MGS Horticultural Inc. - Distributor of consumable goods to the horticultural & turf industries.

WEBSITE TERMS AND CONDITIONS OF USE
I. Acknowledgement and Acceptance of Terms and Conditions of Use
A. These website terms and conditions of use are a legal agreement (“Agreement”) between you, any entity you are representing (if any) and anyone accessing the Solutions (as hereinafter defined) on behalf of or with the express or implied consent of you and/or any entity you are representing (if any) (jointly and severally, the foregoing collectively referred to as the “User” or “you”), and MGS Horticultural Inc., together with its affiliates and related companies and entities (collectively “MGS”). This Agreement governs the access to and use of MGS’ website(s) (the “website”) including, but not limited to, all functions for which User registers on, and which are provided by or through, the website and other online resources provided by MGS from time to time (collectively, the “Solutions”). For clarity, the Solutions include, without limitation, the website and the facilities, equipment, and software, and hosting the Solutions. If you do not agree to or understand the terms of this Agreement, do not use or access the Solutions.
B. The access to the Solutions is offered to User conditional upon User’s acceptance without modification of this Agreement and other terms and conditions required for any specific Solutions. Acceptance occurs upon accepting this Agreement on the website homepage and automatically applies to every access of the Solutions. User acknowledges that, from time to time, it may be necessary for MGS to update or revise certain provisions of this Agreement effective as of the date of posting on MGS’s website. User agrees that MGS may change the terms of the Agreement in its sole discretion without specific notice to User, but MGS agrees to have the updated terms posted on MGS’s website within reasonable time. If User does not agree to the changes proposed or posted by MGS, or to any terms in this Agreement, User’s sole and exclusive remedy is to stop accessing the Solutions.

II. General
A. The Solutions are internet-based applications owned or licensed by MGS. The purpose of certain aspects of the Solutions is to permit registered clients of MGS to place orders and to generally assist MGS in providing its services to its clients (“Services”). All other MGS terms and conditions related to Services continue to apply to Services requested or assisted by use of the Solutions and are available on written request to MGS at the address provided below.
B. MGS may in its sole discretion change, modify, suspend, make improvements to or discontinue any aspect of the Solutions, temporarily or permanently, at any time and without notice to User. Under no circumstance will MGS be liable for any such change, modification, suspension, improvement or discontinuance.
C. The Solutions may contain inaccuracies, misrepresentations or typographical errors. MGS makes no representations about the accuracy, reliability, completeness, or timeliness of Solutions or any content thereon. The use of the Solutions is at User’s own risk. Changes are periodically made to the website and may be made at any time.

III. Registration
A. All registered Users must: (a) provide true, accurate, current and complete information to MGS in connection with any registration process associated with certain aspects the Solutions; (b) advise MGS from time to time on who has access and who does not have access to its account accessible by way of the Solutions; and (c) maintain and promptly update the information contemplated by each of the foregoing paragraphs as necessary; acknowledging that MGS is not responsible in any manner whatsoever for this communication process or any errors. If MGS has reasonable grounds to suspect that User’s information is untrue, inaccurate, not current or incomplete, MGS may suspend or terminate that User’s account and prohibit any and all current or future use of the applicable portions of the Solutions requiring registration.
B. The individual completing the registration of the client with MGS and thereby accepting this Agreement represents and warrants that: (i) he or she is eighteen (18) years of age or older and has the right, implied, actual or apparent authority, and capacity to enter into and comply with this Agreement on behalf of the User; and (ii) the information provided to MGS during the registration process is accurate, and the User will promptly notify MGS if any of that information changes. MGS may use the information provided during the registration process, in particular email addresses: (a) to communicate about the Solutions, including, without limitation, any changes to this Agreement or MGS’ privacy policy or other policies; (b) providing services for the client; and (c) for all other purposes stated in MGS’s privacy policy.
C. MGS does not owe to User, and User specifically waives and releases MGS from, any fiduciary duty. MGS’s only obligations are as set forth in this Agreement.
D. User will receive a User name and password upon completing the Solutions’ registration process and is wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring thereunder. MGS cannot and will not be liable for any loss or damage arising hereunder or those arising from any User’s failure to: (a) immediately notify MGS of any unauthorized use of User’s password or account or any other breach of security; and (b) ensure that User exits from User’s account at the end of each session. Without limiting other disclaimers of liability set out in this Agreement, MGS cannot and will not be liable for any loss or damage arising from any use of Solutions conducted using the User’s name and password and/or User’s failure to comply with this Section.

E. User shall:
1. Not use the Solutions, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement;
2. Not use the Solutions in any manner that could damage, disable, overburden, or impair the Solutions or interfere with any other person’s use of the Solutions;
3. Not upload, post, or otherwise transmit through the Solutions any viruses or other harmful, disruptive or destructive files;
4. Not create a false identity;
5. Not use or attempt to use another’s account and/or User name, password without authorization from MGS to access the Solutions;
6. Not access or attempt to access any design content which User is not authorized to access;
7. Not disrupt or interfere with the security of, or otherwise cause harm to, the site, or any Solutions, materials, system resources, accounts, passwords, servers or networks connected to or accessible through the site or any affiliated or linked sites;
8. Not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other website, transfer, or sell any information, software, lists of Users, databases or other lists, or Solutions provided through or obtained from the Solutions other than for internal business use of the User in accordance with this Agreement;
9. Not engage in the practices of “screen scraping”, “database scraping”, or any other activity with the purpose of obtaining lists of Users or other information;
10. Not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Solutions;
11. Not post personal information;
12. Not attempt to decipher, decompile, disassemble or reverse engineer any of the software embodied in the Solutions; and
13. Not post any fictitious material whatsoever.

F. User, and not MGS, is entirely responsible for all content that User uploads, posts, emails or otherwise transmits via the Solutions. User shall not transmit content or otherwise conduct or participate in any activities on the website and/or any Solutions which, in the opinion of MGS’s counsel, are prohibited by law in applicable jurisdictions, including laws governing the encryption of software, the export of technology or the permissible uses of intellectual property. The content may be used solely for business, informational and internal purposes related to the relationship between User and MGS and to the Services. The rights granted to User constitute a terminable license not subject to assignment or sublicense and is not a transfer of title to the Solutions.

G. MGS has the right (but not the obligation) in its sole discretion to refuse or delete any content that it reasonably considers to violate the terms of usage or be otherwise illegal or improper. MGS, in its sole and absolute discretion, may preserve content and may also disclose content if required to do so by law or judicial or governmental mandate or as reasonably determined necessary by MGS to protect the rights, property or safety of MGS or its Users.

H. The personal information that MGS asks you to provide is collected and used by us in accordance with this Agreement, which includes by reference our privacy policy, and by agreeing to these Terms and Conditions you hereby consent to that collection and use. Without limiting uses permitted by our privacy policy or otherwise in accordance with applicable laws, by accepting this Agreement, the User accepts that all information or data input, transmitted to and/or stored within the Solutions may be used by MGS to directly or indirectly provide Services for the client and may aggregate with information of other clients to assist MGS in developing, analyzing, and implementing marketing programs. Subject to the conditions of its privacy policy and legal requirements, MGS is granted a license and reserves the right to use this data or information for internal purposes as it deems appropriate and without obtaining prior consent from the User. To learn how MGS protects User information, refer to the MGS’ online privacy policy.

IV. Termination of Access to Solutions
User’s account access (if applicable) and/or use of Solutions may be terminated for any reason including, but are not limited to, the following: (a) violation or other breach of this Agreement; (b) abuse of website resources or attempt to gain unauthorized entry to the Solutions or the Solutions’ resources; (c) use of Solutions in a manner inconsistent with the intended purpose; (d) a User’s request for such termination; (e) requirement of applicable law, regulation, court or governing agency order; (f) user stops purchasing products from MGS; or (g) unilateral decision of MGS. MGS’s termination of any User’s access to the Solutions may be effected without notice and if applicable, on such termination, MGS may immediately deactivate or delete User’s account and/or bar any further access to such files. MGS shall not be liable to any User or third party for any termination of that User’s access or account hereunder.
V. Limitation of Liability – Services
In addition to other applicable MGS terms and conditions in effect from time to time, the User acknowledges and agrees that the following terms and conditions apply to all Services including, without limitation, orders placed with MGS, whether requested or assisted by use of the Solutions:

A. No Liability for Services. The Services, including any recommendations given by MGS to the User (if any), shall not be interpreted as approval by MGS of the User’s use and/or application of any product ordered from MGS (“products”), the Services and/or the Solutions. MGS assumes no liability whatsoever with regard to such use and/or application including, without limitation, for liability relating to failure of product to perform according to need or expectations and/or MGS’s recommendations (if any).
B. Acknowledgement Regarding Services. Without limiting the generality of Section VI(A), the User acknowledges and agrees that MGS's recommendations to the User (if any) relate only to conditions observed while at the User's locations. Any decision or action implemented by the User as a result of such recommendations, the Services generally and/or the Solutions is the sole decision of the User, without liability to the Released Parties (as hereinafter defined) whatsoever. For further clarity, the User acknowledges and agrees that no supervisory actions will be discharged by MGS and MGS shall be under no obligation to make recommendations or to modify recommendations previously given necessitated by changes in the User’s operations or otherwise, even if MGS is aware of such changes.
C. Disclaimers of Warranty – Services. In supplying the User product and/or providing Services including, without limitation, by providing recommendations, MGS makes no warranties whatsoever, either express or implied, oral or written, in fact or by operation of law or otherwise.
D. Limitation of Liability – Services. The User’s hereby releases and holds harmless MGS and its affiliates, and its and their directors, officers, employees, independent contractors, agents, successors and assigns, (collectively the “Released Parties”) from and against all claims, losses, damages, expenses, contracts, liabilities, actions and other proceedings of any kind or nature (including, without limitation, any legal fees and disbursements incurred) in any manner based upon, occasioned by or attributable to:
a) the product(s), Services including, without limitation, any recommendations, the Solutions and/or otherwise;
b) anything negligently done or omitted to be done by the Released Parties in connection with the product(s), the Solutions and/or Services including, without limitation, any misrepresentation, misstatement, imprudence, lack of skill or error of judgment of or by the Released Parties in connection with recommendations, if any; and/or
c) the use and/or application by the User of the product(s), the Services and/or the Solutions.
E. Indemnity. The User shall release, indemnify, protect and hold harmless the Released Parties from and against all claims, losses, damages, expenses, contracts, liabilities, actions and other proceedings of any kind or nature (including, without limitation, any legal fees and disbursements incurred), made, sustained, brought, prosecuted, threatened to be brought or prosecuted by any third party, in any manner based upon, occasioned by or attributable to anything done or omitted to be done on the part of the User, its directors, officers, employees, independent contractors, or agents in connection with the use and/or application by the User of the products(s), the Services, the Solutions and/or otherwise in connection with this Agreement.

VI. Disclaimers and Limitation of Liability - Use of Solutions
A. Disclaimers of Warranty – Use of the Solutions. Each User’s use of the Solutions is at his, her or its sole risk. Each User will be solely responsible for any damage to his, her or its computer system or loss of data that results from the entry or download of any material or other use. Without limiting the generality of the foregoing, MGS shall have no responsibility or liability for any damages caused to computer systems, software or electronic files by computer viruses, "worms", "trojan horses" or other items or forces of an intrusive, disruptive or destructive nature. MGS makes no warranty that: (a) the Solutions will meet the User’s requirements; (b) the Solutions and access thereto will be uninterrupted, timely, secure or error-free; (c) the results that may be obtained from the use of the Solutions will be effective, accurate, or reliable; (d) the quality of any products, Solutions, or materials purchased or accessible by the User through the site will meet the User’s expectations; and (e) any errors in the software obtained from or used through the site or any defects in the site, its Solutions or materials, will be corrected.
B. Release of Liability. IN CONSIDERATION OF THE PRIVILEGE OF UTILIZING THE SOLUTIONS AND THE PROMISES MADE HEREIN, USER RELEASES AND FOREVER DISCHARGES RELEASED PARTIES FROM CLAIMS, LOSSES, DAMAGES, EXPENSES, CONTRACTS, LIABILITIES, ACTIONS AND OTHER PROCEEDINGS OF ANY KIND OR NATURE (INCLUDING, WITHOUT LIMITATION, ANY LEGAL FEES AND DISBURSEMENTS INCURRED), WHETHER NOW KNOWN OR WHICH MAY HEREAFTER BECOME KNOWN. USER FURTHER COVENANTS NOT TO SUE OR AUTHORIZE A SUIT AGAINST THE RELEASED PARTIES.
C. Limitations of Damages. MGS shall have no liability for direct damages under this Agreement even if such damages arise out of MGS’s gross negligence or willful misconduct or even if MGS has been advised of the possibility of such damages. MGS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF MGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY USER’S USE OR INABILITY TO USE THE SOLUTIONS; UNAUTHORIZED ACCESS TO OR ALTERATION OF THE USER’S TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SOLUTIONS; OR ANY OTHER MATTER RELATING TO THIS AGREEMENT OR ANY SOLUTIONS.
D. Disclaimer of Implied Warranties. USER AGREES THAT ITS ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, SOLUTIONS AND/OR THE WEBSITE IS AT USER’S SOLE RISK. SOLUTIONS AND THE WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND MGS AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. USER SPECIFICALLY ACKNOWLEDGES THAT USER’S USE OF SOLUTIONS OR THE WEBSITE IS A CONVENIENCE, AND THAT USER HAS NOT RELIED UPON THE ONGOING OR ERROR-FREE OPERATION, USE OR INFORMATION IN THE WEBSITE FOR ANY REASON WHATSOEVER. WITHOUT LIMITING THE FOREGOING, MGS AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATION OR WARRANTY THAT USER’S ACCESS TO OR USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER MGS NOR ITS CONTRACTORS OR LICENSORS MAKE ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE EXISTENCE OR INTEGRITY OF BACKUPS, IF ANY, OF CONTENT OR MATERIALS STORED ON THE WEBSITE. IT IS USER’S RESPONSIBILITY TO MAINTAIN LOCAL COPIES OF ITS POSTINGS.
E. Legal Limitations on Disclosures. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO USER. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF USER’S CLAIMS AGAINST RELEASED PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USER’S ACCESS TO OR USE OF THE SOLUTIONS EXCEED THE GREATER OF CAN$1,000.00. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY AND THE WAIVERS, RELEASES AND COVENANTS MADE HEREIN REPRESENTS A REASONABLE ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
F. Indemnity. User agrees to indemnify and hold MGS harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of User’s breach of this Agreement, including without limitation User’s violation of any applicable laws or the rights of a third party.

VII. Trademark and Copyright Information
A. The trademarks and logos (“Marks”) displayed in the Solutions are the property of MGS. User is not permitted to use the Marks without the prior written consent of MGS.
B. The website and the materials contained on the website (“Contents”) and the collection, arrangement and assembly of the Contents are the exclusive property of MGS and are protected by international, Canadian and United States copyright laws. MGS product names mentioned or shown at the website are registered trademarks or trademarks of MGS in Canada, the United States and other countries. MGS trademarks may not be used in connection with any product or service that is not a MGS product or service, in any manner that is likely to cause confusion among customers, or in any manner that refers to MGS in a negative way. MGS acknowledges the rights of third parties whose trademarks or registered trademarks are referenced at the website.
VIII. Language
It is the express wish of the parties that this Agreement and all related documents are in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
IX. Law and Jurisdiction
The website is controlled, operated and administered by MGS from its offices in Ontario, Canada. Unless otherwise expressly agreed to in writing, this Agreement and the Solutions and all disputes or other matters arising out of each shall be governed by the laws of Ontario, Canada, without regard to conflict of law principles, and shall be dealt with solely by a court of competent jurisdiction in Windsor, Canada or such other location as the parties may mutually agree. MGS makes no representation that the Contents are appropriate or available for use at other locations and access to them from jurisdictions where the Contents are illegal is prohibited. User shall not import, export or use the Contents in violation of any applicable laws. In accessing this website, User is solely responsible for compliance with all applicable local laws.
X. Miscellaneous
A. Geographical Limitations. MGS makes no claims that the website may be lawfully viewed or accessed outside of the United States or Canada. Access to the website may not be legal by certain persons or in certain countries. If User accesses this website from outside of the United States or Canada, User does so at its own risk and is responsible for compliance with the laws of User’s jurisdiction. This Agreement constitutes the entire agreement between MGS and User concerning the subject matter hereof, and it may only be modified by notice signed by an authorized executive of MGS and User. If any part of this Agreement is held invalid or unenforceable, that part will be altered and construed to reflect as nearly as possible the parties’ original intent, and the remaining portions will remain in full force and effect. User and MGS are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. User may assign its rights under this Agreement only with the express written permission of MGS exercising its sole discretion. MGS may assign its rights under this Agreement without restriction. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
B. Responsibility for Content. User is entirely responsible for the content and data User posts to the website. When User posts content to the website, User thereby represents and warrants that: (i) the posting does not and will not infringe the proprietary rights, including but not limited to all intellectual property rights, of any third party; (ii) the posting does not contain false, misleading or incomplete address or information; (iii) the posting does not otherwise violate any provision of this Agreement or any applicable law or regulation, including, without limitation, any laws or regulations related to labor and employment; (iv) User will maintain the secrecy of its username and password and that no person other than User or its authorized representative will use the username or password; and (v) access to and use of the website will be in accordance with this Agreement and with any applicable laws or regulations.
C. Security. User shall not violate or attempt to violate the security of the website, including, without limitation, via the following activities: (i) accessing data not intended for User or logging into a server or account which User is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any other user, host or network, including, without limitation, via means of submitting a virus to the website, overloading, “flooding”, “spamming”, “mail bombing” or “crashing”; or (iv) forging any TCP/IP packet header or any part of the header information in any email. Violations of system or network security may result in civil or criminal liability.
D. Communications with MGS. Except as herein expressly provided, all notices or requests required to be given under this Agreement and all other communications related to this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, sent by overnight courier or telefax or mailed, first class, by registered or certified mail return receipt requested, addressed as follows, and shall be effective when received. All notices and other communications to MGS required under this Agreement shall be directed to MGS Horticultural Inc., 50 Hazelton St., Leamington, Ontario N8H 3W1 Fax: (519) 326 – 9037 Attention: Chief Executive Officer. All notices and other communications required under this Agreement shall be directed to the email address User has provided during this registration process. All comments submitted to MGS will belong to MGS, and User agrees to assign, and hereby does assign, to MGS, to the fullest extent permitted by law, all right, title and interest, including all intellectual property rights, in and to such comments. MGS will be free to use all comments, all ideas, concepts, methods or techniques embodied in all comments (“Commentary”), for any purpose whatsoever. User shall assign, and hereby does assign all right, title and interest in and to such Commentary to MGS.