Usage Terms & Conditions

INTRODUCTION

Any Customer acquiring Vantree products and/or services directly from Vantree or from a Business Partner must sign:

the General Terms and Conditions for Use of Vantree Products and Services (“Usage Agreement”);
the Vantree End User Licence Agreement (“EULA”); and</span
a Vantree Order Form that lists the products and/or services to be provided by Vantree and the fees to be paid by Customer to Vantree (“Order Form“);

Additionally, a Customer may also sign a pricing agreement with respect to subscription-based Services (“Pricing Schedule”).

When Customer signs the Usage Agreement, the EULA, and an Order Form and/or pricing agreement, a contract is formed between Vantree, the Business Partner and Customer (collectively referred to as the “Agreement”);

1. DEFINITIONS

Capitalized terms that are not defined in context shall have the following meanings:

Affiliate — an entity controlling, controlled by, or under common control with a party, for so long as such control relationship exists.
Authorized User – means any individual to whom Customer grants access authorization to use the Vantree Product that is an employee, agent, contractor or representative of Customer.
Business Partner — a company authorized by Vantree to promote, market, sell, support, deliver or implement certain Products or Services. Often referred as the Value-Added Reseller of the solution to the Customer.
Confidential Information — information of a party that is marked confidential or with a similar proprietary legend or that, due to the nature of the information and/or the circumstances under which it was disclosed, should reasonably be assumed to be confidential information of the discloser. Software Products, Services, Vantree pricing, these Terms and Conditions and any product plans of Vantree provided to Customer prior to general announcement are all considered Confidential Information of Vantree. Confidential Information includes copies, summaries and other derivatives of Confidential Information. Customer Data is considered Confidential Information of Customer.
Customer — means or refers to the person:
1. whom Vantree has registered as the licensee of the Vantree Product;
2. who has entered into a Usage Agreement with Vantree;
3. who has executed an Order Form pursuant to the said Usage Agreement; and
4. who accepts the End User Licence Agreement (EULA).
Customer Data — Customer Data means (i) all data and information generated, provided or submitted by, or caused to be generated, provided or submitted by or on behalf of, Customer or its Affiliates in connection with the Services; (ii) all data and information regarding the business of Customer or its Affiliates collected, generated or submitted by, or caused to be generated, provided or submitted by, Vantree and/or its Affiliates and subcontractors in connection with its performance of Services; (iii) all data and information regarding the business of Customer or its Affiliates processed or stored, and/or then provided to or for Customer or its Affiliates, as part of the Services, including, without limitation, data contained in forms, reports and other similar documents provided by Vantree as part of the Services; or (iv) all data and information processed or stored in connection with Customers use of a Vantree Product. Customer owns all right, title and interest in and to Customer Data.
Deliverable — the work product or work of authorship resulting from the performance of Professional Services or any item that Vantree designates as a Deliverable in an Order Form. Software Products, Services, Documentation and Hardware Products are not considered Deliverables.
Documentation — user manuals and online help materials related to a Product that are contained in or accompany the Product or that are otherwise made available to Customer by Vantree.
EDI — electronic data interchange or similar transactions that transfer data from one computer system to another by standardized message formatting, without the need for human intervention.
Effective Date — the Effective Date indicated on the Order Form or the Registration Form.
Hardware Product — a computer, server, bar code reader, printer, or a handheld, mobile, wireless, or other device or item of equipment that is manufactured by a third party, listed on an Order Form and provided to Customer by Vantree, and all related Documentation and accessories, parts, and upgrades.
Products — Hardware Products and Software Products.
Professional Services — consulting, integration, customization, training, project management or other technical services performed for Customer by Vantree under an Order Form.
Network Services — the electronic trading network services provided by Vantree to enable a Customer to transmit and route EDI transactions between Customer and its trading partners. Network Services excludes any network monitoring services
Order Form — an order form, quote, work request, statement of work or other document that is signed by duly authorized representatives of Customer and Vantree that contains (i) a list of Products and/or Services to be provided to Customer by Vantree, (ii) fees to be paid by Customer to Vantree, method of payment and payment terms, and (iii) any additional rights and obligations of the parties.
Services — Support Services and Professional Services.
Software Products — Vantree Products, Third-Party Software Products and Network Services.
Subscription Term — the period in which the revocable Licence granted herein governing the use of the Vantree Product shall be valid pursuant to an Order Form, including any renewal thereof;
Support Services — the help desk, defect correction, maintenance and related services offered by Vantree to support Customer’s use of Software Products.
Support Term — the Initial Support Term and any Renewal Support Terms for which Customer has paid applicable Support Services fees, the whole pursuant to a Support Services Order Form.
Third-Party Software Product — a software program produced and branded by a third-party provider for which Customer purchases a license from Vantree as specified in an Order Form.
Trading Partner – is the entity or organization that the Customer will be transmitting or receiving EDI documents from through Vantree Product.
Usage Metric – means the standard of measurement for determining the permitted use for a Vantree Product.
Vantree—the legal entity that signs an Order Form with Customer, which shall either be Vantree Systems Inc., a Canadian corporation, or a Vantree Affiliate.
Vantree Affiliate — any legal entity, directly or indirectly, controlling, controlled by or under common control with Vantree Systems Inc.
Vantree Product — a software program, software service, or a resource (such as an information database), that is generally available from Vantree, updates or modifications to any of the foregoing provided to Customer by Vantree, associated Documentation, and all copies of the foregoing. Vantree Products may be delivered to Customer by Vantree or a Business Partner or may be made accessible to Customer via remote access through the Internet. Network Services are considered a Vantree Product. Support Services, Professional Services, Hardware Products, Third-Party Software Products and Deliverables are not considered Vantree Products.

2. USAGE RIGHTS AND RESTRICTIONS

Grant of Licence – Subject to payment of all required fees to Vantree and to the other terms and conditions of the Agreement, Vantree grants to Customer on behalf of Business Partner the rights stipulated in the EULA.
Authorized Users – Customer may permit Authorized Users to use the Vantree Product. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Customer is responsible for breaches of the Agreement caused by Authorized Users.
Acceptable Use Policy – With respect to the Vantree Product, Customer will not:
1. disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
2. transmit any content or data that is unlawful or infringes any intellectual property rights, or
3. circumvent or endanger its operation or security.
Verification of Use – Customer will monitor its own use of the Vantree Product and report any use in excess of the Usage Metrics and volume to Business Partner. Vantree may monitor use to verify compliance with Usage Metrics, volume and the Agreement. Vantree will be permitted to forward any data regarding use in excess of the Usage Metrics, volume and the Agreement by the Customer to Business Partner.
Suspension of Vantree Product – Vantree may suspend use of the Vantree Product if continued use may result in material harm to the Vantree Product or its users. Vantree will promptly notify Customer of the suspension. Vantree will limit the suspension in time and scope as reasonably possible under the circumstances.
Third Party Web Services – The Vantree Product may include integrations with web services made available by third parties (other than Vantree or its Affiliates) that are accessed through the Vantree Product and subject to terms and conditions with those third parties. These third-party web services are not part of the Vantree Product and the Agreement does not apply to them.
Mobile Access to Vantree Product – Authorized Users may access certain Vantree Products through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.

3. VANTREE RESPONSIBILITIES

Provisioning – Vantree shall provide access to the Vantree Product and Deliverables as described in the Agreement.
Support – Vantree shall provide support for the Vantree Product during the Support Term. The “Initial Support Term” is a twelve-month period beginning on the date that is thirty days after the Effective Date of the Order Form listing the Support Services. A “Renewal Support Term” is a twelve-month period beginning on the expiration of the Initial Support Term or a preceding Renewal Support Term.
Security – Vantree uses reasonable security technologies in providing the Vantree Product. As a data processor, Vantree will implement technical and organizational measures to secure personal data processed in the Vantree Product in accordance with applicable data protection law.
Modifications – The Vantree Product may be modified by Vantree at any time. Modifications may include optional new features for the Vantree Product, which Customer may use subject to the then-current Documentation.
Analyses – Vantree may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Vantree Product and Services. Analyses will anonymize and aggregate information and will be treated as Vantree Product. Examples of how analyses may be used include: data usage reports, optimizing resources and support; research and development; automated processes that enable continuous improvement, performance optimization and development of new Vantree Products, verification of security and data integrity, internal demand planning, and data products such as industry trends and developments, indices and anonymous benchmarking.

4. CUSTOMER AND PERSONAL DATA

Customer Data – Customer is responsible for the Customer Data and entering it into the Vantree Product. Customer grants to Vantree a non-exclusive right to process Customer Data solely to provide and support the Vantree Product.
Personal Data – Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
Security – Customer will maintain reasonable security standards for its Authorized Users’ use of the Vantree Product.
Access to Customer Data
1. During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Vantree and Customer will find a reasonable method to allow Customer access to Customer Data.
2. Before the Subscription Term expires, Customer may use Vantree’s self-service export tools (as available) to perform a final export of Customer Data from the Vantree Product.
3. At the end of the Agreement, Vantree will delete the Customer Data remaining on servers hosting the Vantree Product unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
4. In the event of third-party legal proceedings relating to the Customer Data, Vantree will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

5. BUSINESS PARTNER RELATIONSHIP

Termination of partner relationship or orders relating to Customer – If (i) Business Partner terminates any orders relating to the Customer or (ii) Vantree terminates any of Business Partner’s orders relating to the Customer for good cause or (iii) the partnership between Vantree and Business Partner relating to the sale of subscription for the Vantree Products is terminated, Vantree may (depending on Customer’s choice): (a) directly provide the affected Vantree Product to the Customer pursuant to Vantree’s then-current General Terms and Conditions for Vantree Products for mutually agreed subscription fees; or(b) recommend to Customer other partners or third parties for the provision of the affected Vantree Product.
Independence of Business Partner – Customer acknowledges that Business Partner is not an agent of Vantree. Business Partner is an independent entity with no authority to bind Vantree or to make representations or warranties on Vantree’s behalf. Vantree shall not be liable for reasonably relying on the accuracy and reliability of written information provided to it by Business Partner in making any decision that would give Vantree grounds to suspend the Vantree Product or terminate its agreement with Business Partner or the present Agreement.
No representations or warranties – Vantree makes no representations or warranties of any kind or nature as to the Business Partner or any other third party, related to the performance of the products or services of such entities, and fully disclaims any such warranties.

6. SERVICE LEVEL AGREEMENT

Availability – The availability of the Support Service is defined as:
1. The ability to receive new EDI documents from the Trading Partner in a format previously agreed upon.
2. The ability to deliver EDI outbound documents to the Trading Partner in EDI format.
3. The ability to create EDI ASN documents using web-based software published for that purpose; And
4. The ability to view the status of any document on the system.
Metrics – Vantree’s success is measured by the following metrics:
1. The uptime of each Vantree Product.
2. The response time of Vantree Product.
3. The delivery times of EDI documents passing through Vantree network.
4. The effectiveness of Support Service.
5. Setup time for new EDI Maps.
Service Hours:
1. Normal Business hours are from 9:00AM to 5:00PM Monday to Friday Eastern Time
2. Peak hours are from 9:00AM to 5:00PM Monday to Friday Eastern Time<l/i>
3. Off Peak hours are 5:00PM to 9:00AM Monday to Friday and all-day Saturday and Sunday Eastern Time.
Notification of scheduled maintenance – Vantree will provide the customer with 24 hours’ notice by e-mail, fax or phone of any scheduled maintenance that may affect the availability of the Vantree Product.
Backup Schedule – Vantree will perform backup procedures daily during off-peak hours in such a manner as to minimize any adverse affects to the Customer.
Delivery of Inbound/Outbound Documents – Documents are sent and/or received on a predetermined schedule. Any issues related to the delivery of documents to/from Vantree’s system will be acted upon as defined in the paragraph “Availability of Help Desk Personnel”.
Document Error Resolution – If problems found within the document prevent us from delivering the document within the specified time frame, the Customer will be notified by phone, e-mail or fax. The Trading Partner may also be contacted if deemed necessary to the resolution of the problem. Any errors not requiring further action by either the Customer or the Trading Partner will be resolved within 4 business hours. Errors requiring action by the Customer or the Trading Partner will be actively monitored by Vantree personnel until resolution occurs or the offending document is canceled by the Customer and/or Trading Partner.
Software Error Resolution – Any Web EDI or ASN Builder errors reported by Customer whose hardware/software conforms to Vantree’s minimum requirements will be resolved within 3 business days unless said error prohibits the client from using the service (fatal exceptions). Fatal exceptions will be resolved within 4 business hours or a suitable workaround will be found until the error is resolved.
Network Error Resolution – Any connection problems arising from the use of the service will be acted upon immediately by Vantree. Problems arising from hardware and/or software under Vantree’s control will be remedied within 4 business hours or a suitable alternative route will be found. Resolution of connection problems arising from ISP’s or routes beyond Vantree’s control cannot be guaranteed although suitable alternate routes will be found.
Security/Application Access – Network servers will be maintained behind a suitable firewall at all times. Under no circumstances will a third party be given access to Customer Data without the expressed permission of the Customer. All Customer will be required to log into the system at all times without exception. Customers who lose or forget their passwords will only be given new ones by voice communication with their EDI contact at Vantree. Vantree will not reset passwords unless contacted by a recognized agent of the client. All root domains are secured with a Verisign ID.
Availability of Help Desk Personnel – Each client will be assigned an EDI contact who is responsible for every facet of the EDI initiative. This contact will be available by phone or email during normal business hours (Vantree’s call-back time during normal business hours is 1 hour or less). Additionally, technical support personnel will be available on a call back basis during off peak hours when calling Vantree’s support line and giving a detailed description of the problem (Vantree’s call-back time during off peak hours is 2 hours or less).
Internet Response Time(s) – Many factors can affect Internet response times. Some factors, such as a Customer connection speed, are beyond Vantree’s control. However, Vantree guarantees that
1. substantial bandwidth will be available to Vantree’s clients in order to meet their requirements,
2. servers used to process web data in real-time will have the processing power and memory to complete the task(s) in a timely fashion; and
3. regular upgrades will be performed. In the event that Vantree is forced to implement a strategy laid out in Vantree’s Disaster Recovery Brief, we cannot guarantee that response times will not be affected to a limited degree.
Map Setup Time(s) – Quotes for new EDI maps or changes to existing maps will be provided to clients with contracted pricing within 3 business days. Customers with standard pricing can view Vantree’s current rates by contacting their Vantree representative. Setup and deployment times of new Trading Partners and EDI maps will vary depending on the available of resources of the partners involved. Normally new maps for existing Trading Partners should be completed within 1 to 3 weeks. Maps involving new Trading Partners may take longer. Custom programming will be assessed on a case by case basis.

7. TERM AND TERMINATION

1. 1. Term – The initial Subscription Term shall be as stated in the Order Form. The Subscription Term shall automatically renew for one-year periods each year thereafter (the “Renewal Term”) unless a party provides the other with written notice of non-renewal no fewer than thirty (30) days prior to the start of the Renewal Term. As such, Article 2125 of the Civil Code of Quebec shall not apply to the present Agreement.
  2. Termination for Cause
    1. A party may terminate the Agreement: (i) upon thirty days’ written notice of the other party’s material breach (including, without limitation, Customer’s failure to pay Business Partner any fees due for the Vantree Product) unless the breach is cured during that thirty day period, (ii) immediately, if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12-f.
    2. Vantree may terminate the Agreement if the relevant Vantree Products that this Agreement pertains to were terminated between Vantree and Business Partner. The parties agree there is no requirement to obtain a court order to exercise the rights of termination.
  3. Non-Payment by Customer or Business Partner – Vantree may, at its sole discretion, suspend Customer’s use of the Vantree Product and/or terminate the Agreement if Customer or Business Partner fails to pay any fee or other amount payable by it on its due date.
  4. Effect of Expiration or Termination – Upon the effective date of expiration or termination of the Agreement:
    1. Customer’s right to use the Vantree Product and all Vantree Confidential Information will end; and
    2. Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement;
Termination or expiration of the present Agreement shall not affect other agreements between the parties.
1. Survival – Sections 7-b, 7-d, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.

8. WARRANTIES

Compliance with Law – Customer warrants that it shall comply with all laws and regulations applicable to it in connection with the Customer Data and Customer’s use of the Vantree Product.
Good Industry Practices – Vantree warrants that:
1. the Vantree Product will substantially conform to the specifications contained in the Documentation during the Subscription Term for the Vantree Products.
2. the Service will materially conform to the specifications contained in the Documentation, statement of work, deployment description or other documentation containing the scope and service description for the relevant Service in all cases agreed to by Vantree at the point in time the relevant Service is performed by Vantree and it will perform any Service in a workmanlike and professional manner using resources with the skills reasonably required to perform such Services.
Remedy
1. Provided Customer (and/or Business Partner on Customer’s behalf) notifies Vantree in writing with a specific description of the Vantree Product’s or the Service’s non-conformity with the warranty in Section 8-b within the warranty period, without undue delay, and Vantree validates the existence of such non-conformity, Vantree will, at its option:
  1. with regard to the Vantree Products:
    1. correct or replace the nonconforming Vantree Product; or
    2. if Vantree fails to correct the non-conformity after using reasonable commercial efforts, terminate the access to the nonconforming Vantree Product.
  2. with regard to the Services, re-perform the nonconforming Service.
2. This does not apply to trivial or non-material cases of nonconformance and is Customer’s sole and exclusive remedy under the warranty in Section 8-b, all other warranties being hereby diclaimed, be they legal or conventional. The written notification by Customer (and/or Business Partner on Customer’s behalf) of any non-conformity must include sufficient detail for Vantree to analyse the alleged non-conformity. Customer must provide commercially reasonable assistance to Vantree in analysing and remediating any non-conformity of the Vantree Products.
3. For clarification purposes, Vantree will
  1. 1. with regard to the Vantree Products: in all cases; and
    2. with regard to the Services: if Vantree fails to correct the non-conformity of the Service after using reasonable commercial effort,
  consult with Business Partner to define a reasonable amount (a) by which Business Partner may reduce the subscription fees or the fees for the nonconforming Service, in case Business Partner has not already paid them, or (b) if Business Partner has already paid the subscription fees or the fees for the nonconforming Service, which Vantree will refund to Business Partner to reflect the non-conformity.
4. Vantree may, at its option, perform its warranty obligations hereunder in favour of either the Business Partner or the Customer. To the extent that Vantree performs its warranty obligations in favour of either the Business Partner or the Customer, Vantree shall be liberated from the said obligations in respect of both such parties and neither shall have any claim against Vantree for a breach of the said warranty.
System Availability
1. Vantree warrants to maintain an average monthly system availability for the production system of the Vantree Product as defined in the SLA.
2. Customer’s sole and exclusive remedy for Vantree’s breach of the SLA is the issuance of a service level credit, whereby the service level credit will be calculated based on the non-discounted subscription fee set out in the order form agreed between Vantree and Business Partner. Customer must notify Business Partner in writing (email permitted) within twenty-one (21) business days after each calendar month in which Vantree does not meet the SLAs, so that Business Partner can follow Vantree’s posted credit claim procedure. When the validity of the service credit is confirmed by Vantree in writing (email permitted) to Business Partner, Vantree will issue such credit to the Business Partner who should then forward the credit to Customer.
Warranty Exclusions – The warranties in Sections 8-b and 8-d will not apply if:
1. the Vantree Product is not used in accordance with the Agreement or Documentation,
2. the non-conformity is caused by Business Partner, Customer, another third party, or by any product, database, content or service not provided by Vantree, or
3. the Vantree Product was provided for no fee or is a trial licence of the Vantree Product or both.
Disclaimer – Except as expressly provided in the Agreement, neither Vantree nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of Vantree or product roadmaps in obtaining subscriptions for any Vantree Product.

9. LIMITATION OF LIABILITY

Disclaimer – Without prejudice to any other defence or theory of non-liability which it may invoke, Vantree and its licensors shall not be responsible under this Agreement (i) if a Vantree Product is not used in accordance with the Documentation; (ii) if the defect or liability is caused by Business Partner, Customer or any third-party product or service; (iii) if the Vantree Product is used in conjunction with any product or service not provided by Vantree; or (iv) for any Customer activities not permitted under this Agreement. VANTREE AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY NEGLIGENT, RECKLESS OR OTHERWISE DANGEROUS USE OF ANY OF THE PRODUCTS OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT. Customer shall defend Vantree and hold it harmless against any claims of any nature to which the present disclaimer may reasonably apply.
Exclusion of Damages; Limitation of Liability – Notwithstanding any stipulation to the contrary, except for
1. Damages resulting from:
  1. unauthorized use or disclosure of confidential information;
  2. fraud or willful misconduct; or
  3. death or personal injury arising from either party’s gross negligence or arising from either party’s willful misconduct;
2. Customer’s obligations for payment of fees under the Agreement; and
3. Customer’s indemnification obligations in respect of claims brought against Vantree pursuant to Section (a) hereinabove;
under no circumstances, and regardless of the nature of any claim, shall Vantree, its licensors or Customer be liable to each other or any other person or entity for an amount in excess of the subscription fees paid by Customer in accordance with the Agreement in the twelve (12) months immediately preceding the notification of the claim. Neither party shall be liable in any amount for loss of goodwill or profits, work stoppages, data loss, computer failure or malfunction, legal fees, court costs, interest exemplary or punitive damages, or for any special, incidental, consequential or indirect damages.
Risk Allocation – This Agreement allocates the risks between Vantree and Customer. The subscription fees paid by Customer reflect this allocation of risk and limitations of liability. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages, is intended by the parties to be severable and independent of any other provision and to be enforced as such.
Extension to group members – Any limitations to the liability and obligations of Vantree according to this Section will also apply for the benefit of Vantree Affiliates and their respective licensors.

10. INTELLECTUAL PROPERTY RIGHTS

Vantree Ownership – Vantree, their Vantree Affiliate or licensors own all intellectual property rights in and related to the Vantree Products, Documentation, Services, design contributions, related knowledge or processes, and any derivative works thereof. All rights not expressly granted to Customer are reserved to Vantree and its licensors.
Customer Ownership – Customer retains all rights in and related to the Customer Data.
Non-Assertion of Rights – Customer covenants, on behalf of itself and its successors and assigns, not to assert against Vantree, Vantree Affiliates or licensors, any rights, or any claims of any rights, in any Vantree Product, Documentation, or Services.

11. CONFIDENTIALITY

Use of Confidential Information
1. The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement or Customer Agreement and who are under obligations of confidentiality substantially similar to those in this Section 11. Customer will not disclose the Agreement or the pricing to any third party.
2. Confidential Information of either party disclosed prior to execution of the Agreement will be subject to this Section 11.
3. In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
Exceptions – The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
2. is generally available to the public without breach of the Agreement by the receiving party;
3. the disclosing party agrees in writing is free of confidentiality restrictions; or
4. is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, subject to the receiving party giving all reasonable and lawfully permitted prior notice to the disclosing party to allow it to seek a protective or confidentiality order or other such court orders as it may pursue;
Publicity – Neither party will use the name of the other party in publicity activities without the prior consent of the other, except that Customer agrees that Vantree may use Customer’s name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Vantree’s marketing efforts (including reference calls and stories, press testimonials, site visits and other relevant information). Customer agrees that Vantree may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with Vantree.

12. GENERAL

Severability – If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
No Waiver – A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
Counterparts – The present Agreement may be signed in counterparts and an electronic copy thereof shall have the same value as an original.
Regulatory Matters
1. Vantree Confidential Information is subject to export control laws of various countries, including without limitations the laws of Canada, the United States of America, the European Union and Germany. Customer will not submit Vantree Confidential Information or parts thereof to any government agency for licensing consideration or other regulatory approval, and will not export, re-export or import any Vantree Confidential Information or parts thereof to countries, persons or entities if prohibited by export laws.
2. Neither Vantree nor any of its Affiliates assumes any responsibility or liability:
  1. for any delay caused in the delivery and/or granting of access to any or all Vantree Confidential Information of parts thereof due to export or import authorizations or both having to be obtained from the competent authorities;
  2. if any required authorization, approval or other consent for the delivery of and/or granting of access to any or all Vantree Confidential Information or parts thereof cannot be obtained from the competent authorities;
  3. if the delivery of and/or granting of access to any or all Vantree Confidential Information or parts thereof is prevented due to applicable Export Laws; and
  4. if access to Vantree Products, Services or other services has to be limited, suspended or terminated due to applicable Export Law.
3. Vantree may terminate this Agreement with thirty (30) day’s prior written notice if Vantree or any of its Affiliates may not deliver or grant access to the Vantree Confidential Information to Customer due to an embargo, trade sanction or other comparable restrictive measure, which is expected to be in place for six (6) months or longer.
Notices – All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to sales@vantree.com Notices by Vantree relating to the operation or support of the Vantree Product may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in Order Form.
Assignment – Without Vantree’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Vantree may assign the Agreement to any of its Affiliates without prior notice.
Subcontracting – Vantree may subcontract parts of the Vantree Products to any of its Affiliates and/or to third parties.
Relationship of the Parties – The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
Force Majeure – Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
Amendment – This Convention cannot be amended other than by a written amendment signed by both parties. Thus, no oral or practical communication between the parties can be construed as an amendment or amendment to the terms and conditions of this Convention;
Governing Law – The Agreement all Customer Agreements and any claims relating to its subject matter shall be governed by and construed under the laws of the Province of Quebec and the federal laws of Canada applicable therein, the whole without reference to its conflicts of law principles. All disputes shall be subject to the exclusive jurisdiction of the courts of the said Province seated in the Judicial District of Montreal. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) shall not apply to the present Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one (1) year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

13. AGREEMENT ACCEPTANCE

Entire Agreement – The Agreement (including any annexes and schedules thereto) constitutes the complete and exclusive statement of the agreement between Vantree and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.d. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Vantree accepts or does not otherwise reject the purchase order. Client represents that it has read, understands and agrees to be bound by the terms and conditions of this Agreement.