SOILOPTIX INC. GENERAL TERMS AND CONDITIONS FOR PURCHASE ORDERS WHERE NO FORMAL SUBSCRIPTION AGREEMENT EXISTS
Last updated: 19 March 2021
SoilOptix Inc. (“we” “us” or “SoilOptix”)) provides precision agriculture products and services to service providers (“our customers” or “you”) in support of their own services to their clients (“your clients”).
If you are purchasing products or services from SoilOptix using only purchase orders, and there is no formal Subscription Agreement between you and us, the following terms and conditions apply. If you do not agree to these General Terms and Conditions, you may not purchase or use products or services from SoilOptix.
We reserve the right to modify these General Terms and Conditions at any time. If we make material changes to these General Terms and Conditions, we will notify you here, by email, or by means of a notice on our home page
If you wish to discuss or enter into a formal Subscription Agreement, or if you require the Purchase Order template form, or pricing information, please contact us at:
P.O. Box 1080
597112 Hwy 59
Field Data: data collected from agricultural land by the DCU.
Data Collection Unit, or DCU: a customized gamma ray sensing device with which we have provided you in order to collect Field Data.
Products: High-definition interactive top soil maps.
Purchase Order: An order form in the format designated by SoilOptix, which you may use to order a DCU or SoilOptix Services.
SoilOptix Services: Data processing services performed using Field Data provided by you to us to create Products.
Territory: The geographic location(s) set out in the Purchase Order, in which you are authorized by SoilOptix to use the DCU to collect Field Data.
2. SoilOptix Services
a. You may request SoilOptix Services by submitting a Purchase Order to SoilOptix in the prescribed form, setting out the number of acres for which you require Field Data to be processed, as well as providing the other information specified in the Purchase Order, and accepting the price quoted to you by SoilOptix. You will be notified by SoilOptix if and when we accept your Purchase Order.
b. Once the Purchase Order has been accepted, you will be provided with information enabling you to upload the Field Data for processing.
c. When the SoilOptix Service is complete, you will be provided with the Product(s) for the relevant Field Data.
3. Intellectual Property Rights
SoilOptix is the owner of all intellectual property rights in the SoilOptix Services, the DCU and the Products, and nothing in these General Terms and Conditions gives you any proprietary rights in any of those items. The Field Data is owned by the Data Originator, as defined in and governed by the SoilOptix Data Use Policy, available at https://soiloptix.com/data-use-policy . We may only use the Field Data in accordance with that policy.
4. Purchase of DCU(s)
a. Acceptance of orders: In order to purchase a DCU you must submit a Purchase Order in the prescribed format supplied by SoilOptix. All Purchase Orders are subject to acceptance by SoilOptix, which acceptance is contingent on adequate supply and, if applicable, credit approval of the purchaser. An order to purchase DCU(s) shall only be deemed accepted when SoilOptix issues a written acceptance of such order, in the form of a Purchase Order Invoice.
b. Cancellation: Once it has been accepted, you may not cancel, change or modify an order without the written consent of SoilOptix and payment of all applicable cancellation or re-stocking fees.
c. Price: Prices for the DCUs shall be as set out on the relevant Purchase Order Invoice.
d. Payment: Terms of payment for DCUs are: 50% deposit on ordering, with the balance due within thirty (30) days of delivery as set out below.
e. Shipment, Risk and Title: The DCU(s) will be transported from the location designated by SoilOptix to your designated location in the Territory. SoilOptix will insure the DCU(s) against damage or loss during transport to your designated location in the Territory through the carrier selected and engaged by SoilOptix to transport the DCU(s). All other charges that may be incurred in connection with the delivery of the DCU(s) to you, including, without limitation, in respect to, all applicable taxes, import/export duties, customs/brokerage fees, appropriate storage costs or any other payments required to process the DCU from SoilOptix’s facilities in Ontario (or such other point of origin for the shipment as may be the case), are your sole and exclusive responsibility and will be paid entirely by you. In addition, you will ensure that transportation and storage within the Territory are executed in a way that does not have a negative effect on the quality of the DCU(s). The risk of loss, theft, damage or destruction of the DCU shall pass to you immediately upon the DCU being delivered to or on behalf of you, your agent or transport carrier at the designated location in the Territory.
f. Delivery & Dates: Delivery dates for DCUs given in advance of actual release for shipment are estimates and shall not be deemed to represent fixed or guaranteed delivery dates, and the time of delivery is not of the essence. SoilOptix will release the DCU from its facilities in Tavistock, Ontario, Canada, or such other location as we shall designate, to a carrier selected by SoilOptix. Delivery is completed on the arrival of the DCU at the designated location in the Territory as set out above.
g. Inspection and Acceptance: It is your responsibility to examine all DCUs upon receipt. All claims that DCUs do not comply with the warranties set out in this article and /or for damage must be made to SoilOptix in writing within ten (10) business days of delivery (“Investigation Period”), after which date you will be deemed to have irrevocably accepted the DCU, if not previously accepted, and will have no right to reject the DCU or to revoke acceptance. Such defect must not have been caused: (i) while in transportation or storage by or on behalf of you; (ii) as a result of further use of the DCU by you after having given notice of a defect during the Investigation Period; (iii) as a result of your failure to follow SoilOptix’s instructions in respect of the DCU (including (without limitation) in respect of storage, use and maintenance); (iv) as a result of you altering or repairing the DCU without the written consent of SoilOptix; or (v) as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions. If you have not notified SoilOptix that you have rejected any DCU as defective by the end of the Investigation Period, then you shall be deemed to have accepted the DCU (“Accepted DCU”). Provided the defect is not attributable to you as set out above, SoilOptix will replace such defective DCU at no further cost. In the event that a defect was caused while the DCU was in possession of or on behalf of you, then you shall pay to SoilOptix a DCU replacement fee (which shall not be greater than the replacement or repair value of the DCU) and SoilOptix shall provide a replacement DCU. Except as provided in this paragraph SoilOptix shall have no liability to you in respect of any DCU failure to comply with the warranties set out in this Article. These provisions shall also apply to any repaired or replacement DCUs supplied by SoilOptix.
h. Returns: DCUs may not be returned without the prior written consent of SoilOptix and payment by you of a minimum restocking charge of 25% of the full purchase price. Authorized returns shall be returned at your sole expense, freight prepaid. No returns shall be accepted following sixty (60) days after delivery. No credit will be issued for shipping charges or other special expenses.
i. Warranties: SoilOptix warrants that the DCUs at the time of delivery (i) are fit for use with the SoliOptix Service and (ii) at that time are free from defects in materials and workmanship. SoilOptix shall assign to you upon sale of the DCU the manufacturer’s warranty, the current terms of which shall be provided upon request. You may only raise claims under this warranties section against SoilOptix after having unsuccessfully raised them against the manufacturer.
5. Pricing and Payment
a. SoilOptix agrees to sell to you, and you agree to buy from SoilOptix, the SoilOptix Services and the DCU(s) and to pay the service fees, and the DCU purchase price, at the prices set forth on the relevant Purchase Order Invoices.
b. Payment for all service fees and DCU purchase price shall be made by you to SoilOptix in the following manner:
i. 50% of the DCU purchase price via cheque or wire transfer to SoilOptix ‘s bank account, (particulars of which will be provided to you ) or by pre-authorized payment on your bank account or credit card, prior to release of the DCU from SoilOptix ‘s facility for shipment; and
ii. The remaining 50% of the DCU purchase price within 30 calendar days of delivery of the DCU.
iii. Each fee installment or payment as set out in the relevant Purchase Order Invoice is to be received by SoilOptix no later than the date indicated on the Purchase Order Invoice, via cheque or wire transfer to SoilOptix’s bank account, or by pre-authorized payment on your bank account or credit card.
c. All payments and fees are non-refundable.
d. Late payment fees will be charged on amounts overdue 30 days or more, from the day after the payment was due until the date payment is received, at a rate of 2% per month (24% annually), or the maximum allowable interest rate, whichever is less. Payments more than 60 days past due may result in suspension or termination of SoilOptix Services, and payments more than 75 days overdue may result in termination of the SoilOptix Services, and repossession of any equipment on which you still owe any payments to SoilOptix.
e. Taxes. All fees payable by you in respect of any Purchase Order Invoice are net and exclusive of applicable taxes. You shall pay, and SoilOptix shall have no liability for, any applicable sales, use, goods and services, personal property, consumption, import/export, VAT, excise, customs, duties, withholding or other tax and any duties, tariffs or other charges or assessments imposed or levied by any government or government agency in connection with any Purchase Order Invoice. For greater clarity, in the event that any amounts are withheld by you on account of withholding or other taxes, the affected amounts payable to SoilOptix shall be increased by such amount as to render the net payment amount to SoilOptix received from you unreduced.
a. LIMITATION OF LIABILITY: SoilOptix’s liability on any claim for loss or damage arising out of this contract or from the performance or breach thereof or connected with the supplying of any goods or services hereunder, or the sale, resale, operation or use of such goods or services, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such goods or part thereof involved in the claim, regardless of cause or fault. SoilOptix shall not, under any circumstances, be liable for any labor charges without our prior written consent.
b. SOILOPTIX SHALL NOT IN ANY EVENT BE LIABLE whether as a result of breach of contract, warranty, tort (including negligence) or other grounds for incidental, special or consequential damages including but not limited to, loss of profits or revenue, loss of use of the goods, services or any associated product, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of your customers for such damage.
c. INDEMNIFICATION: You shall indemnify, hold harmless and defend SoilOptix and its employees, officers, directors and agents from and against any action, cause of action, judgment or claim for damages to property (including environmental damages) or bodily injury, loss of life, liability of any nature (including the violation of any applicable laws or regulations in connection with the sale, transportation, installation, use or repair by you or on your behalf of the goods sold, supplied or delivered by SoilOptix), costs, or expenses including reasonable legal fees to the extent caused by the negligent act or omission or willful misconduct of or breach of these General Terms and Conditions by you or your representatives.
d. SEVERABILITY: If any provision of these General Terms and Conditions shall, to any extent, be held to be invalid or unenforceable, it shall be deemed to be separate and severable from the remaining provisions of these General Terms and Conditions, which shall remain in full force and effect and be binding as though the invalid or unenforceable provision had not been included.
e. NON-WAIVER: The failure of SoilOptix to insist upon the strict performance of any of these General Terms and Conditions will not be deemed to be a waiver of any of the rights or remedies of SoilOptix, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these General Terms and Conditions will be valid unless in writing signed by SoilOptix.
f. NO ADDITIONAL WARRANTIES. Except as expressly provided in these General Terms and Conditions, there are (to the fullest extent permitted by law) no representations or warranties, express or implied, statutory or otherwise, relating to the DCUs, SoilOptix Services or Products, including, without limitation, any implied warranty of merchantability or fitness for any particular purpose. You assume all risk and liability for any loss, damage or injury resulting from your resale and/or use of the SoilOptix Services, DCUs or Products, either alone or in combination with other services or products
g. GOVERNING LAW: These General Terms and Conditions are governed by the laws of the province of Ontario and the federal laws of Canada applicable therein without regard to conflict of law provisions and you hereby irrevocably attorn to the jurisdiction of the courts of such province. The parties hereto agree that domestic sale of goods laws of Ontario and Canada shall apply to all orders for goods hereunder and not the United Nations Convention on Contracts for the International Sale of Goods, and any local enactment thereof. All actions, regardless of form, arising out of or related to a transaction governed by these General Terms and Conditions must be brought against SoilOptix within the applicable statutory period, but in no event more than one (1) year after the date of the relevant invoice.