1.1 “Agreement” means these Terms and Conditions of Sale (found at www.exactearth.com/terms-and-conditions-of-sale) which apply to Customer’s purchase of exactEarth Products as defined below and apply whether Customer purchases exactEarth Products online or otherwise (i.e. exactEarth quotation). The Agreement incorporates the Data Licence and shall also include any exactEarth quotation provided to the Customer by exactEarth, which shall reference these Terms and Conditions of Sale, with such quotation signed by exactEarth and Customer (or in the case of online sale, acknowledgment, acceptance and/or electronic signature by Customer).
1.2 “Customer” means the end user of the Products under the Agreement.
1.3 “Data Licence” means the current version of the exactEarth Ltd. Data Licence, as amended by exactEarth from time to time in exactEarth’s sole discretion. The current version of the Data Licence at any time is available from exactEarth’s web site at www.exactearth.com/data-licence. The Data Licence is incorporated and forms an integral part of this Agreement.
1.4 “Effective Date of Agreement” is as of the date of signature (electronic or otherwise) and/or acceptance by Customer.
1.5 “Fees” means the money due and owing to exactEarth for the purchase of a licence to use the Products provided under this Agreement, such permitted use as defined in the Data Licence Agreement.
1.6 “Product(s)” means all information (including, without limitation, data, data feeds, software, modifications, enhancements, corrections or derivatives thereof and databases), products and /or services provided by exactEarth to Customer. Products also include any web tools or software that are incorporated into CDs or DVDs or that can be used by Customer when accessing Products via the Internet and exactEarth website.
1.5 “Service Start Date” means the agreed date as specified in the Agreement for delivery of products as set forth in the Agreement.
2. ACCEPTANCE, PRICING AND PAYMENT:
2.1 Customer acknowledges and agrees that it shall be bound by the Agreement.
2.2 exactEarth will invoice Customer for all Fees as set forth in the Agreement. Such Fees are quoted in the currency set forth in the Agreement and Customer must pay in said currency. Except as otherwise stated herein, Fees for Products are not refundable.
2.3 Customer will pay the Fees on terms contained in this Agreement. In addition to all other rights, exactEarth, in its sole discretion, may discontinue the provision of Products if Customer does not pay any invoice within the agreed payment terms as set out in the Agreement.
2.4 For all Products provided hereunder, delivery is deemed to occur, and risk of loss passes when exactEarth provides access codes to Customer that allow Customer to access or to take immediate possession of Products, whichever occurs first.
2.5 Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, provincial, municipal or other government authority, all of which taxes shall be paid by the Customer. The Customer is responsible for obtaining and providing to exactEarth any certificate of exemption or similar document required to exempt any sale from sales, use, or similar tax liability. All prices shall be as specified by exactEarth.
3. TERM: Unless terminated sooner in accordance with the provisions of this Agreement, the term of this Agreement commences on the Service Start Date and continues for the period set forth in the Agreement.
4.1 Either party may terminate this Agreement if: (a) the other party commits a breach of any material term or condition of this Agreement and does not cure such breach within thirty (30) days of written notice thereof; or (b) the other party’s assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or the other party is adjudged bankrupt.
4.2 exactEarth may terminate or suspend its performance under this Agreement with no less than five (5) days written notice if: (a) it has reasonable evidence of Customer’s fraudulent or illegal use of Products; (b) if exactEarth is not permitted to provide the Product due to applicable laws, regulations, or government policy restrictions; (c) in exactEarth’s sole discretion, Customer is in breach of the Data Licence; (d) Customer is an individual or entity or located in a country that exactEarth is not permitted to sell Products to; (e) if Customer has failed to comply with all applicable laws and regulations, including but not limited to, all laws relating to import and export of the Products; (f) pursuant to Section 9 below, in the event of a Force Majeure event; and/or pursuant to Section 4.5 below. In addition, exactEarth may terminate this Agreement if exactEarth no longer has the necessary right from any third party to licence or distribute the Product. Any termination under this Section 4 does not relieve either party of any liability incurred prior to such termination, or for Customer’s payment for unaffected Products. In the instance of either 4.2 b) or 4.2 d), any advance payments received by exactEarth will be reconciled.
4.3 If Customer terminates this Agreement during the term, any Fees payable under this Agreement for such period will be invoiced by exactEarth in full. Where Customer has already paid the Fees in advance any Fees relating to unused period of the term shall be forfeited. In the event of termination by Customer in accordance with item 4.1 above, Customer will be liable only for Fees for the period for which it had access to the Products.
4.4 Upon any expiration or other termination of this Agreement all licences granted herein and/or under the Data Licence Agreement immediately will terminate. Customer represents and warrants that upon expiration or other termination of this Agreement, Customer immediately will (i) discontinue all use of Product(s); (ii) destroy any items relating to Products (including but not limited to data, software, and documentation) and purge any Product data from all electronic media; and (iii) provide a notarized written certification to exactEarth that Customer has complied with this section.
4.5 Notwithstanding anything to the contrary in this Agreement and/or anything contained in Section 4, exactEarth reserves the right to discontinue developing, producing, licensing, or distributing any of the Products and/or to modify, replace, or add to the Products at its discretion at any time. exactEarth shall provide sixty (60) days prior written notice to Customer of any such events affecting the Products. In the event of a Product discontinuation without a replacement offered, Customer may terminate the Agreement or any part of the Agreement within thirty (30) days of receipt of notice of discontinuation. Any advance payments received by exactEarth for discontinued Product will be reconciled.
5. SERVICE DESK SUPPORT: exactEarth shall provide telephone or on-line helpdesk support to assist Customer with any material issues relating to the access of the Product.
6. LIMITED SURVIVAL: In the event this Agreement is terminated, the parties acknowledge and agree that the terms of the Data Licence Agreement shall survive termination, insofar as it relates to Products provided up to the date of termination. For the avoidance of doubt, there shall be no obligation for exactEarth to provide Products or any other data or support following termination of this Agreement.
7.1 No provision of this Agreement shall be construed, alleged or implied as being a transfer of the intellectual property rights from exactEarth to Customer. Customer acknowledges exactEarth’s full ownership, control, title, interest in and to any and all of the intellectual property comprising the Products and exactEarth’s associated data system for Automatic Identification System (“AIS”) messages.
7.2 Except as provided under this Agreement, Customer will not, and will not permit any third parties to: i) copy or reproduce in any manner the exactEarth Products or any portion thereof; ii) decompile, disassemble or reverse engineer the exactEarth Products; iii) translate, modify, adapt, enhance, or create derivative works of the exactEarth Products; iv) sublicence, lease, rent, distribute, or otherwise transfer the exactEarth Products; or v) use the exactEarth Products in a service bureau, time sharing, or facilities management arrangement or otherwise use the exactEarth Products to provide products or services to third parties.
8. EXACTEARTH LIMITATION OF LIABILITY AND CUSTOMER INDEMNITY:
8.1 Under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall exactEarth, its affiliated companies, directors, officers, employees and/or agents, be liable to Customer or to any other party for any indirect, special, incidental, or consequential damages of any character including, without limitation, death or personal injury, damages for loss of goodwill, work stoppage, computer failure or malfunction, loss of data, loss of use, loss of profits, or for any and all other damages or losses.
8.2 exactEarth, its affiliated companies, directors, officers, employees and/or agents total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, shall be limited to Fees paid by Customer pursuant to this Agreement.
8.3 Customer will indemnify, defend and hold exactEarth, and its officers, directors, employees, and agents harmless from and against any damage, loss, liability, cost, and expense, including legal fees, that exactEarth may incur as a result of: i) any action or omission on the part of Customer in the use of the Products; and ii) any breach of this Agreement by Customer.
9. FORCE MAJEURE:
(a) exactEarth shall not be liable for non-performance or delays in performance when caused by acts or events which are beyond the reasonable control of exactEarth, including but not limited to the following: acts of God, acts of the public enemy, acts of government (including, without limitation, failure, suspension, modification and/or cancellation of/to grant permits or licences, provided such failure is not the result of any negligence of exactEarth), laws or regulations (including those related to the supply of Products to Customer under this Agreement that shall be in accordance with all laws or regulations) strikes or other labour disturbances, space debris collisions, solar flares, or any electro-magnetic interferences, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, explosions, power failures, Internet failures and related network failures (“Force Majeure”). In the event of any such delay, the date of delivery or of performance of the obligation affected by the Force Majeure event shall be extended for a period equal to the effect of time lost by reason of the delay.
(b) if exactEarth is claiming delay in delivery or performance due to an event of Force Majeure as set forth herein shall as soon as practicable, send written notice thereof and a statement of particulars to Customer. Upon the cessation of the Force Majeure event, exactEarth shall promptly notify the other party of such cessation.
(c) Customer shall take appropriate measures to minimize or remove the effects of the event of Force Majeure and, within the shortest time possible, shall attempt to resume performance of the obligations affected by the event of Force Majeure.
(d) Customer shall use its reasonable efforts to minimize the losses and damages caused and/or to be caused to Customer by an event of Force Majeure. Both parties shall consult as soon as possible to find an appropriate solution.
10. ASSIGNMENT: This Agreement may not be assigned or transferred by Customer without the written consent of exactEarth (which will not be unreasonably conditioned, withheld or delayed). exactEarth may assign this Agreement to an affiliate or to an acquirer of all or substantially all of the assets of the exactEarth. Any requested assignment by Customer (i) to a direct competitor of exactEarth; (ii) that would interfere with performance of obligations under this Agreement; or (iii) that changes the scope of the usage and the intent contemplated by the parties under this Agreement, is deemed unreasonable. Any assignment or transfer in violation of the above is void.
11. GOVERNING LAW: This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. Each Party submits to the exclusive jurisdiction of the courts located in Toronto, Ontario.
12. DISPUTES: Any dispute unresolved by good faith negotiations between the parties will be submitted to binding arbitration according to the Rules of Procedure of the International Chamber of Commerce. The arbitration tribunal shall be composed of a sole arbitrator appointed by the Chairman of the International Chamber of Commerce. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English. The decision(s) of the arbitration tribunal shall be final and binding upon the parties. Nothing in this Section 12 will prevent exactEarth from seeking injunctive relief against Customer or filing an action against Customer with respect to infringement of its intellectual property rights or unauthorised use or disclosure of information, in any court of competent jurisdiction.
13. ENTIRE AGREEMENT: This Agreement (including for greater clarity the Data Licence Agreement) constitutes the entire agreement between the Customer and exactEarth with respect to the subject matter of this Agreement and supersedes any prior negotiations, understandings and agreements between them in respect of such subject matter.
14. APPLICABLE DOCUMENTS: After this Agreement is executed by both Customer and exactEarth, exactEarth agrees to sell and Customer agrees to purchase the Products listed herein. All use of Products shall be subject to the Data Licence Agreement. By signature and return of the quotation, Customer accepts the terms of this Agreement and the Data Licence Agreement. In case of conflict or inconsistency amongst the applicable documents, the following order of precedence shall apply: (a) exactEarth quotation; (b) terms of this Agreement; and (c) Data Licence Agreement.
15.1 Each party represents and warrants that it is fully authorised to enter into this Agreement.
15.2 The parties are independent parties and nothing in this Agreement will be construed to create a partnership, joint venture or employment relationship between the parties.
15.3 This Agreement sets forth the entire agreement between the parties and supersedes any and all prior proposals, agreements or communications, written or oral, of the parties with respect to the subject matter hereof. Nothing contained in any Customer-issued purchase orders, purchase order acknowledgement, terms and conditions or invoice will in any way modify or add any additional terms or conditions to this Agreement. Such Customer-issued purchase orders are for Customer’s internal purposes only and do not affect in any way Customer’s obligations under this Agreement.
15.4 The parties may not modify, alter or amend this Agreement except by written instrument duly executed by authorised representatives of both parties.
15.5 No failure or delay by either party to exercise any right hereunder at any time operates as a waiver of such right at any future time.
15.6 This Agreement is binding on the parties, their successors and assigns. exactEarth at its sole discretion reserves the right to subcontract any or all of its obligations under this Agreement to subcontractors of its choosing.
15.7 If any provision of this Agreement is found invalid or unenforceable by an arbitrator or a court of competent jurisdiction, the remaining portions will remain in full force and effect.
15.8 All notices required under this Agreement must be in writing and delivered by commercially established courier service, facsimile with written confirmation of success, personal courier or via certified mail, return receipt requested, to the addresses specified on the first page of this Agreement or at such other address as the parties will designate in writing from time to time. Notices are deemed delivered when received by any of the above means.
15.9 exactEarth and Customer agree that exactEarth may publicize the fact that Customer is a user of the Products and exactEarth may use the Customer name and/or logo only in a list of other exactEarth customers. Except where required by exactEarth pursuant to applicable laws and regulations, any additional publicity concerning Customer will require Customer’s prior written consent. Any publicity by Customer concerning exactEarth will require exactEarth’s prior written consent.
15.10 The terms and conditions of this Agreement will survive the expiration or other termination to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the party in whose favour they operate.
15.11 Customer and exactEarth are independent parties. Nothing herein shall be construed to create a partnership, joint venture or agency relationship between exactEarth and Customer. Except as otherwise provided in this Agreement, neither Party will have, nor represent itself to have, any authority to bind the other Party or act on its behalf. Customer acknowledges that it is not an agent of exactEarth.
15.12 No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.
15.13 Each person executing this Agreement on behalf of any entity hereby represents and warrants that he or she is duly authorised and has full authority to execute and deliver this Agreement.
15.14 Any number of counterparts of this Agreement may be executed by the parties hereto (including by electronic or facsimile transmission). Each such counterpart will be deemed to be an original instrument, and such counterparts taken together will constitute one and the same Agreement.
By signing the Quotation, you confirm that you are authorised to bind your organization and irrevocably offer to take a Licence for exactEarth data products in accordance with and on the terms and conditions contained herein and in the Data Licence Agreement.