Last updated: November, 2018
Welcome. These Subscription Terms (“Terms”) are incorporated by reference in Your Purchase Agreement with Asigra Inc. (“ASIGRA”).
By signing the Purchase Agreement and accepting these Terms, You represent and warrant that: (i) You possess the legal right and capacity to enter into the Agreement with ASIGRA and to perform all of Your obligations thereunder; (ii) You are of legal age to enter into these Terms; (iii) You have full power and authority to execute and deliver any agreement documents and to perform all of Your obligations thereunder; (iv) if You accept on behalf of an organization, You are authorized to bind that organization, and references to "You" in these Terms expressly includes without limitation the entity You represent; and (v) You shall be fully bound by these Terms.
Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 17 (“Definitions”) below.
1. Grant of Rights
1.1 ASIGRA grants You a non-exclusive, non-transferable, limited, revocable license to use the ASIGRA Intellectual Property solely to provide Your Backup Services to Customer End-Users during the Term.
1.2 ASIGRA further grants You the right to market, offer and resell the ASIGRA Subscription to Customer End-Users during the Term.
1.3 ASIGRA retains all rights in the ASIGRA Intellectual Property not specifically granted herein to You.
1.4 ASIGRA is the authorized sublicensor of any Third Party Software that it sublicenses to You with the DS-Software. ASIGRA further grants You a non-exclusive, non-transferable, limited, revocable sublicense to use the Third Party Software solely in connection with Your Backup Services during the Term. The sublicense granted to You to use the Third Party Software in connection with Your Backup Services terminates upon the Termination Date.
1.5 The DS-Software contains Open Source Software that is licensed to You in accordance with the Open Source License provisions applicable to such licenses. ASIGRA is in compliance with the licensing requirements of any such Open Source Software as of the Effective Date.
1.6 You shall not offer, market or otherwise provide a cloud backup service using the ASIGRA Subscription to any third parties including ASIGRA Service Providers (but excluding Customer End-Users) except as described herein.
1.7 The rights and licenses granted to You are personal to You and are not transferable or assignable. You may not assign, sublicense, rent, lease, convey (whether part of an asset sale, merger, amalgamation or otherwise), encumber or transfer any component of the ASIGRA Subscription 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 and the Open Source Software, ASIGRA owns and exclusively retains all rights and title in, including without limitation, all ASIGRA Intellectual Property Rights, the ASIGRA Subscription and all future functionality and product developments if any, that are related to the ASIGRA Subscription. You obtain no right to modify, duplicate or reverse-engineer any aspect of the ASIGRA Intellectual Property or the ASIGRA Subscription except as may be permitted under an applicable Open Source License.
2.2 You will not modify, translate, decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of any DS-Software supplied hereunder, or adapt the DS-Software in any way to create a Derivative Work except as may be permitted under an applicable Open Source License. You will not, and will not authorize any third party to use, reproduce, sublicense, distribute or dispose of the DS-Software in whole or in part except as may be permitted under the applicable Open Source License.
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 the DS-Software or of the ASIGRA Intellectual Property (except as may be permitted under an applicable Open Source License), all profits and proceeds from such unauthorized activity, if any, will accrue to ASIGRA and/or the owners of the Third Party Software. ASIGRA and/or the owners of the Third Party Software will be the owner of same whether or not made in compliance with the Agreement.
2.5 If You become aware of any unauthorized decompilation or infringement of the ASIGRA Subscription by any third party (except as may be permitted under an applicable Open Source License), You will promptly alert ASIGRA of such activity and provide the identity of such third party to ASIGRA. You will provide ASIGRA with all reasonable assistance required by ASIGRA to assert its rights against such third party and to the proceeds of such unauthorized activity.
2.6 You will not at any time put into issue or contest, either directly or indirectly, the validity of the ASIGRA Intellectual Property, nor commit any act which interferes with ASIGRA’s registration of same with any local, provincial, state or federal agency.
2.7 Except as expressly provided, ASIGRA will not be liable for any of Your Backup Services, including but not limited to SP Support, or any services that may be agreed upon by means of the SP Service Agreement or any other agreement, in writing or otherwise.
3. Confidentiality and Data Protection
3.1 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 3) 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.
3.2 The obligations of confidentiality set out above do not apply to information that: (a) has otherwise become generally known or available to the public (which shall not include other ASIGRA Hybrid Partners, service providers or channel partners) without a breach of the Agreement; (b) is obtained by the Receiving Party from a third party who has no obligation of confidentiality to the Disclosing Party; (c) is independently developed or obtained by the Receiving Party without breach of the Agreement; or (d) was known to the Receiving Party before receipt thereof from the Receiving Party.
3.3 A Receiving Party may disclose Confidential Information if required by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible.
3.4 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.
3.5 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.
3.6 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 3. 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.
3.7 Each party acknowledges and agrees that: (a) the restrictions set forth in this Section 3 are reasonable in the circumstances; (b) a violation of any of the provisions of this Section 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.
4. ASIGRA Trade-marks
4.1 ASIGRA grants You a nonexclusive, non-transferable, limited, revocable right to use ASIGRA’s Trade-marks during the Term solely to (i) identify Yourself as an authorized service provider of ASIGRA products and services; and (ii) for advertising and promoting Your Backup Services under SP Agreements provided such use is in accordance with ASIGRA’s guidelines and policies which may be amended from time to time.
4.2 You recognize and acknowledge the exclusive rights and sole ownership of ASIGRA in ASIGRA’s Trade-marks and the goodwill associated therewith and You shall conduct Your business in a manner consistent with the recognition and protection of such exclusive rights. Nothing in the Agreement shall operate to grant You any right, title, or interest in the ASIGRA Trade-marks other than as specified in the limited license grant herein.
4.3 You further agree on a worldwide basis: (i) not to take any action which will interfere with any of ASIGRA’s rights in and to ASIGRA’s Trade-marks; (ii) not to challenge ASIGRA’s right, title or interest in and to the ASIGRA’s Trade-marks or the benefits therefrom; (iii) not to make any claim or take any action adverse to ASIGRA’s ownership of ASIGRA’s Trade-marks; (iv) not to register or apply for registrations, anywhere, for ASIGRA’s Trade-marks or any other mark which is similar to ASIGRA’s Trade-marks or which incorporates ASIGRA’s Trademarks; (v) not to use any mark, anywhere which is confusingly similar to ASIGRA’s Trade-marks; (vi) not to engage in any action that will tend to disparage, dilute the value of, or reflect negatively on ASIGRA products or Trade-marks; and (vii) not to misappropriate any ASIGRA Trade-marks or tradename for use as a domain name.
5.1 During the Term, You are authorized to allow Sub-Distributors to: (i) distribute Software License Agreements to Customer End-Users; and (ii) offer Your Backup Services on Your behalf, provided that all such Sub-Distributors exercise their rights pursuant to forms of agreements with Customer End-Users (“Sub-Distribution Agreements”) that materially comply with the terms and conditions of the Agreement. You shall inform ASIGRA of any material breach of the Sub-Distribution Agreement that may adversely impact ASIGRA, including any breach pertaining to ASIGRA Intellectual Property or the ASIGRA Subscription.
5.2 You guarantee the performance of Your Sub-Distributors hereunder and the compliance of each Sub-Distributor with these Terms. You shall fully indemnify and hold harmless the ASIGRA Indemnitees with respect to any damages, losses, expenses and costs incurred by the ASIGRA Indemnitees resulting from any non-compliance by any Sub-Distributor of these Terms or otherwise caused by any of Your Backup Services provided by such Sub-Distributors.
5.3 You shall ensure that the Sub-Distributors make known to Customer End-Users that notwithstanding any term of any Sub-Distribution Agreement, ASIGRA shall not be liable to any Customer End-User for any provision of Your Backup Services provided by any Sub-Distributor, including but not limited to any service levels or performance levels that may be agreed upon as between a Sub-Distributor and a Customer End-User by means of a Sub-Distribution Agreement or any other agreement, in writing or otherwise.
6. Representations and Warranties
6.1 ASIGRA covenants, represents and warrants that: (i) to its knowledge, information and belief, after having taken commercially reasonable precautions, the DS-Software does not contain any software code that will disable the DS-Software, such as computer viruses, back doors, Trojan horses and the like, and ASIGRA will not insert such disabling code in the DS-Software at any time; and (ii) ASIGRA has all rights to grant the rights and licenses hereunder.
6.2 You covenant, represent and warrant to ASIGRA that You will access and use the ASIGRA Subscription in accordance with applicable laws and in such manner as not to violate or infringe any copyright, trade-mark, confidential information or trade secret of any other person.
7. Limitation of Liability; Disclaimers
7.1 THE REPRESENTATIONS AND WARRANTIES IN SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF THE ASIGRA SUBSCRIPTION PROVIDED BY ASIGRA WILL BE ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE ASIGRA INDEMNITEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THESE WARRANTIES AND YOU MAY NOT RELY ON SUCH INFORMATION OR ADVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND CONDITIONS SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7.2 NO ASIGRA INDEMNITEE NOR THE OWNERS OF ANY THIRD PARTY SOFTWARE MAKES ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY YOU OR CUSTOMER END-USERS FROM USE OF THE ASIGRA SUBSCRIPTION OR SP SUPPORT GENERALLY ON ANY THIRD PARTY HARDWARE, COMPUTER EQUIPMENT AND OTHER SOFTWARE. NO ASIGRA INDEMNITEE WARRANTS PROPER OPERATION OF THE HARDWARE AND COMMUNICATIONS SOFTWARE AND HARDWARE UTILIZED BY YOU OR THE CUSTOMER END-USERS. EACH ASIGRA INDEMNITEE EXPLICITLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING OUT OF A COURSE OF DEALING OTHERWISE (INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE) IN RESPECT OF SUCH THIRD PARTY HARDWARE, COMPUTER EQUIPMENT AND OTHER SOFTWARE. THE ABOVE DISCLAIMER ALSO APPLIES TO DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, MISDELIVERY OR NON-DELIVERY OR DESTRUCTION THAT YOU OR A CUSTOMER END-USER MAY EXPERIENCE AS A RESULT USING THE ASIGRA SUBSCRIPTION.
7.3 IN NO EVENT WILL ANY ASIGRA INDEMNITEE OR THE OWNERS OF ANY THIRD PARTY SOFTWARE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR EXPENSES OF ANY TYPE (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, LOST BUSINESS OR LOST SAVINGS) ARISING OUT OF THE AGREEMENT, WHETHER SUCH DAMAGES OR EXPENSES ARISE OUT OF BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH), OR TORT OR ON ANY OTHER STATUTORY OR COMMON LAW BASIS, EVEN IF ANY ASIGRA INDEMNITEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4 IN NO EVENT WILL THE AGGREGATE LIABILITY THAT THE ASIGRA INDEMNITEES MAY COLLECTIVELY INCUR IN ANY ACTION OR PROCEEDING PURSUANT TO THE AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY YOU DURING THE THREE (3) MONTH PERIOD PRIOR TO THE TIME THAT THE CAUSE OF ACTION AROSE OR ONE HUNDRED THOUSAND DOLLARS ($100,000), WHICHEVER IS LESS. THIS SECTION WILL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.
7.5 YOU ACCEPT THIS DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF A BARGAIN TO LOWER THE PRICE OF THE ASIGRA SUBSCRIPTION AND UNDERSTAND THAT THE PRICE OF THE ASIGRA SUBSCRIPTION WOULD BE HIGHER IF ASIGRA WERE REQUIRED TO BEAR ADDITIONAL LIABILITY FOR DAMAGES.
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 any of ASIGRA’s warranties 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 the ASIGRA Subscription or any support services (including SP Support) not provided by ASIGRA; (ii) Your failure to promptly install an upgrade or any enhancement that would have eliminated any actual or alleged infringement after ASIGRA has given notice to You that such upgrade or enhancement is available; (iii) Your failure to use the latest version of the DS-Software after ASIGRA has notified You that such latest version of the DS-Software is available; (iv) such claim arises from Third Party Software or Open Source Software unless such claim arises from ASIGRA’s failure to comply with the licensing requirements of any Third Party Software or Open Source Software made available to You; or (v) the combination by You of the ASIGRA Subscription with other items and hardware not provided by ASIGRA, but only if the claim would not have arisen from use of the ASIGRA Subscription alone.
c. If any part of the ASIGRA Subscription is, in ASIGRA’s opinion, likely to become the subject of a suit, action or claim, ASIGRA, at its option and at no expense to You, shall: (i) obtain for You from all persons who claim an interest in the ASIGRA Subscription, the right to continue to allow You to use the ASIGRA Subscription as contemplated by the Agreement; or (ii) substitute, as determined by ASIGRA acting reasonably, a non-infringing functionally equivalent substation for the ASIGRA Subscription, subject to the limitations contained in Section 8.1(b) above.
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 Your Indemnity
a. You will defend, at Your expense, any and all actions and suits brought by third parties against the ASIGRA Indemnitees resulting from a breach of any of Your warranties described in Section 6.2; or (b) any claim that any of Your Backup Services or other materials 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 8.2, 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.
b. SECTION 8.2 STATES YOUR EXCLUSIVE LIABILITY AND THE EXCLUSIVE REMEDY OF ASIGRA WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE-MARK, INDUSTRIAL DESIGN OR TRADE SECRET INFRINGEMENT.
8.3 No action arising hereunder whether in contract or in tort may be brought more than two (2) years after the cause of action is discovered or should reasonably have been discovered.
9. Payments to ASIGRA - General
9.1 You shall pay to ASIGRA the Fees described in the Purchase Agreement.
9.2 The Total Initial Software Base Price described in the Summary section of the Purchase Agreement constitutes Your base payment commitment for the ASIGRA Subscription on the Effective Date during the Initial Term (“Initial Base Software Payment”). You may choose to purchase additional software licenses during the Initial Term and the Fees for such additional software licenses will be added to the Initial Base Software Payment automatically billed to Your credit card or invoiced to You using a standing purchase order number provided by You. You may also choose to purchase additional ASIGRA products and services, including hardware and training payable on a one-time basis, and such Fees will be automatically billed to Your credit card or invoiced to You using a standing purchase order number provided by You. You may decrease the number of software licenses that You purchase during the Initial Term. However, at no time during the Initial Term will Your monthly payment to ASIGRA decrease below the Initial Base Software Payment.
9.3 Unless otherwise agreed by the parties prior to a Renewal Term, the applicable base software payment for Your ASIGRA Subscription during a Renewal Term (each, the “Renewal Base Software Payment”) will be the same as the last invoice of Your Initial Base Software Payment or prior Renewal Base Software Payment, as applicable, at the time of renewal. At no time during any Renewal Term will Your monthly payment to ASIGRA decrease below Your applicable Renewal Base Software Payment.
9.4 All Fees will be billed automatically on a monthly basis in arrears to Your previously provided credit card or invoiced to You using a standing purchase order number provided by You. 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.
9.5 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.
9.6 ASIGRA may revise the Fees described in the Purchase Agreement 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.
10. The ASIGRA Subscription Commitment and Minimum Term
10.1 The Agreement will take effect on the Effective Date and will continue unless terminated as described below.
10.2 The ASIGRA Subscription requires a minimum subscription commitment period beginning on the Effective Date and continuing for the period specified in the Initial Term. You acknowledge and agree that You are purchasing the ASIGRA Subscription for at least the full Initial Term and any subsequent Renewal Terms, as applicable.
11. Automatic Renewal
11.1 The Agreement shall automatically renew for successive Renewal Terms unless a party delivers written notice of the termination to the other party at least ninety (90) days 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 the Agreement and the ASIGRA Subscription shall terminate on the last day of such Initial Term or Renewal Term (the “Termination Date”).
12. Termination by You
12.1 You may terminate the Agreement for convenience upon written notice to ASIGRA at any time within the first thirty (30) days of the Initial Term, in which event You shall not owe any additional Fees and shall be entitled to a pro-rata refund of any pre-paid and unused Fees.
12.2 Except as otherwise set forth in the Agreement, if You terminate the Agreement on or after the thirty-first (31st) day but before expiration of the Initial or then-current Renewal Term, You will owe ASIGRA all outstanding and accrued Fees for the ASIGRA Subscription and as otherwise set out in the Purchase Agreement, including all one-time Fees and the applicable Initial Base Software Payment or Renewal Base Software Payment for the remainder of the Initial Term or then-current Renewal Term as described in Section 10.2 above. You agree to pay all such amounts and authorize ASIGRA to charge Your credit card or invoice You, using a standing purchase order number provided by You, as applicable, for all such amounts and You agree not to dispute such amounts. 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.
13. Termination by ASIGRA
13.1 ASIGRA will have the right to terminate the Agreement in the event of an occurrence of a material breach of any of Your obligations as set forth in the Agreement that is not remedied within fourteen (14) days of receipt of written notice thereof. A material breach of the Agreement will include, but not be limited to the following: You fail to make payments when due, breach any of Your obligations described in Sections 1- 3 and 5, develop software that is directly competitive with the ASIGRA Subscription 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 Software Payment or Renewal Base Software Payment for the remainder of the Initial Term or then-current Renewal Term as described in Section 10.2 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.
13.2 ASIGRA shall terminate the Agreement, effective immediately upon written notice, if all or a substantial portion of Your assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy; a proceeding is commenced by or against You for relief under bankruptcy, insolvency or similar laws and such proceeding is not dismissed within thirty (30) days; or You are adjudged bankrupt or insolvent. Termination of the Agreement by ASIGRA pursuant to and in accordance with this Section shall not relieve You of Your obligation to pay Your outstanding Fees including all one-time Fees and the applicable Initial Base Software Payment or Renewal Base Software Payment for the remainder of the Initial Term or then-current Renewal Term as described in Section 10.2 above.
13.3 Additionally, ASIGRA may terminate the Agreement 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 13.3 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 Software Payment or Renewal Base Software Payment due and owing as at the effective date of termination.
14. Duties Upon Termination/Expiration
14.1 On the Termination Date, all of Your rights as a Service Provider shall terminate immediately. You shall immediately cease and shall cause Your Sub-Distributors to immediately cease: (i) use of the ASIGRA Intellectual Property; (ii) selling or promoting Your Backup Services to prospective Customer End-Users; and (iii) use of the DS-Software.
14.2 Within fifteen (15) days of the Termination Date, You shall and shall cause Your Sub-Distributors to destroy all promotional and advertising materials related to ASIGRA Subscription in Your (and their) possession or control, regardless of format or containing medium. You shall also certify in writing by way of an officer’s certificate attesting to the delivery, erasure and/or destruction of the promotional and advertising materials referenced above by the You and Sub-Distributors, in a form satisfactory to ASIGRA, acting reasonably.
14.3 You shall promptly expunge all Confidential Information of ASIGRA from Your own computer system or storage media in Your control or possession and shall cause Your Sub-Distributors to do the same. You shall be entitled to retain an original copy of the Agreement as it may be amended, and any ancillary agreements. ASIGRA shall expunge all Confidential Information of Yours from its own computer system or storage media in its control or possession.
14.4 You shall pay all Fees and associated costs, taxes and expenses that are due and payable pursuant to Sections 12.2, 13.1 and 13.2.
14.5 Your failure to comply with the terms of this Section 14 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 14 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.
15. Dispute Resolution and Remedies
15.1 You and Asigra agree to resolve any and all disputes, disagreements or differences between the parties relating to this Agreement using the process described below.
15.2 You and ASIGRA agree to first attempt to settle any and all disputes, disagreements or differences relating to our business relationship through a mediation(“Mediation”).
15.3 If the Mediation does not achieve a resolution of all issues which are governed by this Agreement, then You and ASIGRA will proceed to arbitration (“Arbitration”) according to the process described below.
15.4 Mediation shall be initiated by any party wishing to mediate by serving a Notice to Mediate which describes the issue(s)needing to be mediated.
15.5 Any party to the Mediation can select a mediator who is registered as a mediator with ADR Chambers. The first such proposed mediator shall be selected to conduct the Mediation.
15.6 Mediation shall take place within thirty (30) days of the delivery of the Notice to Mediate.
15.7 You and ASIGRA will exchange Mediation Briefs (which will include a brief description of the dispute, disagreement or difference to be mediated and a summary of the relief claimed) no less than ten (10) days prior to a scheduled Mediation. A copy of the Mediation Briefs shall also be provided to the mediator seven (7) days prior to the scheduled Mediation.
15.8 Any Mediation that is to take place will be conducted in Toronto, Ontario, Canada in English. The parties will equally share the costs of the mediator.
15.9 If Mediation is unsuccessful, any and all remaining disputes, disagreements or differences between the parties relating to their business relationship with each other, including any dispute, disagreement or difference relating to the validity, enforceability or applicability of this agreement to arbitrate, shall be submitted to final and binding Arbitration. No appeal lies to any court on any question of fact, law or mixed fact and law. The Arbitration shall be commenced by You or ASIGRA delivering to the other party a Notice to Arbitrate which shall set out a brief description of the dispute, disagreement or difference to be arbitrated and a summary of the relief claimed.
15.10 Any party to the Arbitration can select an arbitrator who is registered as an arbitrator with ADR Chambers. The first such proposed arbitrator shall be selected to conduct the Arbitration.
15.11 The Arbitration shall be conducted in accordance with the Arbitration Act, 1991, SO 1991, c. 17. The Arbitration rules and procedures shall be as agreed between You and ASIGRA. If the parties fail to reach agreement as to the rules and procedures to be followed in the Arbitration within fourteen (14) days of the appointment of the arbitrator, any party may apply to the arbitrator for a determination of the rules and procedures to be applied in the Arbitration.
15.12 The arbitrator shall have authority to determine the Arbitration process. Where a dispute involves a quantum of damages below $40,000.00 USD, the arbitration process shall not include examinations in advance of the Arbitration.
15.13 The Arbitration shall be conducted in Toronto, Ontario, Canada in English.
15.14 You and ASIGRA agree that all matters relating to the Arbitration shall remain confidential.
15.15 The parties to the Arbitration shall jointly pay and be responsible for the costs of the Arbitration. However, the arbitrator may make an award of costs upon the conclusion of the Arbitration making a party(ies) to the Arbitration liable to pay the costs of the other party(ies).
16.1 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.
16.2 Neither party shall be liable for any delay in delivery or delay in the performance of other acts required hereunder, when solely resulting from causes beyond their respective control. Such causes shall include, but not be limited to, acts of God, acts of government, wars, revolutions, civil disturbances, strikes, floods, fire, perils of the sea, or other interruption of transportation or telecommunications. Notice to this effect shall be given in writing to the other party.
16.3 None of the terms or conditions of the Agreement may be amended except in writing duly signed by an officer of both ASIGRA and You, as authorized by their respective articles or bylaws.
16.4 If any section, sentence, paragraph or part of the Agreement is held by any court of competent jurisdiction to be invalid, illegal or unenforceable, such judgment will not affect or nullify the remaining provisions of the Agreement.
16.5 The Agreement shall be governed by and interpreted in accordance with the laws of the province of Ontario, Canada and the federal laws of Canada applicable therein, excluding any conflicts of laws rules. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement. Subject to Section 15, the parties irrevocably attorn to the non-exclusive jurisdiction of the courts of Toronto, Ontario in respect of any disputes arising under the Agreement.
16.6 The English language version of the Agreement shall be the controlling version.
16.7 No failure or delay by either party in exercising any right, power or privilege hereunder will operate as a waiver, nor will any single or partial exercise preclude further exercise thereof of any right, power or privilege.
16.8 The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written agreements, any oral agreements, negotiations, and commitments, if any, relating to the subject matter of the Agreement.
16.9 Except as otherwise provided herein, the parties agree that those sections which by their very nature should survive termination of the Agreement shall survive such termination, such sections to include, but be not limited to, Sections 1, 2, 3, 5.2, 7, 8.3, 9.1-9.5, 10.2, 12.2, 13-17.
16.10 You are solely responsible for the management of Your data back-up, data recovery, and disaster recovery measures. ASIGRA shall not be liable for any of Your internal processes, procedures, or requirements to insure the protection, loss, confidentiality, or security of Your or any Customer End-Users’ data or information.
16.11 Nothing contained in the Agreement shall create or imply any agency relationship between the parties, nor shall the Agreement be deemed to constitute a joint venture or partnership between the parties. Each party specifically disclaims any intent to create through the Agreement the relationship of franchisor or franchisee.
16.12 The parties waive the application of any rule of law, which otherwise would be applicable in connection with the construction of the Agreement, that ambiguous or conflicting terms or provisions should be construed against the party who (or whose counsel) prepared the Agreement.
All capitalized terms used in these Terms shall be defined in accordance with the following definitions unless otherwise defined herein.
“Agreement”, “hereto”, “hereof”, “herein”, “hereby”, “hereunder” and similar expressions mean the Purchase Agreement, together with these Terms, as they may be amended from time to time.
“ASIGRA Indemnitees” means ASIGRA, its directors, officers, employees, contractors and agents.
“ASIGRA Intellectual Property” means any trade secrets, copyrights, inventions, works, Trade-marks, logos, designs, commercial symbols, insignia, domain names, materials (including but not limited to user documentation, books, pamphlets, manuals, questionnaires, checklists, bulletins, bulletins, business processes and best practices, presentation templates, training materials, memoranda, videos, tapes, charts, letters, notices or other publications or documents prepared by ASIGRA as may be modified from time to time), processes, analyses, simulation results, techniques, shop practices, know-how and show-how developed, owned, or provided by ASIGRA in connection with the ASIGRA Subscription.
“ASIGRA Subscription” means ASIGRA’s proprietary backup/restore data storage management solution, including the DS-Software and Maintenance and Support Services, as the same may be modified from time to time.
“Business Information” means all financial and business information and data of a party and its respective customers; products and services supplied by a party; business and marketing plans and strategies of a party; and studies, customer lists, charts, plans, training materials, tables and compilations of business and industry information acquired or prepared by a party or on its behalf.
“Confidential Information” means the provisions of the Agreement and all of party’s information contained in any form whatsoever that is not generally available to or used by third parties, that is acquired or developed by or on behalf of a party from time to time and that is disclosed or made available by a party to the other party under the Agreement and for ASIGRA includes all Business Information and the ASIGRA Intellectual Property, excluding Trade-marks.
“Customer End-User” means, as applicable, the ultimate end-user of the ASIGRA Subscription, being (i) employees and contractors of Yours; or (ii) Your customers (including Your customers’ employees and contractors) or Sub-Distributors that are authorized to use the DS-Software by means of the Software 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 the ASIGRA Subscription.
“Disclosing Party” means a party that discloses Confidential Information to a Receiving Party hereunder.
“DS-Software” means, collectively, all proprietary software developed by ASIGRA for use with the ASIGRA Subscription as may be upgraded by ASIGRA from time to time and includes the Third Party Software and the Open Source Software contained therein.
“Effective Date” means the date the Agreement takes legal effect, being the date You sign the Purchase Agreement.
“Fees” means the fees for the ASIGRA products and services that You acquire as described in the Purchase Agreement.
“Initial Base Software Payment” has the meaning set out in Section 9.2.
“Initial Term” means the period of time specified in the Purchase Agreement commencing upon the Effective Date.
“Maintenance and Support Services” means those bug fixes, patches and updates to the latest version of DS-Software provided by ASIGRA and the web, telephone and email support available to You as further described in ASIGRA’s Maintenance and Support Services Plan.
“Maintenance and Support Services Plan” means the description of ASIGRA’s Maintenance and Support Services as such plan may be amended from time to time.
“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative at http:// opensource.org/) or the Free Software Foundation Definition (as promulgated by the Free Software Foundation at http://www.fsf.org/).
“Open Source Software” means any software subject to an Open Source License contained in the DS-Software.
“Purchase Agreement” means the 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 Software Payment” has the meaning set out in Section 9.3.
“Renewal Term” means consecutive periods of twelve (12) months following the Initial Term.
“Software License Agreement” means the clickwrap license agreement between ASIGRA and a Customer End-User that authorizes Customer End-Users to obtain and use the DS-Software directly from ASIGRA.
“SP Service Agreement” means the form of services agreement used by You to provide Your Backup Services and other services to Customer End-Users.
“SP Support” means the first and second level maintenance and support to be provided by You to Customer End-Users in connection with Your Backup Services.
“Sub-Distributor” means any third party that has been granted the right by You to sub-distribute the DS-Software through the Software License Agreement and to promote, market and resell the ASIGRA Subscription and Your Backup Services to Customer End-Users on the terms and conditions described herein.
“Term” means the Initial Term and all Renewal Terms.
“Termination Date” has the meaning set out in Section 11.1.
“Third Party Software” means software owned by a legal or natural person not a party to the Agreement (other than Open Source Software) that is contained in the DS-Software.
“Trade-marks” means the trade-marks of ASIGRA, namely ASIGRA Cloud Backup, DS-Client Software, DS-System Software and the ASIGRA logo.
“You”, “Your” means the authorized service provider of ASIGRA that uses the ASIGRA Subscription for Your own benefit and makes available Your Backup Services to Customer End-Users (including any third party installing any of the DS-Software on Your behalf) pursuant to the Agreement.
“Your Backup Services” means the online backup, storage, and recovery services You offer to Customer End-Users using the ASIGRA Subscription.