Asigra Inc. Backup2Cloud Service Provider Terms

Welcome. These ASIGRA Reseller Terms and Conditions (“Terms”) are incorporated by reference in Your Purchase Order Form with Asigra Inc. (“ASIGRA”) for the resale of the Assurestor Limited (“Assurestor”) Service, which includes the Backup2Cloud Service.

By signing the Purchase Order Form and accepting these Terms, You represent and warrant that: (i) You possess the legal right and capacity to enter into the Agreement with ASIGRA and to perform all of Your obligations thereunder; (ii) You accept the Assurestor Reseller Terms, and shall be fully bound by those terms; (iii) You are of legal age to enter into these Terms; (iv) You have full power and authority to execute and deliver any agreement documents and to perform all of Your obligations thereunder; (v) if You accept on behalf of an organization, You are authorized to bind that organization, and references to “You” in these Terms expressly includes without limitation the entity You represent; and (vi) You shall be fully bound by these Terms. 

Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 15 (“Definitions”) below.

1. Grant of Rights

1.1 ASIGRA hereby authorizes and appoints You as an authorized non-exclusive reseller of the Service during the Term in the Territory described in the Purchase Order Form and in accordance with the Assurestor Reseller Terms, subject to the specific terms and conditions set out herein or in the applicable Purchase Order Form. ASIGRA and its licensors retain all rights in the Service not specifically granted to You.

1.2 ASIGRA grants You a non-exclusive, non-transferable, limited license to use and copy the Marketing Materials to the extent necessary for the purpose of marketing the Service in the Territory to Customers or potential Customers and for no other purpose. 

1.3 If separately agreed with ASIGRA in Your Purchase Order Form, You are also entitled to provide Reseller Support to Your Customers. In such capacity ASIGRA grants You a non-exclusive, non-transferable, non-assignable, limited, revocable license to access and use the Service in connection with Your provision of Reseller Support during the Term.

1.4 You shall be entitled to distribute and resell the Service using Your own subscription agreement with Your Customers in accordance with this Agreement, Your Purchase Order Form, the Assurestor Reseller Terms and any other terms applicable to Your use of the Service as a reseller. Notwithstanding the foregoing, You understand and agree that Your subscription agreement with a Customer for the Service shall expressly require that (i) prior to receiving the Service from You, your prospective customer must execute the applicable Assurestor terms for use of the Service; and (ii) such purchase agreement must be in good standing at all times with ASIGRA and Assurestor, where applicable.

1.5 Additionally, prior to reselling the Service, You must register the prospective customer as directed by Assurestor for review by Assurestor and Asigra.  ASIGRA and Assurestor shall consider Your request for a prospective customer and shall advise whether your request has been accepted or rejected. You understand and agree that You are not authorized to distribute, market, promote or resell the Service to any entities that otherwise have an existing direct business relationship with ASIGRA.

1.6 The rights and licenses granted to You are personal to You and are not transferable or assignable. You may not assign, sublicense, rent, lease, convey (whether part of an asset sale, merger, amalgamation or otherwise), encumber or transfer any component of the Service or any of Your rights or obligations hereunder and any attempt to do so by You will be void.

1.7 You agree to notify us within fifteen (15) days of any change in Your ownership and provide details regarding the nature of the change, including the name of the new owner. If there is any such change in ownership, ASIGRA may, in its sole discretion, terminate the Agreement.

1.8 ASIGRA will not be liable to You or to any third party for Your reselling of the Service provided, including but not limited to any applicable Reseller Support, or any other services that You make available to Your Customers, in writing or otherwise.

1.9 Note that ASIGRA is not an agent, representative, sole distributor or exclusive distributor of Assurestor and has no authority to bind Assurestor in any way. 

2. Provision of the Service

2.1 ASIGRA shall provide Support Services to You in accordance its Service Level Agreement. Notwithstanding the foregoing, ASIGRA shall not be obliged to provide Support Services if any undisputed fees payable by You under this Agreement are unpaid by the due date provided that ASIGRA has provided You with written notice of Your failure to pay and You have not paid the outstanding sums within thirty (30) days of receipt.

2.2 ASIGRA shall provide You with 15 days’ advance written notice of any new modifications intended or planned services it has in development or any aspect of the Service that may be replaced or discontinued and the likely time-scale for such introduction, replacement or discontinuation.

2.3 Promptly following the execution of this Agreement, ASIGRA shall:

(a) Provide You with access to the MyCloud Portal if not already provided; 

(b) Provide You with the Service, the Service Software and Platform credentials that are necessary to enable You to resell the Service; and

(c) Provide you with applicable documentation for the Service Software and the Service. 

3. Your Obligations

3.1 At all times during the Agreement, You shall

(a) dedicate the necessary resources to actively distribute, market, promote and resell the Service within the Territory;

(b) conduct business in manner that reflects favourably at all times on the Service, ASIGRA and Assurestor to protect and preserve the goodwill and image of ASIGRA and Assurestor;

(c) not engage in any business activity, either directly or indirectly, in any manner or capacity, on Your own behalf or on behalf of any other person, firm, corporation, or organization, or accept or continue any obligation which may interfere with Your duties or obligations under the Agreement;

(d) at Your own expense, obtain and maintain such permits and approvals as are required by government and other authorities for You to operate Your business in the Territory and meet Your obligations hereunder;

(e) follow ASIGRA’s conditions, guidelines and policies as published on its website or made available to You from time to time, as the same may be updated from time to time in ASIGRA’s sole discretion;

(f) comply with all applicable laws and not employ illegal or unethical practices in promoting the Service, nor make any promises in respect of ASIGRA or Assurestor that are not authorized by ASIGRA;

(g) avoid deceptive, misleading, or unethical practices that are or might be detrimental to ASIGRA or Assurestor, including any disparagement of ASIGRA or Assurestor or its products and services;

(h) make no false or misleading representations with regard to ASIGRA or ASIGRA’s products and services;

(i) refrain from publishing or employing any misleading or deceptive advertising material; 

(j) comply with any applicable Data Protection Law and the Data Processing Addendum in respect of any processing of data and personal data in connection with this Agreement; 

(k) comply with the Assurestor Reseller Terms; and 

(l) refrain from making any representations, warranties, or guarantees to Your Customers, potential Customers or to the trade with respect to the specifications, features or capabilities of ASIGRA’s or Assurestor’s products and services that are inconsistent with published documentation, these Terms or the applicable Purchase Order Form, including all warranties, disclaimers, and license terms contained in such documentation.

3.2 You acknowledge that (i) the marketing obligations and restrictions described above are commercially reasonable methods for ASIGRA to monitor Your reselling of the Service; and (ii) these restrictions do not compromise Your independence as a reseller of the Service.

3.3 You agree to keep and maintain at Your own accurate books, records, reports and data relating to Your obligations under the Agreement and Purchase Order Form for at least three (3) years following the Termination Date. Upon advance written notice, You shall allow ASIGRA or its representative(s) to review such records and any other books and records of Yours which relate to Your performance under the Agreement in order to ensure Your compliance with Your obligations towards ASIGRA. Any such audit will be conducted during normal business hours and in a manner designed to cause minimal impact on Your ordinary business activities. Such examination or audit will be conducted at Your corporate office and warehouses, or as otherwise determined by ASIGRA. You will promptly reimburse ASIGRA for any amounts uncovered in such inspection that are determined to be owed by You. ASIGRA shall pay for the cost of the audit, unless the audit results show that You have underpaid ASIGRA by more than 1%.

4. Marketing

4.1 ASIGRA shall make available to You electronic copies of Marketing Materials developed for the Service, as updated from time to time. You have a non-exclusive, non-assignable, limited, revocable license to copy and use such Marketing Materials  and documentation solely to fulfil Your obligations hereunder. ASIGRA will deliver these Marketing Materials and documentation to You in English.

4.2 You shall submit to ASIGRA written reports, on a quarterly basis, that describe Your sales and marketing efforts, in such form as is reasonably requested by ASIGRA from time to time.

5. Proprietary Rights of ASIGRA/Restrictions on Use

5.1 ASIGRA owns or has the appropriate license to all rights and title in, including without limitation, the Service and all future functionality and product developments if any, that are related to the Service. You obtain no right to modify, duplicate or reverse-engineer any aspect of the Service. 

5.2 You will not modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Service or any software or documentation supplied hereunder, or adapt the Service in any way to create a Derivative Work.

5.3 You will use best efforts to protect the copyright and/or any proprietary rights of ASIGRA and Assurestor, including but not limited to any contractual, statutory and common law rights during and after the Term. You will comply with all reasonable requests made by ASIGRA and Assurestor in relation to the protection of ASIGRA Intellectual Property rights hereunder.

5.4 If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of the Service), all profits and proceeds from such unauthorized activity, if any, will accrue to ASIGRA and/or Assurestor or the owners of any applicable Third Party Software. ASIGRA and/or Assurestor, or the owners of the Third Party Software will be the owner of same whether or not made in compliance with the Agreement.

5.5 If You become aware of any unauthorized decompilation or infringement of the Service by any third party, You will promptly alert ASIGRA of such activity and provide the identity of such third party to ASIGRA. You will provide ASIGRA with all reasonable assistance required by ASIGRA to assert its rights against such third party and to the proceeds of such unauthorized activity.

5.6 You will not at any time put into issue or contest, either directly or indirectly, the validity of the Service nor commit any act which interferes with ASIGRA’s or Assurestor’s registration of same with any local, provincial, state or federal agency.

6. Confidentiality and Data Protection

6.1 It would be damaging to a Disclosing Party if Confidential Information were disclosed to or obtained by third parties. Accordingly, the Receiving Party will make all commercially reasonable efforts during the Term and thereafter to prevent the Confidential Information from being disclosed to or obtained by any person or entity for any purpose (except to its employees, agents and contractors to the extent necessary to perform hereunder provided such employees, agents and contractors have previously agreed in writing to protect the Confidential Information of a party hereunder to the same extent as described in this Section 6) without the express written consent of the Disclosing Party. You are expressly forbidden from disclosing any pricing information contained in the Agreement to any third party whether directly or indirectly in connection with your marketing/promotional efforts hereunder.

6.2 The obligations of confidentiality set out above do not apply to information that: (a) has otherwise become generally known or available to the public (which shall not include other resellers of the Service) without a breach of the Agreement; (b) is obtained by the Receiving Party from a third party who has no obligation of confidentiality to the Disclosing Party; (c) is independently developed or obtained by the Receiving Party without breach of the Agreement; or (d) was known to the Receiving Party before receipt thereof from the Receiving Party.

6.3 A Receiving Party may disclose Confidential Information if required by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible.

6.4 The Receiving Party will not copy or reproduce the Confidential Information except as may be required for the performance of its obligations hereunder. All copies will, on reproduction, contain the same proprietary and confidential notices and legends which appear on the original documents and information. 

6.5  The Receiving Party, upon the request of the Disclosing Party, will return all of the Confidential Information and copies in its possession to the Disclosing Party or destroy such Confidential Information and copies as directed by the other party and provide to such party a certificate of an officer of the party certifying such destruction.

6.6 The Receiving Party shall promptly notify the Disclosing Party of any unauthorized disclosure, possession, use or knowledge of the Confidential Information that becomes known to an employee, consultant, designee or officer of the Receiving Party.

6.7 You shall indemnify Asigra for all damages, costs, and expenses (including court costs and legal fees on a solicitor and client basis) incurred by Asigra as a result of a failure to comply with Your obligations under this Section 6.

6.8 Each party acknowledges and agrees that: (a) the restrictions set forth in this Section 6 are reasonable in the circumstances; (b) a violation of any of the provisions of this Section 6 will result in immediate and irreparable harm and damage to the other party; and (c) in the event of any violation of any provision of this Section 6, the non-breaching party will be entitled to equitable relief by way of temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.

6.9 Upon termination of this Agreement, each party must immediately cease to use the other party’s Confidential information subject to any requirements set out in the Purchase Order Form.

7. Representations and Warranties

7.1 ASIGRA covenants, represents and warrants that ASIGRA has all rights to grant the rights and licenses hereunder.

7.2 You covenant, represent and warrant to ASIGRA that (i) You are duly qualified, licensed or registered to carry on business under the laws applicable to You in all jurisdictions in which the nature of Your assets or business make such qualification necessary; (ii) the execution and delivery of the Purchase Order Form by You and the performance by Your of the obligations hereunder will not conflict with or result in a breach of any applicable law; (iii) You will resell the Service in accordance with applicable laws and in such manner as not to violate or infringe any copyright, trade-mark, confidential information, proprietary information, or trade secret of any other person; (iv) as at the Effective Date there are no lawsuits or proceedings pending in any forum or any claims asserted concerning You which could materially affect Your ability to perform Your obligations under the Agreement; and (v) at all times during the Agreement You will perform Your obligations in compliance with all applicable laws.

7.3 If the Service does not conform with this Agreement, and ASIGRA has notified You that the non-conformance cannot be rectified, then either party may terminate the applicable Purchase Order Form for the non-conforming Service by giving at least 45 days’ written notice of termination to the other party. 

8. Limitation of Liability; Disclaimers

8.1 THE REPRESENTATIONS AND WARRANTIES IN SECTION 7 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF THE ASIGRA SUBSCRIPTION PROVIDED BY ASIGRA WILL BE ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE ASIGRA INDEMNITEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THESE WARRANTIES AND YOU MAY NOT RELY ON SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND CONDITIONS SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

8.2 NO ASIGRA INDEMNITEE NOR THE OWNERS OF ANY THIRD PARTY SOFTWARE MAKES ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY YOU CUSTOMERS OR CUSTOMER END-USERS FROM USE OF THE SERVICE UNDER THE TERMS OF THIS AGREEMENT. EACH ASIGRA INDEMNITEE EXPLICITLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING OUT OF A COURSE OF DEALING OTHERWISE (INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE) IN RESPECT OF SUCH THIRD PARTY SOFTWARE. THE ABOVE DISCLAIMER ALSO APPLIES TO DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, MISDELIVERY OR NON-DELIVERY OR DESTRUCTION THAT YOU, A CUSTOMER OR A CUSTOMER END-USER MAY EXPERIENCE AS A RESULT USING THE SERVICE.

8.3 IN NO EVENT WILL ASIGRA OR ANY ASIGRA INDEMNITEE OR THE OWNERS OF ANY THIRD PARTY SOFTWARE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXPENSES OF ANY TYPE (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, LOST BUSINESS OR LOST SAVINGS) ARISING OUT OF THE AGREEMENT, WHETHER SUCH DAMAGES OR EXPENSES ARISE OUT OF BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), OR TORT OR ON ANY OTHER STATUTORY OR COMMON LAW BASIS, EVEN IF ANY ASIGRA INDEMNITEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.4 IN NO EVENT SHALL ASIGRA OR THE ASIGRA INDEMNITIES HAVE ANY LIABILITY UNDER THIS AGREEMENT AS A RESULT OF ANY ACTION OR PROCEEDING PURSUANT TO THE AGREEMENT. THIS SECTION WILL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.

8.5 YOU ACCEPT THIS DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF YOUR PURCHASE OF THE RIGHT TO RESELL THE SERVICE.

9. Indemnity

9.1 Your Indemnity

(a) You shall indemnify, defend and hold harmless ASIGRA and ASIGRA Indemnitees from and against any and all losses, damages, liabilities, and costs (including legal fees) brought by third parties against the ASIGRA and ASIGRA Indemnitees, resulting from: (a) Your breach of this Agreement, including a breach of any of Your warranties described in Section 7; (b) from any actions or omissions of Yours in connection with the performance of Your obligations under the Agreement or in your dealings with Your customers or potential customers; (c) any claim that the Service or other services provided by You infringes any patent, trade-mark, industrial design, trade-secret or copyright; and (d) You will pay all direct damages, awards and expenses that are finally awarded by a court or arbitral body, subject to the limitations and disclaimers set forth in this Section 9.1(a), provided that (i) ASIGRA promptly notifies You of any such action or suit following a responsible officer or director of ASIGRA becoming aware of such action or suit; (ii) ASIGRA gives You sole control over the defense, settlement or compromise of any such action or suit; and (iii) ASIGRA co-operates fully in Your defense or settlement of such claim.

10. Payments to ASIGRA – General

10.1 You shall pay to ASIGRA the Fees described in the Purchase Order Form. Any monthly fees will be based on actual or peak usage for the previous calendar month as reported in the Service’s My2Cloud Portal and invoiced in arrears. Notwithstanding the foregoing, any monthly fees will not fall below the minimum monthly fee as stated in the applicable Purchase Order Form. Any applicable storage fees will be based on the size of the native size (size of the latest generation of the backup set).

10.2 All undisputed Fees will be billed automatically on a monthly basis in arrears to Your previously provided credit card or invoiced to You using a standing purchase order number provided by You. You shall pay interest to ASIGRA on overdue accounts at the rate of one percent (1%) per annum above Barclay’s base rate from time to time, which shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment and be payable by You together with the overdue amount.  Any credit card information provided to ASIGRA may be verified by ASIGRA’s authorized payment processors and/or credit reporting agencies.

10.3 ASIGRA may temporarily suspend provision of the Service while undisputed Fees remains unpaid following the provision of 30 days‘ written notice, without liability to You in respect of the resulting loss or use of the Service.

10.4 All amounts payable by You are exclusive of applicable taxes and You shall pay or reimburse ASIGRA as appropriate for any sales, use, personal property, value added, consumption, Goods and Services Tax or Harmonized Sales Tax levied pursuant to the Excise Tax Act (Canada) as charged by ASIGRA and any other similar or replacement taxes that may hereafter be levied or payable from time to time or assessed in any jurisdiction under or related to the Agreement, except for taxes based upon the net income of ASIGRA, in respect of such Fees (collectively, “Taxes”).  For greater clarity, as at the Effective Date and thereafter, You represent and warrant that You are not and shall not be subject to any legal obligation to deduct any monies from the Fees otherwise due and payable to ASIGRA as a result of any Taxes or otherwise.  You shall promptly advise ASIGRA in writing of any change in circumstances that require You to deduct monies from the Fees otherwise due and payable to ASIGRA as a result of any Taxes or otherwise when You become aware of same.  You acknowledge and agree that ASIGRA shall be entitled to adjust the amount of Fees otherwise due and payable to ASIGRA retroactively to offset any deductions that You have made or attempted to make as a result of any Taxes or otherwise.

10.5 ASIGRA may revise the Fees described in the Purchase Order Form for any succeeding Renewal Term upon 30 days’ written notice to You of the proposed increase.

11. Term

11.1 The Agreement will take effect on the Effective Date and will continue as indicated herein, unless otherwise indicated on the Purchase Order Form, unless terminated as described below.

11.2 The Agreement shall automatically renew for successive Renewal Terms unless a party delivers written notice of the termination to the other party at least forty-five (45) days prior to the applicable termination date (which such termination date being the last day of the Initial Term or the-then current Renewal Term), in which case the Agreement shall terminate on the last day of such Initial Term or Renewal Term.

12. Termination

12.1 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party has been unable to perform its obligations as a result of a Force Majeure Event for a period of fifteen (15) days. 

12.2  Termination by You. If You terminate the Agreement before expiration of the Initial Term or then-current Renewal Term, You will owe ASIGRA all outstanding and accrued Fees for the Service and as otherwise set out in the Purchase Order Form accrued up to the Termination Date.  You agree to pay all such amounts and authorize ASIGRA to charge Your credit card or invoice You, using a standing purchase order number provided by You, as applicable, for all such amounts and You agree not to dispute such amounts.

12.3 Termination by ASIGRA. ASIGRA will have the right to terminate the Agreement in the event of an occurrence of a material breach of any of Your obligations as set forth in the Agreement that is not remedied within fifteen (15) days of receipt of written notice thereof. A material breach of the Agreement will include, but not be limited to the following: You fail to make payments when due, breach any of Your obligations described in this Agreement, breach Your Territory restrictions or assign the Agreement. Termination of the Agreement by ASIGRA pursuant to and in accordance with this Section shall not relieve You of Your obligation to pay Your outstanding Fees due and owing as at the Termination Date.

12.4 ASIGRA may terminate the Agreement, effective immediately upon written notice, if: (a) all or a substantial portion of Your company has been dissolved, ceases or threatens to suspend or cease to conduct all (or substantially all) of its business, or becomes unable to pay its debts as they fall due; (b) You are declared insolvent or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (c) Your assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy; a proceeding is commenced by or against You for relief under bankruptcy, insolvency or similar laws and such proceeding is not dismissed within thirty (30) days; (d) You are adjudged bankrupt or insolvent; (e) an administrator, administrative receiver, liquidator, trustee, manager or similar is appointed over any of Your assets; or (f) an order is made for your winding up, or You pass a resolution for winding up (other than the purposes of a solvent company reorganization where the resulting entity will assume all of Your obligations under this Agreement).  Termination of the Agreement by ASIGRA pursuant to and in accordance with this Section shall not relieve You of Your obligation to pay Your outstanding Fees due and owing as at the Termination Date.

12.5 Additionally, ASIGRA may terminate the Agreement for convenience upon the provision of fifteen (15) days’ written notice to You. You will not be liable for any outstanding Fees other than those due and owing as at the Termination Date.

13. Duties Upon Termination/Expiration

13.1 On termination of this Agreement, but subject to any additional or contrary terms in an applicable Purchase Order Form:

(a) All Purchase Order Forms in force on the Termination Date shall terminate; 

(b) Your rights as a reseller of the Service shall terminate immediately and You shall immediately cease: (i) use of the Service; and (ii) marketing, selling, supporting or promoting the Service;

(c) Your access to the My2Cloud Portal in respect of the Service shall terminate;

(d) You shall, within fifteen (15) days, return to ASIGRA or destroy in accordance with ASIGRA’s instructions all advertising, promotional, sales and marketing material and Confidential Information relating to the Service in Your possession;

(e) You shall expunge all Confidential Information related to this Agreement from Your systems and storage media in Your control or possession; 

(f) You shall also certify in writing by way of an officer’s certificate attesting to the delivery, erasure and/or destruction of the promotional and advertising materials referenced above by You, in a form satisfactory to ASIGRA, acting reasonably; and 

(g) You may, within five (5) days of the Termination Date, provide ASIGRA with the details of a supported online storage depository to which You wish any your Reseller’s End Users’ Data to be exported (a “Data Export Notice”); 

(h) On receipt of the Data Export Notice, ASIGRA shall promptly export the End Users’ Data to the online storage depository detailed in the Data Export Notice;

(i) ASIGRA shall, not earlier than fifteen (15) days after assisting in the exporting the End Users’ Data to the applicable online storage depository, without notice to You, delete or dispose of the End Users’ Data and other items in its possession relating to You and Your End Uses without liability to ASIGRA, You or Your End Users once (i) the End Users’ Data has been exported; or (ii) fourteen (14) days have elapsed since the date of ASIGRA has notified Assurestor of the termination of this Agreement and You have not provided ASIGRA or Assurestor with a Data Export Notice. 

13.2 Within three (3) business days of the Termination Date, You shall provide ASIGRA with the names and contact information of any customers that have purchased the Service through You, including (i) those with active subscriptions; and (ii) any potential customers that have requested but not yet received the Service before the Termination Date.

13.3 Within three (3) business days of the Termination Date You shall pay all Fees and associated costs, taxes and expenses that are due and payable to ASIGRA.

13.4 You shall also pay, within three (3) business days of the Termination Date, all fees due and owing customers collected by You.

13.5 Your failure to comply with the terms of this Section 13 will result in irreparable harm to ASIGRA and, accordingly, in addition to any legal remedies available ASIGRA will have the right to seek specific performance of this Section 13 or other equitable relief (or the equivalent of any such relief known or designated by some other name or term) from any court of competent jurisdiction.

13.6 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of ASIGRA that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the Termination Date. 

14. Miscellaneous

14.1 In the Agreement (i) all usage of the word “including” or the phrase “e.g.” in the Agreement shall mean “including, without limitation”; (ii) the division of the Agreement into separate Sections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of the Agreement; and (iii) all references to currency (including pricing) shall be to the currency of the United States.

14.2 Neither party shall be liable for any delay in delivery or delay in the performance of other acts required hereunder, when solely resulting from causes beyond their respective control. Such causes shall include, but not be limited to, acts of God, acts of government, wars, revolutions, civil disturbances, strikes, floods, fire, perils of the sea, or other interruption of transportation or telecommunications. Notice to this effect shall be given in writing to the other party.

14.3 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership, joint venture, fiduciary or relationship between the parties, constitute any party the agent of the other party, or authorize any party to make or enter into any commitments for on behalf of the other party.

14.4 None of the terms or conditions of the Agreement may be amended except in writing duly signed by an officer of both ASIGRA and You, as authorized by their respective articles or bylaws.

14.5 If any section, sentence, paragraph or part of the Agreement is held by any court of competent jurisdiction to be invalid, illegal or unenforceable, such judgment will not affect or nullify the remaining provisions of the Agreement.

14.6 You may not subcontract your obligations under this Agreement without the express written authorization of ASIGRA. You shall remain responsible for the performance of any subcontracted obligations.

14.7 Except as set forth in Section 14.8, the parties do not confer any legal, equitable or other rights or remedies of any nature whatsoever under or by reason of this Agreement upon any person other than the parties to this Agreement.

14.8 The parties hereby designate Assurestor as a third-party beneficiary of this Agreement, having the right to enforce.

14.9 You and ASIGRA agree to resolve any and all disputes, disagreements or differences relating to this Agreement using the following process. You and ASIGRA agree to first attempt to settle any and all disputes, disagreements or differences relating to our business relationship through a mediation (“Mediation”). Mediation shall be initiated by any party wishing to mediate by serving a notice to mediate which described the issue(s) needing to be mediated. Any party to the mediation can select a mediator who is registered as a mediator with ADR Champers. The first such proposed mediator shall be selected to conduct the Mediation. Mediation shall take place within thirty (30) days of the delivery o the notice to mediate. You and Asigra shall exchange mediation briefs (which shall include a brief description of the dispute, disagreement or difference to be mediated and a summary of the relieve claimed) but no less than ten (10) days prior to a scheduled Mediation. A copy of the mediation briefs shall also be provided to the mediator seven (7) days prior to the scheduled Mediation. Any Mediation that is to take place will be conducted in Toronto, Ontario, Canada in English. The parties will equally share the costs of the mediator. If the Mediation does not achieve a resolution of all issues which are governed by this Agreement, then You and ASIGRA will proceed to arbitration (“Arbitration”) according to the following process. No appeal lies to any court on any question of fact, law or mixed fact and law. The Arbitration shall be commenced by You or ASIGRA delivering to the other party a notice to arbitrate which shall set out a brief description of the dispute, disagreement or difference to be arbitrated and a summary of the relief claimed. Any party to the Arbitration can select an arbitrator with ADR Chambers. The first such proposed arbitrator shall be selected to conduct the Arbitration. The Arbitration shall be conducted in accordance with the Arbitration Act, 1991, SO 1991, c. 17. The Arbitration rules and procedures shall be as agreed between You and ASIGRA. If the parties fail to reach agreement as to the rules and procedures to be followed by the Arbitration within fourteen (14) days of the appointment of the arbitrator, any party may apply to the arbitrator for a determination of the rules and procedures to be applied in the Arbitration. The arbitrator shall have authority to determine the Arbitration process. Where a dispute involves a quantum of low damages below $40,000 USD, the arbitration process shall not include examinations in advance of the Arbitration. The Arbitration shall be conducted in Toronto, Ontario, Canada in English. You and ASIGRA agree that all matters relating to the Arbitration shall remain confidential. The parties to the Arbitration shall jointly pay and be responsible for the costs of the Arbitration. However, the arbitrator may make an award of costs upon the conclusion of the Arbitration making a party or parties to the Arbitration liable to pay the costs another party or parties.

14.10 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of the province of Ontario, Canada and the federal laws of Canada applicable therein, excluding any conflicts of laws rules. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement. The parties irrevocably attorn to the non-exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under the Agreement. This clause shall limit the right of either party to apply for injunctive relief to protect its intellectual property rights or Confidential Information in any other court of competent jurisdiction.

14.11 The English language version of the Agreement shall be the controlling version.

14.12 No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver, nor will any single or partial exercise preclude further exercise thereof of any right, power or privilege.

14.13 The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written agreements, any oral agreements, negotiations, and commitments, if any, relating to the subject matter of the Agreement.

14.14 Except as otherwise provided herein, the parties agree that those sections which by their very nature should survive termination of the Agreement shall survive such termination, such sections to include, but be not limited to, Sections 1.8, 3.3, 6-9,12-15.

14.15 You are solely responsible for the management of Your data back-up, data recovery, and disaster recovery measures. ASIGRA shall not be liable for any of Your internal processes, procedures, or requirements to insure the protection, loss, confidentiality, or security of Your or any Customer End-Users’ data or information.

14.16 If a Force Majeure Event gives rise to a failure or delay in ASIGRA performing any obligation under this Agreement or Purchase Order Form, that obligation will be suspended for the duration of the Force Majeure Event. If either party becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, it must: (a) promptly notify the other party; and (b) inform the other of the period for which it is estimate that such failure or delay will continue. If the performance of Your obligations under this Agreement is affected by a Force Majeure Event, You must take reasonable steps to mitigate the effects of the Force Majeure event.

14.17 Nothing contained in the Agreement shall create or imply any agency relationship between the parties, nor shall the Agreement be deemed to constitute a joint venture or partnership between the parties. Each party specifically disclaims any intent to create through the Agreement the relationship of franchisor or franchisee.

14.18 The parties waive the application of any rule of law, which otherwise would be applicable in connection with the construction of the Agreement, that ambiguous or conflicting terms or provisions should be construed against the party who (or whose counsel) prepared the Agreement.

15. Definitions

“Agreement,” “hereto,” “hereof,” “herein,” “hereby,” “hereunder,” and similar expressions mean the Purchase Order Form, together with these Terms, as they may be amended from time to time.
“Assurestor Reseller Terms” means the Assurestor Online Reseller Service Terms, available at https://www.assurestor.com/legal/distributor-reseller-service-terms-asigra. 
“ASIGRA Indemnitees” means ASIGRA, its directors, officers, employees, contractors and agents.
“ASIGRA Intellectual Property” means any trade secrets, copyrights, inventions, works, Trade-marks, logos, designs, commercial symbols, insignia, domain names, materials (including but not limited to user documentation, books, pamphlets, manuals, questionnaires, checklists, bulletins, bulletins, business processes and best practices, presentation templates, training materials, memoranda, videos, tapes, charts, letters, notices or other publications or documents prepared by ASIGRA as may be modified from time to time), processes, analyses, simulation results,  techniques, shop practices, know-how and show-how developed, owned, or provided by ASIGRA in connection with the ASIGRA Subscription.
“Backup2Cloud Service” means the Assurestor backup-as-a-service, further details available at https://www.assurestor.com/service-descriptions/backup2cloud/.
“Business Information” means all financial and business information and data of a party and its respective customers; products and services (including all pricing related to same) supplied by a party; business and marketing plans and strategies of a party; and studies, customer lists, charts, plans, training materials, tables and compilations of business and industry information acquired or prepared by a party or on its behalf.
“Confidential Information” means the provisions of the Agreement and all of party’s information contained in any form whatsoever that is not generally available to or used by third parties, that is acquired or developed by or on behalf of a party from time to time and that is disclosed or made available by a party to the other party under the Agreement and for ASIGRA includes all Business Information and the ASIGRA Intellectual Property, excluding Trade-marks.
“Customer” means Your customer that you have resold the Service to.
“Customer End-User” means, as applicable, the ultimate end-user of the Service.
“Data” means any data, programs or other information of You, Customers or End Users stored or copied to a Platform via the Service.  
“Data Protection Law” means those laws that relate to the protection of personal data and apply to the processing of personal data by a [arty in connection with this Agreement, which includes the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5), as the same may be updated from time to time. 
“Data Processing Addendum” means the data processing addendum available at www.assurestor.com/legal, which sets out the obligations of You, Assurestor, Your Customers and Your Customer’s End Users in respect of the processing of data in connection with the Service, but for greater clarity does not apply to ASIGRA. 
“Derivative Work” means any work that is based upon one or more pre-existing works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such pre-existing works may be recast, transformed, or adapted, and that if prepared without the authorization of the owner of the copyright in such pre-existing work, would constitute a copyright infringement, including any compilation that incorporates such pre-existing work, and Derivative Work includes any work that contains any element of the Service. 
“Disclosing Party” means a party that discloses Confidential Information to a Receiving Party hereunder.
“Effective Date” means the date the Agreement takes legal effect, being the date You sign the Purchase Order Form.
“End User” means any person or entity in the Territory that places an order with You for the Service. 
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).  
“Fees” means the fees for the Service that You acquire as described in the Purchase Order Form, as the same may be modified from time to time by ASIGRA.
“Initial Term” means the period of time specified in the Purchase Order Form commencing upon the Effective Date.
“Marketing Materials” means the marketing materials for the Service produced by Assurestor and made available to You by ASIGRA via the Partner Portal. 
“My2Cloud Portal” means the online portal operated and made available to You by Assurestor for the purposes of accessing live and analytics data about the Platforms used, including billing and support information such as issued invoices and support tickets. 
“Service” means any services made available by ASIGRA from time to time and purchased by You under the Purchase Order Form, including the Backup2Cloud Service and any Service Software.
“Service Level Agreement” means ASIGRA’s service level agreement applicable to You and other resellers of the Service, available at: https://asigra.com/Backup2Cloud-Service-Provider-Terms). 
“Service Software” means the software component of the Service (if any) that is installed and operated on Your system to enable the management or control of the Service. 
“Support Services” means the support provided to You from ASIGRA as further described in the Service Level Agreement.
“Partner Portal” the online portal managed and made available by Assurestor at https://partner.assurestor.com to enable You to access information about the Services. 
“Platform” means a platform managed by Assurestor and used to provide the Service, including the application and database software for the Service, the system and server software used to provide the Service and the computer hardware on which that application, database, system and server software are installed. 
“Purchase Order Form” means the purchase order form between You and ASIGRA that describes Your agreement to resell the Service.
“Receiving Party” means a party that receives Confidential Information from a Disclosing Party hereunder.
“Renewal Term” means consecutive periods of twelve (12) months following the Initial Term unless otherwise indicated in the applicable Purchase Order Form. 
“Reseller” means any entity authorized by ASIGRA to market, promote and sell the Service to Customers and potential Customers. 
“Reseller Support” means any services provided by You to your Customers.
“Third Party Software” means software provided by third party providers with which the Service is integrated or on which the Service is built, as identified in the applicable Purchase Order Form. 
“Term” means the Initial Term and all Renewal Terms.
“Termination Date” means, as applicable, (i) the last day of such Initial Term or Renewal Term; or (ii) the date specified in any notice of termination by You or ASIGRA as being the last day You are entitled to exercise Your obligations under the Agreement.
“Territory” means those countries described in the Purchase Order Form.
“You,” “Your” means you, the authorized distributor that has been granted the right to distribute, promote, market, support and resell the Service under the terms and conditions described herein.