SOILHEALTH.CA – TERMS AND CONDITIONS OF USE AGREEMENT
Effective date: October 7, 2021
PLEASE READ THE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE. By accessing or using this website, you agree to be bound by the Terms and Conditions described herein and all terms incorporated by reference. If you do not agree to all these Terms, do not proceed with testing services.
We reserve fully the right to change or modify any of the terms and conditions contained in the Terms or any policy or guideline of the website, at any time and in our sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the website, and you waive any right you may have to receive specific notice of such changes or modifications.
You agree to the terms and conditions outlined in this Terms and Conditions of Use Agreement with respect to our site https://soilhealth.ca.This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site, the content, products or services provided by or through the Site, and the subject matter of this Agreement. This Agreement may be amended by us at any time and from time to time without specific notice to you. The latest Agreement will be posted on the Site, and you should review this Agreement prior to using the Site.
SOILHEALTH.CA STANDARD TERMS AND CONDITIONS OF USE AGREEMENT
SOIL TESTING ANALYSIS SERVICES AGREEMENT
1. Effect of Terms: All Customers who place an order with SoilHealth.ca along with its affiliates, agents, related entities, subsidiaries, officers, shareholders, employers, and assigns (“SOILHEALTH”) are subject to the following Terms and Conditions
2. Confidentiality: Reports and/or other information as requested are provided only to the Customer or those designated by the Customer unless otherwise required by law. Customer and/or its designees agrees not to use report or data in any manner that may harm or has the potential to harm the reputation or business of SOILHEALTH. Customer may not publish the name of SOILHEALTH without written approval
3. Test and Control Article Characterization: If submitted by Customer, the Customer is fully responsible for all test/control article characterizations, and the Customer agrees that SOILHEALTH is fully relying on the Customer for such test/control characterizations. This includes, but is not limited to, identity, strength, purity, composition and stability. Further, the Customer as a sponsor shall be responsible for the methods of synthesis, fabrication, or derivation of the sample. SOILHEALTH makes no representations or warranties of any kind (express or implied) about the representative nature of the test/control article submitted by the Customer
4. Delivery of Samples: Customer is responsible for samples until they are received by SOILHEALTH personnel. SOILHEALTH is not responsible for samples that are rejected because of holding time or improper preservation or storage before samples are received by SOILHEALTH personnel. Please allow a minimum of 2 business days for the kit to arrive at our location
5. Acceptance of Samples: If SOILHEALTH determines that the sample will not yield valid data for any reason (including but not limited to sample preservation, improper sample containers, or samples that require modification of the normal procedures) samples will not be accepted and SOILHEALTH will notify Customer of such determination. If modification of the procedures is possible, fees for the modification will be determined. If Customer agrees to the fees verbally or in writing the samples will be accepted and processed for the agreed upon fees. Samples received become the legal property of SOILHEALTH. We reserve the right to not process any samples identified as a potential health risk to personnel. We reserve the right to not process any samples identified as contaminated, damaged, leaking, or spoiled, and are determined to not be suitable for proper analysis. Once the soil sample is received results may take up to 2 weeks for processing and analysis.
6. Standard Services: Analyses within stated turnaround times (calculated in business days, excluding weekends and holidays), if SOILHEALTH has stated in writing a turnaround time, otherwise, as is reasonable in the industry. Rush analysis, weekend and holiday service is available but may incur additional costs. It is Customer’s responsibility to inquire of such charges prior to submission of samples for analysis.
7. Rush Analysis: Rush Turnaround Times (RTAT) are available upon special request and must be approved by SOILHEALTH personnel prior to sample submission. Generally, SOILHEALTH will not approve RTAT. SOILHEALTH is not liable for extensions of RTATs as a result of highly-contaminated samples. Turnaround times may be extended as a result of improper sampling, preservation, sample matrix, wide ranges of analyte concentration or other issues outside of the control of SOILHEALTH.
8. Acceptance of Test Reports: All reports and letters issued by SOILHEALTH are for the exclusive use of the Customer to whom they are addressed. No other entity or person may rely upon or use such letter or report without the written consent of SOILHEALTH. SOILHEALTH reports apply only to the specific samples tested under stated test conditions and protocols and test results are not necessarily indicative of the qualities of apparent identical or similar testing or conditions. SOILHEALTH shall have no liability for any deductions, inferences or generalizations drawn by the Customer or others from reports from SOILHEALTH. If the Customer requests verification of any part of the test report, SOILHEALTH shall be notified within thirty (30) days of submission of the report to the Customer. Failure to notify within this thirty (30) day period acknowledges acceptance of the report. Should additional work be required for verification purposes, SOILHEALTH shall be entitled to the reasonable value of the additional work performed by SOILHEALTH. Payment for any test report or other SOILHEALTH invoice shall not be conditioned upon acceptance and/or approval of a third party or the results of the test.
9. Hazardous Wastes: Customer must notify SOILHEALTH of any materials suspected of being hazardous and provide the appropriate documentation and packaging of such samples. SOILHEALTH reserves the right to refuse samples that may cause a hazard to which SOILHEALTH is not equipped to handle and will return samples to the Customer. It is the responsibility of Customer to label and meet all regulations on samples that are hazardous. Hazardous samples may be returned to Customer or Fees may be applied to have hazardous material properly and safely disposed of by a third party.
10. Quality Assurance: SOILHEALTH agrees to follow their Quality Assurance Manual and Method SOPs unless specified in writing. It is up to Customer to determine if these procedures meet their needs prior to placing the order
11. Retention of Samples. Unless otherwise specified water samples are stored for a minimum of 14 days after completion of the work order. Empty containers and samples that are analyzed for microbiology are disposed of immediately. SOILHEALTH may have the capacity to store samples for longer periods of time for further or additional analysis, if requested prior to sample disposal. Additional fees may be applied
12. Cancellation Policy: All orders cancelled may be subject to a cancellation fee. If sample(s) are processed for analysis before cancellation has been requested, cost of prep completed and/or full analysis cost will be charged
13. Report Retention: Reports will be kept for 3 years unless otherwise required by law or specified in writing. SOILHEALTH datasets are retained for the purposes of scientific research and experimental design purposes
14. Valid Orders: It is the sole responsibility of the Customer to determine that services ordered are suitable for the purposes of the Customer’s intended use. Any order provided to SOILHEALTH, notwithstanding the fact that such order may have been given or signed by a person not authorized by the Customer, shall be deemed to constitute a valid order.
15. Fraud: By becoming a member, you confirm that the information provided in this form is true and that you agree to abide by the Terms and Conditions of use of this site. Please note that your membership can be cancelled without notice if it is determined that false or misleading information has been provided, the Terms and Conditions of use have been violated, or other abuses have occurred as determined by SOILHEALTH in its sole discretion. If membership has been revoked, SOILHEALTH reserves the right to refuse application or readmission to the membership program.
16. Payment Terms:
• SOILHEALTH reserves the right to request an initial retainer fee before SOILHEALTH begins work on the matter. Any retainer will be deposited and credited to Customer’s account and will be applied toward all invoiced fees and costs incurred in this matter. SOILHEALTH will bill against the retainer as fees are expended. Should SOILHEALTH anticipate at any time that costs will exceed the amount in retainer, it MAY request pre-payment in sole discretion of SOILHEALTH. Upon termination of this Agreement, and the payment of any sums due and owing to SOILHEALTH, any excess will be refunded to Customer.
• To the extent that any invoice exceeds the amount of the retainer held on credit, and such costs are invoiced, Customer agrees to pay the invoices within 15 days of the date on the invoice, unless otherwise designated in writing by SOILHEALTH.
• Customer shall notify SOILHEALTH in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within 15 days from the date of such invoice. Customer will be deemed to have accepted all invoices for which SOILHEALTH does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within 15 days.
• The Customer’s obligation to pay SOILHEALTH is not in any way conditioned upon Customer receiving payment from any third party or on any specific result from services by SOILHEALTH. If the Customer fails to make payment according to the agreed upon terms, SOILHEALTH shall have the full right to cease all work, withhold test data and or reports, and cause all invoices to be immediately due and payable, even if such ceasing would compromise the Customer’s study and require the Customer to prepare and submit new samples. Customer is still obligated to pay for the testing up to the date testing is ceased by SOILHEALTH.
• In the event the Customer defaults in making payment of any amount that has become due and owing, the full outstanding balance (whether due or not) will immediately become due and payable without further notice to the Customer.
• Past Due accounts will be charged 1.5% per month of the unpaid balance. Customer agrees to reimburse SOILHEALTH for the costs of collection of past due debts including but not limited to collection and legal fees, to the fullest extent permissible by applicable law. Customer may not defer billing to a third party. SOILHEALTH will not be responsible for holding times or deadlines that are missed because of changes or delays in payment. Credit card payments incur a 3% fee if payment is made after the date of the invoice.
17. Warranties: Services performed by SOILHEALTH, including its works and reports are not governed by the Uniform Commercial Code (UCC). Except as stated expressly herein, SOILHEALTH disclaims all warranties, express or implied, including any warranties of merchantability or fitness for a particular purpose. SOILHEALTH shall have no liability for incidental or consequential damages of any nature whatsoever. The Customer acknowledges and agrees that SOILHEALTH provides no warranty, express or implied regarding any supplies, devices, or monitoring.
18. Customer Remedies: SOILHEALTH warrants the accuracy of the results of samples as submitted, no other warranty or liability for the use of the result is expressed or implied. Expressly, SOILHEALTH will provide services in accordance with this Agreement and SOILHEALTH will not have any responsibility other than to exercise reasonable skill and care in the performance of services. In the event any court of competent jurisdiction or arbitrator makes a final determination that SOILHEALTH has failed to comply with such standards of conduct in providing services and that such failure directly caused the Customer harm, SOILHEALTH will be responsible to compensate the Customer for such direct harm, PROVIDED, HOWEVER, that the amount of such compensation will not exceed the cost of services provided that caused the Customer harm or the damages incurred, whichever is less, and that, under no circumstances will SOILHEALTH be liable to the Customer for any incidental, indirect, consequential, or punitive damages. EXCEPT AS OTHERWISE PROVIDED EXPRESSLY HEREIN, SOILHEALTH MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED OR GOODS SOLD, INCLUDING, BUT NOT LIMITED TO, ANY “IMPLIED WARRANTY OF MERCHANTABILITY” OR “FITNESS FOR A PARTICULAR PURPOSE.”
19. Refund Policy: Please order carefully as there are no refunds or exchanges on Services.
20. Litigation: SOILHEALTH and Customer waive the right to a trial by jury.
21. Indemnification: Customer agrees to indemnify SOILHEALTH for gross negligence or misconduct on the part of Customer or its agents unless such gross negligence is a result of negligent or willful omissions on the part of SOILHEALTH.
22. Third Party Claims: CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS SOILHEALTH AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, AND SUBCONTRACTORS (EACH AN “INDEMNIFIED PARTY”) FROM ALL LOSSES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF, OR RELATED TO, CLAIMS ASSERTED BY THIRD PARTIES THAT RELATE TO THE TESTING RESULTS OR TESTING DATA PROVIDED BY SOILHEALTH TO CUSTOMER, OR THE MANUFACTURE, MARKETING, OR SALE OF CUSTOMER’S PRODUCTS OR THAT RELATE TO THE SERVICES RENDERED
23. Release and Waiver: TO THE EXTENT PERMITTED BY LAW, CUSTOMER WAIVES AND RELEASES SOILHEALTH AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS AND SUBCONTRACTORS FROM ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, OR CAUSES OF ACTION FOR ANY ALLEGED LOSS, DAMAGE, OR INJURY, OTHER THAN A CLAIM FOR COMPENSATION FROM SOILHEALTH PURSUANT TO SECTION 8. THIS RELEASE AND WAIVER COVERS ALL CLAIMS ARISING IN TORT AS WELL AS THOSE ARISING UNDER ANY STATE OR FEDERAL STATUTE, THAT IN ANY WAY ARISE OUT OF, OR RELATE TO, THE SERVICES OR PERFORMANCE OR ALLEGED NON-PERFORMANCE UNDER ANY AGREEMENT BETWEEN THE PARTIES.
24. Recovery of Legal/Collection Costs: Should SOILHEALH instruct its attorneys or collection agent to collect any overdue amounts, or to take any action against the Customer in the implementation or protection of the rights of SOILHEALTH, SOILHEALTH shall be entitled to the recovery of all legal fees, costs and/or collection costs arising therefrom, to the fullest extent permissible by law
25. Governing Law and Consent to Jurisdiction: The Customer hereby agrees that this Agreement and all other agreements between SOILHEALTH and the Customer shall be deemed to be made and governed by the Laws of Ontario, Canada. The Customer hereby consents that any legal action brought by SOILHEALTH for collection of any fees or invoices not paid by the Customer or other remedies sought by SOILHEALTH, shall be brought in a court of competent jurisdiction in Halton Region, Ontario, Canada, or if the action is to be in federal court, in Ontario, Canada.
26. Copyright. The Customer acknowledges and agrees that all testing protocols or processes used to generate test results are the sole ownership of SOILHEALTH. No rights or ownership of SOILHEALTH copyrights or other intellectual property of SOILHEALTH is transferred by invoicing the Customer for protocols used in the performance of the service by SOILHEALTH. Customer agrees that it shall not infringe upon any of the intellectual property rights of SOILHEALTH. Nothing in this Agreement shall be construed as a sale or transfer of SOILHEALTH copyrights, trademarks or any other intellectual property owned or held by SOILHEALTH. Until such time as the Customer has paid SOILHEALTH in full with respect to any services provided by SOILHEALTH, the license to use any test results or any data related thereto shall be prohibited and shall remain the property of SOILHEALTH. SOILHEALTH shall, in its sole discretion, without notice to the Customer, be entitled to take possession of any such reports which have not been paid for or for which payment is overdue. Customer shall not be entitled to a credit with respect to services that may have been partially paid for. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks, registered trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any such matters or any part of the Site, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. SOILHEALTH content including, but not limited to diagrams, data visualizations and photographs are subject to copyright protection and are not to be reproduced without the explicit written consent of SOILHEALTH.
27. Limited Right to Use: The viewing, printing or downloading of any content, graphic, form or document from the Site grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of any content, form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use (but not for resale or redistribution).
28. Use of Information: We reserve the right, and you authorize us, to the use and assignment of all information regarding Site uses by you and all information provided by you in any manner consistent with our Privacy Policy.
29. Editing, Deleting and Modification: We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Site, including this Agreement, without further notice to users of the Site.
30. Nontransferable: Your right to use the Site is not transferable. Any password or right given to you to obtain information or documents is not transferable and may only be used by you.
31. Limits: All responsibility or liability for any damages caused by viruses contained within the electronic file containing the form or document is disclaimed. WE WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT MAY RESULT FROM USE OF OR INABILITY TO USE OUR SITE. Our maximum liability to you under all circumstances will be equal to the purchase price you pay for any goods, services or information.
32. Site Information Errors: We strive to provide you the most current and accurate information on our site; however, we cannot guarantee that information on our site is error-free. SOILHEALTH cannot be held responsible for any damages arising out of your use of our site. We reserve the right to cancel and reject orders for any reason. In the case that our products have been incorrectly priced and purchased, SOILHEALH will cancel the order, correct the price, and make them available for purchase at the correct price.
33. Miscellaneous: The failure of a party to insist upon strict performance of any provision of this Agreement or to exercise any right arising out of this Agreement shall neither impair that provision or right nor constitute a waiver of that provision or right, in whole or in part, in that instance or in any other instance. Any waiver by a party of a particular provision or right shall be in writing, shall be as to a particular matter and, if applicable, for a particular period of time and shall be signed by such party. If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of this Agreement are declared to be severable.
34. Disclaimer: THE INFORMATION FROM OR THROUGH THE SITE IS PROVIDED “AS-IS,” “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE. IN PARTICULAR, BUT NOT AS A LIMITATION, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US. THIS SITE AND THE INFORMATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
35. CONTACT: If you have questions please contact:
SOILHEALTH.CA
100 –5063 North Service Road
Burlington, ON
L7L 5H6
Monday – Friday
8:30am to 4:30pm
1-833-DIG-SOIL (1-833-344-7645)