1. DEFINITIONS
1.1 The following definitions shall apply for these General Terms and Conditions for BSA Participation:
a) “Agreement” shall mean the BSA Participation Agreement between the Alliance and Participant, these General Terms and Conditions for BSA Participation, and any other appendices and agreed amendments to said documents. Any reference in these General Terms and Conditions for BSA Participation to the “Agreement” is intended to be a reference to all documents that constitute the Agreement, specifically including these General Terms and Conditions for BSA Participation.
b) “Alliance” shall mean Yara North America, Inc. and Heliae Development, LLC [both jointly and individually].
c) “BSA” shall mean the Better Soil Alliance, a program focused on improving water productivity and nutrient use efficiency in the California almond industry.
d) “Business Day” shall mean any day which is not (i) a Saturday; (ii) a Sunday; or (iii) a day upon which commercial banks located in New York, New York are authorized or required to close.
e) “Close Relative” shall mean an individual’s spouse, the individual’s and the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and the spouse of any of these people.
f) “Confidential Information” shall mean any information regarding the Agreement and/or the business or affairs of Alliance, BSA, or any member of the Yara Group that would be regarded as confidential by a reasonable business person, including information relating to Alliance’s or any member of the Yara Group’s operations, finances, processes, plans, product information, pricing information, Intellectual Property Rights, trade secrets, software, market opportunities, customers, suppliers or business partners.
g) “Control” or “Controlling” shall mean the ability to direct the affairs of another person or entity, whether by virtue of the ownership of shares, contract or otherwise.
h) “Data” shall have the meaning set forth in Section 1.1(j) of these General Terms and Conditions for BSA Participation.
i) “Explosives Precursors” shall mean such substances and mixtures that are defined or otherwise identified as explosives precursors under applicable Laws.
j) “HESQ” shall mean health, environment, safety, and quality.
k) “Intellectual Property Rights” shall mean, without limitation: Alliance’s or any member of the Yara Group’s (i) patent rights; (ii) registered and unregistered designs, copyrights, trademarks, service marks and trade names; (iii) technologies, technical know-how and advice; (iv) Participants data collected and shared with Alliance pursuant to Participants Participation (the “Data”); (v) analysis, scientific review, and publications of the Data; and (vi) all other intellectual property rights of any kind wherever and however in the world enforceable.
l) “Participant” shall mean the entity identified in the Agreement as the grower, advisor, retailer, value chain provider, food company, or innovator and the counterparty of the Alliance in the Agreement.
m) “Participation” shall mean Participant’s involvement and membership in BSA and any of Participants performance requirements related thereto, pursuant to the Agreement.
n) “Law” shall mean any and all federal, state, local, foreign or other statutes, rules, regulations, ordinances, acts, codes, legislation, published judicial decisions, published administrative orders, common law and similar laws or legal requirements imposed by any governmental entity or authority (or any agency or instrumentality thereof).
o) “Losses” shall mean all losses, liabilities, damages, claims, charges, costs, penalties, fees and expenses (including attorneys’ fees and other legal, professional and investigation fees and costs).
p) “Parties” shall mean the Alliance and the Participant. Each of the Alliance and the Participant is referred to individually as a “Party”.
q) “Public Official” shall mean anyone employed by or acting on behalf of, whether on a full or part time basis, a foreign, federal, national, regional, state or local government; government owned or controlled company or other entity; employees or agents of public international organizations (such as the United Nations, European Union, World Bank and other international development organizations); political parties, political party officials and candidates for public office; and anyone else acting in an official capacity for or on behalf of a government agency or entity, including persons holding a legislative, administrative or judicial post and members of the military and police.
r) “Personal Data” shall mean data from which an individual can, directly or indirectly, be identified, or as otherwise defined under applicable Laws.
s) “Product Solutions” shall have the meaning set forth in Section 2.1.
t) “Representatives” shall mean, with respect to a Party, the employees, officers, directors, managers, agents, consultants, contractors or sub-contractors of such Party.
u) “Safety Defects” shall mean a lack of any safety feature which (i) a user or the general public can reasonably expect of the Product Solutions or (ii) is required by applicable Law.
v) "Sanctioning Body" shall mean any of the following: (i) the United Nations Security Council; (ii) the European Union; (iii) the Office of Foreign Assets Control of the Department of Treasury of the United States of America; (iv) Global Affairs Canada; and (v) any governmental authority that administers Sanctions in the country which is the domicile of the Alliance or the Participant.
w) "Sanctions" shall mean economic or financial sanctions, trade embargoes and restrictions relating to terrorism imposed, administered or enforced by a Sanctioning Body from time to time.
x) “Sanctions Event” shall mean the events listed in Section 14.1.
y) "Sanctions List" shall mean any list of specifically designated nationals or blocked, or sanctioned persons or entities (or similar) imposed, administered or enforced by a Sanctioning Body in connection with Sanctions from time to time.
z) “Yara Group” shall mean Yara International ASA and/or any other entities which it directly or indirectly Controls (including Alliance).
2. PRODUCT SOLUTIONS
2.1 As stated in the Agreement, as part of its Participation, Participant may have certain obligations with regard to the use, purchase, and/or sale of Alliance products (the “Product Solutions”).
2.2 Unless otherwise agreed by the Parties in writing, delivery and purchase terms for the Product Solutions shall be established and agreed to between the Participant and its supplier of said Product Solutions.
2.3 Unless otherwise expressly specified in the delivery terms agreed to by the Participant and its Product Solutions supplier in writing, the Participant is responsible for (i) the strict compliance with all applicable Laws regarding or relating to the import, transportation, storage, handling, use, purchase and sale of the Product Solutions in the place of delivery (whether imported or not); (ii) obtaining and maintaining in full force and effect, at its own cost, such licenses, authorizations, approvals, permits and other consents in relation to the import, transportation, storage, distribution, sale and use of the Product Solutions as are required from time to time (whether imported or not); and (iii) if required by the Alliance, making copies of such licenses, authorizations, approvals, permits and consents available to the Alliance prior to the relevant delivery date for inspection by Alliance.
3. QUALITY WARRANTY
3.1 Alliance does not provide any warranty regarding quality, usability or characteristics of the Product Solutions.
3.2 Participant represents that it is familiar with the characteristics, qualities, and uses of the Product Solutions. Participant assumes all risk of use of the Product Solutions, either alone or in combination with other materials.
3.3 ALLIANCE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT SOLUTIONS (WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER SUBSTANCE OR MATERIAL), THE AGREEMENT OR ANY OTHER MATTER.
3.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY OF ALLIANCE IN SECTION 3 SETS OUT THE EXCLUSIVE WARRANTY OF THE ALLIANCE AND IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR GUARANTIES OF THE ALLIANCE, WHETHER EXPRESS OR IMPLIED BY STATUTE, LAW OR OTHERWISE, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND/OR ANY OTHER REPRESENTATION, WARRANTY OR GUARANTY AS TO THE QUANTITY, QUALITY, KIND, CHARACTER OR CONDITION OF ANY PRODUCT SOLUTIONS OR THE ADEQUACY OF ANY WARNINGS CONCERNING THE POSSESSION, HANDLING, STORAGE, TRANSPORTATION, USE OR OTHER DISPOSITION OF MATERIALS, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR MATERIALS. ANY OTHER REPRESENTATION, WARRANTY OR GUARANTY OF THE ALLIANCE WHICH MIGHT OTHERWISE BE IMPLIED INTO OR INCORPORATED INTO THE AGREEMENT IS HEREBY EXPRESSLY EXCLUDED.
4. BREACH OF CONTRACT AND INDEMNIFICATION
4.1 Alliance’s performance under the Agreement is contingent upon Participant timely fulfilling all of its obligations under the Agreement.
4.2 The Participant shall comply with (and Participant shall load, unload, transport, export, import, store, handle, use, sell, purchase, transfer and dispose of the Product Solutions in compliance with) all applicable Laws. The Product Solutions shall not be used (i) in (or in connection with) the production or processing of illegal crops or substances, including in the production or processing of illegal drugs, illegal explosives or other illegal materials or products or (ii) for (or in connection with) any other illegal purposes. In addition, unless expressly agreed to in writing by Alliance, the Product Solutions shall not be used (a) in (or in connection with) the production or processing of livestock feed, food products for human consumption (other than as fertilizers) or pharmaceutical products; (b) as (or in connection with) feed for livestock, food products for direct human consumption or pharmaceutical products; and/or (c) in (or in connection with) any nuclear facility or activity. The Participant shall implement adequate monitoring systems within its supply chains to ensure that misuse of the Product Solutions is prevented or can be detected and remediated immediately. The Product Solutions shall not, unless otherwise specifically agreed in writing by the Alliance, be used, transported, stored or resold, in whole or in part, in or to any country other than the United States of America. If the Product Solutions are to be resold, the Participant shall use reasonable efforts to ensure that its customer do not use the Product Solutions in any way as prohibited by this Section.
4.3 The Participant shall indemnify (and keep indemnified), defend and hold harmless the Alliance and all members of the Yara Group from and against any and all Losses incurred by the Alliance or any member of the Yara Group arising out of or relating to, directly or indirectly (i) a breach or violation of, or failure to comply with, any of Participant’s obligations under the Agreement; (ii) a defect in the Product Solutions; (iii) any damage to property, whether personal or real, movable or immovable, tangible or intangible, or injury or death of persons (including any of Participant’s Representatives) arising out of or relating to Participant’s loading, unloading, transportation, export, import, storage, handling, use, sale, purchase, transfer or disposal of the Product Solutions; (iv) any non-compliance with, or breach or violation of, any Law by Participant or any of its Representatives; (v) any negligent (or more culpable) act or omission or willful misconduct of or by the Participant or any of its Representatives; and/or (vi) any other occurrence arising out of Participant's business.
4.4 Where the Participant acts as an intermediary for the sale of Product Solutions, it shall procure and maintain at its own expense insurance coverage (including liability insurance) of the types and in the amounts that are reasonable and customary for Participant’s industry, it’s operations and the nature of the Product Solutions. The coverage and duration of the insurance policies shall cover all potential liabilities associated with the Agreement and Product Solutions and shall waive rights of subrogation against the Alliance and each member of the Yara Group. Such insurance coverage shall be with insurance companies authorized to do business in the jurisdiction in which the Product Solutions are delivered. Upon Alliance’s request, Participant shall provide relevant insurance certificates as well as the relevant conditions of any such insurance policies.
5. LIMITATIONS OF LIABILITY; PRODUCT LIABILITY
5.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALLIANCE SHALL NOT UNDER ANY CIRCUMSTANCES WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER STATUTE OR ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, BE LIABLE TO THE PARTICIPANT (OR ANY OTHER PERSON OR ENTITY) FOR ANY TRADING LOSSES, LOSS OF REVENUE, LOSS OF INCOME, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOSS OF PRODUCTION, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA OR INFORMATION, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE OF ANY KIND IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
5.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF THE ALLIANCE TO THE PARTICIPANT (OR ANY OTHER PERSON OR ENTITY) UNDER OR IN CONNECTION WITH THE AGREEMENT AND/OR THE PRODUCT SOLUTIONS (INCLUDING FOR ANY BREACH OF AGREEMENT) WHETHER ARISING UNDER STATUTE OR COMMON LAW, OR ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) BREACH OF STATUTORY DUTY, INDEMNITY OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE TOTAL PRICE PAID OR PAYABLE BY THE PARTICIPANT TO THE ALLIANCE UNDER THE AGREEMENT.
5.3 To the extent that the Alliance is made liable to a third party in respect of the Product Solutions and/or the Agreement, the Participant shall indemnify (and keep indemnified) and hold harmless the Alliance to the same extent as the Alliance’s liability is limited according to the Agreement, so that the Alliance's maximum exposure in respect of such third party claim is limited to the amounts set out in Section 5.2.
5.4 Should a third party bring a claim, or threaten to bring a claim, against the Participant for compensation for personal injury, death or damage to real or personal property alleged to have been caused by and/or related to the use and/or possession of the Product Solutions or should the Participant in any other way become aware of a Safety Defect or other dangerous defects in, or issues with, the Product Solutions, the Participant must (i) to the extent possible, prevent and limit any such danger and damage; and (ii) immediately inform the Alliance so that necessary measures can be implemented. The Participant shall use its best endeavors to mitigate any Losses.
6. TERMINATION
6.1 In addition to the termination rights set forth elsewhere in the Agreement, either Party may without liability give notice in writing to the other Party to terminate the Agreement immediately if: (i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up or bankruptcy of that other Party; (ii) the other Party is subject to any insolvency or bankruptcy proceedings, or has a receiver or administrator appointed over any part of its assets, or if it suffers any analogous process under any foreign law; (iii) the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or (iv) the other Party takes or suffers any similar or analogous procedure, action or event in any jurisdiction.
6.2 Termination of the Agreement shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination. Upon termination of the Agreement, Participant shall immediately pay Alliance for all amounts due or owed under the Agreement. The obligations of Participant under the Agreement which by their nature are intended to survive the termination, cancellation, completion or expiration of the Agreement shall continue as valid and enforceable obligations of the Participant, notwithstanding any such termination, cancellation, completion or expiration. Without limiting the foregoing and for the avoidance of doubt, Sections 4 and 5 shall survive any expiration or termination of the Agreement.
6.3 On termination of the Agreement the Participant shall (i) promptly return to the Alliance all equipment, materials, documentation and property belonging to the Alliance that the Alliance had supplied in connection with the Participation under the Agreement; and (ii) on request, certify in writing to the Alliance that it has complied with the requirements above.
7. FORCE MAJEURE
7.1 The Alliance shall not be in breach or violation of the Agreement, nor liable for any loss or damage suffered or incurred by the Participant (or any other person or entity) arising from any failure or delay in performance of its obligations under the Agreement to the extent arising from or attributable to an impediment, event, condition or circumstance beyond Alliance’s reasonable control, including: (i) Acts of God, flood, earthquake, windstorm, plague, epidemic, pandemic, cyclone, typhoon, hurricane, tornado, blizzard, volcanic activity, landslide, tidal wave, tsunami, damage or destruction by lightning, drought or other natural disasters; (ii) explosion, fire, or destruction of machines, equipment, factories or of any kind of installation or building; (iii) break-down, mechanical difficulties or failure of equipment, machinery, telecommunication or any utility service, including electric power, gas or water; (iv) inability to obtain energy, power, utilities (including electric, gas or water), raw materials, labor, transportation or facilities; (v) imposition of sanctions; (vi) civil war, riot, rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; (vii) acts of terrorism, sabotage or piracy; (viii) nuclear, chemical or biological contamination or sonic boom; (ix) compliance with any Law or government order, rule, regulation or direction, or any action taken by a government or public authority (whether lawful or unlawful), curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalization, imposing an embargo or sanctions, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; and (x) general labor disturbance such as but not limited to boycott, strike or lock-out, go-slow, occupation of factories and premises. If any such event continues for a period of more than three (3) months, the Alliance may thereafter terminate the Agreement by giving ten (10) Business Days written notice to the Participant. Such termination shall be without prejudice to the rights of the Parties in respect of any breach of the Agreement occurring prior to such termination.
8. APPLICABLE LAW AND DISPUTE SETTLEMENT
8.1 The Agreement and any dispute or claim arising out of or directly or indirectly in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Florida, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
8.2 Should a dispute, controversy or claim arise between the Parties in connection with the Agreement, the Parties shall notify each other of the reasons for the dispute in writing and shall meet promptly, at a location chosen by the Alliance, in good faith to attempt an amicable settlement for such dispute.
8.3 If an amicable settlement is not reached within twenty (20) Business Days after such notification, the Parties irrevocably agree that such dispute, controversy or claim arising out of or in connection with the Agreement shall be resolved and settled exclusively by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The place of arbitration shall be Tampa, Florida.
9. HESQ AND PRODUCT STEWARDSHIP
9.1 The Participant shall at all times comply with applicable Laws and good industry standards relating to HESQ and recycling of any packaging, and have a satisfactory system for HESQ assurance and quality assurance suitable for the Product Solutions. If the Participant or any of its Representatives visit one of Alliance’s facilities, it shall at all times comply with Alliance’s rules and regulations relating to HESQ.
9.2 The Participant is aware that chemicals can be a dangerous product when stored or used carelessly or incorrectly. The Participant undertakes to become familiar and comply with the warning and safety information relating to the Product Solutions and to make certain that anyone who handles or takes possession of such Product Solutions is also familiar with the warning and safety information relating to the Product Solutions. The Participant undertakes to make sure that the Product Solutions are properly labeled and that they remain labeled as they were when they were delivered. Further, the Product Solutions must be used, handled, stored, mixed and applied only in strict accordance with the Participants supplier’s recommendations, as well as in line with any relevant industry regulations, guidelines and best practices.
9.3 The Alliance reserves the right for its Representatives to conduct safety walks and/or safety inspections during normal business hours at the Participant’s storage facilities for the Product Solutions. Such inspections may take place either before or after Participation commences and the Participant agrees that the Alliance may conduct subsequent periodic inspections at a frequency decided by the Alliance. The Alliance shall notify the Participant of its intention to conduct such inspections at least five (5) Business Days in advance. The inspections shall be performed by the Parties together in accordance with the Yara North America, Inc.’s safety manuals and procedures. These inspections and any consequent reports are for the Alliance’s internal purposes only and shall not relieve the Participant of its obligations. However, if the Alliance notices a material safety deviation from good industry standard in the storage facilities, its management, or otherwise, the Participant must immediately correct the safety deviations to the Alliance’s satisfaction.
9.4 Information contained in any safety data sheets or conveyed by any recommendation is to the best of the Alliance’s knowledge correct and accurate, respectively, on the date of issuance of the relevant safety data sheet and when the recommendation was provided. Any information provided is merely intended to serve as guidelines for the appropriate use, handling and storage of the Product Solutions and may not be deemed as a guarantee or indication of quality or serve as a basis for liability towards the Alliance or its Representatives in any way whatsoever.
9.5 The Participant acknowledges the Product Solutions or certain components of the Product Solutions may be deemed to be Explosives Precursors pursuant to Law. Should the Product Solutions or any component thereof be subject to such Explosive Precursor Laws, the Participant shall: (i) act in accordance with any relevant public authority as required by applicable Laws; (ii) only resell or make Explosives Precursors available to Participants with a professional need; (iii) identify dangers and problems that may arise during the handling of Explosives Precursors by conducting a risk assessment for accidents and the risk for the Explosives Precursors going astray (to include both external and internal circumstances); (iv) as a result of the risk assessment, make plans and implement measures to prevent Explosives Precursors from going astray and to prevent accidents; (v) ensure that everyone handling Explosives Precursors have the sufficient knowledge and skills to carry out their tasks in a safe and secure manner; (vi) ensure safe and appropriate storage and record-keeping of their stocks of Explosives Precursors; and (vii) without undue delay, report suspicious transactions or attempts at such transactions, thefts or significant and inexplicable disappearances of Explosives Precursors to the relevant public authority.
10. CONFIDENTIALITY
10.1 Participant shall not at any time during the Term of the Agreement and for a period of five (5) years after termination of the Agreement disclose to any person or entity any Confidential Information disclosed to Participant or any of its Representatives by or on behalf of Alliance or any of its Representatives, except as permitted by Section 10.2.
10.2 Participant may disclose Confidential Information: (i) to its Representatives who need to know such information for the purposes of carrying out Participant’s obligations under the Agreement, provided that Participant takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this Section 10 as though they were a party to the Agreement; and (ii) as may be required by applicable Law, court order or any governmental or regulatory authority. Participant shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this Section 10.
10.3 Participant shall not use any Confidential Information for any purpose other than to perform its obligations under the Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Alliance reserves all rights in its Intellectual Property Rights. No rights or obligations in respect of the Alliance’s Intellectual Property Rights, other than those expressly stated in the Agreement, are granted to the Participant or to be implied from the Agreement. In particular, no license is hereby granted directly or indirectly under any Intellectual Property Rights held, made, obtained or licensable by the Alliance now or in the future. Unless otherwise agreed by the Alliance in writing, the Alliance shall retain the exclusive ownership of any (i) amendments or improvements to its existing Intellectual Property Rights and (ii) new Intellectual Property Rights created by the making or delivery of the Product Solutions (or otherwise) by the Alliance to the Participant.
11.2 The Participant shall not, without the prior written consent of the Alliance: (i) sub-license, transfer or otherwise deal with the rights of use of any Intellectual Property Rights granted under the Agreement; (ii) establish, register and/or adopt visual identities that are using elements from the Intellectual Property Rights (by way of example the logos associated with BSA or the Alliance); (iii) use the Intellectual Property Rights, alone or in combination or in connection with any company name, trade name or trademark owned or used by the Participant or any third party; (iv) alter, deface, make any addition or remove any reference to the Intellectual Property Rights, any reference to the Alliance or any other name displayed on the Product Solutions or their packaging or labeling; (v) copy, decompile, modify, reverse engineer, or create derivative works out of any Intellectual Property Rights; or (vi) do, or omit to do, anything in its use of the Intellectual Property Rights that could adversely affect their validity.
11.3 The Alliance makes no representation, condition or warranty, either express or implied, (i) as to the validity or enforceability of its Intellectual Property Rights or (ii) to the effect that its Intellectual Property Rights do not infringe any intellectual property rights of any third parties.
11.4 If the Participant should notice or become aware of any infringements of the Alliance’s Intellectual Property Rights by a third party or any unlawful act prejudicial to the Alliance’s interests, the Participant shall promptly report the same to the Alliance. The Participant shall, to the best of its ability and in accordance with any directions given by the Alliance, assist the Alliance in its protection against any such infringements.
12. DATA PRIVACY
12.1 The Participant shall, during the Term of the Agreement (i) comply with, and procure that all Representatives comply with, all applicable data privacy Laws in connection with Personal Data and its performance under the Agreement; and (ii) not do, or cause or permit to be done, anything which may cause or otherwise result in a breach by the other party of applicable data privacy laws and regulations.
12.2 The Participant permits and authorizes the Alliance to collect and process Personal Data pursuant to Yara North America, Inc.’s Data Privacy Directive for customers, suppliers, and Business Partner Data, which can be found on here (https://www.yara.com/globalassets/privacy-policy/yara-data-privacy-policy-for-customer-data.pdf/) or received in hard copy upon request, and any applicable Laws. The Alliance may also, as far as is permitted by applicable Law, process Personal Data for the following business purposes: (i) development and improvement of products and/or services; (ii) performance of services; (iii) conclusion and execution of agreements; (iv) relationship management and marketing; (v) business process execution, internal management and management reporting; (vi) HESQ; and (vii) compliance with legal obligations. In particular, the Alliance may process Personal Data to prepare reports and/or recommendations to the Participant which Alliance believes may be of interest to the Participant. The Participant may opt-out of receiving such reports and/or recommendations by sending an e-mail to privacy.global@yara.com.
12.3 The Participant hereby warrants that: (i) at the time of providing data subjects' Personal Data to Alliance, including any of its former, current or future Representatives, the data subjects have been (or will have been) fully notified as to the purpose for which his or her Personal Data will be used and any required consent of data subjects have been (or will have been) fully and sufficiently obtained or the Participant is otherwise entitled to disclose any Personal Data which has been or may be provided to Alliance; and (ii) the relevant Representative has in place (or will have in place) adequate legal basis (e.g. consent where required) under applicable data privacy Laws for the transfer of data subjects’ Personal Data to another member of the Yara Group.
12.4 The Participant shall immediately notify the Alliance in writing and in any event within two (2) Business Days of (i) becoming aware of any actual or suspected accidental or unauthorized access, disclosure, loss or use of Personal Data; or in the event of any claim or complaint from any data subject of disclosed data and/or where there has been an event of non-compliance with applicable data privacy laws or regulations by Participant, whether discovered by Participant or forming the subject of an investigation and/or action by the relevant authorities. Such notification shall include reasonable details of any such actual or suspected accidental or unauthorized access, disclosure, loss or use of Personal Data. The Participant shall not use any Personal Data received from Alliance unless necessary for the purpose of this Agreement and shall at all times ensure that appropriate security measures are taken to protect the same from loss, misuse, modification, unauthorized or accidental access or disclosure, alteration or destruction.
13. STANDARDS OF BUSINESS CONDUCT
13.1 The Participant shall comply with all applicable Laws relating to the Agreement, and in particular relating to human rights, bribery, corruption, money-laundering, accounting and financial controls and anti-terrorism, including the Code of Conduct for Yara North America, Inc.’s Business Partners, which can be found here (https://www.yara.com/this-is-yara/ethics-and-compliance/policies/code-of-conduct-for-business-partners/) or received in hard copy upon request.
13.2 The Participant warrants, agrees and undertakes that in connection with the Agreement it has not and will not make, give, offer, promise or authorize any type of bribes, “facilitation” or “grease” payments by way of improper or illegal payment, gift, advantage or other thing of value, whether directly or indirectly, to any third party.
13.3 The Participant represents and warrants that except as otherwise disclosed in writing to the Alliance prior to the date of the Agreement, no Public Official or its Close Relatives are presently (i) owning any Controlling interest in the Participant (directly or indirectly); (ii) or has a right to any benefit if the Alliance enters into the Agreement with the Participant.
13.4 The Alliance may at any time and at its own cost and upon reasonable notice in writing perform regular integrity due diligence reviews and audits of the Participant to ensure compliance with this Section 13. Subject to appropriate confidentiality procedures, the Participant shall fully cooperate with the Alliance in the performance of any such reviews and audits and comply with any and all reasonable requests upon reasonable notice in writing for access to facilities, information, individuals and documentation.
13.5 The Participant shall ensure that all of its business partners who perform services or provide goods in connection with the Agreement do so only on the basis of a written contract, which imposes on and secures from such persons or entities terms substantially equivalent to those imposed on the Participant in this Section 13. The Participant shall be responsible for reasonable and appropriate due diligence procedures prior to engaging its business partners in connection with the Agreement, and for monitoring the adherence and performance by such persons or entities of its compliance obligations.
13.6 Notwithstanding any other provision of the Agreement, the Alliance may, upon written notice to the Participant terminate the Agreement if the Participant has breached or failed to properly carry out any of its obligations under this Section 13.
13.7 The Participant shall without undue delay report any suspected infringements, breaches or violations of this Section 13 to the Alliance.
14. SANCTIONS
14.1 The Participant represents and warrants to the Alliance, on the date of the Agreement, that the Participant: (i) is not a person or entity that is named on any Sanctions List or directly or indirectly targeted under any Sanctions; (ii) is not violating any applicable Sanctions; and (iii) has not involved any person or entity mentioned in subsection (i) above in connection with the negotiation of, entry into or performance of the Agreement.
14.2 If a Sanctions Event occurs after the date of the Agreement and before the later of expiry or termination of the Agreement and the date that all obligations under the Agreement are fully and finally discharged: (i) the Participant shall promptly notify the Alliance in writing with full details of the Sanctions Event together with, following any request from the Alliance for it to do so, any other information reasonably requested by the Alliance; (ii) the Participant shall continue to use all reasonable efforts to resolve, and shall keep the Alliance informed of developments with respect to, the Sanctions Event; (iii) without limiting subsection (iv) below, the Alliance may at any time during which the Sanctions Event is continuing, suspend performance of the Agreement by notice to the Participant (and Alliance shall not be liable for non-performance of any of its obligations during the period of suspension); and (iv) the Alliance may, at any time during which the Sanctions Event is continuing, terminate the Agreement by notice to the Participant (and such termination shall be without further liability to the Alliance but shall not affect liabilities of the Participant which accrued prior to the date of suspension or termination and which are lawful for the Participant to discharge as of the date of termination).
15. GENERAL; AGREEMENT AND APPLICABILITY
15.1 These General Terms and Conditions for BSA Participation shall apply to (and be incorporated into) the Agreement to the exclusion of any other terms that the Participant seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, unless acceptance is explicitly confirmed in writing by the Alliance. Notwithstanding any provision in any other document or communication provided by Participant to the contrary, no terms of any other document or communication, shall be binding on Alliance unless explicitly accepted by Alliance in writing. By entering the Agreement, the Participant is agreeing to be unconditionally bound by these General Terms and Conditions for BSA Participation.
15.2 No amendment or modification of the Agreement shall be valid unless expressly agreed to in writing by an authorized Representative of each of the Parties.
15.3 In the event of any conflict between the provisions of the Agreement, the various contract documents shall be given priority in the following order: (i) the Better Soil Alliance Participation Agreement; (ii) these General Terms and Conditions for BSA Participation; and (iii) all other appendices to the Agreement.
15.4 Participant agrees that any advice provided by the Alliance or its Representatives are given to the best of their knowledge, and shall not subject the Alliance and/or its Representatives to any liability.
15.5 The Agreement constitutes the entire agreement between the Parties and supersedes and replaces all previous agreements, understandings, discussions, correspondence and negotiations between them, whether oral or in writing, relating to the Participation and the Product Solutions. The Participant acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Alliance or any of its Representatives which is not set out in the Agreement.
15.6 Participant shall not assign, transfer, delegate, sub-license or sub-contract any of its rights, benefits or obligations under the Agreement without the prior written consent of the Alliance. The Alliance may assign, transfer, delegate, sub-license or sub-contract its rights, benefits and/or obligations under the Agreement to another member of the Yara Group or any other person or entity. Any purported assignment, transfer, delegation, sub-license or sub-contract in violation of this Section 15.6 shall be null and void. For purposes of the foregoing, and without limiting its generality (i) any merger, consolidation, or reorganization involving Participant (regardless of whether Participant is a surviving or disappearing entity) and (ii) any change of control of Participant shall be deemed to be an assignment and transfer of Participant’s rights, benefits or obligations under the Agreement for which Alliance’s prior written consent is required. Subject to the foregoing, the Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
15.7 If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement such that, as amended, the Agreement is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.
15.8 No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by applicable Law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.9 Nothing contained in or done pursuant to the Agreement shall be deemed or construed by the Parties, or by any third party, to create the relationship of principal and agent, partnership, joint venture or any association whatsoever between the Alliance and the Participant.
15.10 Notices, claims, etc. which the Agreement requires to be presented in writing, shall be sent by letter, fax or e-mail to the other Party’s authorized Representatives in accordance with any applicable conditions set forth in the Agreement.
15.11 The Agreement is for the sole benefit of Participant and Alliance (and the other members of the Yara Group) and their respective successors and permitted assigns and nothing in the Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement; provided that, for the avoidance of doubt, each member of the Yara Group is an intended third party beneficiary of the Agreement.
15.12 Any headings contained in the Agreement are for reference only and shall not affect the interpretation of the Agreement.
15.13 For purposes of the Agreement, (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation;” and (ii) the word “or” is not exclusive. The Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
