Asigra SaaSAssure End User License Agreement

Effective January 2024

 

ASIGRA has conceived, designed and developed an automatic, unattended backup/restore data storage management service known as “ASIGRA SaaSAssure” and now wishes to grant You the right to access and use ASIGRA SaaSAssure(as defined below) on the terms and conditions contained herein.

In consideration of the mutual covenants contained herein and for other good and valuable consideration, the parties hereby agree as follows:

1. Grant of Rights

1.1 If You are a Channel Partner and intend to provide or market CP SaaSAssure Services as a Channel Partner to Customer End-Users, then ASIGRA hereby grants to You a non-exclusive, non-transferable, limited, revocable license to access and use the ASIGRA Intellectual Property to provide and market ASIGRA SaaSAssure to Customer End-Users, as applicable.

1.2 If You intend to provide CP SaaSAssure Services internally, then ASIGRA hereby grants to You a non-exclusive, non-transferable, limited, revocable license to access and use ASIGRA SaaSAssure and ASIGRA Intellectual Property to provide CP SaaSAssure Services to Your internal Customer End-Users.

1.3 If You are a Customer, then ASIGRA hereby grants to You a non-exclusive, non-transferable, limited, revocable license to access and use ASIGRA SaaSAssure and ASIGRA Intellectual Property for internal business purposes as required to obtain the benefits of ASIGRA SaaSAssure.

1.4 In order to receive the licenses granted above, You shall pay ASIGRA or its Channel Partners, as appropriate, all applicable License Fees and such other fees as set out in the applicable Order Form or CP Services Agreement and in the manner described in such agreement(s).

1.5 ASIGRA retains all rights in the ASIGRA Intellectual Property not specifically granted herein to You.

1.6 ASIGRA is the authorized reseller of certain Third Party Services that ASIGRA may resell to you with ASIGRA SaaSAssure. If You purchase
any Third Party Services, You agree to be bound by the Third Party Services Terms located at https://asigra.com/legal.

1.7 Unless You are a Channel Partner, You shall not offer, market or otherwise provide ASIGRA SaaSAssure to any third parties (other than Customer End-Users) except as described in this Agreement or otherwise permitted by ASIGRA in writing. Customer is not authorized, solely by virtue of this Agreement, to act as a Channel Partner.

1.8 The rights and licenses granted to You in this Agreement are personal to You and are not transferable or assignable without prior written consent of ASIGRA. Any attempt to assign this Agreement without the express prior written consent of ASIGRA will be void.

1.9 You hereby grant to ASIGRA a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ASIGRA to provide ASIGRA SaaSAssure to You, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics and make Derivative Works therefrom for the purposes of improving and developing ASIGRA SaaSAssure. You hereby assign, now and forever, throughout the world, all of Your rights, title and interest to all Derivative Works developed by ASIGRA and You hereby absolutely and irrevocably waive, in favour of ASIGRA, to the extent permitted by applicable Law, any and all claims you may now or hereafter have in any jurisdiction to any moral rights in relation to such Derivative Works.

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, all ASIGRA Intellectual Property Rights and ASIGRA SaaSAssure, all future functionality and product developments if any, which are related to ASIGRA SaaSAssure. You obtain no right to modify, duplicate or reverse-engineer any aspect of the ASIGRA Intellectual Property or 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 any of 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 of this Agreement. You will comply with all reasonable requests made by ASIGRA in relation to the protection of its intellectual property rights hereunder.

2.4 You will not backup any Customer Data that disseminates any malware, “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry) in Your use of ASIGRA SaaSAssure.

2.5 You will not damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner ASIGRA SaaSAssure, ASIGRA’s systems, or ASIGRA’s provision of services to any third party, in whole or in part.

2.6 You will not access or use ASIGRA SaaSAssure or any ASIGRA Intellectual Property for purposes of competitive analysis of ASIGRA SaaSAssure or ASIGRA Intellectual Property, the development, provision, or use of a competing software service or product, or any other purpose that is to ASIGRA’s detriment or commercial disadvantage.

2.7 If You undertake any unauthorized decompilation, copies, translations, adaptations, modifications of ASIGRA SaaSAssure or any component thereof, or the ASIGRA Intellectual Property, all profits and proceeds from such unauthorized activity, if any, will accrue to ASIGRA and/or the owners of the Third Party Software and ASIGRA and/or the owners of the Third Party Software will be the owner of same whether or not made in compliance with this Agreement.

2.8 If You become aware of any unauthorized decompilation or infringement of ASIGRA SaaSAssure Services or any component thereof 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.

2.9 Other than the owners of the Third Party Software, ASIGRA is the sole proprietor of the ASIGRA Intellectual Property and any goodwill which may become associated with the ASIGRA Intellectual Property will automatically vest in ASIGRA. You do not acquire any goodwill which may be or may become associated with the ASIGRA Intellectual Property.

3. Storage of Customer System Data/ Additional Services

3.1 You may store Your Customer System Data in a ASIGRA Cloud Storage Vault or a Customer Vault System.

3.1.1 If You have an active subscription to ASIGRA Cloud Storge, ASIGRA may store Your Customer System Data in Your ASIGRA Cloud Storage Vault. Unless otherwise modified by You in ASIGRA SaaSAssure, ASIGRA shall automatically purge Your Customer System Data held in Your ASIGRA Cloud Storage Vault seven (7) years from the date such Data was uploaded to Your ASIGRA Cloud Storage Vault through ASIGRA SaaSAssure.

3.1.2 The parties acknowledge and agree that the Customer Vault Systems are data storage locations operated and maintained by Customer or Customer’s subcontractors and Customer shall be solely responsible and liable for its use of its Customer Vault Systems and the Customer Vault Data stored on such Systems. The parties acknowledge and agree that neither ASIGRA SaaSAssure nor ASIGRA stores any Customer Vault Data stored on such Systems, nor does ASIGRA have any access or control over any Customer Vault Systems or such Data and ASIGRA has no responsibility or liability with respect to Customer’s use of its Customer Vault Systems or any Customer Vault Data stored on such Systems.

3.2 ASIGRA will not be liable for any services provided by You, including but not limited to CP Support, or any services that may be agreed upon by means of the CP Services Agreement or any other agreement, in writing or otherwise.

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 of this Agreement 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) except as described in this Section 4 without the express written consent of the Disclosing Party. For greater clarity, You may disclose ASIGRA Confidential Information to Your Customer End-Users and prospective Customer End-Users on a need-to-know basis 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, for greater clarity, shall not include other ASIGRA Channel Partners) without a breach of this 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 this Agreement; or (d) was known to the Receiving Party before receipt thereof from the Receiving Party.

4.3 It is not a breach of this Section 4 to disclose Confidential Information (i) required to be disclosed 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 Customer 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 which 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 4 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 4, 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.

4.8 Notwithstanding anything to the contrary in this Agreement, ASIGRA may monitor Your use of ASIGRA SaaSAssure and collect and compile Aggregated Statistics. As between ASIGRA and You, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by ASIGRA. You acknowledge that ASIGRA may compile Aggregated Statistics based on Customer Data input into ASIGRA SaaSAssure. You agree that ASIGRA may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law; provided that such Aggregated Statistics do not identify You or Your Confidential Information.

4.9 The parties acknowledge and agree that ASIGRA is not a processor, service provider or subcontractor as defined by applicable privacy Laws, and as such does not collect, use, disclose or retain any personal information, personally identifiable information or personal data, as defined by applicable privacy Laws, in ASIGRA’s provision or Customer’s use of ASIGRA SaaSAssure.

4.10 Notwithstanding the above, ASIGRA may collect and use business contact emails for the purposes of delivering ASIGRA SaaSAssure and such emails shall only be used by ASIGRA for such purposes.

5. Representations and Warranties

5.1 You hereby covenant, represent and warrant to ASIGRA that:

5.1.1 the natural person who enters into this Agreement by clicking “I Accept” on the last page of this Agreement has the corporate authority and legal right to bind You as described hereunder;

5.1.2 Your access and use of ASIGRA SaaSAssure shall not violate any applicable Laws;

5.1.3 You are the sole owner of all rights in and to the Customer Data, or that You are otherwise authorized to process the Customer Data and to process it using ASIGRA SaaSAssure, and have obtained all necessary consents, permissions and licenses to process and store the Customer Data using ASIGRA SaaSAssure;

5.1.4 You are compliant with the terms of the Cloud Service Provider services; and

5.1.5 Your Customer Data, the means by which You acquired Customer Data, Your use of Customer Data with ASIGRA SaaSAssure, and the interoperation of any Cloud Provider services with which You use ASIGRA SaaSAssure or Customer Data shall not violate the terms this Agreement or any other agreement to which You are bound.

5.2 THE ASIGRA SAASBACKUP SERVICES AND ASIGRA INTELLECTUAL PROPERTY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ASIGRA 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 THE THIRD PARTY SOFTWARE, THE ASIGRA SAASBACKUP SERVICES, SUPPORT SERVICES OR CP SUPPORT PROVIDED BY ASIGRA OR A CHANNEL PARTNER WILL BE ERROR-FREE, MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, 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 ASIGRA, ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, CHANNEL PARTNERS OR ITS AGENTS 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.

5.3 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.

5.4 WITH RESPECT TO THE THIRD PARTY SERVICES, ASIGRA PROVIDES THE THIRD PARTY SERVICES TO YOU AS A RESELLER 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, NEITHER ASIGRA, NOR ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, CHANNEL PARTNERS OR AGENTS NOR THE OWNERS OF ANY THIRD PARTY SERVICES MAKE ANY OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY CUSTOMER OR CUSTOMER END-USERS FROM USE OF ASIGRA SAASBACKUP SERVICES, GENERALLY ON ANY THIRD PARTY SERVICES. NEITHER ASIGRA NOR ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS REPRESENTS OR WARRANTS PROPER OPERATION OF THE THIRD PARTY SERVICES BY CUSTOMER OR THE CUSTOMER END-USERS. EACH OF ASIGRA AND ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS 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 WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE) IN RESPECT OF SUCH THIRD PARTY SERVICES.

5.5 THIS 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 CUSTOMER OR CUSTOMER END-USER MAY EXPERIENCE AS A RESULT OF ITS ACCESS OR USE OF THE ASIGRA SAASBACKUP SERVICES OR THE THIRD PARTY SERVICES.

5.6 IN NO EVENT WILL ASIGRA, ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES OR AGENTS OR THE OWNERS OF ANY THIRD PARTY SOFTWARE OR THIRD PARTY SERVICES BE LIABLE FOR ANY DIRECT, 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 THIS 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 ASIGRA OR ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.7 IN NO EVENT WILL THE AGGREGATE LIABILITY THAT ASIGRA, ANY OF ITS DIRECTORS, OFFICERS, CONTRACTORS, EMPLOYEES, OR AGENTS, ITS THIRD PARTY LICENSORS, THIRD PARTY SERVICE PROIVDERS, AFFILIATES AND RELATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING PURSUANT TO THIS AGREEMENT OR UNDER ANY SECTION OF THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF LICENSE 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 ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.

5.8 THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE. YOU HAVE ACCEPTED THE DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE GOODS AND UNDERSTANDS THAT THE PRICE OF THE PRODUCTS WOULD BE HIGHER IF ASIGRA WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.

6. Term and Termination

6.1 This Agreement will take effect on the Effective Date and will continue unless terminated as described below (the “Term”).

6.2 ASIGRA will have the right to terminate this Agreement in the event of an occurrence of a breach of a material provision or You materially default in the performance of any of Your duties or obligations as set forth in this Agreement that is not remedied within seven (7) days of receipt of written notice thereof. A breach of a material provision of this Agreement will include, but be not limited to the following:

6.2.1 You fail to make payments when due; or

6.2.2 You breach any of Your obligations described in Sections 1 or 2 or causes same to be done by a third party or develop software or services
which are directly competitive with ASIGRA SaaSAssure.

6.3 ASIGRA shall terminate this Agreement, effective immediately without 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 sixty (60) days; or You are adjudged bankrupt or insolvent. Additionally, ASIGRA may terminate this Agreement, effective immediately upon written notice, if You breach any of Section 4 (Confidentiality) or Sections 1.8 and 11.8 (Assignment).

6.4 Additionally, either party may terminate this Agreement upon the provision of three (3) month’s written notice to the other party. If You give ASIGRA notice, ASIGRA may accelerate the payment all amounts payable by You for the duration of the three (3) month notice period.

6.5 This Agreement will also terminate, effective immediately, upon the termination or non-renewal by You of the applicable Order Form.

7. Duties Upon Termination

7.1 Upon the day this Agreement terminates (the “Termination Date”), for any reason whatsoever, all of Your rights hereunder will terminate immediately, except as otherwise provided herein. As of the Termination Date, if You are a Channel Partner then You will immediately cease selling or promoting ASIGRA SaaSAssure to prospective Customers.

7.2 If You are a Customer, as of the Termination Date, You will cease all use of the ASIGRA Intellectual Property and ASIGRA SaaSAssure.

7.3 If You have a subscription to ASIGRA Cloud Storage, for a period of sixty (60) days, ASIGRA shall allow for You to retrieve Your Customer Systems Data from Your ASIGRA Cloud Storage Vault; following which, ASIGRA shall delete such Data and deactivate and terminate your access to Your ASIGRA Cloud Storage Vault.

7.4 Other than as described above, You will, within thirty (30) days of the Termination Date, destroy all materials related to ASIGRA SaaSAssure in Your possession or control, regardless of its format or containing medium.

7.5 Other than as necessary to perform the tasks described above, You will expunge all ASIGRA Confidential Information from Your own computer system or storage media in Your control or possession as of the Termination Date. ASIGRA will expunge all of Your Confidential Information from its own computer system or storage media in its control or possession as of the Termination Date, except as required to fulfill the surviving obligations of this Agreement. For greater clarity, each of the parties will be entitled to retain an original copy of this Agreement.

7.6 Your failure to comply with the terms of this Section will result in irreparable harm to ASIGRA and, accordingly, in addition to any legal remedies available to ASIGRA as a result of such failure to comply, ASIGRA will have the right to seek specific performance of this Section 7.6 or other equitable relief (or the equivalent of any such relief known or designated by some other name or term) from a court of competent jurisdiction in accordance with the provisions of this Agreement. You will submit to the personal jurisdiction of any such court in an action seeking such relief.

8. Indemnity

8.1 Your Indemnity

8.1.1 You will defend, at Your expense, any and all actions and suits brought by third parties against ASIGRA resulting from: (a) a breach of any of Your warranties described in Section 5.1; or (b) any claim that any material developed by You or any Customer End-User and used by You or any Customer End-User 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 Customer and such third party), subject to the limitations and disclaimers set forth in this Section 8.1.1, 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 Customer End-User’s defense or settlement of such claim.

8.1.2 THE PROVISIONS OF THIS SECTION 8.1 STATE 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.

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. Notices

9.1 All written communications and notices with respect to this Agreement will be sent by email at client.services@asigra.com or such other address as such ASIGRA may from time to time notify in writing. Email will be deemed received on the day that they are sent. ASIGRA prohibits the use of its email address as drop-boxes for email. You will whitelist and add “@asigra.com” to Your security and archiving services and ASIGRA disclaims any responsibility for any notices that are not received by You as a result of Your failure to monitor Your spam filters or otherwise arising from failures of third parties to properly process or deliver ASIGRA’s electronic communications.

10. Dispute Resolution and Remedies

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

10.2 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 ADR Chambers. 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.

10.3 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).

11. Miscellaneous

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

11.2 This Agreement will 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 will not apply to this Agreement. Subject to Section 10, the parties irrevocably attorn to the non-exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under this Agreement.

11.3 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.

11.4 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.

11.5 The headings of paragraphs are inserted for convenience only and are not intended to be construed as part of this Agreement or to limit the scope of a particular paragraph.

11.6 Other than the Order Form signed by You as applicable and the terms referenced therein, this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written agreements (including any prior versions of this Agreement for previous versions of ASIGRA SaaSAssure), oral agreements, negotiations, and commitments, if any, relating to the subject matter of this Agreement.

11.7 Subsequent to the execution of this Agreement and without any additional consideration, You will execute and deliver or cause to be executed and delivered any further legal instruments and perform any acts which are or may become necessary to carry out the true intent and meaning of this Agreement.

11.8 You may not assign this Agreement or any of its obligations under this Agreement without the prior written permission of ASIGRA. This Agreement is binding upon and enures to the benefit of the parties and their respective successors and permitted assigns.

11.9 The parties agree that those sections which by their nature should survive termination of this Agreement will survive such termination, such sections to include, but be not limited to, Sections 1-4, 5.1- 5.7, 7, 8.1, 8.2 9-12.

11.10 Except as expressly set out herein, nothing contained in this Agreement will create or imply any agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.

11.11 The parties waive the application of any rule of law, which otherwise would be applicable in connection with the construction of this Agreement, that ambiguous or conflicting terms or provisions should be construed against the party that (or its counsel that) prepared this Agreement. ASIGRA reserves the right to amend, change, alter, substitute or otherwise modify the terms and conditions of this Agreement 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.

12. Definitions

In this Agreement all capitalized terms have the meanings set out below:

"Aggregated Statistics" means data and information related to Customer's use of ASIGRA SaaSAssure that is used by ASIGRA in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of ASIGRA SaaSAssure;
Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions mean this SaaSAssure End User License Agreement;
ASIGRA Cloud Storge” means ASIGRA’s cloud storage service, as modified from time to time;
ASIGRA Cloud Storage Vault” means the combination and integration of third-party hardware provided by ASIGRA and third party software where the Customer System Data is stored, located at ASIGRA’s secure off-site and/or on-site location under the control of ASIGRA or otherwise hosted by a third party cloud provider;
ASIGRA Intellectual Property” means the Confidential Information, and any trade secrets, copyrights, inventions, works, Trademarks, logos, designs, commercial symbols, insignia, domain names, written materials (including but not limited to User Documentation and other 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 service, as modified from time to time;
Business Information” means all financial and business information and data of You or ASIGRA and Your/ASIGRA’s respective customers, if any; products and services supplied by You or ASIGRA; and studies, charts, plans, training materials, tables and compilations of business and industry information acquired or prepared by or on behalf of You or ASIGRA;
"CP SaaSAssure Services” means the online backup, storage, and recovery services You offer to Customers using ASIGRA SaaSAssure.
CP Services Agreement” means (i) the Customer agreement to provide Customer services that incorporates ASIGRA SaaSAssure and related services to Customer End-Users as required by such Customer End-Users; or (ii) the agreement between Channel Partner and Customer that describes additional services to be performed by Channel Partner as required by Customer and its Customer End-Users, as applicable;
CP Support” means the first and second level support, as applicable, to be provided by (i) Customer to Customer End-Users internally; (ii) Customer, if Customer is a Service Provider, to Customer-End Users externally; (iii) Resellers to Customer and Customer End-Users, as applicable;
Channel Partner” means an authorized ASIGRA Reseller or Service Provider; 
Cloud Service Provider” 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;
Computer Technology” includes ASIGRA SaaSAssure and the User Documentation and means all scientific and technical information or material pertaining to any machine, appliance or process involving the use of computers or digital processors including performance and usage metrics related to ASIGRA SaaSAssure, Aggregated Statistics, specifications, proposals, models, designs, formulae, test results and reports, analyses, simulation results, tables of operating conditions, materials, components, industrial skills, operating and testing procedures, shop practices, know-how and show- how of ASIGRA;
Confidential Information” means the provisions of this Agreement and all Your information or ASIGRA’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 ASIGRA or You from time to time and that is disclosed or made available by a party to the other party under this Agreement and includes all Business Information and Computer Technology;
Customer” means, as applicable, the firm, corporation or other legal entity that (i) uses ASIGRA SaaSAssure for its own internal use and makes available such ASIGRA SaaSAssure to its own internal Customer End-Users; or (ii) is a Channel Partner of ASIGRA that makes available such ASIGRA SaaSAssure to external Customer End-Users, as applicable;
"Customer Data" means, other than Aggregated Statistics and Customer System Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer End-User through ASIGRA SaaSAssure;
Customer End-User” means, as applicable, the ultimate end-user of ASIGRA SaaSAssure, being employees and contractors of Customer;

Customer System Data” means Customer End-User data that has been processed by ASIGRA SaaSAssure and that is located in the ASIGRA Cloud Storage Vault or the Customer Vault System;
Customer Vault System” means the combination and integration of third-party hardware not provided by ASIGRA and third party software where the Customer System Data is stored, located at Customer’s secure off-site and/or on-site location under the control of Customer or otherwise hosted by a third party cloud provider;
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 contained in ASIGRA SaaSAssure;
Disclosing Party” means a party that discloses Confidential Information to a Receiving Party hereunder;
Effective Date” means the date this Agreement takes legal effect, being the date You, or Your authorized agent acting on Your behalf, clicks “I Accept”;
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;
License Fee” means those fees payable by You for the license grants of ASIGRA SaaSAssure as described hereunder; “Receiving Party” means a party that receives Confidential Information from a Disclosing Party hereunder;
Reseller” means ASIGRA’s authorized reseller of ASIGRA SaaSAssure;
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 and Support Services Plan; “Support Services Plan” means the description of ASIGRA’s Support Services and related corrective services provided by ASIGRA and its Channel Partners, as such plan may be amended by ASIGRA from time to time;
Term” has the meaning set out in Section 6.1;
Termination Date” has the meaning set out in Section 7.1;
Third Party Services” mean services owned by a legal or natural person not a party to the Agreement that ASIGRA or a Channel Partner 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 this Agreement that is contained in ASIGRA SaaSAssure; “Trademarks” means the trademarks of ASIGRA, ASIGRA SaaSAssure and the ASIGRA logo; and
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.