Interpretation
In these Terms the following definitions apply.
- Artwork
- HEXAGON, the land artwork comprising 54 cells situated at the Site.
- Cell
- An identified hexagonal area within the Artwork bearing a unique identifier, a fixed position and a stated number of Pots.
- Company
- [Shambala Carbon Offsets LLC], trading as Land Art Space.
- Confirmation
- The Company's written confirmation of an Order, issued to the Registered Email.
- Force Majeure Event
- An event described in clause 12.1.
- Order
- An offer by the Purchaser to buy Trees, placed through the Site's purchase map, by email or under an invoice.
- Planting Window
- The seasonal period in which planting at the Site is agronomically practicable, as determined by the Company.
- Pot
- A planting container (бортого) holding three saplings, being the unit of sale under these Terms.
- Price
- The sum payable for an Order, calculated at [₮100,000 / USD 30] per Pot.
- Purchaser
- The person or legal entity placing an Order.
- Registered Email
- The email address supplied by the Purchaser at the time of the Order.
- Site
- The Company's planting site at Erdene sum, Dornogovi province, at coordinates 44.07541, 111.19584.
- Trees
- The saplings purchased under an Order and planted within the Artwork, at three (3) saplings per Pot.
- Undertaking Period
- Ten (10) years from the date of planting of the Trees.
A reference to a statute is a reference to it as amended or re-enacted. Headings do not affect interpretation. The singular includes the plural. "Including" is not a word of limitation.
Application of these Terms
These Terms apply to every Order and, upon Confirmation, form the contract between the Company and the Purchaser to the exclusion of any other terms the Purchaser seeks to impose.
Where the Company and the Purchaser have executed a written cooperation or partnership agreement, that agreement prevails over these Terms to the extent of any inconsistency.
The Company may amend these Terms. The version in force at the date of an Order governs that Order for its duration, and no subsequent amendment reduces an undertaking already owed under clause 6.
Formation of contract
An Order constitutes an offer by the Purchaser. No contract arises until the Company issues Confirmation.
The Company may decline an Order, in which case any sum received is returned in full and without deduction.
The Purchaser warrants that the information given in the Order, including the Registered Email and the name to be recorded against the Cell, is accurate and that the Purchaser is authorised to give it.
Subject matter of the sale
The subject matter of the sale is the planting, growing and maintenance of the Trees within the Artwork, on land at the Site which is among the most severely degraded rangeland in Mongolia, together with the undertakings at clause 6.
The Purchaser thereby contributes to the restoration of that land. The Trees are planted, grown and cared for in the name recorded against the Cell.
Orders are placed and priced in Pots at the rate stated in the definition of Price. Composition is fixed at three (3) saplings per Pot; the number of Trees in an Order is accordingly three times the number of Pots purchased. Area in square metres is not a unit of sale and no area is sold, allotted or warranted.
No interest in land
The sale confers no right in land. The Purchaser acquires no ownership, possession, use, lease, easement or other interest in the land comprising the Site or any part of it, and no right of access to it otherwise than as a visitor by arrangement with the Company.
The land comprising the Site remains subject to its existing tenure. The Trees, being affixed to that land, remain in the Company's custody and care throughout the Undertaking Period, and the Purchaser acquires no right to fell, remove, harvest or otherwise deal with them.
The sale transfers no carbon right, carbon credit, offset instrument or other environmental attribute arising from the planting, and the Purchaser shall not represent otherwise. Any such transfer requires a separate written agreement.
The Purchaser shall not describe the purchase as the acquisition of land, of any right over land, or of a verified carbon offset.
Undertakings of the Company
The Company undertakes to the Purchaser to:
- plant the Trees within the Artwork in the first Planting Window following Confirmation;
- grow and maintain the Trees, including irrigation, protection and husbandry, throughout the Undertaking Period;
- replant, at the Company's own cost and in the Planting Window following the assessment at which the loss is identified, any Tree which does not survive, so that the number of living Trees recorded to the Purchaser is restored; and
- report on the growth of the Trees once in each year of the Undertaking Period, by email to the Registered Email.
The Company shall assess the Trees within the Purchaser's Cell once in each year of the Undertaking Period. The report under clause 6.1(d) shall state the position for the Purchaser's own Trees and not a Site average.
The Company shall further supply an NFC card, a planting certificate, drone survey imagery of the Cell before and after planting, and shall record the Purchaser's name or mark against the Cell on the public cell map.
The undertaking at clause 6.1(c) subsists for the whole of the Undertaking Period and applies however many times replanting is required.
Planting follows the growing season and not the date of the Order. Where an Order is confirmed outside a Planting Window, the Company shall notify the Purchaser of the applicable Planting Window at Confirmation.
Obligations of the Purchaser
The Purchaser shall keep the Registered Email current and shall notify the Company of any change, failing which the Company's obligation under clause 6.1(d) is discharged by despatch to the address last notified.
The Purchaser grants the Company a non-exclusive, royalty-free licence to display the Purchaser's name or mark on the cell map, on project surfaces and in reporting on the Artwork for the Undertaking Period. The Purchaser may revoke that licence at any time by written notice, whereupon the Company shall remove it from every digital surface under the Company's control; material already printed or broadcast cannot be recalled.
The Company grants the Purchaser the right to state publicly that the Purchaser has purchased Trees within the Artwork and to use the imagery and figures supplied by the Company for that purpose, subject to clauses 5.3 and 5.4. Use of the Land Art Space or Shambala marks otherwise requires the Company's written consent.
Price and payment
Prices are stated in Mongolian tögrög for domestic purchases and in United States dollars for international card payments. The two price lists are independent and are not converted at market exchange rates. Prices are [inclusive / exclusive] of value added tax.
Card payments are taken at Confirmation through the Company's payment service provider. The Company does not receive or store card credentials.
Where payment is made against an invoice, the invoice falls due [14 / 30] days from issue, and planting is scheduled upon receipt of cleared funds.
Currency conversion differences and charges applied by the Purchaser's bank are borne by the Purchaser and are not received by the Company.
Final sale
Orders are final and non-refundable. Upon Confirmation the Price is committed to procurement of saplings, ground preparation, irrigation and enclosure serving the Purchaser's Cell, and is not recoverable. No cooling-off period applies.
The consideration for the Price is the bundle of undertakings at clause 6, which subsists for the Undertaking Period. Replanting under clause 6.1(c), and not repayment, is the Purchaser's remedy for the loss of any Tree.
Clause 9.1 does not exclude, and is subject to, the refunds required by the mandatory rules of the international card schemes and by Mongolian law. Those cases are exhaustively set out in the Refund and Cancellation Policy.
The remedies at clause 10 are available to the Purchaser at no cost in place of repayment.
Alternatives to repayment
At any time during the Undertaking Period the Purchaser may, on written request and at no cost:
- assign the purchase, together with the benefit of the undertakings at clause 6, to another person or legal entity;
- change the name recorded against the Cell, or have it recorded anonymously;
- revoke the licence at clause 7.2 and have the Purchaser's name and mark removed from the cell map and from project surfaces; or
- require the Company to cease correspondence, including the annual report.
Exercise of any right under clause 10.1 does not affect the Company's obligation to plant, maintain and replant the Trees for the balance of the Undertaking Period.
Personal data
The Company shall process the personal data supplied by the Purchaser solely for the performance of these Terms, namely to record the Trees, to issue the NFC card and certificate, to provide the annual report, and to meet the Company's accounting and tax obligations.
The Company shall not use that data for any other purpose and shall not disclose, sell, lease or otherwise transfer it to any third party, save to the payment service provider, the delivery service and the professional advisers engaged in performance of these Terms, in each case to the minimum extent required, and save where disclosure is compelled by law.
The Company shall retain the Purchaser's name, Registered Email and Order record for the Undertaking Period, together with the statutory accounting retention period, that retention being necessary to perform the annual reporting obligation at clause 6.1(d).
Where the Purchaser requires erasure of that record before the expiry of the Undertaking Period, the Company shall comply and shall thereupon be discharged from the obligation at clause 6.1(d) for the balance of the period. The obligations at clauses 6.1(a) to (c) are unaffected.
The Company shall not send marketing communications to the Purchaser without the Purchaser's prior request.
The Privacy Notice forms part of these Terms.
Force majeure
A Force Majeure Event is any event beyond the Company's reasonable control, including drought, dzud, fire, flood, pest infestation, epidemic, armed conflict, and any change in law or in land tenure preventing planting at the Site.
A Force Majeure Event suspends but does not discharge the undertakings at clause 6. The Company shall notify the Purchaser and shall perform in the next available Planting Window.
Where a Force Majeure Event permanently prevents planting at the Site, the Purchaser may elect between planting of an equivalent number of Pots at another site operated by the Company, and repayment under the Refund and Cancellation Policy.
Liability
Nothing in these Terms limits liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any liability which cannot lawfully be limited.
Subject to clause 13.1, the Company's aggregate liability arising out of or in connection with an Order, whether in contract, tort or otherwise, shall not exceed the Price paid for that Order.
Subject to clause 13.1, the Company is not liable for indirect or consequential loss, or for loss of profit, revenue, goodwill or anticipated environmental benefit.
General
Notices. Notices to the Company shall be sent to hello@shambala.today. Notices to the Purchaser shall be sent to the Registered Email. A notice is deemed received on the next business day following despatch.
Assignment. The Company may assign or novate these Terms to a successor undertaking the same obligations, on notice to the Purchaser. The Purchaser may assign in accordance with clause 10.1(a).
Severance. If any provision is held invalid or unenforceable, it shall be modified to the minimum extent necessary or, failing that, severed, and the remaining provisions continue in force.
Waiver. No failure or delay in exercising a right operates as a waiver of it.
Entire agreement. These Terms, together with the documents referred to in them, constitute the entire agreement between the parties in respect of an Order and supersede all prior representations, save that nothing excludes liability for fraudulent misrepresentation.
Language. These Terms are published in English and in Mongolian. In the event of a discrepancy the prevails.
Governing law and jurisdiction
These Terms and any non-contractual obligations arising from them are governed by the law of Mongolia, and are drafted to comply with the Civil Code of Mongolia, the Law on the Protection of Consumer Rights, the Law on the National Payment System and the Law on the Protection of Personal Information, together with the operating rules of the Company's payment service provider and of the international card schemes.
The parties shall first attempt to settle any dispute by negotiation. A party shall give written notice of the dispute and the other party shall respond within thirty (30) days.
Failing settlement, the dispute shall be referred to and finally resolved by arbitration at the Mongolian International and National Arbitration Centre at the Mongolian National Chamber of Commerce and Industry in accordance with its rules. The seat shall be Ulaanbaatar, the tribunal shall consist of [one / three] arbitrator(s), and the language of the arbitration shall be [Mongolian].
Nothing in clause 15.3 deprives a consumer of any mandatory right, or of recourse to any forum, available under the law of the consumer's country of habitual residence.