Asigra Inc. Country Partner Terms

Welcome. These Country Partner Terms (“Terms”) are incorporated by reference in Your Purchase Agreement with Asigra Inc. (“ASIGRA”).

By signing the Purchase Agreement 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 are of legal age to enter into these Terms; (iii) You have full power and authority to execute and deliver any agreement documents and to perform all of Your obligations thereunder; (iv) 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 (v) You shall be fully bound by these Terms.

Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 18 (“Definitions”) below.

1. Grant of Rights

1.1 ASIGRA hereby authorizes and appoints You as an authorized exclusive distributor of the ASIGRA Solution to Channel Partners during the Term in the Territory described in the Purchase Agreement, subject to the specific terms and conditions set out herein. ASIGRA will not appoint another Country Partner to distribute the ASIGRA Solution in Your Territory subject to Your ongoing compliance with the Agreement. Any existing ASIGRA Resellers or Channel Partners within Your Territory shall be advised that they have the ability to purchase ASIGRA products and services from You. Neither You nor any of Your Affiliates are permitted to serve as a distributor, marketing or sales representative in connection with any product or service that is directly or indirectly competitive with ASIGRA Solution, without ASIGRA’s prior written approval.

1.2 ASIGRA grants You a non-exclusive, non-transferable, limited, revocable license to use ASIGRA Intellectual Property solely in connection with Your obligations to distribute, market, promote, support (as described below) and resell the ASIGRA Solution under during the Term and for no other purpose. ASIGRA retains all rights in the ASIGRA Intellectual Property not specifically granted to You.

1.3 You acknowledge that You shall also be providing Technical Support. In such capacity ASIGRA grants You a non-exclusive, non-transferable, non-assignable, limited, revocable license to access and use the DS-Software and a sublicense to use the Third Party Software contained in the DS-Software solely in connection with Your provision of Technical Support during the Term. The license and sublicense granted to You to use the DS-Software and Third Party Software terminates upon the Termination Date.

1.4 The DS-Software accessed by You if You provide Technical Support contains Open Source Software that is licensed to You in accordance with the Open Source License provisions applicable to such licenses. ASIGRA is in compliance with the licensing requirements of any such Open Source Software as of the Effective Date.

1.5 You shall be entitled to distribute and resell the ASIGRA Solution using Your own DS Subscription Agreement. Notwithstanding the foregoing, You understand and agree that Your DS Subscription Agreement shall expressly require that (i) prior to receiving any ASIGRA products and services from You your prospective customer must execute the ASIGRA Channel Partner Subscription Agreement; and (ii) such purchase agreement must be in good standing at all times with ASIGRA.

1.6 Additionally, prior to reselling the ASIGRA Solution to a Channel Partner, You must register the prospective Channel Partner as directed by ASIGRA (including if required, on ASIGRA’s deal registration portal) for review by ASIGRA. ASIGRA shall consider Your registration and shall advise whether it accepts or rejects such registration in its sole discretion. You understand and agree that You are not authorized to distribute, market, promote or resell the ASIGRA Solution to (i) ASIGRA Resellers and Service Providers that have executed the ASIGRA Service Provider Purchase Agreement either prior to or after the Effective Date; or (ii) otherwise have an existing direct business relationship with ASIGRA and agreed-to by ASIGRA, You and the specific Reseller or Service Provider.

1.7 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 ASIGRA Solution or any of Your rights or obligations hereunder and any attempt to do so by You will be void.

1.8 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.

1.9 ASIGRA will not be liable to You or to any third party for any of DS Services provided by You, including but not limited to Technical Support, or any services that You make available by means of the DS Agreement or any other agreement with a Channel Partner, in writing or otherwise.

2. Your Obligations

2.1 At all times during the Agreement You shall:

1. dedicate the necessary resources to actively distribute, market, promote and resell the ASIGRA Solution within the Territory to Channel Partners;
2. appoint and maintain at least two (2) employees that are trained ASIGRA Certified Specialists within thirty (30) days of the Effective Date;
3. appoint and maintain at least two (2) employees who have successfully completed the ASIGRA sales training course within sixty (60) days of the Effective Date;
4. appoint and maintain a dedicated ASIGRA Business Manager who shall function as a single point of contact and provides support for Your sales and marketing activities, participates in a monthly cadence call and assists in problem resolution should the need arise;
5. recruit and train the minimum number of active Channel Partners for ASIGRA during the Initial Term as set out in Your Purchase Agreement;
6. inform and provide guidance, as necessary, or as otherwise requested by Channel Partners, to assist in the sale of the ASIGRA Solution to Customers;
7. conduct business in manner that reflects favorably at all times on the ASIGRA Solution and the reputation of ASIGRA to protect and preserve the goodwill and image of ASIGRA;
8. 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;
9. 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;
10. follow ASIGRA’s conditions, guidelines and policies as published on its portal/website as the same may be updated from time to time in its sole discretion;
11. comply with all applicable laws and not employ illegal or unethical practices in promoting the ASIGRA Subscription, nor make any promises in respect of ASIGRA Solution that are not authorized by ASIGRA;
12. avoid deceptive, misleading, or unethical practices that are or might be detrimental to ASIGRA, including any disparagement of ASIGRA or its products and services;
13. make no false or misleading representations with regard to ASIGRA or ASIGRA’s products and services;
14. refrain from publishing or employing any misleading or deceptive advertising material; and
15. refrain from making any representations, warranties, or guarantees to Channel Partners or Customers or to the trade with respect to the specifications, features or capabilities of ASIGRA’s products and services that are inconsistent with ASIGRA’s published documentation and the ASIGRA Service Provider Purchase Agreement distributed by ASIGRA, including all warranties, disclaimers, and license terms contained in such documentation.

2.2 You acknowledge that (i) the marketing obligations and restrictions described above are commercially reasonable methods for ASIGRA to monitor the use of its products and services; and (ii) these restrictions do not compromise Your independence as a distributor of the ASIGRA Subscription.

2.3 You agree to keep and maintain at Your own accurate books, records, reports and Channel Partner data relating to Your obligations under the Agreement 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%.

2.4 You acknowledge and agree that ASIGRA may unilaterally withdraw Your exclusivity at any time and terminate this Agreement if You: i) fail to comply with the payment obligations and other conditions described in this Agreement; or ii) fail to pay the Minimum Purchase Commitment, as described in Section 10 below.

3. Marketing

3.1 ASIGRA shall make available to You electronic copies of its marketing and promotional materials and documentation developed for the ASIGRA Subscription, as the same may be developed from time to time. You have a non-exclusive, non-assignable, limited, revocable license to copy and use such ASIGRA marketing and promotional materials and documentation solely to fulfil Your obligations hereunder. ASIGRA will deliver these marketing materials and documentation to You in English.

3.2 If You wish to create localized versions of the ASIGRA marketing and promotional materials and documentation You shall advise ASIGRA and the parties will separately agree on the terms of such project in writing. For greater clarity, ASIGRA owns and will own all intellectual property rights in any translated or localized version of any marketing and promotional materials and documentation relating to ASIGRA products and services, including the ASIGRA Subscription.

3.3 ASIGRA has the right to verify and to approve the quality and the design of all marketing and promotional materials and documentation used by You to promote and sell the ASIGRA Solution and You shall submit all such materials to ASIGRA for approval prior to use. ASIGRA shall approve, disapprove or may require You to make reasonable modifications to such marketing and promotional materials and documentation in its sole discretion.

3.4 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.

3.5 ASIGRA may, in its sole discretion, choose to provide You with Marketing Development Funds. You shall comply with all ASIGRA guidelines with respect to the use of such funds, including but not limited to obligations to submit business plans and provide necessary invoices. All marketing activity, materials and promotions using Marketing Development Funds must be agreed in advance by ASIGRA. For approved claims, ASIGRA may choose to issue a credit on account to reimburse You. ASIGRA is entitled to request that You provide us with marketing reports containing documentation (invoices included) of the activities performed and shall retain the right to reverse any credit issued on claims not backed up by the requested documentation.

3.6 Additionally, You shall make participate in any additional joint sales and marketing efforts as mutually agreed with ASIGRA.

4. Proprietary Rights of ASIGRA/Restrictions on Use

4.1 Other than the Third Party Software and the Open Source Software, ASIGRA owns and exclusively retains all rights and title in, including without limitation, all ASIGRA Intellectual Property Rights, the ASIGRA Solution and all future functionality and product developments if any, that are related to the ASIGRA Subscription. You obtain no right to modify, duplicate or reverse-engineer any aspect of the ASIGRA Intellectual Property or the ASIGRA Solution except as may be permitted under an applicable Open Source License.

4.2 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 any DS-Software supplied hereunder, or adapt the DS-Software in any way to create a Derivative Work except as may be permitted under an applicable Open Source License. You will not, and will not authorize any third party to use, reproduce, sublicense, distribute or dispose of the DS-Software in whole or in part except as may be permitted under the applicable Open Source License.

4.3 You will use best efforts to protect the copyright and/or any proprietary rights of ASIGRA, 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 in relation to the protection of its intellectual property rights hereunder.

4.4 If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of the DS-Software or of the ASIGRA Intellectual Property (except as may be permitted under an applicable Open Source License), all profits and proceeds from such unauthorized activity, if any, will accrue to ASIGRA and/or the owners of the Third Party Software. ASIGRA and/or the owners of the Third Party Software will be the owner of same whether or not made in compliance with the Agreement.

4.5 If You become aware of any unauthorized decompilation or infringement of the ASIGRA Solution by any third party (except as may be permitted under an applicable Open Source License), 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.

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

5. Confidentiality and Data Protection

5.1 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 5) without the express written consent of the Disclosing Party. You may disclose ASIGRA Confidential Information to Your Channel Partners on a need-to-know basis during the Term so long as such parties agree to substantially equivalent confidentiality obligations but for greater clarity, 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.

5.2 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 ASIGRA Hybrid Partners, service providers or channel partners) 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.

5.3 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.

5.4 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.

5.5 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.

5.6 The Receiving Party shall indemnify the Disclosing Party for all damages, costs, and expenses (including court costs and legal fees on a solicitor and client basis) incurred by the Disclosing Party as a result of a failure of the Receiving Party to comply with its obligations under this Section 5. 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.

5.7 Each party acknowledges and agrees that: (a) the restrictions set forth in this Section 3 are reasonable in the circumstances; (b) a violation of any of the provisions of this Section 5 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 5, 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. ASIGRA Trade-marks

6.1 ASIGRA grants You a nonexclusive, non-transferable, limited, revocable right to use ASIGRA’s Trade-marks during the Term solely to (i) identify Yourself as an authorized distributor of ASIGRA products and services; and (ii) for advertising and promoting the ASIGRA Solution under DS Agreements provided such use is in accordance with ASIGRA’s guidelines and policies which may be amended from time to time.

6.2 You recognize and acknowledge the exclusive rights and sole ownership of ASIGRA in ASIGRA’s Trade-marks and the goodwill associated therewith and You shall conduct Your business in a manner consistent with the recognition and protection of such exclusive rights. Nothing in the Agreement shall operate to grant You any right, title, or interest in the ASIGRA Trade-marks other than as specified in the limited license grant herein.

6.3 You further agree on a worldwide basis: (i) not to take any action which will interfere with any of ASIGRA’s rights in and to ASIGRA’s Trade-marks; (ii) not to challenge ASIGRA’s right, title or interest in and to the ASIGRA’s Trade-marks or the benefits therefrom; (iii) not to make any claim or take any action adverse to ASIGRA’s ownership of ASIGRA’s Trade-marks; (iv) not to register or apply for registrations, anywhere, for ASIGRA’s Trade-marks or any other mark which is similar to ASIGRA’s Trade-marks or which incorporates ASIGRA’s Trademarks; (v) not to use any mark, anywhere which is confusingly similar to ASIGRA’s Trade-marks; (vi) not to engage in any action that will tend to disparage, dilute the value of, or reflect negatively on ASIGRA products or Trade-marks; and (vii) not to misappropriate any ASIGRA Trade-marks or tradename for use as a domain name.

6.4 You expressly agree not to use ASIGRA Trade-marks in any online search engine marketing campaigns without ASIGRA’s prior written approval.

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 Agreement by You and the performance by Your of its obligations hereunder will not conflict with or result in a breach of any applicable law; (iii) You will access and use the ASIGRA Solution and provide DS Services in accordance with applicable laws and in such manner as not to violate or infringe any copyright, trade-mark, confidential 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 or under any agreement with Channel Partners; (v) at all times during the Agreement You will perform Your obligations in compliance with all applicable laws; (vi) any DS Services provided by You to Channel Partners shall not violate the intellectual property rights of any third party; and (vii) in the performance of Your obligations under the Agreement You are not acting as a commercial agent under the laws of any jurisdiction.

8. Limitation of Liability; Disclaimers

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 SOLUTION 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.

8.1 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, CHANNEL PARTNERS, CUSTOMERS OR CUSTOMER END-USERS FROM USE OF THE ASIGRA SOLUTION OR ASIGRA PRODUCTS AND SERVICES GENERALLY ON ANY THIRD PARTY HARDWARE, COMPUTER EQUIPMENT AND OTHER SOFTWARE. NO ASIGRA INDEMNITEE WARRANTS PROPER OPERATION OF THE HARDWARE AND COMMUNICATIONS SOFTWARE AND HARDWARE UTILIZED BY YOU, ANY CHANNEL PARTNER, CUSTOMER OR THE CUSTOMER END-USERS. 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 HARDWARE, COMPUTER EQUIPMENT AND OTHER 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 CHANNEL PARTNER, A CUSTOMER OR A CUSTOMER END-USER MAY EXPERIENCE AS A RESULT USING THE ASIGRA SOLUTION.

8.2 IN NO EVENT WILL 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.

8.3 IN NO EVENT WILL THE AGGREGATE LIABILITY THAT THE ASIGRA INDEMNITEES MAY COLLECTIVELY INCUR IN ANY ACTION OR PROCEEDING PURSUANT TO THE AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY YOU DURING THE THREE (3) MONTH PERIOD PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE OR ONE HUNDRED THOUSAND DOLLARS ($100,000), WHICHEVER IS LESS. 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.

8.4 YOU ACCEPT THIS DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE ASIGRA SOLUTION AND UNDERSTAND THAT THE PRICE OF THE ASIGRA SOLUTION WOULD BE HIGHER IF ASIGRA WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.

9. Indemnity

9.1 Indemnity by ASIGRA

1. ASIGRA will defend, at its expense, any and all actions and suits brought by third parties against You resulting from a breach of any of ASIGRA’s warranties described in Section 7.1 and ASIGRA will pay all direct damages, awards and expenses that are finally awarded by a court or arbitral body to such third party (or any settlement amount agreed to in writing by ASIGRA and such third party), subject to the limitations and disclaimers set forth in Section 9.1(b), provided that (i) You promptly notify ASIGRA of any such action or suit following a responsible officer or director of Yours becoming aware of such action or suit; (ii) You give ASIGRA sole control over the defense, settlement or compromise of any such action or suit; and (iii) You co-operate fully in ASIGRA’s defense or settlement of such claim.
2. ASIGRA will have no indemnity obligation to You if the actions or suits described in Section 9.1(a) above resulted from (i) Your modification of the ASIGRA Solution or any support services (including any DS Services) not provided by ASIGRA; (ii) Your failure to promptly distribute an upgrade or any enhancement that would have eliminated any actual or alleged infringement after ASIGRA has given notice to You that such upgrade or enhancement is available; (iii) Your failure to use the latest version of the DS-Software after ASIGRA has notified You that such latest version of the DS-Software is available; (iv) such claim arises from Third Party Software or Open Source Software unless such claim arises from ASIGRA’s failure to comply with the licensing requirements of any Third Party Software or Open Source Software made available to You; or (v) the combination by You of the ASIGRA Solution with other items and hardware not provided by ASIGRA, but only if the claim would not have arisen from use of the ASIGRA Solution alone.
3. If any part of the ASIGRA Solution is, in ASIGRA’s opinion, likely to become the subject of a suit, action or claim, ASIGRA, at its option and at no expense to You, shall: (i) obtain for You from all persons who claim an interest in the ASIGRA Subscription, the right to continue to allow You to use the ASIGRA Solution as contemplated by the Agreement; or (ii) substitute, as determined by ASIGRA acting reasonably, a non-infringing functionally equivalent substation for the ASIGRA Subscription, subject to the limitations contained in Section 9.1(b) above.
4. THIS SECTION 8.1 STATES THE EXCLUSIVE LIABILITY OF ASIGRA AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE-MARK, INDUSTRIAL DESIGN OR TRADE SECRET INFRINGEMENT.

9.2 Your Indemnity

1. You will defend, at Your expense, any and all actions and suits brought by third parties against the ASIGRA Indemnitees resulting from a breach of any of Your warranties described in Section 7.2; (b) from any actions or omissions of Yours in connection with the performance of Your obligations under the Agreement or in your dealings with Channel Partners; (c) any claim that any of DS Services or other services provided by You infringes any patent, trade-mark, industrial design, trade-secret or copyright; and You will pay all direct damages, awards and expenses that are finally awarded by a court or arbitral body to such third party (or any settlement amount agreed to in writing by Channel Partner and such third party), subject to the limitations and disclaimers set forth in this Section 9.2(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 or Channel Partner’s defense or settlement of such claim.
2. SECTION 9.2 STATES YOUR EXCLUSIVE LIABILITY AND THE EXCLUSIVE REMEDY OF ASIGRA WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE-MARK, INDUSTRIAL DESIGN OR TRADE SECRET INFRINGEMENT.

9.3 No action arising hereunder whether in contract or in tort may be brought more than two (2) years after the cause of action is discovered or should reasonably have been discovered.

10. Quarterly Commitments, the Minimum Commitment and Discounts

10.1 In order to maintain Your exclusivity rights, You are required to pay ASIGRA the Minimum Commitment described in Your Purchase Agreement payable as Quarterly Commitments. Your Purchase Agreement sets out the Quarterly Commitments due and payable during the first five (5) Quarters of the Purchase Agreement. There will be no Quarterly Commitment due and payable nor payment initially required for ASIGRA products and services that You obtain from ASIGRA during the first (1st) Quarter but You shall be required to pay ASIGRA the other Quarterly Commitments as described in the Purchase Agreement.

10.2 Not later than sixty (60) days prior to the end of the fifth (5th) Quarter, ASIGRA shall advise You of the Minimum Commitment payable for the next four (4) Quarters and Your Purchase Agreement shall be updated to reflect the new Minimum Fee Commitment and Quarterly Commitments.

10.3 You are entitled to set off the purchase of any ASIGRA products and services against Your previously paid Quarterly Commitment in any given Quarter. However, should the value of Your previously obtained ASIGRA products and services exceed the value of the Quarterly Commitment that You paid to ASIGRA, You shall pay ASIGRA for all additional ASIGRA products and services that You purchase based on the prices contained in Appendix 2.

11. Payments to ASIGRA – General

11.1 You shall pay to ASIGRA the Fees described in the Purchase Agreement.

11.2 All Fees, including the Quarterly Commitment, will be billed automatically on the first day of a Quarter to Your previously provided credit card or invoiced to You using a standing purchase order number provided by You. You acknowledge and agree that You will pay ASIGRA a surcharge in the amount of $____ should You choose to pay with Your credit card. You shall pay simple interest to ASIGRA on overdue accounts at the rate of one percent (1%) per month (twelve percent (12%) per annum). Any credit card information provided to ASIGRA may be verified by ASIGRA’s authorized payment processors and/or credit reporting agencies.

11.3 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.

11.4 ASIGRA may revise the Fees described in the Purchase Agreement at any time upon the provision of not less than ninety (90) days’ prior written notice.

12. Term

12.1 The Agreement will take effect on the Effective Date and will continue for a period of three (3) years, unless terminated as described below (the “Initial Term”). If You and ASIGRA mutually agree, this Agreement may be renewed for up to two (2) additional consecutive periods of twelve (12) months each (each, a “Renewal Term”) commencing on the anniversary of the Effective Date.

13. Termination by You

13.1 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 ASIGRA Solution and as otherwise set out in the Purchase Agreement 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.

14. Termination by ASIGRA

14.1 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 fourteen (14) 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 (including payment of the Minimum Commitment or a Quarterly Commitment), breach any of Your obligations described in Sections 1- 6, 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.

14.2 ASIGRA shall terminate the Agreement, effective immediately upon written notice, if all or a substantial portion of 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; or You are adjudged bankrupt or insolvent. 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.

14.3 Additionally, ASIGRA may terminate the Agreement for convenience upon the provision of ninety (90) days’ written notice to You and if ASIGRA terminates the Agreement pursuant to and in accordance with this Section 14.3 You will not be liable for any outstanding Fees other than those due and owing as at the Termination Date.

15. Duties Upon Termination/Expiration

15.1 On the Termination Date, all of Your rights as a distributor shall terminate immediately. You shall immediately cease: (i) use of the ASIGRA Intellectual Property; (ii) marketing, selling, supporting, or promoting the ASIGRA Solution to Channel Partners; and (iii) use of the ASIGRA Trade-Marks.

15.2 Within fifteen (15) days of the Termination Date, You shall destroy all promotional and advertising materials related to ASIGRA Solution in Your (and their) possession or control, regardless of format or containing medium. 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.

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

15.4 You shall promptly expunge all Confidential Information of ASIGRA from Your own computer system or storage media in Your control or possession and shall cause Your Sub-Distributors to do the same. You shall be entitled to retain an original copy of the Agreement as it may be amended, and any ancillary agreements. ASIGRA shall expunge all Confidential Information of Yours from its own computer system or storage media in its control or possession.

15.5 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 pursuant to Sections 10, 11, 13 and 15.

15.6 You shall also pay, within three (3) business days of the Termination Date, all fees due and owing from Channel Partners collected by You under ASIGRA Channel Partner Subscription Agreements.

15.7 Your failure to comply with the terms of this Section 15 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 15 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.

16. Dispute Resolution and Remedies

16.1 You and Asigra agree to resolve any and all disputes, disagreements or differences between the parties relating to this Agreement using the process described below.

16.2 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”).

16.3 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 process described below.

16.4 Mediation shall be initiated by any party wishing to mediate by serving a Notice to Mediate which describes the issue(s)needing to be mediated.

16.5  Any party to the Mediation can select a mediator who is registered as a mediator with ADR Chambers. The first such proposed mediator shall be selected to conduct the Mediation.

16.6 Mediation shall take place within thirty (30) days of the delivery of the Notice to Mediate.

16.7 You and ASIGRA will exchange Mediation Briefs (which will include a brief description of the dispute, disagreement or difference to be mediated and a summary of the relief claimed) 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.

16.8 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.

16.9 If Mediation is unsuccessful, any and all remaining disputes, disagreements or differences between the parties relating to their business relationship with each other, including any dispute, disagreement or difference relating to the validity, enforceability or applicability of this agreement to arbitrate, shall be submitted to final and binding Arbitration. 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.

16.10 Any party to the Arbitration can select an arbitrator who is registered as an arbitrator with ADR Chambers. The first such proposed arbitrator shall be selected to conduct the Arbitration.

16.11 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 in 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.

16.12 The arbitrator shall have authority to determine the Arbitration process. Where a dispute involves a quantum of damages below $40,000.00 USD, the arbitration process shall not include examinations in advance of the Arbitration.

16.13 The Arbitration shall be conducted in Toronto, Ontario, Canada in English.

16.14 You and ASIGRA agree that all matters relating to the Arbitration shall remain confidential.

16.15 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(ies) to the Arbitration liable to pay the costs of the other party(ies).

17. Miscellaneous

17.1 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.

17.2 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.

17.3 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.

17.4 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.

17.5 The Agreement 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. Subject to Section 16, the parties irrevocably attorn to the non-exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under the Agreement.

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

17.7 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.

17.8 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.

17.9 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 1.9, 2.3, 4, 5, 6.3, 6.4, 8, 9.2, 9.3, 11,15-18.

17.10 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.

17.11 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.

17.12 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.

18. Definitions

All capitalized terms used in these Terms shall be defined in accordance with the following definitions unless otherwise defined herein.

“Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions mean the Purchase Agreement, together with these Terms, as they may be amended from time to time.

“ASIGRA Channel Partner Subscription Agreement” means the purchase agreement between ASIGRA and the Channel Partners that governs the use of the ASIGRA Solution acquired from You and includes the ASIGRA Solution Terms for Channel Partners.

“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.

“ASIGRA Service Provider Purchase Agreement” means the purchase agreement between ASIGRA and its Service Providers and Resellers that governs the use of ASIGRA Solution acquired from ASIGRA directly.

“ASIGRA Solution” means ASIGRA’s proprietary backup/restore data storage management solution, including the DS-Software and Maintenance and Support Services, as the same may be modified from time to time.

“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.

“Channel Partner”” means an authorized ASIGRA Reseller or Service Provider that has executed the ASIGRA Channel Partner Subscription Agreement following the Effective Date.

“Customer”” means any customer of a Channel Partner.

“Customer End-User” means, as applicable, the ultimate end-user of the ASIGRA Subscription.

“DS Agreement” means the form of agreement used by You to resell or otherwise make available the ASIGRA Solution to Channel Partners.

“DS Services” means any services provided by You to Channel Partners under a DS Agreement, including any Technical Support.

“DS-Software” means, collectively, all proprietary software developed by ASIGRA for use with the ASIGRA Solutions may be upgraded by ASIGRA from time to time and includes the Third Party Software and the Open Source Software contained therein.

“Derivative Work” means any work that is based upon one or more pre-existing works, such as a revision, modification, translation, abridgment, 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 ASIGRA Subscription.

“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 Agreement.

“Fees” means the fees for the ASIGRA products and services that You acquire as described in the Purchase Agreement, as the same may be modified from time to time by ASIGRA.

“Initial Term” has the meaning set out in Section 12.1 above.

“Maintenance and Support Services” means those bug fixes, patches and updates to the latest version of DS-Software provided by ASIGRA and the web, telephone and email support provided by ASIGRA and the Channel Partners as further described in ASIGRA’s Maintenance and Support Services Plan.

“Maintenance and Support Services Plan” means the description of ASIGRA’s Maintenance and Support Services as such plan may be amended from time to time.

“Marketing Development Funds” or “MDF” means those dedicated marketing amounts that must be used by You for pre-approved marketing activities.

“Minimum Commitment” means the flat fee to be paid by You to ASIGRA to retain Your exclusive distribution rights in the Territory during the Term, as divided into a series of Quarterly Commitments, and that will be used by You to offset purchases of ASIGRA products and services.

“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative at http:// opensource.org/) or the Free Software Foundation Definition (as promulgated by the Free Software Foundation at http://www.fsf.org/).

“Open Source Software” means any software subject to an Open Source License contained in the DS-Software.

“Purchase Agreement” means the Country Partner Purchase Agreement, a binding agreement between You and ASIGRA that describes Your purchase of the ASIGRA products and services.

“Receiving Party” means a party that receives Confidential Information from a Disclosing Party hereunder.

“Reseller” means any entity authorized by ASIGRA to market, promote and sell the ASIGRA Solution to Customers.

“Service Provider” means any entity authorized by ASIGRA to deliver managed backup services to Customers using the ASIGRA Subscription.

“Technical Support” means those Level 1 and Level 2 Technical Support Services that You shall provide to Channel Partners and their Customers and Customer End-Users.

“Sub-Distributor” means any third party that has been granted the right by You to sub-distribute the DS-Software through the Software License Agreement and to promote, market and resell the ASIGRA Subscription and Your Backup Services to Customer End-Users on the terms and conditions described herein.

“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 Agreement.

“Third Party Software” means software owned by a legal or natural person not a party to the Agreement (other than Open Source Software) that is contained in the DS-Software.

“Trade-marks” means the trade-marks of ASIGRA, namely ASIGRA Cloud Backup, DS-Client Software, DS-System Software and the ASIGRA logo.

“Quarter” means a period of three (3) months during the Term of the Agreement.

“Quarterly Commitment” means the applicable payment of the Minimum Commitment to be made by You to ASIGRA as determined by ASIGRA and set out in the Purchase Agreement.

“You”, “Your” means you, the authorized Country Partner that has been granted the right to distribute, promote, market, support and resell the ASIGRA Solution to Channel Partners under the terms and conditions described herein.