Asigra SaaSAssure Channel Partner Terms

Welcome. These ASIGRA SaaSAssure Channel Partner Terms  (“Terms”) are incorporated by reference in Your Order Form with Asigra Inc. (“ASIGRA”).

By signing the Order Form and accepting these Terms and the terms of the SaaSAssure End User License Agreement, which is incorporated by reference herein, 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 14 (“Definitions”) below.

1. Grant of Rights

1.1 ASIGRA grants You a non-exclusive, non-transferable, limited, revocable license to access and use ASIGRA SaaSAssure solely to provide Your SaaSAssure Services to Customer End-Users during the Term.

1.2 ASIGRA further grants You the right to market, offer and resell ASIGRA SaaSAssure to Customer End-Users during the Term. 

1.3 ASIGRA retains all rights in ASIGRA SaaSAssure not specifically granted herein to You.

1.4 ASIGRA is the authorized reseller of certain Third Party Services that ASIGRA may resell to you as set out in Your Order Form with ASIGRA. All rights related to such Third Party Services are set out in the Third Party Services Terms. 

1.5 You shall not offer, market or otherwise provide a similar SaaS backup service using ASIGRA SaaSAssure to any third parties including other ASIGRA Channel Partners (but excluding Customer End-Users) except as described herein. 

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

2. Proprietary Rights of ASIGRA/Restrictions on Use

2.1 Other than the Third Party Software, ASIGRA owns and exclusively retains all rights and title in, including without limitation, ASIGRA SaaSAssure and all future functionality and product developments if any, that are related to ASIGRA SaaSAssure. You obtain no right to modify, duplicate or reverse-engineer any aspect of ASIGRA SaaSAssure.

2.2 You will not modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from ASIGRA SaaSAssure supplied hereunder, or adapt ASIGRA SaaSAssure in any way to create a Derivative Work. You will not, and will not authorize any third party to use, reproduce, sublicense, distribute or dispose of ASIGRA SaaSAssure in whole or in part.

2.3 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.

2.4 If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of ASIGRA SaaSAssure, 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.

2.5 If You become aware of any unauthorized decompilation or infringement of ASIGRA SaaSAssure 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.

2.6 Except as expressly provided, ASIGRA will not be liable for any of Your SaaSAssure Services, including but not limited to CP Support, or any services that may be agreed upon by means of the CP Service Agreement or any other agreement, in writing or otherwise.

3. Payments to ASIGRA – General

3.1 You shall pay to ASIGRA the Fees described in the Order Form. 

3.2 Annual Subscriptions

(a) The Initial Base Subscription Payment described in the Order Form constitutes Your base payment commitment for ASIGRA SaaSAssure on the Effective Date during the Initial Term. Unless adjusted to account for any increase or decrease in subscription licenses during the Initial Term or Renewal Term as discussed in Section 3.2(b)-(c) below, the applicable base subscription payment for ASIGRA SaaSAssure during a Renewal Term (each, the “Renewal Base Subscription Payment”) will be the same as the last invoice of Your Initial Base Subscription Payment or prior Renewal Base Subscription Payment, as applicable, at the time of renewal.

(b) You may choose to purchase additional subscription licenses during the Initial Term or the Renewal Term and at time of renewal. If purchased during the Initial Term or Renewal Term, the entire amount of the Fees for such additional subscription licenses on a prorated basis will be added to the Initial Base Subscription Payment or Renewal Base Subscription Payment and automatically billed to Your credit card or invoiced to You, as applicable. By increasing the number of subscription licenses at renewal, Your Renewal Base Subscription Payment will be increased accordingly.

(c) You may decrease the number of subscription licenses that You purchase at any time during the Initial Term or Renewal Term or at time of renewal. If You decrease Your number of subscription licenses during the Initial Term or Renewal Term, at no time will Your payment to ASIGRA decrease below the Initial Base Subscription Payment or Renewal Base Subscription Payment, as applicable. By decreasing the number of subscription licenses at renewal, Your Renewal Base Subscription Payment will be decreased accordingly.    

(d) ASIGRA shall automatically bill You the entire amount of the Initial Base Subscription Payment or Renewal Base Subscription Payment within thirty (30) days of the Effective Date of this Agreement or on the anniversary thereof, as applicable, to Your credit card or invoiced to You, as applicable. You will be automatically billed within thirty (30) days of any request to add subscription licenses.

(e) ASIGRA may modify the Fees described in the Order Form for the immediately succeeding Renewal Term upon written notice to You at least one hundred and twenty (120) days prior to the end of the Initial Term or the then-current Renewal Term.

3.3 Monthly Subscriptions. You may increase Your amount of subscription licenses on a monthly basis. ASIGRA may modify the Fees described in the Order Form for the immediately succeeding Renewal Term upon written notice to You upon thirty (30) days prior written notice if You have a Monthly Subscription. All Fees will be billed automatically on a monthly basis in arrears to Your credit card or invoiced to You, as applicable.

3.4 You may also choose to purchase additional ASIGRA services, including training payable on a one-time basis, or Third Party Services from ASIGRA and such Fees will be automatically billed to Your credit card or invoiced to You, as applicable.  If You purchase any Third Party Services, You agree to be bound by the Third Party Services Terms.

3.5 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. ASIGRA may pass through any credit card transaction fees to You, unless prohibited by law in Your jurisdiction.

3.6 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.

3.7 ASIGRA conducts ongoing audits of Your total active subscription licenses during the Term and shall invoice You for any additional active subscriptions above the license count described in Your then-current Order Form pursuant to Section 3.2(b). Every month, ASIGRA shall monitor the total number of subscription licenses activated by You. ASIGRA will finalize the total number of subscription licenses at the end of the month by averaging the total number of active subscription licenses over the month and each following month. In the event that Your total number of active subscription licenses exceeds the grace percentage as set out in the Pricing Schedule of the Order Form, ASIGRA shall invoice you at the non-discounted rate as stipulated in Your Order Form.

4. Confidentiality and Data Protection

4.1 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 4) without the express written consent of the Disclosing Party. You may disclose ASIGRA Confidential Information to Your Customer End-Users and prospective Customer End-Users on a need-to-know basis during the Term so long as such parties agree to substantially equivalent confidentiality obligations.
4.2 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 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.
4.3 A Receiving Party may disclose Confidential Information if (i) 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, or (ii) required by ASIGRA to be disclosed to credit card companies for ASIGRA to settle payment disputes.
4.4 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. 
4.5 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.
4.6 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 4. 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.
4.7 Each party acknowledges and agrees that: (a) the restrictions set forth in this Section 4 are reasonable in the circumstances; (b) a violation of any of the provisions of this Section 3 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 3, 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.

5. ASIGRA Trademarks

5.1 ASIGRA grants You a nonexclusive, non-transferable, limited, revocable right to use ASIGRA’s Trademarks during the Term solely to (i) identify Yourself as an authorized Channel Partner of ASIGRA; and (ii) for advertising and promoting Your SaaSAssure Services under CP Service Agreements provided such use is in accordance with ASIGRA’s guidelines and policies which may be amended from time to time. 

5.2 You recognize and acknowledge the exclusive rights and sole ownership of ASIGRA in ASIGRA’s Trademarks 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 Trademarks other than as specified in the limited license grant herein.

5.3 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 Trademarks; (ii) not to challenge ASIGRA’s right, title or interest in and to the ASIGRA’s Trademarks or the benefits therefrom; (iii) not to make any claim or take any action adverse to ASIGRA’s ownership of ASIGRA’s Trademarks; (iv) not to register or apply for registrations, anywhere, for ASIGRA’s Trademarks or any other mark which is similar to ASIGRA’s Trademarks or which incorporates ASIGRA’s Trademarks; (v) not to use any mark, anywhere which is confusingly similar to ASIGRA’s Trademarks; (vi) not to engage in any action that will tend to disparage, dilute the value of, or reflect negatively on ASIGRA services or Trademarks; and (vii) not to misappropriate any ASIGRA Trademarks or tradename for use as a domain name.

6. Representations and Warranties

6.1 You covenant, represent and warrant to ASIGRA that Your access and use of ASIGRA SaaSAssure and the provision of Your SaaSAssure Services shall not violate any applicable Laws.

7. Limitation of Liability; Disclaimers

7.1 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 ABOVE, ASIGRA SAASASSURE AND ASIGRA INTELLECTUAL PROPERTY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ASIGRA EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND 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 REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, TITLE, NON-INFRINGEMENT, LOSS OF DATA, CAPACITY, OR THAT THE OPERATION OF ASIGRA SAASASSURE PROVIDED BY ASIGRA WILL BE ERROR-FREE, MEET YOUR OR ANY PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED REULTS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE. 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 REPRESENTATIONS, WARRANTIES AND CONDITIONS SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

7.2 ASIGRA SAASASSURE MAY INTEGRATE WITH THE SERVICES OF CLOUD SERVICE PROVIDERS. THE USE OF SUCH CLOUD SERVICE PROVIDERS IS SUBJECT TO THEIR OWN TERMS OF SERVICE, WHICH ARE SEPARATE FROM AND MAY DIFFER FROM THE TERMS AND PROVISIONS OF THESE TERMS. ASIGRA IS NOT RESPONSIBLE AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE PROVISION OF ANY SERVICES PROVIDED BY SUCH CLOUD SERVICE PROVIDERS, OR ANY FAULT ORIGINATING WITH SUCH CLOUD SERVICE PROVIDERS. LINKS TO THIRD PARTY WEBSITES OR RESOURCES DO NOT IMPLY ANY ENDORSEMENT BY ASIGRA OF THE CONTENT, PRODUCTS, OR SERVICES AVAILABLE FROM ANY SUCH WEBSITES OR RESOURCES. YOU HAVE THE SOLE RESPONSIBILITY FOR AND ASSUMES ALL RISK ARISING FROM ITS USE OF ANY SUCH WEBSITES OR RESOURCES.

7.3 WITH RESPECT TO THE THIRD PARTY SERVICES, ASIGRA PROVIDES THE THIRD PARTY SERVICES TO YOU AS A CHANNEL PARTNER AND, EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THE THIRD PARTY SERVICES TERMS, ASIGRA HAS NO RESPONSIBILITY OR LIABILITY FOR THE THIRD PARTY SERVICES NOR ANY DATA TRANSFERRED OR RETAINED WITH RESPECT TO SUCH SERVICES. ADDITIONALLY, NO ASIGRA INDEMNITEE NOR THE OWNERS OF ANY THIRD PARTY SERVICES MAKE ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY YOU OR CUSTOMER END-USERS FROM USE OF ASIGRA SAASASSURE GENERALLY ON ANY THIRD PARTY SERVICES. NO ASIGRA INDEMNITEE REPRESENTS OR WARRANTS PROPER OPERATION OF THE THIRD PARTY SERVICES UTILIZED BY YOU OR THE CUSTOMER END-USERS. EACH ASIGRA INDEMNITEE EXPLICITLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING OUT OF A COURSE OF DEALING OTHERWISE (INCLUDING BUT NOT LIMITED TO IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE) IN RESPECT OF SUCH THIRD PARTY SERVICES. 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, LOSS OF DATA, MISDELIVERY OR NON-DELIVERY OR DESTRUCTION THAT YOU OR A CUSTOMER END-USER MAY EXPERIENCE AS A RESULT USING ASIGRA SAASASSUREOR THE THIRD PARTY SERVICES.

7.4 IN NO EVENT WILL ANY ASIGRA INDEMNITEE OR THE OWNERS OF ANY THIRD PARTY SOFTWARE OR THIRD PARTY SERVICES 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.

7.5 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 FORTY THOUSAND DOLLARS ($40,000), 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.

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

8. Indemnity

8.1 Indemnity by ASIGRA

(a) ASIGRA will defend, at its expense, any and all actions and suits brought by third parties against You resulting from a breach of ASIGRA’s warranty as described in Section 6.1 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 8.1(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.

(b) ASIGRA will have no indemnity obligation to You if the actions or suits described in Section 8.1(a) above resulted from (i) Your modification of ASIGRA SaaSAssure or any support services (including CP Support) not provided by ASIGRA; (ii) such claim arises from Third Party Software or Third Party Services unless such claim arises from ASIGRA’s failure to comply with the licensing requirements of any Third Party Software or Third Party Services made available to You; or (iii) the combination by You of ASIGRA SaaSAssure with other items, including Third Party Services, and hardware not provided by ASIGRA, but only if the claim would not have arisen from use of ASIGRA SaaSAssure alone.

(c) If any part of ASIGRA SaaSAssure 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 ASIGRA SaaSAssure, the right to continue to allow You to use ASIGRA SaaSAssure as contemplated by the Agreement; or (ii) substitute, as determined by ASIGRA acting reasonably, a non-infringing functionally equivalent substation for ASIGRA SaaSAssure, subject to the limitations contained in Section 8.1(b) above. If ASIGRA determines that neither alternative is reasonably available, ASIGRA may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You.

(d) 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.

8.2 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.

9. Term and Renewal

9.1 The Agreement will take effect on the Effective Date and will continue unless terminated as described below. The Agreement shall automatically renew for successive Renewal Terms unless a party delivers written notice of the termination to the other party at least (i) ninety (90) days if You have an Annual Subscription; or (ii) thirty (30) days if You have a Monthly Subscription 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 your access to ASIGRA SaaSAssure shall terminate on the last day of such Initial Term or Renewal Term (the “Termination Date”).

10. Termination 

10.1 by You

If You terminate the Agreement during the Initial or then-current Renewal Term, You will owe ASIGRA all outstanding and accrued Fees for ASIGRA SaaSAssure and as otherwise set out in the Order Form, including all one-time Fees and the applicable Initial Base Subscription Payment or Renewal Base Subscription Payment for the remainder of the Initial Term or then-current Renewal Term as described in Section 3.2 above.  You will pay all such amounts and authorize ASIGRA to charge Your credit card or invoice You, as applicable, for all such amounts and You will not dispute such amounts.  You agree that the collection of such Fees is not a penalty, but rather liquidated damages intended to compensate ASIGRA for Your failure to complete the Initial Term or then-current Renewal Term on which Your rates are based.

10.2 by ASIGRA

ASIGRA will have the right to terminate the Agreement as follows: 

(a) 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, breach any of Your obligations described in Sections 1, 2, 4 and 5, develop services that are directly competitive with ASIGRA SaaSAssure 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 including all one-time Fees and the applicable Initial Base Subscription Payment or Renewal Base Subscription Payment for the remainder of the Initial Term or then-current Renewal Term as described in Section 3.2 above.  You agree that the collection of such Fees is not a penalty, but rather liquidated damages intended to compensate ASIGRA for Your failure to complete the Initial Term or then-current Renewal Term on which Your rates are based.

(b) 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 including all one-time Fees and the applicable Initial Base Subscription Payment or Renewal Base Subscription Payment for the remainder of the Initial Term or then-current Renewal Term as described in Section 3.2 above.   

(c) upon the provision of three (3) months’ written notice to You and if ASIGRA terminates the Agreement pursuant to and in accordance with this Section 12.3, You will not be liable for any outstanding Fees for the remainder of the Initial Term or then-current Renewal Term subsequent to the effective date of the termination, other than all one-time Fees and the applicable Initial Base Subscription Payment or Renewal Base Subscription Payment due and owing as at the effective date of termination. ASIGRA may accelerate the payment of all amounts payable by You for the duration of the applicable notice period.  

11. Duties Upon Termination/Expiration

11.1 On the Termination Date, all of Your rights as a Channel Partner shall terminate immediately. You shall immediately cease: (i) use of the ASIGRA Intellectual Property; (ii) selling or promoting Your SaaSAssure Services to prospective Customer End-Users; and (iii) use of ASIGRA SaaSAssure. 

11.2 Within fifteen (15) days of the Termination Date, You shall destroy all promotional and advertising materials related to ASIGRA SaaSAssure in Your 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 the You, in a form satisfactory to ASIGRA, acting reasonably.

11.3 You shall promptly expunge all Confidential Information of ASIGRA from Your own computer system or storage media in Your control or possession. 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.

11.4 You shall pay all Fees and associated costs, taxes and expenses that are due and payable pursuant to Section 10. 

11.5 Your failure to comply with the terms of this Section 11 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 11 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. 

12. Dispute Resolution and Remedies

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

12.1 Mediation. 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 describes the issue(s) needing to be mediated. Any party to the Mediation can select a mediator who is registered as a mediator with the ADR Institute of Canada, Inc. The first such proposed mediator shall be selected to conduct the Mediation. Mediation shall take place within thirty (30) days of the delivery of the Notice to Mediate. 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. 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. 

12.2 Arbitration. 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 under the Simplified Arbitration Rules of the ADR Institute of Canada, Inc (“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. 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(ies) to the Arbitration liable to pay the costs of the other party(ies).

Miscellaneous

13.1 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.

13.2 Except with respect to Your payment obligations herein, 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.

13.3 ASIGRA may amend, change, alter, substitute or otherwise modify the terms and conditions of this Agreement (and other terms and conditions, guidelines or policies) at any time and Your use of the ASIGRA SaaSAssure shall be governed by the most current version of this Agreement available at asigra.com/legal. 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.

13.4 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 12, the parties irrevocably attorn to the non-exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under the Agreement.

13.5 The parties have expressly required that this Agreement and all related documents, including notices and other communications, be drawn up in English exclusively. Les parties ont expressément exigé à ce que la présente convention ainsi que tous les documents qui s'y rattachent, incluant les avis et autres communications, soient rédigés en anglais exclusivement.

13.6 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.

13.7 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.

13.8 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 1-4, 6, 7, 8.2, 8.3, 10, 11-14.

13.9 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.

13.10 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.

13.11 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.

Definitions

14.1 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 Order Form, together with these Terms, as they may be amended from time to time.

“Annual Subscription” means a commitment to ASIGRA SaaSAssure for one or more years.

“ASIGRA Indemnitees” means ASIGRA, its directors, officers, employees, contractors and agents.

“ASIGRA Intellectual Property” means any trade secrets, copyrights, inventions, works, Trademarks, logos, designs, commercial symbols, insignia, domain names, written materials (including but not limited to User Documentation and documents prepared by ASIGRA as may be modified from time to time), developed, owned, or provided by ASIGRA in connection with ASIGRA SaaSAssure.

“ASIGRA SaaSAssure” means ASIGRA’s proprietary backup/restore data storage management solution 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; performance and usage metrics related to ASIGRA SaaSAssure; services 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.

“CP Services Agreement” means (i) Your agreement to provide Your SaaSAssure Services that incorporate ASIGRA SaaSAssure and related services to Customer End-Users; or (ii) the agreement between Channel Partner and You that describes additional services to be performed by Channel Partner as required by You and Your Customer End-Users, as applicable.

“CP Support” means the first and second level maintenance and support, as applicable, to be provided by (i) You to Customer End-Users internally; (ii) You, if You are a Service Provider, to Customer-End Users externally; and (iii) Resellers to You and Customer End-Users, as applicable.

“Channel Partner” means an authorized ASIGRA Reseller or Service Provider that has executed the Order Form.

“Cloud Service Providers” means a provider of a third-party software as a service application that is supported by ASIGRA SaaSAssure and whose services to which You have a subscription.

“Confidential Information” means the provisions of the Agreement and all of a 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 Trademarks.

“Customer End-User” means, as applicable, the ultimate end-user of ASIGRA SaaSAssure, being Your employees and contractors; or (ii) Your customers (including Your customers’ employees and contractors) that are authorized to use ASIGRA SaaSAssure by means of the SaaSAssure End User License Agreement.

“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 ASIGRA SaaSAssure. 

“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 Order Form.

“Fees” means the fees for the ASIGRA services that You acquire as described in the Order Form.

“Initial Base Subscription Payment” has the meaning described in the summary section of the Order Form.

“Initial Term” means the period of time specified in the Order Form commencing upon the Effective Date.

“Laws” means all statutes, codes, ordinances, decrees, rules, regulations, municipal-by-laws, orders, decisions, rulings or awards, policies, voluntary restraints, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the party referred to in the context of which such word is used and “Law” means any one of the foregoing.

“Monthly Subscription” means a commitment to ASIGRA SaaSAssure on a monthly basis.

“Order Form” means the 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.

“Renewal Base Subscription Payment” has the meaning set out in Section 3.2.

“Renewal Term” means (i) consecutive periods of twelve (12) months following the Initial Term if You have an Annual Subscription, or (ii) consecutive periods of one (1) month following the Initial Term if You have a Monthly Subscription.

“Reseller” means ASIGRA’s authorized reseller of ASGIRA SaaSAssure.

“SaaSAssure End User License Agreement” means the clickwrap license agreement between ASIGRA and a Customer End-User that authorizes Customer End-Users to obtain and use ASIGRA SaaSAssure directly from ASIGRA. 

“Service Provider” means ASIGRA’s authorized service provider of ASIGRA SaaSAssure.

“Support Services” means the web, telephone and email support available to You as further described in ASIGRA’s Support Services Plan.

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

“Term” means the Initial Term and all Renewal Terms.

“Termination Date” has the meaning set out in Section 9.1.

“Third Party Services” mean services owned by a legal or natural person not a party to the Agreement that ASIGRA may resell to You pursuant to the Third Party Services Terms.

“Third Party Services Terms” means the terms applicable to the Third Party Services as set out here: asigra.com/legal.

“Third Party Software” means software owned by a legal or natural person not a party to the Agreement that is contained in ASIGRA SaaSAssure.

“Trademarks” means the trademarks of ASIGRA, namely SaaSAssure and the ASIGRA logo.

“User Documentation” means the materials made accessible by ASIGRA which describes the features and operating characteristics of ASIGRA SaaSAssure or any part thereof, together with any copies, revisions, modifications or enhancements or other documentation as may be provided from time to time by ASIGRA.

“You”, “Your” means the Channel Partner of ASIGRA that uses ASIGRA SaaSAssure for Your own benefit and makes available Your SaaSAssure Services to Customer End-Users pursuant to the Agreement.

“Your SaaSAssure Services” means the online backup, storage, and recovery services You offer to Customer End-Users using ASIGRA SaaSAssure.