VSETA TERMS AND CONDITIONS

These VSETA Terms and Conditions form part of the Agreement between VSETA and the Customer entering into an Order Form with VSETA for VSETA Services.

1.              Definitions

(a)            “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads, transmits to or enters into the VSETA SaaS Services.

(b)            “Fees” has the meaning set out in Section 7.

(c)             “Network” means the VSETA Sensors, Beacons, Transmitter Nodes, SIM Cards, Gateways and related hardware and physical materials (and all software, wireless services and operating systems included therein) as set out in the Order Form and provided by VSETA for the purposes of collecting and analyzing information about Customer facilities usage as part of the VSETA SaaS Services.

(d)            “Modifications means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

(e)            “Order Form” means any order form that is executed by both Parties and references this Agreement.

(f)             “Party” means Customer or VSETA, as applicable, and “Parties” means both of them.

(g)            “Personal Information” means information about an identifiable individual.

(h)            “Privacy Policy” has the meaning set out in Section 4.

(i)              “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 include Professional Services.

(j)              “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.

(k)            “VSETA Services” means the VSETA SaaS Services, the Network Provisioning Services, and the Professional Services, collectively, and any part thereof.

(l)              “Technical Support Services” means the support services described in Section 6.

(m)          “Term” has the meaning set out in Section 11(a).

(n)            “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 this Agreement, VSETA will deliver the Network to the Customer locations listed in the Order Form and use commercially reasonable efforts to maintain the Network in accordance with this Agreement (the “Network Provisioning Services”). Except to the extent Customer orders Professional Services as set out in an Order Form, Customer will be responsible for setting up and installing the Network in accordance with the documentation provided by VSETA.

(b)            Professional Services. VSETA will use commercially reasonable efforts to 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 this Agreement, 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 or 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)             Suspension of Access; Scheduled Downtime; Modifications. VSETA may, at its discretion:

(i)              suspend Customer’s access to or use of the VSETA SaaS Services, the Network, or any component thereof:

(A)            for scheduled maintenance;

(B)            if Customer or any Permitted User violates any provision of this Agreement; or

(C)            to address any emergency security concerns; and

(ii)            Modify the VSETA SaaS Services.  

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.

(g)            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, Network Protocols)). Customer will accept and comply with the license terms applicable to third party technology provided by VSETA.

(h)            Reliance on Third Party Suppliers. Customer acknowledges that VSETA’s ability to provide the VSETA Services may be dependent on third party suppliers (e.g. internet providers, hardware providers).

3.              Ownership; Reservation of Rights

(a)        Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to VSETA a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data to provide the VSETA Services. VSETA may collect and analyze data and other information relating to the provision, use and performance of the VSETA Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, VSETA may use such data and information to improve and enhance the VSETA Services and for other development, diagnostic and corrective purposes in connection with the VSETA Services and other VSETA offerings.

(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; and (iii) any Modifications to the foregoing (i) and (ii).

(c)        All rights not expressly granted by VSETA to Customer under this Agreement are reserved.

4.              Privacy

If applicable, Customer will ensure that all persons from whom the Network will collect Personal Information or whose Personal Information is included in the Customer Data agree to appropriate terms and conditions as required to enable VSETA to provide the VSETA SaaS Services as contemplated in this Agreement. Customer agrees (on Customer’s behalf and on behalf of each Permitted User and any other person from whom Personal Information is collected pursuant to the VSETA SaaS Services) to VSETA’s access, use, collection, storage and disclosure of Customer’s and each Permitted User’s Personal Information for the purposes authorized under this Agreement. Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with VSETA’s privacy policy located at www.vseta.com/legal (the “Privacy Policy”).

5.              Customer User Account

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 that Customer 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 any Permitted User to share the Customer User Account with any other person. Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ compliance with this Agreement. Customer will promptly notify VSETA of any actual or suspected 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.

6.              Support

Customer will generally 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.

7.              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 VSETA Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), 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.

(b)            Changes to the Fees. VSETA reserves the right to change the Fees and institute new charges no more than: (i) once per calendar year for annual orders paid upfront in full upon providing not less than 60 days prior notice to Customer; and (ii) more than once per calendar year for monthly paid subscriptions fees upon providing not less than 30 days prior notice to Customer.

(c)             Costs for Repair or Replacement of Network. VSETA will replace defective Network devices 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. Full cost of repair or replacement may be charged to Customer by VSETA upon evaluation.

(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 30 days of the invoice date.

(e)            Disputed Invoices or Charges. If Customer believes VSETA has charged or invoiced Customer incorrectly, Customer must contact VSETA no later than 15 days after having been charged by VSETA or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

(f)             Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. 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. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.

(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. Any suspension of the VSETA Services by VSETA pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

8.              Confidential Information

(a)            Definitions. For the purposes of this Section, a Party receiving Confidential Information will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” 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; provided that the Discloser’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 the Discloser’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 the Term and at all times thereafter it will not: (i) disclose Confidential Information 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 this Agreement, 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 other Party’s Confidential Information. Those precautions will be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

(c)             Exceptions to Confidentiality. Notwithstanding Section 8(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 Confidential Information 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.

9.              Warranty; Disclaimer; Indemnity

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 Personal Information 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)            GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, VSETA DOES NOT WARRANT THAT THE VSETA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE 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, 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, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, 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. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, VSETA EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE VSETA SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

(c)             Indemnity. Customer will defend, indemnify and hold harmless VSETA, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Permitted Users) liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any the following: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) 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 (iv) use of the VSETA Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service not provided by VSETA to the extent such use or combination gave rise to the applicable claim or liability. 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 without the prior written consent of VSETA.

10.           Limitation of Liabilities

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.

The Parties 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. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF VSETA IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY 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 OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL VSETA’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(b)            TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL VSETA BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

11.           Term and Termination

(a)            Term. This Agreement will commence on the Effective Date and continue to be in effect: (i) for monthly subscriptions, on a month-by-month basis (subject to any minimum period specified in the Order Form); and (ii) for annual subscriptions, on a year-by-year basis (subject to any minimum period specified in the Order Form) (the “Term”). Unless otherwise specified in the Order Form, the Term will automatically renew for successive yearly or monthly periods, as applicable, unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term. Upon termination or expiry of this Agreement, Customer will reimburse VSETA for any additional amounts (based on VSETA’s standard pricing) payable for Network devices that are not returned to VSETA in their original condition (subject to normal wear and tear).

(b)            Termination for Convenience. Either Party may terminate this Agreement at any time by providing advance written notice of not less than 30 days to the other Party. If Customer terminates this Agreement pursuant to this Section 11(b), Customer will pay to VSETA all Fees payable for the remainder of the then-current Term (and any minimum period specified in the Order Form, if any).

(c)             Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the 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, 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.

(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 of Rights), Section 4 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), and Section 12 (General Provisions).

12.           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 ON Canada M5H 1A1

Attention: Client Services

Email: contact@vseta.com

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. Neither Party will assign this Agreement to any third party without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights or obligations under this Agreement, in whole or in part, without the other Party’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. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.

(c)             Choice of Law. This Agreement 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 on Contracts 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 this Agreement 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.

(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. This Agreement constitutes the entire agreement between the Parties with respect to the 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. NOTWITHSTANDING THE PRECEDING SENTENCE, VSETA MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY VSETA, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).

(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’y rattachent soient rédigés en anglais.