which in any way violates or infringes copyright, moral rights, trademark, patent or other intellectual property rights of any kind of any Person;
viii) use the Services for any purpose which is contrary to the laws of any government or other legal authority having jurisdiction over FAH or Customer, including using the Services for any purpose which constitutes a tort or breach of legal, fiduciary, equitable or other duty;
ix) use FAH’s systems, computers or networks for any purpose other than what is necessary for access to and use of the Services; or
x) use the Services as a service bureau, or to send or distribute unsolicited commercial electronic messages (commonly known as “spam”), or to send, receive or transmit any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, malware, or any other harmful or deleterious programs.
6. INTELLECTUAL PROPERTY RIGHTS
a) The Services and any related software are the exclusive property of FAH or FAH Service Providers, and are protected by intellectual property laws, including copyright law, and international treaties.
b) Subject to Customer’s continued compliance with the terms and conditions of this Agreement, Customer receives only certain limited and nonexclusive rights and licenses to access the Services and use any related software on the terms and conditions set out in this Agreement.
c) Customer acknowledges and agrees that any Intellectual Property Rights which are developed, invented, reduced to practice, authored, discovered, made or created by either Party as a result of FAH providing the Services or which are based on FAH Confidential Information or based on pre-existing FAH Intellectual Property Rights shall be owned exclusively by FAH.
d) Nothing in this Agreement will be construed as granting to Customer any waiver, permission, license or other right except as expressly stated.
e) As between Customer and FAH and except as otherwise provided in this Agreement, FAH owns and retains all Intellectual Property Rights, including but not limited to copyrights, patent rights, invention rights and rights in confidential information and trade secrets in the Services, and moral rights are not waived.
f) The rights to all trademarks, logos, designs, tradenames and any other distinguishing or identifying marks of FAH, FAH Service Providers, as well as licensors or suppliers to any FAH Service Provider are the exclusive property of their respective owners, all rights reserved, and no license to use any such marks is granted by this Agreement.
7. CONFIDENTIALITY
a) Each Party agrees to exercise no less than reasonable care to prevent the unauthorized use or dissemination of the other Party’s Confidential Information and agrees to use the Confidential Information of the other Party only for purposes related to the performance of this Agreement. The following information shall not constitute Confidential Information:
(i) information which is generally known or available by publication, commercial use, or otherwise, or becomes generally known through no fault or breach of the Party receiving the information;
(ii) information which was known by the receiving Party prior to receiving the information from the other Party through no wrongdoing;
(iii) information which is independently developed by the receiving Party without the use of Confidential Information; or
(iv) information which is lawfully obtained from a third party without violation of a confidentiality obligation to the disclosing Party.
b) Either Party may disclose the other Party’s Confidential Information:
(i) if compelled to do so by a court or government agency having jurisdiction (provided that, unless prohibited by law from doing so, the Party subject to disclosure shall immediately notify the other Party so that the other Party may takes steps to resist disclosure or obtain a protective order; and
(ii) to such service providers, subcontractors, agents, and dealers as may require Confidential Information for the performance of the Services, as long as such third parties have agreed to maintain the Confidential Information as confidential in a manner similar to that contemplated in this Agreement.
8. TERMINATION
a) This Agreement may be terminated by written notice of termination:
(i) by one of the Parties if the other Party materially breaches any of its obligations under this Agreement and the material breach is not cured within thirty (30) days of the breaching Party’s receipt of notice of such breach;
(ii) by FAH if Customer uses the Services in violation of the terms and conditions of this Agreement and such violation is not cured within five (5) days of delivery to Customer of notice of such violation, provided that where Customer’s conduct constitutes a threat to the business, software or systems of FAH, FAH may immediately Suspend Customer’s access to the Services, including to Customer Data, and such Suspension may continue for as long as the threat may persist; or
(iii) by FAH, if Customer does not make timely payment of Fees or other amounts due under this Agreement or in accordance with any Order Form, or application for credit, and fails to cure such payment default within fifteen (15) days of delivery of written notice. The above termination rights may also be exercised by a Party with respect to an individual Order Form.
9. DATA
Part of the Services includes access to data and information considered by the Parties to be useful and valuable, and obtained by FAH and FAH Service Providers from many sources including but not limited to anonymous and aggregate farming and operational statistics and data from many sources, including FAH’s suppliers, licensors, service providers, contractors, customers, licensees and clients, including Customer. Customer therefore agrees that certain aspects of Customer Data may be made anonymous and not identifiable with Customer or an individual and then blended or mixed with other data or information made available by FAH or FAH Service Providers to its or their customers and clients as part of the Services, and FAH shall be at liberty to use, disclose, license, rent, sell, deliver and provide access to such anonymous and non-identifiable data, including on an ongoing basis after expiry or termination of this Agreement. Customer may revoke its consent to collection and use of Customer Data (other than anonymous and non-identifiable data) at any time upon notice to FAH, provided that Customer acknowledges and agrees that such revocation may impair or end the ability of FAH to continue to deliver some or all of the Services to Customer, and FAH shall have no liability to Customer as a result. FAH is and will in the future be granted, and hereby is granted all necessary rights, permissions and licenses to use Customer Data to perform the Services required under this Agreement.
10. PRIVACY
In order to receive the Services to be provided by FAH from time to time under this Agreement, as further specified in any applicable Order Forms, Customer will be required to provide the Customer Data to FAH. Some of the Customer Data will consist of personal, financial and demographic data about the Customer and Customer’s business, as well as the location of the Customer’s operations, livestock born, raised, bought and sold, crops planted, nutrients applied and soil and other field conditions. In some cases this information may constitute personal information (“Personal Information”) as defined under the Alberta or British Columbia Personal information Protection Acts or the Personal Information Protection and Electronic Documents Act (Canada) as it may be about the Customer, its personnel, employees, contractors, service providers or agents, or a third party as an identifiable individual, or, where Customer is a sole proprietor or individual partner, about Customer’s business. Customer hereby consents to the collection and use, and reasonably related disclosures, by FAH of all Personal Information reasonably required by FAH to provide the Services under this Agreement, as specified in any applicable Order Forms, and subject to and as specified in FAH’s Privacy Policy as may be amended from time to time. Customer also hereby represents and warrants that to the extent that Customer provides FAH with Personal Information about another individual, Customer has the full right and authority to provide such information for the purposes for which it is provided to FAH. Customer warrants and represents that all information provided to FAH will be, to the best of the knowledge of Customer, complete, up to date and accurate.
11. DISCLAIMERS AND LIMITATIONS
a) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, PRODUCT LIABILITY OR OTHERWISE, SHALL FAH OR ANY FAH SERVICE PROVIDER BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL DAMAGES OF ANY CHARACTER, FOR ECONOMIC LOSS, LOST DATA, LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER OR EQUIPMENT FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICES, PRODUCTS OR AN ORDER FORM.
b) UNDER NO CIRCUMSTANCES SHALL FAH’S TOTAL LIABILITY UNDER THIS AGREEMENT OR ANY ORDER FORM OR OTHERWISE EXCEED THE TOTAL OF ALL FEES ACTUALLY PAID BY CUSTOMER TO FAH UNDER THE APPLICABLE ORDER FORM DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIMS.
c) EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES AND PRODUCTS ARE PROVIDED STRICTLY “AS IS”, “WHERE IS” AND “AS AVAILABLE”. FAH MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION.
12. INDEMNITIES
a) Customer shall indemnify defend and hold harmless FAH and FAH Service Providers and their respective employees, directors, officers, contractors and agents) against any and all claims, actions, damages, losses or liabilities arising out of any action brought against FAH by a third party as a result of Customer’s use of the Services supplied by FAH (except for claims by third parties claiming that the Services infringe, misappropriate or violate third party Intellectual Property Rights), and any breach by Customer of its obligations, representations or warranties under this Agreement.
b) Subject to the limitations set forth in Section 12 (Disclaimers and Limitations), FAH will indemnify, defend and hold harmless Customer (and its affiliates and their respective employees, directors, officers, contractors and agents) against any claims, actions, damages, losses or liabilities arising out of any action brought against Customer by a third party as a result of the Services infringing a third party’s Intellectual Property Rights, provided Customer is using the Services as intended and permitted by FAH, and is in compliance with this Agreement and any applicable Order Form.
c) In the event that a third party restricts or enjoins Customer’s use of the Services, or alleges any infringement, violation or misappropriation of such third party’s rights, including but not limited to Intellectual Property Rights, by the Services or the actions of FAH, FAH shall have the right to obtain additional rights or licenses to allow the Customer to continue using the Services, or to modify the Services so that the third party’s rights are no longer infringed, violated or misappropriated (or alleged to be), or to terminate the applicable Order Form or this Agreement.
13. ACCESS TO LANDS
Customer acknowledges that in order to provide the Services, FAH may need to access the lands on which Customer’s operations are located. Customer agrees to any such access by FAH personnel as may be reasonably required for FAH to provide the Services, as long as FAH provides reasonable advance notice of such access. Such advance notice need not be in writing and may be delivered orally by telecommunication, email, text or in person.
14. FORCE MAJEURE
FAH is not responsible for the performance of, or in default of, any obligation or provision of this Agreement if delayed, hindered or prevented by labour disruptions, failure of the networks of other companies, casualties, civil disturbances, law, order of a court or other lawful authority, acts of civil or military authorities, terrorism, accidents, fires, epidemics, pandemic, natural disasters, or other catastrophes or events beyond FAH’ reasonable control.
15. NOTICE
a) All notices, consents and other communications under this Agreement shall be delivered in writing and may be delivered by courier or via email to an email address provided by FAH (as set out below) or by Customer on an Order Form or otherwise. Notice sent by courier will be deemed delivered upon physical delivery and notice sent by by email will be deemed to be delivered the same business day or, if after normal business hours, the next business day.
b) Customer’s address for notice and billing shall be as stated in the applicable Order Form. Customer agrees to provide a valid and operational email address which shall be continuously monitored for receipt of email messages, and to not change its use of any such email address provided to FAH without first providing FAH with 30 days’ notice of such change. For the purposes of this Agreement, a change by Customer to its email address will include discontinuing, ceasing to regularly monitor (at least once per business day), or terminating such email address.
c) Either Party may change its email address upon 30 days’ notice in writing to the other Party.
FAH’s email address for notice is [email protected]
Notices to FAH may also be delivered as follows: 510 W Georgia Street, Floor 7, Vancouver, B.C. V6B 0M3, 604-439-1261
16. INTERPRETATION AND ENFORCEMENT
a) This Agreement will be governed and interpreted according to the laws of Alberta, Canada, and the laws of Canada applicable in Alberta. For Service Order execute or made between the parties after May 14, 2021, any claim by a party against the other party relating to the Services or this Agreement that were not resolved between the business representatives of the parties, must be referred to private and confidential mediation and, if the claim is still not resolved, binding arbitration. Mediation and arbitration, if necessary, will take place before a single mediator and a single arbitrator, under the rules of the ADR Institute of Canada. This paragraph does not apply to collection of any amounts the Customer may owe to FAH or to the Customer’s rights to make a complaint to any administrative authority that has jurisdiction over FAH or the Services. Regardless of Customer’s location, residence or domicile, Customer irrevocably agree that any claim should be sitting at Calgary, without regard to the conflicts of law rules or any other principles
b) The section headings in this Agreement are solely for convenience and will not be considered in its interpretation.
c) Each Order Form made pursuant to this Agreement and accepted by FAH is hereby incorporated by reference as if set forth in this Agreement and may be executed without any further amendment to this Agreement.
d) In the event of any conflict between this Agreement and any Order Form, or other document, record or policy of FAH, or other agreement or understanding with FAH, the provisions of this Agreement will prevail, except where such other provision is expressly stated to prevail or operate notwithstanding this Agreement.
e) In performing the Services, FAH is an independent contractor and consultant, and neither FAH nor its employees, dealers, agents or subcontractors shall be deemed to be partners, employees, agents or subcontractors of Customer.
f) FAH may amend this Agreement or any Order Form, or amend or modify the Services, at any time upon thirty (30) days notice in writing (which may include email) to Customer of such. The continued use of the Services after such date will be deemed to constitute an acceptance by the Customer of the amended terms of this Agreement.
g) FAH will not be bound by any terms or conditions included in any Order Form, or purchase order or other correspondence from Customer unless FAH expressly accepts such terms or conditions in writing.
h) Customer acknowledges that a breach by Customer of this Agreement may cause FAH irreparable harm from which no adequate remedy exists at law, and for which damages will not be an adequate remedy, and that upon any such breach or threatened breach, and notwithstanding any other provision of this Agreement, FAH shall be entitled to injunctive relief in any court of competent jurisdiction without prejudice to any other right in law or equity and without the necessity of prior demand or proof of damage.
17. GENERAL PROVISIONS
a) Customer will not assign all or any part of this Agreement or an Order Form, without the prior written consent of FAH, in its sole discretion. FAH may assign or subcontract all or any part of its rights and obligations under this Agreement or the Services without notice to Customer or Customer’s consent.
b) This Agreement will inure to the benefit of and will be binding on and enforceable by Customer and FAH and their respective successors and permitted assigns.
c) If any part of this Agreement is void, prohibited or unenforceable, such part will be severed from this Agreement, and the rest of this Agreement will continue in force and effect and will be construed as if such part as severed had never been part of this Agreement.
d) The failure of FAH to exercise any right under this Agreement, or FAH’s failure to insist upon strict or full performance of Customer’s obligations under this Agreement will not constitute a waiver of FAH’s rights hereunder or a relinquishment of any provision of this Agreement. In order to be binding upon FAH, any such waiver must be express and in writing signed by FAH. The rights of FAH under this Agreement are cumulative and not alternative.
e) Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement. Without limitation, Sections 8, 10, 12, 13, and 14 shall survive any termination or expiry of this Agreement, howsoever caused, and shall continue in full force and effect.
f) Where this Agreement is executed in the form of a paper or hard-copy document, it may be executed in counterpart and all counterparts taken together shall constitute one and the same agreement. Copies bearing electronic signatures, and an accepted click-through version shall be deemed to be valid and originals. Either party may copy this Agreement following execution for electronic storage in a non editable format. The parties agree that, following the electronic storage of this Agreement, any hard copy printout which constitutes a complete and accurate replica of that electronically stored information shall constitute an “original” of this Agreement.
