These Terms of Service (the “Agreement”) are an agreement between you (“You”) and IntraGrain Technologies Inc. and any of its agents or affiliates (“IntraGrain”). The Effective Date of this Agreement is when You accept or are deemed to accept this Agreement in accordance with the procedure outlined.
ARTICLE 1– BACKGROUND
IntraGrain provides a service to track fuel usage and to assist in the monitoring of such data and information by the customer (the “User”) in order for the customer to be able to track employee fuel usage in real time.
ARTICLE 2 — DEFINITIONS
In this Agreement:
2.1 Account: means Your User membership account to the Fuel Lock™ app, represented by Your unique User ID and Password, which allows You to utilize the IntraGrain Service.
2.2 Additional Agreements: means any additional contracts or terms and conditions which You may be required to accept in connection with Your use of the IntraGrain Service.
2.3 Aggregated Data: means a compilation of multiple users’ data relating to the use of the IntraGrain Service with respect to which IntraGrain has taken commercially reasonable precautions to ensure that no individual, particular transaction or entity can be identified.
2.4 Equipment: means any hardware, devices or equipment provided by IntraGrain to You in association with the IntraGrain Service. For greater certainty, this Agreement pertains to Equipment provided in relation to the FUEL LOCK™ system only.
2.5 Identification: shall have the meaning ascribed thereto under Section 4.1.
2.6 IntraGrain: means IntraGrain Technologies Inc.
2.7 IntraGrain Data: means any proprietary information, documents, records, materials or data provided to You or accessible by You through use of the IntraGrain Service.
2.8 IntraGrain Service: means the Equipment, the IntraGrain website, Fuellock website, application and user interfaces, including all features and functionalities, and all software and content associated therewith.
2.9 IP Rights: means any intellectual property rights recognized by law (including any intellectual property rights protected through legislation such as governing patents, trade-marks, copyrights and industrial designs) and includes, without limitation, all rights in any copyright, patent, Mark, trade secret, confidentiality right, moral right, goodwill, design, distinguishing guise, data flow, product specification, schematic document, source code, object code, data map, invention, discovery, improvement, and all intangible rights or privileges of a nature anywhere in the world similar to the foregoing, whether or not registered or registrable and shall include applications, granted or issued registrations, and extensions and renewals in relation to any such rights.
2.10 Mark: means identity elements used by IntraGrain including, without limitation, its name and logo and such other trade-marks, trade names, trade dress, distinguishing guise, and service marks that IntraGrain uses or to which it has registration, common law or licensed rights.
2.11 Password: means the initial code provided by IntraGrain and which You subsequently create or change that, in combination with the User ID, allows You to access your Account.
2.12 Term: shall have the meaning ascribed thereto under Section 8.1.
2.13 User Fee: means the fee which You agree to pay in consideration for User access to the IntraGrain Service.
2.14 Website: means the IntraGrain website located at www.intragrain.com, and www.fuellock.ca
2.15 You or Your: means the person creating or using an Account on behalf of a User and includes any corporation, partnership or other business entity on whose behalf such person is acting.
2.16 Your Data: means any data, information or materials gathered, compiled, uploaded, created or authored by You using the IntraGrain Service, but does not include information or other data proprietary to IntraGrain.
ARTICLE 3 – THE INTRAGRAIN SERVICE
3.1 Description. The IntraGrain Service provides Users with a monitoring tool, system and services which allows Users to: (i) monitor there fuel storage tanks and employees (ii) view fuel employee usage from any access point via the internet and/or mobile phone; and (iii) receive notifications via email and/or text message when an employee uses the device at any point in time having set those parameters.
3.2 Permitted Use. Subject to the terms and conditions of this Agreement, IntraGrain grants to You for the term of this Agreement, a personal, non-transferable and non-exclusive right and license to access and use the IntraGrain Service for the purposes set forth in clauses 3.1 (i) through (iii) above.
3.3 Restrictions On Use. You agree that You will not create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, bundle, sell, sub-license, export, merge, transfer, adapt, loan, rent, lease, assign, share, outsource, host, publish, make available to any person or otherwise use, either directly or indirectly, the IntraGrain Service or software in whole or in part. You shall not permit, allow or do anything that would infringe or otherwise prejudice the proprietary rights of IntraGrain or its licensors. The restrictions set out in this Agreement shall not apply to the limited extent the restrictions are prohibited by applicable law.
3.4 Authority and Changes to Terms. You represent and warrant that You are duly authorized to enter into this Agreement on behalf of the User and that the User will comply with the terms of this Agreement. IntraGrain may amend the terms and conditions of this Agreement and You acknowledge and agree that if You use the IntraGrain Service after the date of such change, IntraGrain will consider Your use as acceptance of the updated terms and conditions.
3.5 Services and Upgrades. IntraGrain may, at its sole discretion, enhance, delete or modify the features, format, characteristics, functionality, and/or the procedures to use the IntraGrain Service, the information available to Users through use of the IntraGrain Service and upgrades or updates to the IntraGrain Service or software, provided that such changes will not materially adversely affect the use of the IntraGrain Service by the User. If You determine that such a change is not acceptable, You will be entitled to terminate this Agreement pursuant to Section 8.3.
ARTICLE 4 – YOUR ACCOUNT
4.1 User ID and Password. During the term of this Agreement, You shall adopt a User log-on identification and password (each, an “Identification”) in order to use the IntraGrain Service. You are solely responsible for maintaining the confidentiality of Identification and agree to use commercially reasonable efforts: (i) to protect the security of each Identification; (ii) not to permit individuals other than employees or contractors approved by User to use the Identification to gain access to the IntraGrain Service; (iii) not to disclose any Identification to any person except on a need-to-know basis; and (iv) to ensure that approved employees or contractors access the IntraGrain Service only in connection with the business purposes of the User.
4.2 Account Suspension. IntraGrain may suspend, cancel or otherwise limit access to Your Account if there is suspicion of fraudulent or illegal activity, abuse, misuse, error, or sharing an Account among multiple Users.
4.3 Unauthorized Access to the Account. You agree to immediately notify IntraGrain in writing of any loss, unauthorized disclosure or actual or suspected unauthorized use of Your Account.
4.4 Your Responsibilities. By using Your Account, you agree to:
(a) adhere to the terms of this Agreement;
(b) use the IntraGrain Service solely for lawful purposes and not to utilize the IntraGrain Service, or any resulting IntraGrain Data, for fraudulent or illegal purposes;
(c) follow safe and secure computing practices with respect to any device with which You access Your Account; and
(d) respect and comply with IntraGrain and third party IP Rights in connection with Your use of the IntraGrain Service.
ARTICLE 5 — USER FEES
5.1 User Fees. You acknowledge and agree that by creating an Account, You agree to provide IntraGrain with the appropriate User Fees due in advance and in any event, no later than the 30th day of the first month of the applicable Term. The amount of such User Fee shall be set out in the “User Details and Fees” section within Your Account. You acknowledge that the User Fees do not include the fees associated with the purchase of applicable Equipment (which is payable separately and is due prior to the commencement of the IntraGrain Service). IntraGrain reserves the right to change the fee schedule at any time. As further set out in Section 8.1, User membership shall automatically be renewed, and accordingly, the obligation to provide User Fees shall continue to be payable until this Agreement is terminated by either party.
5.2 Consequences of Non-Payment or Delayed Payment of Fees. Failure to make prompt payment of User Fees shall result in User being in default under this Agreement and IntraGrain may suspend or terminate this Agreement, the User’s Account and any license thereunder unless such User has provided and, IntraGrain has accepted, alternative payment terms within ten (10) days of notice of default.
5.3 Payment. Payment may be made through use of cheque, a valid credit card or other payment method authorized by IntraGrain from time to time. IntraGrain reserves the right to change, or to stop accepting, any permitted payment method at any time in its sole discretion. You agree IntraGrain may charge your payment card in the amount of Your User Fee, and for any additional amounts (including any applicable taxes) as may be accrued by or due in connection with your Account.
5.4 Payment Authorization. When entering Your billing information, it will be necessary to indicate Your chosen method of payment. You must be authorized to use the payment method indicated. You irrevocably authorize IntraGrain or its designate (as the case may be) to charge You for Your User Fee.
5.5 Payment Processor: You specifically acknowledge that IntraGrain may use a third party payment processing service in connection with Your User Fee. You consent to the collection and use of Your Data (including, if applicable, personal information) by such payment processing service as necessary to process your payments.
5.6 Accuracy of Billing Information. You are responsible to keep all of Your information current and accurate in Your Account including Your billing and contact information.
5.7 Billing Statement. We will provide You with an online and/or emailed billing summary statement which You may review, save, and print at Your discretion. This is the only billing statement that will be provided by IntraGrain.
5.8 Billing Errors and Discrepancies. In the event You believe that IntraGrain has billed You in error, You must contact IntraGrain within ninety (90) days of the date of purchase. No refunds or adjustments will be provided for charges which are more than ninety (90) days old. If You do not advise us within ninety (90) days after the error first appears on Your online billing statement we will not be required to correct any error. You hereby release IntraGrain from all liability and claims of loss resulting from any error that You do not report to us within ninety (90) days after the error first appears on Your online billing statement.
5.9 Currency. All pricing is in Canadian currency. Currency exchange settlements are Your sole responsibility and based upon Your agreement with the provider of Your chosen payment method.
5.10 Taxes. All prices exclude any applicable sales, retail, excise or similar taxes (including GST). You are fully responsible for any such taxes that You are obligated to pay or which we may collect from You in accordance with applicable laws.
5.11 No Refunds. IntraGrain User Fees are non-refundable. Upon termination of this Agreement, User Fees will cease to be payable. For the sake of certainty, where the User is in default under this Agreement or the Agreement is terminated, or where notice of termination is provided by either party, all User Fees paid in advance on behalf of User are non-refundable.
ARTICLE 6 — PRIVACY AND DATA
6.1 IntraGrain Privacy Statement. IntraGrain is committed to respecting the confidentiality of personal information. Any collection, use or disclosure of personal information by IntraGrain is subject to the IntraGrain Privacy and Security Policy, a copy of which can be found here: intragrain.com/privacy-policy/.
6.2 User Privacy Obligation. User will not breach or attempt to breach the IntraGrain Service computer(s), server(s), software security, nor attempt to access the information of another User or otherwise invade the privacy of others in connection with the use of the IntraGrain Service.
6.3 Data Security and Integrity. You shall have sole responsibility for the accuracy, currency, quality, integrity, legality, reliability, and appropriateness of all of Your Data and IntraGrain shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store, monitor or transmit any data. IntraGrain shall not be responsible for adequate security, archival and/or back-up procedures on Your behalf. Further, IntraGrain will not be liable for any type of communication or data, or the accuracy or sufficiency of the content thereof, which is uploaded or downloaded through Your access or use the IntraGrain Service.
ARTICLE 7 — INTELLECTUAL PROPERTY RIGHTS
7.1 All Rights Reserved. IntraGrain owns and shall own all right title and interest, in and to (i) IntraGrain and all trade names, trade-marks, and service marks used in connection with the IntraGrain Service; (ii) the IntraGrain Service (including, without limitation, all web pages, sub-domains and functionality of the IntraGrain Website); (iii) IntraGrain Marks; and (iv) Aggregated Data (collectively, “IntraGrain IP”). Nothing in this Agreement transfers any such IP Rights to, or vests any such IP Rights, in any User. User is only entitled to the limited licensed use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with IntraGrain IP or IP Rights. Any unauthorized use of IntraGrain IP is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including, without limitation, copyright laws and trade-mark laws.
7.2 Ownership by User and License to Use Your Information. User shall own: (i) all documents, data, files, records and other information related to the business of User; (ii) all right, title and interest in and to Your Data, provided that, to the extent required to provide the IntraGrain Service, or to permit the operation of the IntraGrain Service, You grant to IntraGrain, with the exception of personal information, a perpetual, unlimited, irrevocable, royalty-free, worldwide, non-exclusive, transferable license permitting IntraGrain to collect, use, reproduce, adapt, modify, copy, run, bundle, create derivative works of, transmit, display and distribute Your Data for such purposes which include, without limitation, compiling Aggregated Data which may be used by IntraGrain for the purpose of improving delivery of the IntraGrain Service. IntraGrain may access Your Account, including Your Data, to respond to service or technical problems or as stated in this Agreement. IntraGrain will not monitor, edit, or disclose any information regarding Your Account, including any of Your Data, except in accordance with this Agreement, applicable laws or at the direction of legal authorities.
ARTICLE 8 — TERM AND TERMINATION
8.1 Term. Unless sooner terminated as provided below, this Agreement shall commence on the Effective Date and continue for successive automatically renewable one (1) year terms, unless otherwise agreed upon by the parties and outlined in the “User Details and Fees” section within Your Account (the “Term”), and subject to receipt of advanced payment of applicable User Fees in accordance with Section 5.1 and the User’s acceptance of the applicable terms and conditions.
8.2 Termination by IntraGrain. Notwithstanding Section 8.1 above, IntraGrain may, in its sole discretion, terminate or suspend the IntraGrain Service or this Agreement at any time for any reason by providing You with thirty (30) days’ prior written notice to the email account that You submitted in connection with Your User membership or immediately upon the occurrence of any of the following:
(a) a failure by User to pay any amount when due;
(b) a User breach of any material term of this Agreement;
(c) User filing a voluntary or involuntary petition in bankruptcy or insolvency, including making an assignment for the benefit of creditors, or where a receiver or receiver-manager has been appointed over the whole or a substantial part of the User’s assets; or
(d) User involvement in any activity likely to undermine the business or reputation of IntraGrain or the usability, functionality or performance of the IntraGrain Service.
8.3 Consequences of Termination.
(a) For IntraGrain. Upon termination of this Agreement for any reason whatsoever, IntraGrain will de-activate the User Account and Identification and provide You with a copy of Your IntraGrain Data and/or all Data input by You in connection with the terminated Account for the IntraGrain Service. You acknowledge and agree that IntraGrain shall no longer be bound by the terms of this Agreement as at the date and time of termination nor shall IntraGrain be required to retain or provide any further copies of Your Data in connection with the Account to You.
(b) For User. Upon termination of this Agreement, User will cease to have access to the Account or the IntraGrain Service.
ARTICLE 9 – WARRANTY AND DISCLAIMER
9.1 GENERAL WARRANTY DISCLAIMER. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INTRAGRAIN MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS TO ANY PERSON OR ENTITY WITH RESPECT TO THE INTRAGRAIN SERVICE. EXCEPT AS SET FORTH ABOVE, THE INTRAGRAIN SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. YOU ARE SOLELY RESPONSIBLE FOR ALL DATA AND INFORMATION WHICH HAS BEEN ENTERED, REMOVED OR USED IN CONNECTION WITH YOUR USER ID AND ACCOUNT. INTRAGRAIN DOES NOT GIVE ANY WARRANTIES, GUARANTEES, REPRESENTATIONS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FUNCTIONALITY OF THE INTRAGRAIN SERVICE OR SOFTWARE, THE WEBSITE, THE USER INTERFACE, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING THE PREVENTION OF HEATED, SPOILED OR OTHERWISE UNMARKETABLE GRAIN), ACCURACY OF DATA, COMPLIANCE WITH ANY DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS) WITH RESPECT TO ANY INTRAGRAIN SERVICE AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.2 NO WARRANTY OF SERVICE AVAILABILITY. INTRAGRAIN DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AND/OR DATA (INCLUDING, WITHOUT LIMITATION, INTRAGRAIN DATA) AVAILABLE OR ACCESSIBLE THROUGH USE OF THE INTRAGRAIN SERVICE NOR THAT THE INTRAGRAIN SERVICE MAY BE PROVIDED WITHOUT INTERRUPTION OR ERROR FREE. INTRAGRAIN DOES NOT WARRANT THAT IT WILL BE ABLE TO CORRECT ALL REPORTED DEFECTS IN THE INTRAGRAIN SERVICE. INTRAGRAIN DOES NOT GUARANTEE THAT THE INTRAGRAIN SERVICE AND ACCESS TO YOUR ACCOUNT WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS OR DELAY. SINCE THE INTRAGRAIN SERVICE MAY OR WILL BE FACILITATED AND/OR TRANSMITTED THROUGH PUBLIC INTERNET LINES, COMMUNICATIONS NETWORKS AND PUBLIC AND/OR PRIVATE SWITCHED TELEPHONY NETWORK(S) (AS THE CASE MAY BE), YOU UNDERSTAND THAT THERE MAY BE SERVICE DISRUPTIONS OR OUTAGES.
ARTICLE 10 — LIMITATION OF LIABILITY AND INDEMNITY
10.1 LIABILITY EXCLUSION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INTRAGRAIN SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT (EXCEPT AS PROVIDED IN SECTION 10.2 BELOW) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER OR FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF REPUTATION OR GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION OR FOR ANY INJURY OR LOSS OF LIFE ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, YOUR ACCOUNT OR YOUR USE OF OR INABILITY TO USE, THE INTRAGRAIN SERVICE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST USER OR INTRAGRAIN. NEITHER PARTY SHALL APPLY FOR, SEEK OR OTHERWISE REQUEST FROM ANY COURT, RELIEF, REMEDY, COMPENSATION OR REDRESS IN THE FORM OF EXEMPLARY OR PUNITIVE DAMAGES.
10.2 MAXIMUM LIABILITY. NOTWITHSTANDING SECTION 10.1 ABOVE, THE AGGREGATE LIABILITY OF INTRAGRAIN FOR ALL CLAIMS OF ANY KIND WHETHER BASED IN CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, OR RESULTING IN CONNECTION WITH THIS AGREEMENT, FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE PROVISION OF INTRAGRAIN EQUIPMENT OR SERVICES, WILL IN NO CASE EXCEED THE AMOUNT, IF ANY, PAID BY YOU UNDER THIS AGREEMENT TO PURCHASE INTRAGRAIN EQUIPMENT AND TO ACCESS THE INTRAGRAIN SERVICE IN THE YEAR IN WHICH THE CLAIM AROSE. INTRAGRAIN IS NOT AND SHALL NOT BE LIABLE FOR ANY LOSS OF BUSINESS, USE OR DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER KIND OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST USER OR INTRAGRAIN.
10.3 APPLICATION OF EXCLUSIONS AND LIMITATIONS OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY DESCRIBED ABOVE:
(a) APPLY TO ANY AND ALL CAUSES OF ACTION WHATSOEVER INCLUDING BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), BREACH OF ANY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY;
(b) SHALL ENURE TO THE BENEFIT OF INTRAGRAIN AND ITS SERVANTS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SERVICE PROVIDERS, AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, AND/OR SUCCESSORS AND ASSIGNS; AND
(c) ARE REASONABLE AND REFLECTED IN THE PRICING SET BY INTRAGRAIN.
10.4 Indemnity. You hereby agree to defend, indemnify, and hold harmless IntraGrain, its officers, directors, agents, assigns, employees, contractors, consultants, shareholders, and service providers and their respective successors and assigns, from and against any and all claims, demands, actions, proceedings, liabilities, judgments, penalties whether civil or criminal, taxes, and all costs, liabilities and expenses (including, without limitation, reasonable legal fees) arising out of or relating to your use of the IntraGrain Service, Account, User ID, Password, or that may be incurred by IntraGrain arising out of, or relating to, Your use of the IntraGrain Service, Your violation of this Agreement, the misuse or illegal use of the IntraGrain Service, applicable law or rights of any third parties (including intellectual property rights), the failure of User to comply with applicable laws and regulations, or User’s gross negligence or wilful misconduct.
ARTICLE 11 — GENERAL
11.1 Additional Agreements. You acknowledge and agree that Your use of the IntraGrain Service may require You to enter into one or more Additional Agreements. This Agreement and the Additional Agreements are intended to be correlative, complementary and mutually explanatory of one another. However, in the event of a conflict, inconsistency or ambiguity between the terms of any Additional Agreement and the terms of this Agreement, the terms of the Additional Agreement shall prevail unless expressly stated otherwise in the Additional Agreement.
11.2 Risk Allocation. You acknowledge and agree that the provisions of Articles 9 and 10 are fair and reasonable in the commercial and administrative circumstances of this Agreement, and that such covenants are an inducement to enter into this Agreement, which each party has relied upon.
11.3 Assignment and Sublicense Prohibited. You may not assign, delegate, sublicense, transfer or subcontract the whole or any part of this Agreement or the rights granted hereunder without the prior written consent of IntraGrain. Notwithstanding the foregoing, IntraGrain may, at its sole discretion, assign this contract or any of its rights hereunder to any third party, without giving prior notice.
11.4 Modifications to Agreement. IntraGrain reserves the right to modify this Agreement at any time at its sole discretion by providing such revised Agreement to You or by publishing the revised Agreement on the IntraGrain website and Fuelock Website. You are responsible for periodically reviewing the amendments on the IntraGrain Website and Fuellock website and You are deemed to be aware of such amendments. If You do not agree to the amended terms and conditions, You shall immediately stop using the IntraGrain Website and Fuellock website and IntraGrain Service. Your continued use of the IntraGrain Service shall constitute Your acceptance to be bound by the revised Agreement. No supplement, modification or amendment to this Agreement and no waiver of any provision of this Agreement shall be binding on IntraGrain unless executed by IntraGrain in writing.
11.5 Regulatory Requirements. IntraGrain reserves the right to adjust the IntraGrain Service at any time in order to conform to legal and/or regulatory obligations or requirements as determined by IntraGrain at its sole discretion.
11.6 Severability. Each provision of this Agreement is intended to be severable and if any provision is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such provision shall be severed from this Agreement and will not affect the legality or validity or enforceability of the remainder of this Agreement or any other provision hereof and the Agreement shall be construed, as nearly as possible, to reflect the intentions of the severed provision(s) to the extent possible under applicable law.
11.7 Waiver. No delay on the part of IntraGrain in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
11.8 Governing Law and Jurisdiction. This Agreement and any transactions contemplated by this Agreement shall in all respects, be construed according to, and the rights and liabilities of the parties hereto shall in all respects be governed exclusively by, the laws of the Province of Saskatchewan, Canada without reference to the principles of conflicts of law. You irrevocably submit and attorn to the exclusive jurisdiction of the courts of the Province of Saskatchewan, Canada with respect to any adjudication of rights hereunder, without regard to its conflict of laws provisions. You agree to waive any right You may have to: (i) trial by jury; and (ii) commence or participate in any class action against IntraGrain related to the IntraGrain Service or this Agreement and, where applicable, You also agree to opt out of any class proceedings against IntraGrain.
11.9 Force Majeure. Neither party will be liable to the other for any delay in performance or inability to perform due to Force Majeure. “Force Majeure” includes any acts or omissions of any civil or military authority, acts of God, terrorism, fires, strikes or other labour disturbances, major equipment failures, fluctuations or non-availability of electrical power, heat, light, air conditioning or telecommunications equipment that cannot reasonably be foreseen or prevented, or any other act, omission or occurrence beyond either party’s reasonable control, irrespective of whether similar to the foregoing enumerated acts, omissions or occurrences. The party subject to a Force Majeure event shall promptly notify the other party of the occurrence of such event and take all reasonable steps and commercially reasonable efforts to restore its ability to perform and to perform its obligations under this Agreement. In no event shall User be liable for any charges during that period of time in which there is an interruption of the IntraGrain Service under this Section.
11.10 Notices. All notices, requests and other communications required or permitted to be given under this Agreement except those specifically permitted to be given by e-mail or posted using the IntraGrain Service, must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by express mail, private courier or facsimile to the party to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when received, or if mailed, five business days after it was mailed, as evidenced by the postmark. Your mailing address or electronic mail address for notice shall be the address You provided to IntraGrain in association with Your Account. You are solely responsible for keeping Your Account contact information current.
11.11 Enurement. This Agreement shall enure to the benefit of and be binding upon You and IntraGrain and each party’s successors and permitted assigns.
11.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all other prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof.