These VSETA Terms and Conditions form part of the Agreement between VSETA and the Customer entering into an Order Form with VSETA for VSETAServices.
(a) “Customer Data” means any data, information, content, records, and files that Customer (or any of itsPermitted Users) loads, transmits to or enters into the VSETA SaaS Services.
(b) “Fees” has the meaning set out in Section 8.
(c) “Network” means the NetworkHardware and all software and operating systems included therein listed; the Network is provided by VSETA for the purposes of collecting and analyzing information about Customer facilities usage as part of the VSETA SaaS Services.
(d) “Network Hardware” means the VSETA Sensors, Beacons, Transmitter Nodes, SIM Cards, Gateways and other hardware and physical materials (but specifically excluding all software and operating systems included therein) listed in the Order Form.
(e) “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(f) “Order Form” means any order form that is executed by both Parties and references this Agreement.
(g) “Party” means Customer or VSETA, as applicable, and “Parties”means both of them.
(h) “Permitted User” has the meaning ascribed to it in Section 6.
(i) “Personal Information”means information about an identifiable individual.
(k) “VSETA SaaS Services” means services through which VSETA hosts and makes available the VSETA facilities use analytics solution. The term “VSETA SaaS Services” includes the Technical Support Services, but does not includeProfessional Services.
(l) “Professional Services”means the consulting, installation and other professional services set out on an Order Form. The term “Professional Services” does not include VSETA SaaS Services.
(m) “VSETA Services” means the VSETA SaaS Services, the Network Provisioning Services, and the ProfessionalServices, collectively, and any part thereof.
(n) “Technical Support Services”means the support services described in Section 7.
(o) “Term” has the meaning set out in Section 12(a).
(p) “Website”means any websites used by VSETA to provide the VSETA SaaS Services, including the website located at www.vseta.com.
2. VSETA Services
(a) Provision of Network.Subject to Customer’s compliance with the terms and conditions of thisAgreement, VSETA will deliver the Network Hardware to the Customer locations listed in the Order Form and shall maintain the Network in accordance with thisAgreement (the “Network ProvisioningServices”). Except to the extent Customer orders Professional Services asset out in an Order Form, Customer will be responsible for setting up and installing the Network in accordance with the documentation provided by VSETA. To the extent that Customer engages VSETA to set up and install the Network, Customer is responsible for determining where the Network Hardware should be set up (including, as applicable, as required to comply with building codes, safe operating locations, and other requirements for the applicable facility) and will have final sign-off responsibility over such set-up.
(b) Professional Services. VSETA will provide to Customer the Professional Services described in an Order Form, and Customer will pay VSETA the fees for the Professional Services in accordance with the terms herein.
(c) Provisioning of the VSETA SaaS Services.Subject to Customer’s compliance with the terms and conditions of thisAgreement, VSETA will make the VSETA SaaS Services available to Customer on the terms and conditions set out in this Agreement.
(d) Customer Responsibilities.Customer acknowledges that VSETA’s provision of the VSETA Services are dependant on Customer’s assistance and cooperation, including:
(i) obtaining all permissions and consents (e.g. landlord consents)required to install the Network at the Customer locations;
(ii) providing VSETA with access to the Customer locations in order to install and test the Network at the times and dates agreed by the Parties;
(iii) making available and providing VSETA with access (including escorted access if required) to the locations where Network is installed on the dates and for the time periods agreed by the Parties in order for VSETA to install, test, service and replace Network as applicable;
(iv) promptly notifying VSETA of any damage or malfunction with the Network; and
(v) providing all employees, contractors and occupants of the Customer locations with sufficient information and training regarding the Network (e.g.proper use, maintenance and restrictions on tampering or removal).
(e) Restrictions on Use.Customer must not itself, and will not permit others to:
(i) except as expressly agreed by VSETA in writing, sub-license, sell, rent, lend, lease or distribute the VSETA SaaS Services or the Network or any intellectual property rights therein or otherwise make the VSETA SaaS Services or the Network available to others;
(ii) except as expressly agreed by VSETA in writing, use the VSETA SaaS Services or the Network to facilitate or provide timesharing, service bureau use or commercially exploit the VSETA SaaS Services or the Network;
(iii) use or access the VSETA SaaS Services or the Network in violation of any applicable law or intellectual property right;
(iv) use the VSETA SaaS Services or the Network in a manner that threatens their security or functionality;
(v) use the VSETA SaaS Services or the Network to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third-party (including any moral right, privacy right or right of publicity);
(vi) Modify the VSETA SaaS Services or modify, move, or otherwise tamper with the Network (other than as expressly agreed in writing by VSETA);
(vii) reverse engineer, de-compile or disassemble the VSETA SaaS Services or the Network;
(viii) remove or obscure any notices or labels on the Network, including brand, copyright, trademark and patent or patent pending notices;
(ix) use the VSETA SaaS Services or the Network for the purpose of building a competitive product or service;
(x) perform any vulnerability, penetration or similar testing of the VSETA SaaS Services or the Network;
(xi) use the VSETA SaaS Services through any other hardware, system or device other than the Network, except as otherwise expressly agreed in writing by VSETA;
(xii) use the Network for any purpose other than to receive the VSETA SaaS Services in accordance with this Agreement; or
(xiii) use the VSETA SaaS Services or the Network for any purpose or in any manner not expressly permitted in the Agreement.
(f) Pursuant to Section 2(e)(vi),Customer may request that third parties, including Customer’s janitorial service, perform minor maintenance activities to and on the Network. If such activities are agreed by VSETA, VSETA will provide a basic training session that covers how such minor maintenance activities are meant to be performed. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that VSETA is not responsible for any actions taken by such third parties or any issues arising out of such third-party actions.
(g) Suspension of Access; Scheduled Downtime; Modifications. VSETA may, upon prior written notice to Customer:
(i) suspend Customer’s access to or use of the VSETA SaaS Services, the Network, or any component thereof:
(A) for scheduled maintenance; or
(B) to address any emergency security concerns; and
(ii) Modify the VSETA SaaS Services (provided that any suchModification does not materially decrease the functionality provided toCustomer as of the effective date of this Agreement).
Customer is required to accept all patches, bug fixes and updates made by or on behalf of VSETA to the VSETA SaaS Services and the Network.
(h) Third-Party Technology. While VSETA provides the necessary Network hardware and software to enable data collection, transmission, storage, analytics, notifications and visualization as part of the VSETA SaaS Services, the VSETA SaaS Services also require the use of third-party technology to be separately procured by Customer (e.g. an electronic device capable of processing and accessing internet resources (e.g. Websites, NetworkProtocols)). Upon prior notice by VSETA with respect to these obligations, Customer will accept and comply with the license terms applicable to third-party technology provided by VSETA.
(i) Reliance on Third-Party Suppliers. Customer acknowledges that VSETA’s ability to provide the VSETA Services may be dependent on third-party suppliers of VSETA and Customer (e.g. internet providers, hardware providers).Notwithstanding the foregoing, VSETA shall be responsible for any acts or omissions of such suppliers under this Agreement and their compliance with the obligations set out herein.
(j) Service Levels. VSETA will make the Services available in a manner that meets or exceeds the service levels set out in Exhibit A (the“Service Levels”). If VSETA fails to meet any Service Level for which a Service Level credit is expressly provided in Exhibit A, then Customer will be entitled to such credit.
(k) Subject to Customer’s compliance with the terms and conditions of this Agreement, VSETA will provide the support services listed in Exhibit B forCustomer during the Term. and unless Customer objects,VSETA may amend the support services in Exhibit B at any time provided that any amendments to such support services will not materially reduce the level of support delivered to Customer as of the Effective Date.
(a) Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to VSETAa nonexclusive, worldwide, royalty-free, fully paid-up right to use, process and transmit Customer Data only as may be required to provide the VSETAServices (including, as applicable, to remedy any issues with the VSETAServices and to improve the VSETA Services and functionality provided with theVSETA Services) and for no other purpose.
(b) VSETA or its licensors retain all ownership and intellectual property rights in and to: (i) the VSETA Services and the Network; (ii) anything developed, delivered, or made available by or on behalf of VSETA under this Agreement (except to the extent expressly agreed by the Parties in writing); and (iii) any Modifications to the foregoing (i) and (ii) (collectively, the “VSETA Property”).
(c) All rights not expressly granted by VSETA to Customer under this Agreement with respect to the VSETA Property remain with VSETA. All rights not expressly granted by Customer to VSETA under thisAgreement with respect to the Customer Data remain with Customer.
IfCustomer is purchasing the Network Hardware (as set out in the Order Form): (a)title and risk of loss passes to Customer upon delivery of the Network Hardware to the Customer location listed in the Order Form. Customer may notify VSETA of any defects in the Network Hardware within 5 days following delivery; and (b)VSETA grants to Customer a non-exclusive, non-transferable, perpetual license to use the software and operating systems contained in the Network Hardware solely with the Network Hardware on which such software and operating systems are installed. Except for the limited license granted in the foregoing sentence, all rights to such software and operating systems are reserved.
Upon Customer’s request, VSETA will issue one or more user accounts (a “Customer User Account”) for use by individuals who are employees or contractors of Customer thatCustomer wishes to have access to and use of the VSETA SaaS Services (each, a “Permitted User”). Customer will ensure that Permitted Users only use the SaaS Services through the Customer User Account. Customer will not allow anyPermitted User to share the Customer User Account with any other person. Customer is responsible for identifying and authenticating all Permitted Users and forPermitted Users’ compliance with this Agreement. Customer will endeavour to promptly notify VSETA of any actual unauthorized use of the VSETA SaaS Services. VSETA reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose, provided that VSETA will endeavour to make such CustomerUser Account or replacement Customer User Account available to Customer without undue delay.
Customer will have access to VSETA technical support during normal business hours and outside of business hours as reasonably available. VSETA will use reasonable efforts to provide on-site support for the Network at the times and dates mutually agreed by the Parties.
8. Fees and Payment
(a) Fees. Customer will pay to VSETA the fees described in each Order Form (the “Fees”). If Customer’s use of the VSETAServices exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of thisAgreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted on an Order Form, all Fees are identified in Canadian dollars and are payable in advance for one-time hardware devices capital expenditure and installation.
(b) Changes to the Fees. [Intentionally Deleted]
(c) Costs for Repair or Replacement ofNetwork. If the Network replacement service is subscribed to by Customer (as specified in the Order Form), VSETA will replace defective Network Hardware (including as a result of any defects in the software and operating systems contained therein)during the service period specified in the Order Form (if any) within fair replacement limits (as determined by VSETA), if and only when the aforementioned devices have not been lost, stolen, damaged or otherwise mishandled or misused by Customer or any third-party acting on behalf of Customer. Full cost of repair or replacement may be charged to Customer by VSETA upon evaluation (provided that, for avoidance of doubt, Customer may dispute any such charges, and theParties will promptly meet to resolve such dispute, to the extent that Customer reasonably believes that VSETA’s evaluation is not correct).
(d) Invoicing. VSETA will prepare and send to the Customer, at the then-current contact information on file with VSETA, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 60 days of the invoice date.
(e) Disputed Invoices or Charges. Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts, if any, in good faith in order to resolve the dispute.
(f) Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. If Customer has not paid any undisputed amounts when due and fails to correct such failure within 60 days of notice byVSETA, VSETA reserves the right to suspend Customer’s access to and use of the VSETA SaaS Services and any delivery of Professional Services until all due amounts are paid in full.
(g) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of VSETA.
(h) Suspension. [intentionally deleted].
(a) Definitions. For the purposes of this Section, a Party receivingConfidential Information will be the “Recipient”,the Party disclosing such information will be the “Discloser” and “ConfidentialInformation” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential (including all Personal Information); provided that theDiscloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to theDiscloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third-party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants. The Recipient hereby agrees that during theTerm and at all times thereafter it will not: (i) disclose ConfidentialInformation of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than thisAgreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the otherParty’s Confidential Information. Those precautions will be at least as stringent as the precautions that the Recipient takes to protect its own ConfidentialInformation of a similar type.
(c) Exceptions to Confidentiality. NotwithstandingSection 9(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such ConfidentialInformation in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of VSETA, to potential assignees, acquirers or successors of VSETA if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of VSETA.
(d) Following the termination or expiration of this Agreement and at the written request of the Discloser the Recipient will return to the Discloser or, at the Discloser’s request, destroy Confidential Information of the Discloser.
10. Warranty;Disclaimer; Indemnity; Insurance
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS.IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) Customer Warranty. Customer represents and warrants to, and covenants with VSETA that the Customer Data will only contain PersonalInformation in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third-party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable VSETA to provide the VSETA SaaS Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to VSETA and to or from all applicable third parties.
(b) VSETA Warranty. VSETA represents, warrants and covenants that: (i) the VSETA Services shall be provided in accordance with all laws applicable to VSETA; (ii) Customer’s use of the VSETA Services shall not subject Customer and/or Permitted Users to any shrink-wrap, click-wrap (or other electronic agreement), or any other terms and conditions that are not included in this Agreement; (iii) the VSETA Services shall (a) be free from material defects, (b) materially conform to the requirements and specifications set forth in the Agreement, and (c) to VSETA’s knowledge, contain no harmful surreptitious code, including code designed to delete, damage, deactivate, disable, harm or otherwise impede in any manner the operation of the VSETA Services or any other associated software, firmware, hardware, computer system or network (e.g., a Trojan horse, worm, backdoor, etc); (iv) unless approved byCustomer, VSETA Services will not intentionally by-pass any existing security measures or blocking technologies of any sites accessed through the VSETAServices; (v) [Intentionally Deleted]; (vi) VSETA shall (a) install and maintain industry-standard security measures for its computer systems, (b)implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect all Confidential Information, including any Customer Data and Personal Information obtained hereunder from unauthorized access, destruction, use, modification or disclosure, (c) VSETA shall in form Customer whenever it knows or reasonably believes a security breach has occurred involving Customer Confidential Information, and cooperate withCustomer to investigate, remediate and prosecute any such occurrence; and (vi) VSETAhas a CSAE3416 Type II audit regularly performed by a nationally accredited security firm. VSETA shall maintain such CSAE3416 Type II audit, or their successor third-party audits and certifications, achieved by VSETA for the duration of the Agreement. Upon Customer’s written request at reasonable intervals, VSETA shall provide a copy of its then most recent CSAE3416Type II audit, as applicable, or any summaries thereof to Customer and/orCustomer’s authorized personnel; and (vii) all VSETA Services shall be provided in Canada and all Customer Data shall reside in Canada.
(c) GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, VSETA DOES NOT WARRANT THAT THE VSETA SERVICES WILL BE ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES ITMAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE VSETA SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE VSETA SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY VSETA TO CUSTOMER ARE PROVIDED“AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS OTHERWISE SET OUT HEREIN, VSETA HEREBY DISCLAIMS ALL EXPRESS,IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS,WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
(d) VSETA Indemnity. VSETA will defend, indemnify and hold harmless Customer , its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties and legal fees) from third-party claims, directly or indirectly arising from or in connection with any the following: (i) breaches of Section 5 (privacy); (ii) VSETA’s breach of any of the other obligations, representations or warranties under this Agreement; (iii) claims that the VSETA Services infringe upon any third-party intellectual property rights, including, without limitation, copyright, patents or trademarks; or (iv) Gross Negligence or wilful misconduct. VSETA will fully cooperate with Customer in the defense of any claim defended by VSETA pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Customer. As used herein, “GrossNegligence” means (1) willful, wanton, careless or reckless (a) misconduct or (b) disregard of the duty of care towards others which causes a risk of harm known or so obvious that the actor must be taken to have been aware of it; and/or(2) failures to use even the slight amount of care, or conduct so reckless, as to demonstrate a substantial lack of concern for the safety of others. For the avoidance of doubt, Gross Negligence must be more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence or simple inattention.
(e) Customer Indemnity. Customer will defend, indemnify and hold harmless VSETA, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties and legal fees) from third-party claims, directly or indirectly arising from or in connection with any of the following: (i) claims by occupants or other third parties accessing the Customer locations where the Network is installed (except to the extent caused by the Gross Negligence or willful misconduct of VSETA or VSETA’s breach of this Agreement); or (ii) [Reserved]. Customer will fully cooperate with VSETA in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim that imposes financial liability on VSETA or requires the admission of responsibility on the part of VSETA without the prior written consent of VSETA.
(f) Insurance. VSETA will maintain: (i) commercial general liability insurance covering bodily injury, death, property damage, and personal injury, with coverage limits of not less than $5,000,000 per occurrence; (ii) Professional LiabilityInsurance in an amount of not less than Two Million Dollars $2,000,000 (foreach occurrence); (iii) Privacy/Network Security (Cyber) liability coverage providing protection against liability for privacy breaches including liability arising from the loss or disclosure of confidential information no matter how it occurs, including based on system breach, denial or loss of service, introduction, implantation, or spread of malicious software code and unauthorized access to or use the computer systems, with limits of Five MillionDollars ($5,000,000.00). No exclusion/restriction for unencrypted portable devices/media may be on the policy; and (iv) workers compensation insurance.The policies of insurance will name Customer as additional insured. VSETA and its insurers shall notify the Customer in writing not less than thirty 30(days) prior to the effect of any material change, cancellation or termination of the insurance coverage.
11. Limitation ofLiabilities andIndemnities
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY YOU, SOME ORALL OF THE BELOW LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
TheParties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT.SUBJECT TO SECTION 11(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAIDBY CUSTOMER FOR THE VSETA SERVICES IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE ORMORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
(b) TYPE.TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL either party BE LIABLE TO OTHER PARTY FORANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; OR (III) PERSONAL INJURY OR DEATH; ARISING OUTOF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION ORTHE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
10(d)(I),(III) AND (IV) AND 10(e);(II) DAMAGES SUFFERED BY EITHER PARTY AS A RESULT OF THE GROSS NEGLIGENCE (AS DEFINED ABOVE) OR WILLFUL MISCONDUCT OF THE OTHER PARTY; OR (III) VSETA’S BREACHES OF SECTION 9THAT RESULT IN UNAUTHORIZED ACCESS TO OR DISCLOSURE OF CUSTOMER DATA.
12. Term andTermination
(a) Term. ThisAgreement will commence on the Effective Date and continue to be in effect fora 12-month period following the Effective Date (the “Pilot Term”). The Parties may enter into renewal terms (each, a “Renewal Term”and together with the Pilot Term, the “Term”)upon mutual agreement at least 30 days prior to the end of the Term.
(b) Termination for Convenience. Customer may terminate this Agreement at any time during the Term by providing advance written notice of not less than 30 days to VSETA.If Customer terminates this Agreement pursuant to this Section 12(b), Customer will pay to VSETA all remaining Fees payable for the purchase of the NetworkHardware.
(c) Termination for Cause. EitherParty may, in addition to other relief, suspend or terminate this Agreement ifthe other Party commits a material breach of any provision of this Agreement and fails within 15 days after receipt of notice of such breach to correct such material breach.
(d) Transition Services. Upon expiration or termination of this Agreement, Customer will no longer have rights to access or use the VSETA Services. Within 30 days following expiration or termination or such other time-frame as the parties may agree, Customer will provide VSETA with access to the applicable Customer locations as required for VSETA to remove the Network from such Customer locations. In addition, VSETA will perform additional transition services that are mutually agreed upon by VSETA and Customer in an Order Form. Transition services will be subject to VSETA’s then-current rates, and VSETA retains the right to adjust any transition services fees upon notice to Customer to compensate for unforeseen fluctuations, such as foreign exchange rate, interest, minimum wage, travel fees, inflation and any other fees associated with transition services. Upon Customer’s request within30 days of the expiration or termination of this Agreement, VSETA will make available to Customer for download copies of Customer Data on its systems in a mutually acceptable format.
(e) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation ofRights), Section 5 (Privacy), Section 8 (Fees and Payment), Section 9 (Confidential Information),Section 10 (Warranty; Disclaimer;Indemnity), Section 11 (Limitation of Liabilities),Section 12(e) (Survival), and Section 13 (General Provisions).
(a) Notices.Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent:(i) if to VSETA, to the following address:
4800-167 1 King St. W, Toronto ONCanada M5H 1A1
Attention: Client Services
and(ii) if to Customer, to the current postal or email address that VSETA has on file with respect to Customer. VSETA may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with VSETA current at all times during the Term.
(b) Assignment. VSETA will not assign this Agreement to any third-party without Customer’s prior written consent. Notwithstanding the foregoing, upon prior written notice to theCustomer VSETA may assign its rights or obligations under this Agreement, in whole or in part, without the Customer’s consent, in connection with the transfer or sale of all or substantially all of the Party’s business or assets to a third-party, whether by merger, sale of stock, sale or donation of assets or otherwise, provided that the assignee is able to continue to provide theVSETA SaaS Services in accordance with this Agreement. Any assignment in violation of this Section will be void. ThisAgreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(c) Choice of Law. ThisAgreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention onContracts for the International Sale of Goods will not apply to this Agreement.This choice of jurisdiction does not prevent VSETA from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
(d) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under thisAgreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.”The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of VSETA in this Agreement means the right of VSETA to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
(e) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond VSETA’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving VSETA’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites. In the event that the foregoing continues fora period of more than 10 business days such that VSETA can no longer provide the VSETA Services, Customer may immediately terminate the Agreement upon notice to VSETA.
(f) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(g) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(h) Independent Contractors. VSETA’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee or partner of the other. Neither Party will have, and will not represent to any third-party that it has, any authority to act on behalf of the other Party.
(i) Entire Agreement. ThisAgreement constitutes the entire agreement between the Parties with respect tothe subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
(j) Amendments. Except as expressly provided herein, no amendment, supplement, modification, waiver, or termination of this Agreement, or consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
(k) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’yrattachent soient rédigés en anglais.
EXHIBIT A – Service Levels
EXHIBIT B – Support Terms