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TERMS OF SERVICE – BY PLUS USA

Acceptance of the Terms of Service

These terms are entered into between you (“you” or “your“) and Brett-Young Seeds Limited . (“BY“, “us“, “we” or “our“), a federal business corporation incorporated pursuant to the laws of Canada. You participation in the BY PLUS Program (the “Program“), is subject to and governed by the terms and conditions set forth in these Terms of Service (the “Terms“). By participating in the Program, you are legally bound by these Terms. If you do not agree to be bound by these Terms, do not sign up for an Account, and do not participate in any of part of the Program.

Changes to Terms

We may modify these Terms at any time in our sole discretion. Changes may arise for a variety of reasons, including to reflect changes in the law, new features, changing business practices, or learning a better way to provide the Program. Any changes to these Terms will become effective when we post them on our website at https://brettyoung.ca/usa-by-plus-terms-and-conditions. Your use of Program following these changes constitutes your acceptance of the revised Terms. If we believe that the changes contain any material changes that affect your rights or responsibilities, we will notify you in advance of the change by reasonable means. This could include a direct notification through our website when you log into the Program dashboard, or by an email. If you continue to use the Program after we make the changes, then you agree to those changes. If you do not agree to the revised Terms, you must stop using the Program immediately.

Permitted Users

The Program is for business use only. These Terms establish or supplement a business-to-business relationship between you and us. By creating an account to access the Program, you represent and warrant that you are at least 18 years of age or the age of majority under the laws of where you reside, that you are acting for business purposes, and you agree to be bound by these Terms. If you are accepting these Terms on behalf of a company or other legal entity, you represent that you have authority to bind the entity, in which case “you” and “your” shall refer to you and such entity.

BY Account

Account Creation

You must create a BY PLUS account to access the Program (an “Account”). When you create an Account, you will be asked to provide certain information about you and your business, such as your name, your business or corporate name (if applicable), address for service, email address, and other user information that is either necessary or advisable in order to participate in the Program (“Account Information”). By entering your Account Information, you represent and warrant that all such information you enter is true and accurate and you agree to keep the information up to date if it changes at any time while you are bound by these Terms. Should you refuse to provide certain Account Information, we may not be able to provide you access to some or all Program offerings.

Responsibility

You are responsible for maintaining the confidentiality of your Account and password, including but not limited to the restriction of access to your computer and/or Account. Sharing of your login information is prohibited. You accept responsibility for any and all activities or actions that occur under your Account. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account.

Suspension of Accounts

We want to ensure that all of our users have a genuine and positive experience while using the Program. In order to do that, we reserve the right to terminate or suspend your Account at our sole discretion. This means that we don’t need any reason to revoke your access. We may employ technological solution to determine whether you’re breaching these Terms. You’re agreeing to allow us to do everything that we are legally allowed to do to both ensure that you are complying with these Terms, and to prevent you from using the Program, at any time and without notice to you. This includes blocking specific IP addresses.

The Program

Scope of Services

The Program operates to provide you with the following:

  • Useful production information, agronomic support and advice related to your operations;
  • Access to the best offers and benefits available to BY retailers, including product discounts and rebates, and re-seed benefits; and
  • A preferred channel for customer feedback.

The Program may not be available in all languages, and may not be appropriate or available for use in any particular location. Our services, models, data and recommendations may change over time. We do not guarantee any information or advice provided through the Program, and neither the Program nor BY Content (defined below) should be used as a substitute for sound farming and business practices, or as the sole means for making farming, business, risk management or financial decisions. We recommend that you consult your agronomist, commodities broker, and other service professionals before making financial, risk management business and farming decisions.

Personal Information

Providing the Program requires us to collect, share, and use your personal information. Our Privacy Policy, which is incorporated herein by reference, is available online at https://brettyoung.ca/privacy-policy/. It explains how we collect, share, and use your personal information. It also explains the many ways you can control your personal information, including in the preferences and settings accessible within your Account.

Engagement of Agent

For the purposes of administering the collection and storage of information, we have engaged the services of AgData, Ltd. (“AgData”) as our agent, data validator, and processor. However, you acknowledge and agree that we may, at any time during the term of our relationship, and at our sole discretion, unilaterally engage a different agent, data validator, and processor than AgData (the “New Agent” and together with AgData, hereinafter referred to as the “Agent”) without the requirement to obtain your consent.

In the event we elect to engage a New Agent, you hereby give your consent to permit AgData to transfer all of your personal information and Customer Business Data (the “Agent Data“) to the New Agent. Upon our engagement of the New Agent, including the transfer and conveyance of all Agent Data from AgData to the New Agent, we shall take all reasonable commercial efforts to ensure that AgData delete or destroy all Agent Data in its possession.

You hereby give your consent to permit our Agent to collect the Agent Data from applicable retailers and distributors, and thereafter provide this Agent Data to us for the purposes outlined in these Terms and the Privacy Policy incorporated by reference. In all ways, the permissions granted to us through these Terms and Conditions will apply and extend to our Agent.

Content

For purposes of these Terms: (i) “BY Content” means text, content, graphics, images, music, user interfaces, software, machine learning models, audio, video, works of authorship of any kind, trademarks, unique gestures, logos, and information or other materials that are posted, generated, provided or otherwise made available through the Program that we created or have a license to use, and includes anything with in the Program that is not User Content; and (ii) “User Content” means any content that you provide to be made available through the Program, such as Customer Business Data (defined below), Account Information, and other information or data uploaded by you. Collectively, BY Content, and User Content are referred to as “Content.”

Content Ownership

We exclusively own all right, title and interest in and to the Program and BY Content, including all associated intellectual property rights. You acknowledge that the Program and BY Content are protected by United States, and international copyright, and other intellectual property laws and treaty provisions. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Program and BY Content. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content.

Rights in User Content Granted by You

By making any User Content available through the Program, you hereby grant to us a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, host, cache, store, reproduce, transmit, edit, remix, modify, adapt, reformate, create derivative works from, incorporate into other works, publicly display, publicly perform, publish, and distribute your User Content solely in connection with operating and providing the Program and BY Content.

BY needs this license because you own your User Content, and we may only display it across our various surfaces (i.e, mobile, web) with your permission.

No compensation or obligation will be due or payable to you in connection with our exercise of our rights under this license granted. To the extent that “moral rights” are applicable to your User Content, you also waive all such “moral rights” to any User Content that you submit. The rights granted under this license may be freely assigned or sublicensed by us to any party.

Rights in BY Content Granted By Us

Subject to these Terms, we grant you a limited, revocable, personal, non-exclusive, and non-transferrable license for you to access and use the Program and BY Content solely for your business use, without the right to sub-license. We do not grant you any rights or licenses under any of our technology or intellectual property rights, except as expressly granted in these Terms. In agreeing to these Terms, you agree that you shall use BY Content for lawful purposes only.

We reserve all other rights.

Restrictions

You agree NOT to:

  1. use or access the Program outside of the United States of America;
  2. sell, lease, lend, license, export, re-export, otherwise transfer, distribute, re-distribute, copy, publicly perform or display, transmit or publish any aspect of the Program or BY Content or assign, transfer or sublicense these Terms or the rights granted by us through these Terms without our prior written consent;
  3. create derivative works of BY Content or commercially exploit BY Content, except as expressly permitted pursuant to these Terms;
  4. access or use any aspect of the Program in any manner that could disable, overburden, damage, disrupt or impair any Program offering or interfere with any other party’s access to or use of the Program or use any device, software or routine that causes the same;
  5. use Program to develop, evaluate, validate or enhance any competing product or service, without our prior express written consent;
  6. attempt to gain unauthorized access to, interfere with, damage or disrupt our Program, Accounts registered to other users, or our computer systems, networks, or devices;
  7. circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Program;
  8. use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Program to monitor, extract, copy or collect information or data from or through the Program, or engage in any manual process to do the same;
  9. introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful;
  10. use the Program for illegal, harassing, unethical, or disruptive purposes, including without limitation, the delivery of “junk” mail or “spam”;
  11. use the Program to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of anyone or to publish material that is false, defamatory, harassing or obscene;
  12. use our name in metatags, keywords and/or hidden text; or
  13. remove or modify any markings or notices of our or our licensors’ proprietary rights, or violate or circumvent, or attempt to do so, any Program security features, including attempting to access or use any portion of the Program for which you have not paid all due and applicable amounts.

Your Responsibility for User Content

ou are solely responsible for your User Content. You represent and warrant that you own your User Content. You also represent and warrant that neither your User Content, nor your User Content to be made available through the Program, nor any use of your User Content will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation or violate any agreement you have with any third party.

Data and information

Customer Data and Feedback

Some Program elements may require you or your authorized users to upload, input, transmit, store or otherwise make available to BY information about your operation, such as your locations, purchase records, crop conditions, local dealers, maps or boundaries, recorded environmental, weather or climatic conditions, agronomic practices, crop losses, crop yields, field images, field notes and other information relating to your business operation (“Customer Business Data”). You may not be able to use certain features of the Program if you do not provide this information. As between you and BY, you own all Customer Business Data. At any time, you may request a copy of your Customer Business Data. We will provide a complete copy of your Customer Business Data in our possession in a readable form, which may not be in the same form as the information was provided to us. To the extent permitted by applicable law, you grant us a non-exclusive, irrevocable, royalty free, and worldwide license to access, use, reproduce, display, modify, and prepare derivative works based on your Customer Business Data in order to provide the Program and related support to you, for our internal operations and research and development purposes, and for other purposes set forth in these Terms.

You agree to permit retailers and distributors to share your Customer Business Data with us, and for us to collect your Customer Business Data from retailers and distributors from whom you have purchased our products for the purposes of (a) marketing, including personalized offers and promotions, better understanding customer needs, developing products and offerings, maintaining business operations; (b) processing, calculating, and administering discount and rebate payments earned under our loyalty programs; (c) ensuring compliance with trait stewardship requirements; (d) providing customer service; (e) such other purposes with your consent or as permitted or required by law. We will collect the following personal information:

  • Demographic information, namely: farm/business name, first and last name, address, city/town/ municipality, province, postal code, phone number, and email address; and
  • Invoice details, namely: transaction type, invoice number, invoice date, product description, unit of measure, quantity, and total/unit price.

Feedback

We welcome feedback, comments and suggestions for improvements to the Program (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in any BY Offering or in any such Feedback. All Feedback becomes our sole and exclusive property, and we may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim.

Commercialization of Data

We will never sell or share your Customer Business Data, personal information, or Account Information with third-parties unless you have given us permission to do so.

Terms and Terminations

Term Length

These Terms are effective until terminated by you or BY. Your rights under these Terms will terminate at the option of BY, with or without notice to you, if you fail to comply with any of our Terms. Upon termination, you will have no further right to access or use the Program, and any rights and licenses granted to you under these Terms will terminate. Termination or other discontinuation of your use of the Program will not relieve you of any obligations arising prior to termination regarding intellectual property or confidential information, ownership, or indemnification, nor will it relieve you of any liability for any breach of these Terms.

Account Deletion Requests

You may request that we close and permanently delete your Account by contacting the BY Privacy Officer: Jeff Rodgers, P.O. Box 99, St. Norbert Postal Station, Winnipeg, Manitoba, Canada, R3V 1L5. Phone: (800) 665-5015, Email: . If you request that we delete your Account, we will handle your personal information and other Customer Business Data you provide to us in accordance with our Privacy Policy.

Additional Termination Rights

We may terminate our relationship with you with or without cause upon written notice to you. For example, without limitation, we may terminate these Terms if: (i) we no longer offer the Program; (ii) your continued use of the Program violates these Terms, any other contract between us, or any applicable law or regulation; or (iii) we believe that your Account has been accessed without your authorization.

Survival

The rights granted to BY and any other obligations of the parties under these Terms which, by their nature, would continue beyond the termination, cancellation, suspension, or expiration of these Terms shall survive termination, cancellation, suspension, or expiration of these Terms.

Liability and Damages

Limited Warranties and Disclaimers

We do not promise that your use of the Program will be uninterrupted or that the Program or BY Content will meet your requirements, be accurate or be error-free.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PROGRAM AND ANY BY CONTENT IS AT YOUR SOLE RISK. EXCEPT AS SPECIFIED IN THE SECTION TITLED THE LIMITATIONS ON LIABILITY, THESE TERMS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF OUR AGREEMENT AND REFLECT A FAIR ALLOCATION OF THE RISK BETWEEN YOU AND US. THE PROGRAM WOULD NOT BE PROVIDED TO YOU FOR USE WITHOUT SUCH LIMITATIONS IN PLACE, AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM, BY AND BY CONTENT PROVIDED BY US OR OUR AFFILIATES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE AND OUR AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PROGRAM, AND BY CONTENT, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OUR AUTHORIZED REPRESENTATIVES OR US SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

USE OF THE PROGRAM AND BY CONTENT IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BY, OUR AFFILIATES, AND OUR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBCONTRACTORS SHALL NOT BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE PROGRAM, OR BY CONTENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IF ANY PORTION OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

THE LIMITATIONS ON LIABILITY IN THESE TERMS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF OUR AGREEMENT AND REFLECT A FAIR ALLOCATION OF THE RISK BETWEEN YOU AND US. THE SERVICE AND WEBSITE WOULD NOT BE PROVIDED TO YOU FOR USE WITHOUT SUCH LIMITATIONS IN PLACE, AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

Indemnity

You agree to indemnify, defend, and hold harmless BY and each of our employees, officers, directors, shareholders, agents, successors, licensors and subcontractors, from and against any claim, liability, damage, loss, or expense, including reasonable attorneys’ fees, arising out of or connected with:

  1. your use of, the Program, or BY Content;
  2. your violation of any portion of these Terms;
  3. any negligent acts, omissions, or willful misconduct by you;
  4. your violation of any law or any dispute or issue between you and any third party; and
  5. your User Content provided to the Program.

We retain the exclusive right to settle, compromise and pay any and all claims or causes of action which are brought against us without your prior consent. If we ask, you will co-operate fully and reasonably as required by us in the defence of any relevant claim

Communication

Formal Notices

Notices by either party in connection with Program may be provided by email. The receiving party will be deemed to have received such notice upon transmission. By accessing the Program, you expressly consent and agree that all notices, including without limitation all commercial transactional or relationship messages by you or us in connection with Program, and these Terms may be provided electronically to your primary e-mail address provided in your Account. It is your responsibility to keep your Account Information up to date so that we can communicate with you electronically. If we send a notice to your primary e-mail address on file and your primary e-mail address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, we will be deemed to have provided the notice to you. If electronic notices sent to you by us are returned because of an invalid e-mail address, we may deactivate your Account, in which case you will not be able to use your Account until you update your Account Information and provide a valid, working e-mail address. You may change your primary e-mail address at any time in your Account settings or by sending an e-mail message to us at . In the body of such request, state your previous e-mail address and your new e-mail address.

Miscellaneous

Force Majeure

Except for payment obligations, neither you nor us will be in breach of these Terms or responsible for damages caused by delay or failure to perform any of its obligations under these Terms due to circumstances beyond the control of the claiming party.

Governing Law

Your access to Program and BY Content, as well as these Terms are governed and interpreted by the laws of the State of North Dakota, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of North Dakota. By using the Program, you are consenting to the exclusive jurisdiction of the courts of the State of North Dakota. You agree that such courts shall have in personam jurisdiction and venue and waive any objection based on inconvenient forum. You agree that you will not file or participate in a class action against us. Any action commenced by you against us shall be filed in the City of Grand Forks, in the State of North Dakota.

Global Reach

By using the Program, you agree and acknowledge that the Program is a global service operating through servers located in a number of countries around the world, including the United States. If you live in a country with data protection laws, the storage of your personal data may not provide you with the same protections as you enjoy in your country of residence. By submitting your personal information, or by choosing to upgrade the services you use, or by making use of the Program, you agree to the transfer of your personal information to, and storage and processing of your personal information in, any such countries and destinations.

Third Party Links

BY Content may contain links to third party websites or resources. In such cases, you acknowledge and agree that we are not responsible or liable for:

(a) the availability or accuracy of such websites or resources; or

(b) the content, products, or services on or available from such websites or resources.

Links to such websites or resources do not imply any endorsement. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Assignment

You may not assign or transfer these Terms or any rights or obligations under them (by assignment, operation of law or otherwise) without the prior written approval of BY. Any attempted assignment or transfer of these Terms to any person shall be deemed to be void ab initio and of no force or effect. Any breach of this provision shall constitute a breach of these Terms. These Terms shall be binding upon and shall inure to the benefit of the parties and their successors and permitted assigns. We may transfer or assign these Terms without notice to you, in our sole and absolute discretion.

Entire Agreement

These Terms, including the applicable Privacy Policy, constitutes the entire agreement between the parties related to your access of the Program. Headings are for convenience only. These Terms do not create an association, partnership, joint venture, trust, agency or other relationship between the parties. These Terms is non-exclusive. No waiver by either party of any breach by the other party of any of these Terms shall be construed as a waiver of any subsequent breach, whether of the same or of a different provision of these Terms. If a court of competent jurisdiction finds any provision of these Terms to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remainder of these Terms will remain in full force and effect.

Third Party Services

You are solely responsible for all requirements for access to or use of the Program through your mobile device, internet or telecommunications provider, including but not limited to any connection, use or similar charges, or the terms related to the use of any additional required software.

Contact Us

If you have any questions about our Terms of Service, please contact us at: