Reseller Program Agreement

This Reseller Program Agreement (the “Agreement”) is made and entered into by and between Data Deposit Box, and the Reseller Applicant (“Applicant”), who has accepted the terms and conditions of the Agreement via Data Deposit Box’s website, as of the date on which
a. the Applicant agrees to the terms and conditions of this Agreement, and
b. is approved by Data Deposit Box as a Reseller.

Unless otherwise notified, the “Effective Date” of the Agreement will be considered the date of acceptance of the terms and conditions of the Agreement.

If the Reseller does not agree to the terms of the Agreement, or is not accepted by Data Deposit Box, the Applicant will not be approved as a Reseller.

Data Deposit Box and the Reseller will hereinafter be collectively referred to as the “Parties”.

Recitals

WHEREAS, Data Deposit Box provides a subscription-based service, Data Deposit Box’s online software and storage system for continuous data backup and management (the “Service”);

WHEREAS, the Reseller has developed relationships with businesses, associations, individuals and groups which may be potential customers of Data Deposit Box and is interested in marketing, promoting and selling the Service;

WHEREAS, Data Deposit Box desires to engage the Reseller to obtain the benefit of its relationships for the purpose of assisting Data Deposit Box in marketing, promoting and selling the Service;

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 Data Deposit Box 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 Data Deposit Box or its third party suppliers or licensors. Confidential Information includes, without limitation, information regarding the Service.

“End User” means a Prospect, introduced to Data Deposit Box by Reseller, that is licensed by Data Deposit Box (at its’ discretion) pursuant to the terms of the End User License Agreement as accepted by the End User to make use of one or both of the Service for End User use only. All End Users registrations are tracked through a persistent cookie, link or by manual entry (by the Reseller) to credit the registration to the Reseller.

“Prospect” means an individual, corporation, company, partnership or other legal entity, who is a customer or prospective customer of Reseller and who is a potential End User or customer of Data Deposit Box.

“Service” means the subscription-based service, being Data Deposit Box’s online software and storage system for continuous data backup and management

“Service Fee Revenue” means the fees charged to either an End User, or a Reseller, on a monthly, per gigabyte basis, for use of the Service (in accordance with the terms of Data Deposit Box’s End User License Agreement). Service Fee Revenue excludes applicable taxes, credits to accounts, refunds and/or credit card charge backs.

“Reseller Fee” shall mean an amount equal to the aggregate of twenty-five percent (25%) of the Service Fee Gross Margin.

“Wholesale Fee” shall mean an amount equal to the cost of the Service (as agreed upon by the Parties) charged to the Reseller for the Service, at an agreed upon monthly cost per gigabyte, for Services used by all End Users referred by, and attributed to the Reseller.

2. Appointment of Reseller.

2.1 Grant of License On the terms and conditions set out in this Agreement, Data Deposit Box hereby grants to Reseller and Reseller hereby accepts from Data Deposit Box, a non-exclusive, non-transferable license to resell the Service to Prospects in the country in which the Reseller head office of reseller is located. Pursuant to this Agreement, Reseller shall market the Service to Prospects. Prospects shall subscribe to the Service by entering into an End User License Agreement with Data Deposit Box. Acceptance of a Prospect as an End User shall remain in the full discretion of Data Deposit Box and Data Deposit Box 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, Data Deposit Box 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 Service pursuant to the Agreement, provided that Reseller clearly identifies Data Deposit Box’s ownership of such names and/or marks. All advertising and marketing materials prepared by Reseller for use in marketing the Service must, prior to release by Reseller, be delivered to Data Deposit Box for review and approval, such approval not to be unreasonably withheld or delayed. The right to use Data Deposit Box trade names and trade-marks terminates upon immediately termination of the Agreement.

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

3. Responsibilities of the Parties.

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

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 Data Deposit Box or the Service. Reseller shall conduct its business so as to maintain and increase the goodwill and reputation of Data Deposit Box and the Service.

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 Data Deposit Box’s End User License Agreement. Reseller shall not expand any representations or warranties beyond those expressed in Data Deposit Box’s End User License Agreement. Reseller has no authority, and shall not make representations, to bind Data Deposit Box 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, Data Deposit Box 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 (collectively referred to as “Marketing Materials”) about Data Deposit Box and its Service. All rights, title and interest in and to the Marketing Materials shall remain with Data Deposit Box (or its third party licensor or suppliers). Reseller shall not amend, alter or otherwise change the Marketing Materials without the prior written consent of Data Deposit Box.

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 Data Deposit Box, 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. Data Deposit Box 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 Data Deposit Box 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 Service and, within five (5) days after such termination, Reseller shall return all Marketing Materials to Data Deposit Box and shall destroy or return all Confidential Information to Data Deposit Box, 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.

Reseller Fees
On a monthly basis, on Reseller’s monthly billing date, Data Deposit Box shall credit Reseller’s credit card with the appropriate Reseller Fee (an amount equal to the aggregate of twenty-five percent (25%) of the Service Fee Gross Margin) payable to Reseller in respect of all Service Fee Revenue paid by an End User referred by, and attributed to Reseller in accordance with this Agreement.

Wholesale Fees
On a monthly basis, on Reseller’s monthly billing date, Data Deposit Box shall charge Reseller’s credit card with the appropriate Wholesale Fee (an amount equal to the cost of the Service (as agreed upon by the Parties) charged to the Reseller for the Service, at an agreed upon monthly cost per gigabyte) for an amount equal to the total cost of Services used by all End Users attribute to Reseller in accordance with this Agreement.

Upon notice from Data Deposit Box, Data Deposit Box may change the manner in which it pays Reseller Fees or Wholesale Fees to Resellers under this Agreement. Reseller Fees or Wholesale Fees shall not be payable in connection with any End User whose right to make use of the Service Offering has been terminated by Data Deposit Box, at its discretion. Reseller Fees and Wholesale Fees shall be credited against storage fees payable by Reseller in connection with Resellers own use of the Service.

6. Representations of the Parties.

Each party represents that it has the right to enter into this Agreement. Data Deposit Box 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 Service in accordance with this Agreement. Reseller shall promptly notify Data Deposit Box 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 Data Deposit Box;
(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.

Data Deposit Box 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 Data Deposit Box UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY FINAL DETERMINATION OF LIABILITY HEREUNDER. Data Deposit Box WILL NOT BE LIABLE FOR ANY LOST DATA, LOST PROFITS, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OR ANY KIND, EVEN IF Data Deposit Box HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Status of the Parties.

In 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 email, subject to verbal confirmation that such fax or email was received. Any Notice provided to Data Deposit Box shall be delivered to Data Deposit Box at the following address: 5063 North Service Road, Suite 102, Burlington, Ontario L7L 5H6, Canada. 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 Data Deposit Box 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 Data Deposit Box and any attempted assignment, transfer or subcontracting, without such prior written consent shall be null and void. Data Deposit Box 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 Data Deposit Box’s Reseller Program (the “Program”). Data Deposit Box 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 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 Data Deposit Box 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 Data Deposit Box under this Agreement or in respect of any other obligation of Reseller to Data Deposit Box.

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 Data Deposit Box 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 Data Deposit Box 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 Data Deposit Box 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 Data Deposit Box 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 Data Deposit Box a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any Data Deposit Box product or service (including the Beta Service) at any time at the sole discretion of Data Deposit Box. 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 Data Deposit Box.