This is the CA Master Services Agreement. Click here for the US Master Services Agreement.
MASTER SERVICES AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN THIS MASTER SERVICES AGREEMENT (“Agreement”) CAREFULLY. THIS AGREEMENT MAY ALREADY APPLY TO YOU PURSUANT TO YOUR HAVING ENTERED INTO ANOTHER AGREEMENT WITH DECISIVE FARMING, INCLUDING ANY DECISIVE FARMING GENERAL SERVICE AGREEMENT OR ORDER FORM (AS DEFINED BELOW) AND, IF SO, YOUR CHOOSING “ACCEPT” OR “DO NOT ACCEPT”, OR NOT, WILL NOT AFFECT OR AMEND YOUR OBLIGATIONS TO DECISIVE FARMING OTHERWISE EXISTING.
READ THIS AGREEMENT CAREFULLY BEFORE CHOOSING “ACCEPT” OR “DO NOT ACCEPT”. BY CLICKING ON “ACCEPT”, OR BY ACCESSING AND USING THE SERVICES (AS DEFINED BELOW), YOU ARE ENTERING INTO A BINDING LEGAL CONTRACT WITH DECISIVE FARMING. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, PLEASE DO NOT CLICK ON “ACCEPT”.
This Agreement is between Decisive Farming Corp. (“Decisive Farming”) and you, as the customer (“Customer”) who signs or accepts any one or more of the following: (a) any Decisive Farming General Service Agreement (whether or not such General Service Agreement incorporates this Agreement by reference), including any memorandum, agreement, appendix, attachment, exhibit, schedule or similar document attached to, incorporated into, forming part of or otherwise constituting part of such General Service Agreement; (b) any memorandum, agreement, appendix, attachment, exhibit, schedule or similar document attached to, incorporated into, forming part of or otherwise constituting part of this Agreement, or any other agreement with Decisive Farming; and (c) any sign up form, purchase order, click-through form, order form, statement of work, work order, memorandum of understanding, or other agreement, document, record, instrument, or request for Services of any kind executed or made between Decisive Farming and Customer, whether via an online form or by paper copy (each and all of the foregoing referred to in this Agreement as an “Order Form”).
This Agreement shall govern the terms and conditions of all dealings between Customer and Decisive Farming, written, oral or otherwise, and all products, materials, data, information, and/or services (collectively, the “Services”, which shall include any products or services provided to Decisive Farming by third parties, and then provided to Customer, and further shall include any of the Services provided by Decisive Farming without charge, or made accessible in any way, in whole or in part, to Customer) provided by Decisive Farming to Customer as set forth in any sign up form, purchase order, click-through form, or other agreement or request for Services of any kind executed or made between Decisive Farming and Customer (each an “Order Form”) or otherwise by agreement between Customer and Decisive Farming. 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 Decisive Farming to Customer. The Services may include a license to use the proprietary technology, software and services of Decisive Farming’s and its licensors enabling Customer to have access to satellite imagery for its property or any other product or service offered by Decisive Farming (such as, without limitation, Optimize RX-F™, Know-Risk™, My Farm Manager™, precision agronomics, variable rate technology, carbon credits, soil fertility, crop protection, soil testing, fertilizers, news, blogs, information services, banking, GPS tracking, telematics, accounting, custom application and financial solutions) as set forth in an executed Order Form.
Customer agrees to contract electronically with Decisive Farming and to be bound by all electronic contracts (including this Agreement and any applicable Order Forms, whether online or in paper form) and transactions between Customer and Decisive Farming. 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.
By accepting this Agreement, you warrant and represent that you have 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 shall include any third party, including, without limitation, financial institutions, insurers, professional advisors and any other parties with the authority of Customer, or which on Customer’s request or behalf, accesses the Services or Customer Data and accepts this Agreement. References to Customer shall also include, where applicable, any authorized reseller, retailer or dealer of Decisive Farming or the Services which accepts this Agreement (“Dealers”). Dealers acknowledge and agree that all the terms and conditions of this Agreement apply to them equally with any other Customer, and further that Dealers will follow and comply with all directives, policies and requirements imposed on them as Dealers from time to time by Decisive Farming. In no event will any Dealer be a franchisee (as defined in application franchise legislation) of Decisive Farming.
TERMS AND CONDITIONS:
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 mean information collected by Decisive Farming about Customer and Customer’s land and operations which is identifiable as being about Customer or its land and operations, and which is not a matter of public record and not Intellectual Property as referred to below. Customer acknowledges that such Customer Data is being made available to and licensed to Decisive Farming by Customer for the purpose of permitting and enabling Decisive Farming to provide the applicable Services, and for such other purposes as are or may be agreed between Customer and Decisive Farming.
“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 Decisive Farming, and “Parties” means both Customer and Decisive Farming “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 Decisive Farming of restricting or suspending access to the Services, including access to Customer Data.
“Term” means the term of this Agreement, which, unless otherwise agreed in writing by the Parties and subject to termination as provided in this Agreement, shall expire six months after the last Order Form has expired or has been terminated. The Term of an Order Form shall begin on the Commencement Date (as defined in that Order Form) and continue in effect until the later of the end date stated in that Order Form or such later end date as may be agreed between the Parties.
2. BILLING AND PAYMENT
Except where Decisive Farming has agreed to other arrangements, all payments to Decisive Farming will be made in advance by cheque or debit, or, if approved by Decisive Farming; credit card, and payment terms shall be as stated by Decisive Farming. Customer authorizes Decisive Farming to process any and all payments by the credit card provided by Customer or on its behalf, and Customer consents to Decisive Farming’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 Decisive Farming to Customer will be deemed received immediately upon sending by Decisive Farming unless Decisive Farming 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 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 1.5% per month compounded (19.56% annually) or the maximum interest rate permitted by applicable law. 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. Decisive Farming reserves the right to increase the Fees on a year to year basis.
3. 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. Regardless of Customer’s location, residence or domicile, Customer irrevocably attorns to the exclusive jurisdiction of the courts of Alberta, sitting at Calgary, without regard to the conflicts of law rules or principles of such courts. Customer agrees to not commence any such action or proceeding except in Calgary, Alberta, Canada, and Customer agrees to not commence any action by way of class proceedings or class action.
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 is hereby incorporated by reference as if set forth in this Agreement and may be executed without any further amendment to this Agreement.
d) This Agreement shall not be construed strictly against the drafting Party.
e) In the event of any conflict between this Agreement and any Order Form, or other document, record or policy of Decisive Farming, or other agreement or understanding with Decisive Farming, the provisions of this Agreement will prevail, except where such other provision is expressly stated to prevail or operate notwithstanding this Agreement.
f) In performing the Services, Decisive Farming is an independent contractor and consultant, and neither Decisive Farming nor its employees, dealers, agents or subcontractors shall be deemed to be partners, employees, agents or subcontractors of Customer.
g) Decisive Farming may amend this Agreement at any time upon thirty (30) days notice in writing (which may include email) to Customer of such amendment.
h) Decisive Farming will not be bound by any terms or conditions included in any purchase order or other correspondence from Customer unless Decisive Farming expressly accepts such terms or conditions in writing.
i) Customer acknowledges that a breach by Customer of this Agreement may cause Decisive Farming 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, Decisive Farming 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.
4. CUSTOMER AGREEMENT WITH DECISIVE FARMING
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, including all obligations to pay money owing Decisive Farming.
b) Customer agrees, and warrants and represents to Decisive Farming 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 Decisive Farming 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 user Customer authorizes 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 Decisive Farming;
iv) interfere with the Services, or any applications, software, programs, information, documents, records or data managed or stored by Decisive Farming;
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 Decisive Farming, or damage to, or that interferes with the Services, Decisive Farming’s computer systems, Decisive Farming’s other customers or licensees, or Decisive Farming’s licensors or suppliers;
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 Decisive Farming or Customer, including using the Services for any purpose which constitutes a tort or breach of legal, fiduciary, equitable or other duty;
ix) use Decisive Farming’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.
Without limitation, Customer warrants and represents that all Customer Data and Customer will indemnify and save harmless Decisive Farming against any breach by Customer of the foregoing.
a) Except as otherwise expressly stated in an Order Form or other written documentation signed by Decisive Farming, the Services are licensed not sold. Customer does not own the Services. Decisive Farming retains exclusively all rights not expressly granted to Customer under this Agreement.
b) The Services will be available to Customer on a commercially reasonable basis, less:
i) scheduled maintenance times, which Decisive Farming will reasonably attempt to schedule outside regular business hours where reasonably possible, and
ii) disruptions to the Services for force majeure or other reasons beyond the reasonable control of Decisive Farming.
c) Where Decisive Farming 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:, Decisive Farming will retain Customer Materials that Decisive Farming has agreed to host or archive on behalf of Customer during the Term of this Agreement and for one (1) month following the expiry of the Term or termination of this Agreement, howsoever caused, following which Decisive Farming 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. In no event will Decisive Farming be liable to Customer for any loss of Customer Materials, data or failure of Customer’s own backups.
d) During the Term, but not thereafter, Decisive Farming will make commercially reasonable efforts to recover Customer Materials accidentally or inadvertently deleted by Customer if it is reasonably possible to do so, provided that such data recovery may require the payment to Decisive Farming of additional fees and charges. Decisive Farming provides no warranty, condition or guarantee that efforts to recover Customer Materials will succeed.
e) In the event Decisive Farming receives a request or demand from Customer or any third party to preserve and/or produce Customer Data, Customer Materials or other records, documents or data related to Customer, Decisive Farming 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, Decisive Farming may inform Customer of any such request or demand from a third party. Any costs or expenses incurred by Decisive Farming in complying with any such request or demand will be paid by Customer immediately.
f) Any suggestions Customer provides to Decisive Farming 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 Decisive Farming. All moral rights in any suggestions Customer provides are waived by Customer to the extent that Customer has such moral rights.
g) 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 Decisive Farming has no control over the actions of such third parties. Decisive Farming 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. Decisive Farming 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 Decisive Farming may not receive notice from such third parties and therefore may not be able to provide notice to Customer.
h) In the event Decisive Farming is requested by Customer to render services, deliver products, or incurs costs in relation to matters not included in the Services, Decisive Farming may invoice Customer at Decisive Farming’s then standard time and materials rate for such non-included service or services, provided Decisive Farming is willing and available to perform such services and, where applicable, Customer’s credit card is accepted for payment or, where acceptable to Decisive Farming, Customer otherwise agrees to pay all such payments promptly as provided herein. Decisive Farming expressly accepts no obligation to perform any such non-included services.
i) DTN Services: In this Agreement:
(A) “DTN” means DTN, LLC, or its affiliates;
(B) “DTN Data” means any information or data that is transmitted, created, collected, stored, processed or otherwise made available by or to DTN via the DTN Services or DTN Equipment, including any data or information that is transmitted, created, collected, stored, processed or otherwise made available by or to Decisive Farming and/or DTN through Customer’s or any of its authorized individual users use of the DTN Services or DTN Equipment, as well as any outputs, results, analyses or similar materials related to such information or data;
(C) “DTN Services” means specific DTN proprietary information services, which may be provided by DTN and resold or otherwise delivered or made available by Decisive Farming as an authorized reseller of DTN, either through (i) DTN’s hosted service solution(s), program(s), software and/or model or web-based application(s); and/or (ii) via the Internet, or other electronic or satellite delivery means, as may be further specified by Decisive Farming and/or DTN;
(D) “DTN Equipment” means any certain hardware, equipment or other product(s) which is either leased or sold to Customer by Decisive Farming on behalf of DTN, or by Decisive Farming and/or DTN.
j) Where Customer subscribes to DTN Services, or any portion thereof, Customer acknowledges and agrees that Customer is only permitted to use the DTN Services for Customer’s personal or internal business purposes only, and Customer is prohibited from reproducing, publishing, distributing, reselling or redistributing the DTN Services in any format, in whole or part, for sale or commercial use without the express consent of each of DTN and Decisive Farming. In the event DTN or Decisive Farming discovers that Customer is redistributing or reselling DTN Services, Decisive Farming may immediately terminate the delivery of DTN Services to Customer.
k) Specific Warranties, Disclaimers and Limitations applicable to the DTN Services and DTN Equipment: Where Customer subscribes to the DTN services, Customer expressly agrees to the following, in addition to and not in substitution for any other term or condition of this Agreement:
(A) Customer Warranty. Customer represents and warrants to both and each of Decisive Farming and DTN that (i) Customer has full power and authority to execute this Agreement and to perform its obligations under this Agreement (including those obligations related to Customer’s use, transfer or provision of DTN Data, which shall include Customer’s obligation to obtain any permissions or consents of a third-party, including an individual authorized by Customer to use the DTN Services and DTN Equipment, to the extent necessary and related to the DTN Data) without any further ratification or approval; and (ii) Customer’s performance under this Agreement, including its use of the DTN Services and DTN Equipment, will comply with all federal, provincial, state, municipal, local and, if applicable, foreign laws, rules and regulations including the rules and regulations applicable to Customer’s use of any third-party market date or exchange services. As necessary, Customer agrees to execute and deliver to Decisive Farming and/or DTN all agreements and other information required by any governmental agency or department, as well as any updates to the same.
(B) Disclaimer. THE DTN SERVICES, DTN DATA AND DTN EQUIPMENT ARE PROVIDED BY DECISIVE FARMING AND/OR DTN “AS IS.” EXCEPT WHERE SUCH DISCLAIMER IS PROHIBITED BY APPLICABLE LAW, DECISIVE FARMING AND DTN DISCLAIM ALL CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED CONDITION OR WARRANTY OF MERCHANTABILITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, OR INTELLECTUAL PROPERTY INFRINGEMENT AND DECISIVE FARMING AND DTN HEREBY EXPRESSLY DISCLAIM ANY OF THE FOREGOING. DECISIVE FARMING AND DTN DO NOT REPRESENT OR GIVE ANY CONDITION OR WARRANTY THAT (I) THE DTN SERVICES OR DTN EQUIPMENT WILL OPERATE ERROR FREE, (II) CUSTOMER’S USE OF THE DTN EQUIPMENT OR DTN SERVICES WILL BE UNINTERRUPTED OR (III) ALL DEFECTS WILL BE IDENTIFIED, REPRODUCIBLE OR RESOLVED. SUCH CONDITIONS OR WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR OTHERWISE AFFECTED BY THE RENDERING OF ANY ADVICE OR SERVICE BY DECISIVE FARMING OR DTN IN CONNECTION WITH THE DTN EQUIPMENT OR DTN SERVICES OR BY ANY IMPLIED CONDITION OR WARRANTY ARISING OUT OF ANY COURSE OF DEALING, BY STATUTE, OR BY PERFORMANCE, CUSTOM OR USAGE OF TRADE. ALL THIRD-PARTY COMPONENTS, THIRD-PARTY CONTENT, THIRD-PARTY EQUIPMENT AND ANY INFORMATION CONTAINED OR OBTAINED BY CUSTOMER VIA ANY THIRD-PARTY WEBSITE OR OTHER THIRD-PARTY INFORMATION THAT CUSTOMER MAY ACCESS THROUGH THE DTN SERVICES ARE PROVIDED “AS IS” WITHOUT ANY CONDITION, WARRANTY OR INDEMNITY FROM DECISIVE FARMING AND/OR DTN AND ANY REPRESENTATION, CONDITION OR WARRANTY OF OR CONCERNING THE SAME IS STRICTLY BETWEEN CUSTOMER AND THE OWNER, LICENSOR OR DISTRIBUTOR OF SUCH THIRD-PARTY COMPONENTS, THIRD-PARTY CONTENT, THIRD-PARTY EQUIPMENT, THIRD-PARTY WEBSITE OR OTHER THIRD-PARTY INFORMATION.
(C) Disclaimer of Use in High-Risk Activities. THE DTN SERVICES, DTN DATA AND DTN EQUIPMENT ARE NOT FAULT-TOLERANT AND ARE NOT INTENDED FOR USE, AND CUSTOMER MAY NOT USE THE DTN SERVICES OR DTN EQUIPMENT, IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO THE OPERATION OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS; LIFE SUPPORT MACHINES; WEAPONS SYSTEMS; WEATHER FORECASTING, WEATHER MONITORING, OR WEATHER COMMUNICATION SYSTEMS (INCLUDING ANY USE IN THE ISSUANCE OF, OR RELIANCE UPON, ANY WEATHER WATCHES, WARNINGS, EMERGENCIES, ADVISORIES OR OTHER WEATHER BULLETINS); OR ANY OTHER USES IN WHICH FAILURE OF THE DTN SERVICES, DTN DATA OR DTN EQUIPMENT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, ENVIRONMENTAL OR PROPERTY DAMAGE, AND DECISIVE FARMING AND DTN EXPRESSLY DISCLAIM ANY LIABILITY AND ANY EXPRESS OR IMPLIED CONDITION OR WARRANTY OF FITNESS RELATED THE FOREGOING.
6. INTELLECTUAL PROPERTY RIGHTS
a) The Services and any related software are the exclusive property of Decisive Farming or its licensors or suppliers, 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) Nothing in this Agreement will be construed as granting to Customer any waiver, permission, license or other right except as expressly stated.
d) Except as otherwise provided in this Agreement, Decisive Farming 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, and moral rights are not waived.
e) Decisive Farming, Optimize RX-F, Know-Risk, and My Farm Manager, together with any associated trademarks, trade names, logos, graphics or designs, are trademarks and the exclusive property of Decisive Farming, all rights reserved.
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. 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.
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 30 days of the breaching Party’s receipt of notice of such breach; (ii) by Decisive Farming 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 Decisive Farming, Decisive Farming 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 Decisive Farming, 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.
Part of the Services includes access to data and information considered by the Parties to be useful and valuable, and obtained by Decisive Farming from many sources including but not limited to anonymous and aggregate farming and operational statistics and data from many sources, including Decisive Farming’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 and then blended or mixed with other data or information made available by Decisive Farming to its customers and clients as part of the Services. Customer may revoke its consent to collection and use of Customer Data at any time upon notice to Decisive Farming, provided that Customer acknowledges and agrees that such revocation may impair or end the ability of Decisive Farming to continue to deliver some or all of the Services to Customer, and Decisive Farming shall have no liability to Customer as a result. Decisive Farming 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. OWNERSHIP OF INTELLECTUAL PROPERTY
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 Decisive Farming providing the Services or which are based on Decisive Farming Confidential Information or based on pre-existing Decisive Farming Intellectual Property Rights shall be owned exclusively by Decisive Farming.
12. DISCLAIMERS AND LIMITATIONS
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, PRODUCT LIABILITY OR OTHERWISE, SHALL DECISIVE FARMING OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTRACTORS OR SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES 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. UNDER NO CIRCUMSTANCES SHALL DECISIVE FARMING’S TOTAL LIABILITY UNDER THIS AGREEMENT OR ANY ORDER FORM OR OTHERWISE EXCEED THE TOTAL OF ALL FEES ACTUALLY PAID BY CUSTOMER TO DECISIVE FARMING UNDER THE APPLICABLE ORDER FORM. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES AND PRODUCTS ARE PROVIDED STRICTLY “AS IS”, “WHERE IS” AND “AS AVAILABLE”. DECISIVE FARMING 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.
a) Customer shall indemnify defend and hold harmless Decisive Farming (and its affiliates, licensors, suppliers, service providers, contractors, agents 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 Decisive Farming by a third party as a result of Customer’s use of the Services supplied by Decisive Farming (except for claims by third parties claiming that the Services, excluding the DTN Services, infringe, misappropriate or violate third party Intellectual Property Rights).
b) Subject to the limitations set forth in Section 12 (Disclaimers and Limitations), Decisive Farming 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 (excluding the DTN Services) infringing a third party’s Intellectual Property Rights, provided Customer is using the Services as intended and permitted by Decisive Farming, and is in compliance with this Agreement and any applicable Order Form and Data Transfer Agreement.
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 Decisive Farming, Decisive Farming 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.
14. ACCESS TO LANDS
Customer acknowledges that in order to provide the Services, Decisive Farming may need to access the lands on which Customer’s operations are located. Customer agrees to any such access by Decisive Farming personnel as may be reasonably required for Decisive Farming to provide the Services, as long as Decisive Farming 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.
15. FORCE MAJEURE
If the performance of an obligation under this Agreement is affected by reason of an act or condition beyond the reasonable control of Decisive Farming, then Decisive Farming, upon giving notice to Customer, shall be excused from performing such obligation to the extent affected. Decisive Farming shall use commercially reasonable efforts to avoid or remove such causes of non-performance.
All notices, consents and other communications under this Agreement from Decisive Farming to Customer shall be delivered in writing and may be delivered via fax to a fax number provided by Customer on an Order Form or otherwise, in which case such notice will be deemed to be delivered upon receipt by Decisive Farming of a facsimile transmission confirmation receipt. Notices may be delivered via electronic mail and shall be deemed to have been received the same business day or if after normal business hours. the next business day. Customer’s address for notice and billing is stated in the Order Form. Decisive Farming’s email address for notice is webmaster@Decisivefarming.com. Notices to Decisive Farming may also be delivered as follows:
Decisive Farming Corp.
334 2nd Street, Irricana AB, T0M 1B0 Fax: 1-888-886-1181
17. GENERAL PROVISIONS
a) Customer will not assign all or any part of this Agreement without the prior written consent of Decisive Farming, in its sole discretion. Decisive Farming 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 Decisive Farming 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 Decisive Farming to exercise any right under this Agreement, or Decisive Farming’s failure to insist upon strict or full performance of Customer’s obligations under this Agreement will not constitute a waiver of Decisive Farming’s rights hereunder or a relinquishment of any provision of this Agreement. In order to be binding upon Decisive Farming, any such waiver must be express and in writing signed by Decisive Farming. The rights of Decisive Farming 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 7, 11, 12, and 13 shall survive any termination or expiry of this Agreement, howsoever caused, and shall continue in full force and effect.
f) Customer may not assign this Agreement, an Order Form or a Data Transfer Agreement, in whole or in part, without obtaining the prior written consent of Decisive Farming. Such consent shall not be unreasonably withheld or delayed except where the proposed assignee is, or is affiliated with, a competitor of Decisive Farming.