Reseller Program Agreement

This Reseller Program Agreement (this “Agreement”) is made and entered into by and between Acpana Business Systems Inc., (“Acpana”), and the reseller who has accepted the terms and conditions of this Reseller Program Agreement via Acpana’s website, (the “Reseller”), as of date on which Reseller is accepted by Acpana as a reseller (the “Effective Date”), (Acpana and Reseller collectively hereinafter referred to as the “Parties”).

If you do not agree to the terms of this reseller program agreement, you may not become a reseller.

Recitals

WHEREAS, Acpana provides: (i) a subscription-based service called Data Deposit Box, being Acpana’s online software and storage system for continuous data backup and management and (ii) Data Deposit Box Remote Desktop a remote desktop service offered by Acpana (formerly the “Remote Desktop Service”);

WHEREAS, the Reseller has developed strong relationships with businesses, associations, individuals and groups which may be potential customers of Acpana and is interested in marketing, promoting and selling value added services such as the Plan Offerings (as such term is defined below);

WHEREAS, Acpana desires to engage the Reseller to obtain the benefit of its relationships for the purpose of assisting Acpana in marketing, promoting and selling the Plan Offerings;

NOW THEREFORE, in consideration of the following conditions set forth in this Agreement, the Parties hereto agree as follows:

1. Definitions.

In this Agreement, the following terms shall have the following meanings:

“Confidential Information” means any and all information which is disclosed by Acpana to the Reseller verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, price lists, trade secrets, computer programs, software, formulas, data, inventions, techniques, marketing plans, strategies and forecasts made available by the disclosing party, whether such information relates to Acpana or its third party suppliers or licensors. Confidential Information includes without limitation, information regarding the Plan Offerings.

“End User” means a Prospect, introduced to Acpana by Reseller, that is licensed by Acpana (in its discretion) pursuant to the terms of the End User License Agreement accepted by the End User to make use of one or both of the Plan Offerings for its own internal use purposes. All End Users are tracked through a persistent cookie or by manual entry by the Reseller to credit the registration back to the Reseller.

“Plan Offerings” means: (i) the subscription-based service called KineticSecureT, being Acpana’s online software and storage system for continuous data backup and management and (ii) the service called KineticExtendT, Acpana’s remote desktop service, being those Plan Offerings that Reseller is permitted to offer to Prospects. The Plan Offerings are described at: https://www.datadepositbox.com, as such descriptions may be amended from time-to-time as provided in this Agreement.

“Prospect” means an individual, corporation, company, partnership or other entity, who is a customer of Reseller and who may be a potential End User.

“Reseller Fee” shall mean an amount equal to twenty percent (20%) of the Service Fee Revenue for so long as this Agreement remains in effect.

“Service Fee Revenue” means the service fees charged by Acpana for either of the Plan Offerings which are actually received by Acpana from a compliant End User making use of one or both of the Plan Offerings in accordance with the terms of Acpana’s End User License Agreement and for greater certainty, Service Fee Revenue shall not include, applicable taxes, credits to accounts, refunds and/or credit card charge backs.

2. Appointment of Reseller.

2.1 Grant of License. On the terms and conditions set out in this Agreement, Acpana hereby grants to Reseller and Reseller hereby accepts from Acpana, a non-exclusive, non-transferable license to resell the Plan Offerings to Prospects in the country in which the Reseller head office of reseller is located. Pursuant to this Agreement, Reseller shall market the Plan Offerings to Prospects. Prospects shall subscribe to the Plan Offerings by entering into an End User License Agreement with Acpana. Acceptance of a Prospect as an End User shall remain in the full discretion of Acpana and Acpana reserves the right, in its discretion, to terminate an End User License Agreement with any such End User in accordance with the terms of the End User License Agreement.

2.2 Grant of License to Trade-mark. On the terms and conditions contained in this Agreement, Acpana grants to Reseller, a non-exclusive, non-transferable license to use the following trade names and trade-marks: solely in connection with Reseller’s marketing of the Plan Offerings pursuant to this Agreement, provided that Reseller clearly identifies Acpana’s ownership of such names and/or marks. All advertising and marketing materials prepared by Reseller for use in marketing the Plan Offerings must, prior to release by Reseller, be delivered to Acpana for review and approval, such approval not to be unreasonably withheld or delayed. The right to use Acpana’s trade names and trade-marks terminates upon immediately termination of this Agreement.

2.3 Plan Offering and Trade Names and Trade-Marks. All right, title and interest in and to the Plan Offerings and all components thereof, together with all right, title and interest in and to the Trade Names and Trade-Marks licensed above, remains with Acpana (and its third party licensor or suppliers). Except for the limited license granted above, Acpana reserves all other rights in and to the Plan Offerings and such Trade Names and Trade-Marks. All End User information collected by Acpana shall remain the property of Acpana.

3. Responsibilities of the Parties.

3.1 Best Efforts. Reseller agrees to utilize its best efforts to assist and/or introduce the Plan Offerings to potential new customers and to market and promote the Plan Offerings to achieve the maximum extent of distribution of the Plan Offerings.

3.2 Standards. Reseller will maintain high standards of professionalism and will at all times comply with all applicable laws and regulations and refrain from any unethical conduct or any other conduct that could damage the reputation of Acpana or the Plan Offerings. Reseller shall conduct its business so as to maintain and increase the goodwill and reputation of Acpana and the Plan Offerings.

3.3 No Side Letters. Reseller shall not enter into any separate agreements or side letters with End Users regarding any portion of the subject matter addressed in Acpana’s End User License Agreement. Reseller shall not expand any representations or warranties beyond those expressed in Acpana’s End User License Agreement. Reseller has no authority, and shall not make representations, to bind Acpana to an End User License Agreement. Reseller shall not change or offer to change the contractual and/or financial terms of the End User License Agreement in any manner.

3.4 Marketing Support. As a means of assisting Reseller, Acpana may, from time-to-time, provide Reseller with creative and collateral content, in standard electronic or similar format, as well as graphics, banners and other marketing promotional and informative material about Acpana and its Plan Offerings (the “Marketing Materials”). All right, title and interest in and to the Marketing Materials shall remain with Acpana (or its third party licensor or suppliers). Reseller shall not amend, alter or otherwise change the Marketing Materials without the prior written consent of Acpana.

3.5 Access to End User’s Computer or Computer Systems. To the extent that an End User provides Reseller with an ability to access End User’s computer or computer systems by making use of the Remote Desktop Service, Reseller shall be solely responsible for obtaining any necessary consents and other permissions from the End User. Reseller hereby agrees to indemnify and hold harmless Acpana, its officers, directors, shareholders and third party providers and each of their respective heirs, executors, administrators, legal personal representatives, successors and assigns (collectively, the “Indemnitees”) from and against any and all costs, losses, expenses, claims, damages, actions, causes of action and deficiencies, which any of the Indemnitees may suffer or incur as a result of or arising directly or indirectly out of or in connection with Reseller having access to an End User’s computer or computer systems.

4. Term and Termination.

This Agreement shall remain in full force and effect for a term of twelve (12) months (the “Term”), commencing on the Effective Date and shall thereafter continue on a month to month basis unless terminated in accordance with this Agreement. If either Party breaches a material provision of this Agreement, the other Party may immediately terminate this Agreement upon written notice to the other Party. Acpana may terminate this Agreement at any time, for any reason, with or without cause, upon 10 days’ written notice in accordance with this Agreement; provided that Acpana shall pay Reseller all Reseller Fees due and payable under this Agreement up to the effective date of termination of this Agreement. Upon termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate, Reseller shall immediately cease reselling the Plan Offerings and, within five (5) days after such termination, Reseller shall return all Marketing Materials to Acpana and shall destroy or return all Confidential Information to Acpana, without retaining any copies of such Marketing Materials and Confidential Information. All provisions of this Agreement, which by their nature should reasonably be expected to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including, without limitation, Sections 2.3, 4, 7, 8, 9, and 10.

5. Compensation.

All out-of-pocket expenses incurred by Reseller in the process of referring a Prospect and meeting its obligations under this Agreement are the sole responsibility of the Reseller. On a monthly basis, on Reseller’s monthly billing date, Acpana shall credit Reseller’s credit card with the Reseller Fee payable to Reseller in respect of all Service Fee Revenue actually received by Acpana from an End User referred by Reseller in accordance with this Agreement. Upon notice from Acpana, Acpana may change the manner in which it pays Reseller Fees to Reseller under this Agreement. Reseller Fees shall not be payable in connection with any End User whose right to make use of the Service Offering has been terminated by Acpana, in its discretion. Reseller Fees shall be credited against storage fees payable by Reseller in connection with Reseller’s own use of the Plan Offering.

6. Representations of the Parties.

Each party represents that it has the right to enter into this Agreement. ACPANA DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Confidential Information.

Reseller shall keep Confidential Information in strict confidence and shall not disclose it to any third party. Reseller’s internal disclosure of Confidential Information shall be only to those employees having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent to this Agreement. Reseller shall only use Confidential Information provided to it for purposes of reselling the Plan Offerings in accordance with this Agreement. Reseller shall promptly notify Acpana of any unauthorized disclosure or use of Confidential Information by any person. This Agreement imposes no obligation upon Reseller with respect to Confidential Information which Reseller can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Reseller without an obligation or duty to maintain its confidentiality prior to receipt from Acpana; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Reseller in good faith from third party having the right to disclose it without an obligation on confidentiality; or (d) is required to be disclosed by court order provided diligent efforts are undertaken to limit disclosure.

8. Limitation of Liability.

ACPANA’S TOTAL LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR OTHERWISE) SHALL BE LIMITED TO THE TOTAL AMOUNT OF RESELLER FEES PAID TO RESELLER BY ACPANA UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY FINAL DETERMINATION OF LIABILITY HEREUNDER. ACPANA WILL NOT BE LIABLE FOR ANY LOST DATA, LOST PROFITS, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OR ANY KIND, EVEN IF ACPANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Status of the Parties.

n performing its respective obligations under this Agreement, Reseller will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, employment arrangement or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the power to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. Reseller agrees to be solely responsible for all costs related to its performance under this Agreement.

10. Miscellaneous.

10.1 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. The convention on the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.

10.2 Severability. If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

10.3 Successors. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

10.4 Notices. Any Notice which either Party hereto may be required or permitted to give to the other Party shall be in writing, and may be delivered personally, by private express courier, by registered, express or certified mail with postage prepaid, by fax or by e.mail, subject to verbal confirmation that such fax or e.mail was received. Any Notice provided to Acpana shall be delivered to Acpana at the following address: 1 Eglinton Avenue East, Suite 407, Toronto, Ontario, M4P 3A1, Facsimile No.: 416-238-7577, Attention: President. Any Notice provided to Reseller shall be delivered to Reseller at the address set out in the registration information provided by Reseller. Either Party to this Agreement may change its address for purposes of receipt of Notice by providing written Notice of such future change, utilizing the procedures stated herein.

10.5 Further Actions. Each of the Parties agrees that it shall hereafter execute and deliver such further instruments and do such further acts and things as may be required or useful to carry out the intent and purpose of this Agreement and as are consistent with the terms hereof.

10.6 Assignment. This Agreement and the appointment of Reseller by Acpana hereunder are personal to Reseller and Reseller shall not have the right or ability to assign or transfer this Agreement (whether by operation of law or otherwise) or subcontract any obligations under this Agreement without the prior written consent of Acpana and any attempted assignment, transfer or subcontracting, without such prior written consent shall be null and void. Acpana may assign or transfer this Agreement or subcontract its obligations under this Agreement without the consent of Reseller.

10.7 Changes to the Program. This Agreement is subject to the terms and conditions of Acpana’s Reseller Program (the “Program”). Acpana reserves the right to make prospective changes to the Program at any time and at its sole discretion upon written notice to Reseller. Changes may include but are not limited to changing the Reseller Fee, the payment timeframe or even the discontinuation of the Program.

10.8 Entire Agreement. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior understandings or agreements between the Parties with respect to such subject matter.

10.9 Set-off. Acpana shall have the right to satisfy any amount from time to time owing by it to Reseller by way of set-off against any amount from time to time owing by Reseller to Acpana under this Agreement or in respect of any other obligation of Reseller to Acpana.

10.10 Language. The Parties hereby express their wish that this contract and all related documents be drawn up in English. Les Parties expriment par les présentes leur volonté que cette entente soit rédigée en langue anglaise.

10.11 Additional Provisions for Beta Services. Reseller acknowledges and agrees that if any of the Services is identified as a beta version of such Service (“Beta Service”), the following additional provisions apply and supersede any provisions of this Agreement which contradict the provisions contained in this Section: (a) Reseller acknowledges that the Beta Service is not at the level of performance and compatibility of a final, generally released product offering and may not operate properly, may contain “bugs”, and may be substantially modified by Acpana prior to commercial release; (b) Reseller’s license to or ability to make use of such Beta Service pursuant to this Agreement expires upon availability of a commercial release of that Beta Service from Acpana and (c) the Beta Service may only be used for testing and evaluation purposes and (d) Reseller agrees that such Beta Service is provided “as is, where is” without warranty or condition of any kind and Acpana disclaims any liability obligations to Reseller or any End User or any third party of any kind with respect to such Beta Service. Reseller acknowledges that Acpana has not made any representations, promises or guarantees that the Beta Service will ever be announced or made available to anyone in the future. Reseller will be asked to provide feedback regarding the Beta Service and Reseller hereby grants to Acpana a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any Acpana product or service (including the Beta Service) at any time at the sole discretion of Acpana. RESELLER ACKNOWLEDGES AND AGREES THAT END USERS WILL BE OBLIGATED TO PAY FEES FOR THE SERVICES FORMING THE BETA SERVICE ONCE A COMMERCIAL RELEASE OF THE BETA SERVICE IS MADE AVAILABLE BY ACPANA.