TERMS AND CONDITIONS
Verdant Environmental Technologies, Inc.
These Terms and Conditions will be deemed to be an integral part of all acceptances by Verdant and any contractual arrangements (collectively “Agreements”) and will supersede any conflicting provisions of any purchase order or other communication of Customer.
Prices shown include the Product as delivered only and do not include any additional fittings, installation, or adjustment unless specifically mentioned in writing.
2. PRODUCT AND SERVICE DESCRIPTION
2.1. Verdant sells:
• Verdant EMS Thermostats (“Thermostats”)
• Verdant EMS Network Connection Kits and Network Accessories (“Network Products”)
• Verdant EMS thermostat accessories (“Accessories”).
• Services with respect to a web based remote management application (“Web Site”)
(Collectively referred to as “Products”).
2.2. Verdant Provides:
2.2.1. Software embedded in the Thermostats and Network Products under a separate license (“Software”). Refer to Section 6
2.2.2. Services with respect to a web based remote management application (“Web Site”)
18.104.22.168. Web Site. Web Site is a Verdant operated website that enables remote monitoring and configuration of Verdant EMS thermostats. Web Site software and the network server software are updated periodically at Verdant’s discretion, which may include changes, additions and/or removal of Web Site features.
2.2.3. Verdant does not install Products. The Customer alone is responsible for their installation by competent parties. Products must be properly installed and configured to allow remote management capabilities. Verdant supplies installation guides recommending proper installation and configuration procedures.
3.1. The Customer will pay any tax, levy, assessment, exaction, imposition, or other charge imposed by any local, state or federal government now or hereafter levied upon the production, sale, use, import, export, ownership, or shipment of Product or Services ordered or sold or licensed.
3.2. Where Verdant does not collect sales tax, the Customer, whether an individual or a business, is obligated to pay a USE TAX on goods received. The % of USE TAX is determined based on the location of use. Please verify with your State tax authorities in order to remit the appropriate USE TAX and comply with relevant laws and regulations. Customer acknowledges that failure to report and/or pay USE TAX is responsible and assumes all penalties and interest associated with such.
4. CLAIMS FOR DAMAGE IN TRANSIT
4.1. Verdant’s responsibility ceases upon delivery of goods to the carrier in good order at the point of shipment. The Customer is urged to examine all deliveries carefully immediately upon delivery and before signing receipt. If goods are visibly damaged, the Customer must have written confirmation of the damage noted on the freight bill or other receipt by the agent of the carrier. Signing a receipt without notation of damage to the Product will constitute conclusive evidence of receipt of the Product in satisfactory condition. Any claim of damage in transit should be promptly made by consignee against the transportation company.
5.1. Verdant has no obligation to deliver the Product against any order until Verdant has accepted the order.
5.2. Delivery of any products purchased hereunder is subject to Verdant’ availability schedule. Verdant will make every reasonable effort to meet delivery dates quoted or acknowledged. However, Verdant will not be liable for any failure to meet such dates.
5.3. Verdant may make partial shipments to Customer and invoice accordingly, and Customer will be obligated to pay for such partial shipments when invoiced.
5.4. Verdant will not be liable for any delay in shipment or any failure to ship the Product against an accepted order or for any damages suffered by reason thereof, when such delay or failure is directly or indirectly due to accident ( in manufacture or otherwise), fire, flood, seizure, riot, war, embargo, labor stoppages or difficulties, inadequate transportation facilities, shortage of material or supplies, delay or default on the part of its suppliers, regulation or order by government authority, border customs delays or any other casualty or cause beyond the reasonable control of the Verdant.
6.1. The Products are designed to be used in conjunction with an Internet based remote management system provided by Verdant, whereby:
6.2. License. Verdant will grant to Customer a non-exclusive and non-transferable license to use the System and the Software subject to the conditions therein set forth. The Software and all trade secret, copyright, patent and other intellectual and proprietary rights therein, are and shall at all times remain the valuable property of Verdant. No statement or recommendation made or assistance given to Customer by Verdant or any supplier to Verdant shall constitute a waiver of any of these Terms and Conditions.
6.3. Customer acknowledges that the Software is subject to the copyright of and is the exclusive confidential property and a trade secret of Verdant. Customer further acknowledges that all information related to the nature of and use of the Software is confidential information. Customer shall exert its best efforts at all times to protect the confidentiality of such information, and to take whatever steps are necessary to assure such protection.
7. LIMITED WARRANTIES
7.1. Products. Verdant warrants that the Products are free from defect in material and workmanship.
7.2. Software. Verdant warrants that the Software which is designed by Verdant for use with the Products, when properly installed, will not fail to execute its programming instructions due to defect in materials and workmanship. Verdant does not warrant that the operation of the software will be uninterrupted or error free.
7.3. Warranty Period. The above Products warranty is limited. It will remain in effect until 12 months has expired from the date that Products are shipped by Verdant.
7.4. Warranty Exclusions.
7.4.1. Products. Verdant is not responsible (i) for installation of Products by third parties; (ii) should Products and network features not function wholly, partly or with interruptions as a result of faulty installation and/or configuration of Products, including, in particular, failure of the installer to follow Verdant’s recommended installation procedures; and (ii) for electromagnetic or radio frequency interference resulting from faulty installation or failure to install in accordance with Verdant’s recommended installation procedures;
7.4.2. Software. Verdant is not responsible for faulty performance arising from:
7.4.3. Operator errors, power failures, electromagnetic or radio frequency interruptions, equipment malfunctions or any other causes beyond Verdant’s control. Access to remote management capabilities relies on availability, proper configuration and operation of third party equipment and services at the Customer’s site: in particular, Verdant’s network connection kit needs to be continuously powered and connected to the Internet. Customer is responsible for all third party equipment and services;
7.4.4. Failure of operating systems or of software not supplied by Verdant, to perform according to their respective specifications;
7.4.5. Equipment configuration changes made on the remote management website by the customer; or construction or renovation at the Customer’s site which interferes with the existing configuration of the Product and the ability of the Software to perform as designed; and
7.4.6. Damage caused by any hardware or software not supplied by Verdant.
7.4.7. Any alteration or modification to the Products or Software by Customer without the prior written consent of Verdant shall void the foregoing warranties and discharge Verdant from all its obligations with respect thereto.
7.5. THE WARRANTIES CONTAINED IN THIS SECTION ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATIONS OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY THAT THE PRODUCT IS MERCHANTABLE OR THAT THE PRODUCT IS SUITABLE FOR THE CUSTOMER’S PARTICULAR PURPOSES.
7.6. Upon written notification of any failure to conform to Verdant’s express warranties, Verdant will have the right either to replace or repair any defective Products or Software or to grant a reasonable allowance on account of such defects, and Verdant’s liability and Customer’s exclusive remedy for defective Products and Software will be limited solely to such replacement repair, or allowance, as Verdant may elect. Verdant will be given reasonable opportunity to investigate all claims and no Product will be returned to Verdant until after approval by Verdant and receipt of written shipping instructions from Verdant.
7.7. With respect to any particular defect, the effectiveness of the warranties contained herein is conditional upon Customer’s substantiation that the Products have been stored, installed, maintained and operated in accordance with such instructions or installation guidelines and installation recommendations as are given by Verdant to Customer and with standard industry practice.
8.1. Terms will be strictly enforced on all accounts.
8.2. Accounts in excess of 30 days will be charged a service charge of maximum permitted by law.
8.3. Customer will be responsible for all costs and expenses incurred in the collection of any outstanding amounts, including reasonable collection agency or attorney’s fee.
9.1. Customer will be deemed to have accepted the products covered by this contract upon the earlier of: (a) delivery to Customer; (b) utilization of the product by Customer for any useful work.
10. COPYRIGHTED MATERIALS
10.1. Unless otherwise agreed to in writing by Verdant, copyrighted materials supplied by Verdant, including software and printed documentation, may not be copied or reproduced in any manner.
11.1. All notices, consents, requests, instructions, approvals, and other communication hereunder will be in writing and given by personal delivery or by telex or telegraph or registered or certified mail, return receipt requested, to the address of Customer or Verdant as shown on the Product sale Agreement or to such other address as any party hereto may, from time to time, designate in writing. Notices will be deemed to be effectively given upon receipt by the other party.
12. EXCLUSIVITY OF REMEDIES
12.1. CUSTOMER WILL HAVE NO REMEDIES, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, WITH RESPECT TO OR ARISING OUT OF THE SALE, CONDITION, OR OPERATION OF THE PRODUCT.
13. LIMITATION OF LIABILITY
13.1. VERDANT WILL NOT BE LIABLE IN CONTRACT OR IN TORT TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS, BUT NOT LIMITED TO, DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT OR CUSTOMER OR ANY OTHER PERSON, LOSS OF PROFITS OR REVENUES, LOSS OF USE OR OPPORTUNITY) ARISING FROM OR WITH RESPECT TO VERDANT’S OBLIGATIONS UNDER AGREEMENT TO WHICH THESE TERMS & CONDITIONS APPLY.
14. PATENT INDEMNITY
14.1. Verdant shall, except as otherwise provided herein, defend or settle any claim made or any suit or proceeding brought against Customer so far as it is based on an allegation that any product furnished hereunder infringes a patent of the country in which Customer takes delivery of said product, provided that Verdant is timely notified of any such claim, suit or proceeding and is given information, assistance and the sole authority to defend or settle the same at Verdant’ expense. In case said product is in such suite held to infringe the said patent and the use of said product is enjoined, or in the case of a settlement as referred to above, Verdant will have the option, at its own expense, to procure for Customer the right to continue the use of said product, or to modify the same so that it becomes non-infringing, or refund the depreciated value of said product and accept return of same. Verdant will have no liability for infringement resulting from compliance by Verdant with Customer’s designs, specifications or instructions, or in the event of modification of the product by Customer or use by Customer of said product other than as specified in relevant Verdant publications or use by Customer of said product together with products not supplied by Verdant. In no event will Verdant have any infringement liability in excess of the purchase price of the infringing product.
15. RETURN OF MERCHANDISE
15.1. No return of any merchandise to Verdant will be accepted unless previously authorized in writing by Verdant, whether under warranty or otherwise. Any returns other than under warranty will be subject to a reasonable restocking charge. Verdant will not accept the return of any Products which have been abused, damaged or defaced indelibly by Customer or a third party, tampered with, modified or put to an unauthorized use.
16.1. Order of Precedence. These Terms & Conditions take precedence over Customer’s additional or different terms and conditions, to which notice of objective is hereby given. Acceptance by Customer is limited to these Terms & Conditions. Neither Verdant’s commencement of performance nor delivery will be deemed or construed as acceptance of Customer’s additional or different terms and conditions. No change or modification of any of these Terms & Conditions will be valid or binding unless in writing and signed by an authorized representative of the party to be bound.
16.2. Severability of Provisions. In case any one or more of the provisions contained in these Terms & Conditions should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
16.3. Assignment. Verdant or Customer will not assign the rights or transfer of obligations under any Agreement to which these Terms & Conditions apply without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, that each of the parties may, without the consent of but upon notice to the other party, assign its rights and transfer its obligations under any Agreement to which these Terms & Conditions apply to any corporation which is parent, subsidiary, or affiliate of the assignor as long as the assigning party remains joint and severally liable with the assignee for the fulfillment of all of the obligations of the assignee and further provided that Customer may assign any Agreement to which these Terms & Conditions apply to a purchaser of the site in which the Products are installed without the consent of but upon notice to the Verdant provided that Customer is not in default of its obligations at the moment of the assignment and the assignee agrees in writing to respect all of the Agreement to which these Terms & Conditions apply.
16.4. Insolvency. Except as may be prohibited by bankruptcy laws, in the event that Customer becomes insolvent or unable to pay its debts as they become due, or in the event of voluntary or involuntary bankruptcy proceedings by or against Customer, or appointment of a receiver or assignee of Customer for the benefit of creditors, Verdant may elect to cancel any unfulfilled obligations hereunder.
16.5. Construction and Modification. This writing is intended by the parties as a final expression of their agreement as a complete and exclusive statement of its terms. These Terms & Conditions can only be modified in a written form signed by Verdant and Customer.
16.6. Governing Law. Any dispute concerning the interpretation of an Agreement to which these Terms & Conditions apply will be governed by the laws of the Province of Quebec, Canada, and will not be subject to the United Nation Convention on the International Sale of Goods. Disputes arising hereunder will be resolved by binding arbitration, to the exclusion of the courts, in English at Montreal, Canada, before a single arbitrator pursuant to the Code of Civil Procedure of the Province of Quebec, Canada.
16.7. Counterparts. An Agreement to which these Terms & Conditions apply may be executed in one or more counterparts. Provided all of the parties sign in counterparts, each signed counterpart will constitute an original and all of the counterparts taken together will constitute one and the same agreement. Moreover, should the parties sign in counter¬parts, an Agreement to which these Terms & Conditions apply may be transmitted by the parties to each other by telecopy or by email in a read-only format. When so signed and transmitted by all of the parties to each other, an Agreement will be as binding and effective for all legal purposes as if the parties had signed an executed original agreement in the presence of each other. Should the parties sign in counterparts or by telecopy or email exchange of documents, they agree to replace such counterpart signatures or telecopy or email signatures with originally signed documents as soon as possible.
16.8. Verdant reserves the right to change the aforementioned TERMS AND CONDITIONS without notice.
VERDANT EI TERMS AND CONDITIONS OF SERVICE
General Terms and Conditions of Service (the “Agreement”) for the use of Verdant Environmental Technologies Inc.’s proprietary EI services (the “Services”, as defined in Section 1.1 below) by Verdant Environmental Technologies Inc. (“Verdant”) to the entity (the “Client”) that has contracted for the Services.
1.1 Performance of Services. Subject to the terms of this Agreement, Verdant will perform the services described in the purchase order or contract between Verdant and the Client (the “Contract”) during the Term (as defined in Section 7.1 below).
1.1.1 Access and Use of Software. Subject to the terms of this Agreement and as part of the Services, Verdant grants the Client a limited, non-transferable, non-exclusive right to access and use Verdant proprietary tools and software products, as applicable (the “Software”) during the Term. No provision under this Agreement shall obligate Verdant to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code form.
1.2 License Restrictions. Except as may be expressly provided elsewhere in this Agreement or except to the extent applicable law precludes such activities from being prohibited by contract, the Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; modify, translate, or create derivative works based on the Software or authorize any third party to do so; rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation; Because the Software are proprietary, the Client agrees not to publish or disclose to third parties any evaluation of the Software without Verdant prior written consent.
1.3 Ownership. The Client retains all right, title and interest to any and all information provided, inputted or uploaded to the Software by the Client, users of the Client’s services, or by Verdant on the Client’s behalf. Verdant has no right, title or interest in any personally identifiable information related to customers of the Client. Notwithstanding the preceding, Verdant will have the right to retain, reproduce and use non-personally identifiable information and data gathered during the performance of the Services for the purpose of assembling aggregated attitudinal and usage statistics. Verdant shall retain all right, title and interest in and to the Software, Services, the documentation for the Software, and all modifications and/or enhancements to the Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether the Client have provided input regarding such modifications and/or enhancements. The Client acknowledge that Verdant will retain all right, title and interest to transactional and performance data related to use of the Software and performance of the Services which Verdant may collect, use and disclose for its business purposes (including, but not limited to, software use optimization and product marketing) provided that such use does not reveal the Client identity, any of the Client Confidential Information or any personally identifiable information that belongs to the Client or its customers.
1.4 Equipment. The Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Software. Verdant reserves the right to make changes to its policies, procedures and practices and to make changes to its hosting and technical infrastructure during the Term of this Agreement as deemed reasonably necessary by Verdant to provide service to Verdant customers. Such changes will not materially degrade the performance of the Software or materially decrease the functionality of the Software.
1.5 Ethical Hacks. The Client shall not and shall not allow anyone working on the Client’s behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without Verdant prior written consent, or (ii) attempt to access the data of another Verdant customer.
Verdant will provide support in accordance with Verdant then current support policy, which may be acquired from the Client’s Verdant contact. Unless specifically agreed in writing, Verdant has no obligation to provide the Client with hard-copy documentation, upgrades, enhancements, modifications, or other support.
3. BILLING AND PAYMENT
3.1 Billing. The Client will be billed or invoiced when such Services are added. The fees for all Services will be billed or invoiced on the Commencement date or the anniversary of that date (in the case of renewals); and will be billed for a twelve (12) month period, representing the Initial Term or a subsequent Renewal Term(s). Any additional Services added during the Initial Term or subsequent Renewal Terms will be billed or invoiced at the full annual fee with Client’s other Services.
3.2 Price Increases. The pricing may be adjusted during the Initial Term or subsequent Renewal Terms by Verdant, upon thirty (30) days’ prior written notice to the Client.
3.3 Fraudulent or Delinquent Payment. In the event that the Client’s account is delinquent, Verdant reserves the right to suspend the performance of the Services, with no liability to the Client, until such amounts are paid in full. The Client agrees that Verdant may impose a charge to restore archived data from delinquent accounts. Unpaid charges (except those charges under reasonable and good faith dispute) are subject to interest of 1.5% per month (18% per annum) on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
4. PASSWORDS AND SECURITY
4.1 Passwords. The Client will choose or be given all applicable passwords to use in connection with the Services. The Client is responsible for maintaining the confidentiality of the Client’s passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by the Client). Furthermore, the Client is responsible for any and all activities that occur under the Client’s account (including, if applicable, the accounts of each user accessing the Service by means of an account established by the Client).
4.2 Security. The Client shall notify Verdant immediately of any unauthorized use of its account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by the Client) or any other breach of security. Verdant will not be liable for any loss or damage arising from the Client’s failure to comply with these requirements.
5. CONFIDENTIAL INFORMATION
By reason of the relationship hereunder, each party will have access to certain information and materials concerning the other party’s technology business, plans, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Confidential Information of Verdant shall include, without limitation, information specifically designated as confidential, the features and functions of the Services that are not available to the general public via the public internet (including screen shots of the same), future product plans, any documentation or specifications provided to the Client, the commercial terms (including pricing) of this Agreement but not the mere existence of this Agreement, any statements of work, schedules, addenda or amendments to this Agreement, performance and security test results (whether conducted by Verdant or the Client), and any other proprietary, financial or business information supplied to the Client by Verdant. Each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include: (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no act or omission of the receiving party, (iii) information which has been independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (iv) information received from a third party under no confidentiality obligation with respect to the Confidential Information, (v) information required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or litigation arising out of this Agreement.
6. TERM AND TERMINATION
6.1 Term. The Services shall be provided from the commencement of the subscription (the “Initial Term”) and will automatically renew for consecutive twelve (12) month terms (the “Renewal Term”) unless terminated by Client in writing no less than thirty (30) days prior to the commencement of the Renewal Term.
6.2 Commencement. The Client subscription shall commence upon the earlier of: (i) the order by the Client of the Services; or (ii) the commencement date indicated in the contract or purchase agreement between the Client and Verdant.
6.3 Termination. The Client or Verdant may terminate the Services for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of the 30-day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, any account which is suspended for more than thirty (30) days due to delinquent payments may be terminated, without notice to the Client and without any obligation on the part of Verdant to maintain, store or return any the Client’s data.
6.4 Survival. The provisions of Sections 5 and 8 will survive termination or expiration of the Contract.
7. SERVICE WARRANTY & EXTENDED PRODUCT WARRANTY
7.1 Service Warranty. Verdant represents, warrants, and covenants that the Services will be performed in accordance with industry good practices and that the Software will perform substantially in accordance with any user instructions, manuals, or technical requirements documents that are generally provided by Verdant in connection with the Software. In the event of a breach of the foregoing representation, Verdant sole obligations, and the Client’s sole remedy, shall be, at Verdant option, to use commercially reasonable efforts to correct or re-perform the Services, depending on the case and at Verdant’s discretion.
7.2 Extended Product Warranty. This extended product warranty applies to Verdant products purchased at the same time as the subscription to the associated Services by the Client. In such circumstances, Verdant shall extend the standard “Hardware” product warranty (set forth at https://www.verdant.co/verdant-warranty/) for the Verdant products (the “Extended Product Warranty”). Such Extended Product Warranty shall run for the entirety of the Initial Term and subsequent Renewal Terms. The Extended Product Warranty compliments, but does not replace the manufacturer’s warranty.
8. DISCLAIMER, LIMITATION OF LIABILITY AND ADDITIONAL RIGHTS
8.1 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS PROVIDED IN SECTION 8, THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND VERDANT DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. VERDANT DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES.
8.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, VERDANT’S TOTAL LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE FEES PAID BY THE CLIENT TO VERDANT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE IN ANY EVENT UNDER THIS AGREEMENT FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, OR EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT) INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement is between Verdant and the Client, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any user accessing the Services by means of an account established by the Client). The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The Client may not assign, transfer, or sublicense this Agreement except with Verdant prior written consent. This Agreement shall be governed by and construed under the laws of the Province of Quebec and the laws of Canada applicable therein, without regard to the conflict of laws provisions thereof. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts located in the Province of Quebec, Judicial District of Montreal. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. The Client and Verdant agree that any cause of action arising out of or related to this Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the subject matter hereof and supersedes and cancels all previous or contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in writing signed by both parties, except as otherwise provided herein. The terms and conditions contained herein shall prevail over any conflicting, preprinted terms and conditions contained in any other document from the Client, including signed or unsigned purchase orders. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is confirmed by the receiver, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed in one or more counterparts and may be exchanged by facsimile or electronically scanned copy, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. Quebec Residents: You have specifically requested the English version of this Agreement, a French version of which is available upon request. Vous avez spécifiquement demandé la version anglaise de cette Entente de service et la version française est disponible sur demande.