3.1. Opportunity Registration. Channel Partner shall submit to Company all bona fide opportunities to sell Services to a prospective Subscriber as early in the sales process as is reasonably practicable. Channel Partner shall disclose the name and location of the prospective Subscriber, the estimated scope of Services contemplated and a summary of any other pertinent details of the opportunity reasonably relevant or requested by Company. Company is under no obligation to accept any proposed opportunity and Company may reject a proposed opportunity for any reason including, without limitation, due to a channel or business conflict or a preexisting or independently pursued relationship. If accepted by Company in writing (email acceptable), then the proposed opportunity will become a registered opportunity as described in this Agreement (a “Registered Opportunity”). Notwithstanding anything in this Agreement to the contrary, Company reserves the right in its sole discretion to decline to provide Services to or for the benefit of any Subscriber that is not a Registered Opportunity.

3.2. Channel Partner Orders. Channel Partner shall place Channel Partner Orders from time to time for the Services with the Authorized Distributor, which Channel Partner Order must be approved in writing (email acceptable) by both Channel Partner and Company to be effective. Channel Partner Orders submitted by Channel Partner to the Authorized Distributor constitute Channel Partner’s commitment to procure the Services on the terms of the Channel Partner Order and this Agreement and upon their execution by the parties, become part of this Agreement. Channel Partner Orders are subject to acceptance by Company in its sole discretion and Company is not obligated to accept or countersign any Channel Partner Orders. The Authorized Distributor will promptly notify Channel Partner in writing of Company’s acceptance or rejection of a Channel Partner Order. Each Channel Partner Order shall specify (i) the identity and location of the Subscriber, (ii) the type and quantity of Services ordered, and (iii) the subscription term and start date for the Services. Each Channel Partner Order will be subject to the terms and conditions of this Agreement, including any supplemental terms and conditions set forth in Exhibit A, and any additional, inconsistent or conflicting provisions in a Channel Partner Order or other Channel Partner purchasing document or business form will not apply and are void, notwithstanding Authorized Distributor’s acknowledgment or acceptance of such Channel Partner Order.

4.1. Prices. Channel Partner’s prices to procure the Services from Company are as set forth in in Exhibit A. Company may increase the prices at any time upon ninety (90) days prior notice to Channel Partner and decrease such prices upon notice to Channel Partner. Any price changes will apply to Channel Partner Orders placed with Company after the effective date of such change.

4.2. Payments. Channel Partner shall pay all amounts as and when due under the terms of the Channel Partner Orders to the Authorized Distributor. All payments under this Agreement shall be in United States currency drawn on a United States bank. Payments are non-refundable without the express written consent of the Authorized Distributor and Company, which may be withheld by the Authorized Distributor or Company for any reason.

4.3. Taxes. Each of the parties is responsible for the payment of all taxes that may be levied or assessed upon it in connection with this Agreement. Notwithstanding the above, unless Channel Partner provides Company with a valid certificate of exemption from the applicable taxing authorities, Company will add applicable taxes to each invoice. If a party is required to withhold taxes, that party agrees to provide other party with written evidence of the withholding.

5.1. Ownership. Channel Partner acknowledges that, as between the parties, Company owns all right, title and interest in and to the Services and related documentation, including without limitation, all patents, copyrights, trade secrets and other intellectual property rights pertaining thereto. Channel Partner shall not modify, distribute (except in accordance with this Agreement), transfer, reverse engineer, decompile or disassemble the Services. Additionally, as between the parties, (i) Company owns such rights in data generated in connection with the Services as is provided in the Subscriber Contract or the Terms of Service, or both. There are no implied rights granted by Company. Channel Partner shall not alter, remove, modify, obscure, or suppress any of Company’s confidentiality legends or proprietary notices placed on or contained within the Services. References in this Agreement to sale or resale of the Services are not intended to indicate a sale of the applications or software used to provide the Services or the related intellectual property rights. Company reserves all rights not expressly granted to Channel Partner hereunder.

6.1. Each party agrees to maintain in confidence all Confidential Information of the other party. Confidential Information of Company includes the terms and conditions of this Agreement and all payment reports delivered pursuant to this Agreement. Each party, as receiving party, agrees that it shall not use the discloser’s Confidential Information other than as necessary to perform this Agreement or exercise its rights hereunder, and each party further agrees that it shall not disclose or make available the disclosing party’s Confidential Information to any person or entity, except as a necessary part of performing its obligations hereunder, including disclosures to the Authorized Distributor (and then subject to confidentiality and non-use obligations at least as protective as in this Agreement), and shall take all reasonable steps to prevent unauthorized disclosure and use of the disclosing party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons. The receiving party shall only internally disclose Confidential Information to those of its employees and consultants who need access to such Confidential Information in order to perform and effect the intent of this Agreement and who have entered into written confidentiality agreements with the receiving party under terms sufficient to enable the receiving party to comply with its confidentiality obligations under this Agreement. The receiving party shall immediately give notice to the disclosing party of any unauthorized use or disclosure of disclosing party’s Confidential Information. The disclosing party agrees to assist the other party in remedying the unauthorized use or disclosure of its Confidential Information in the receiving party’s possession or control.

6.2. Exclusions. Confidential Information does not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no breach, wrongful act, or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a direct or indirect confidential relationship with the disclosing party and that rightfully acquired such information; or (iv) is independently developed by the receiving party without reference to, or use of, the Confidential Information of the disclosing party, which independent development the receiving party will have the burden of proving. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides at least 10 business days’ prior written notice of such legally compelled disclosure obligation to the other party (except to the extent prohibited by law) so that the disclosing party has the opportunity to obtain a protective order or otherwise oppose the disclosure or seek protective treatment. The receiving party shall reasonably cooperate with any such protective efforts at the disclosing party’s request and expense.

6.3. Permitted Disclosures; Return or Destruction of Confidential Information. A party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by persons and provided that the disclosures are subject to confidentiality obligations consistent with this Agreement, (b) the party’s outside accounting firm, or (c) the party’s outside legal counsel. A party may also disclose this Agreement under seal in any litigation concerning this Agreement. Upon written request of the disclosing party, the receiving party shall promptly return to the disclosing party, or destroy, at the disclosing party’s option, all copies of the other party’s Confidential Information in the receiving party’s possession or control.

6.4. Injunctive Relief. Monetary damages will not be an adequate remedy for breach of the obligations set forth herein. In addition to all other remedies, the non-breaching party will have the right to apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other equitable relief, without the need to post bond or other security or to prove actual damages.

7.1. Grant of License. Subject to the terms and conditions set forth in this Agreement, Company hereby grants to Channel Partner a personal, non-exclusive, non-transferable, revocable, license during the Term and exercisable only within the Territory, to use the Company Marks solely to market, advertise and resell the Services in accordance with this Agreement.

7.2. Advertising and Promotional Materials. All advertising, promotional materials (including all Web pages, packaging, and displays) and catalogs and all displays and presentations that include or refer to any of the Company, the Company Marks, or the Services (collectively, “Promotional Materials”) are subject to Company’s prior written approval. Channel Partner shall submit a pre-production sample of any proposed Promotional Materials to Company for Company’s approval prior to Channel Partner’s commercial use thereof.

7.3. Ownership of Company Marks. Channel Partner acknowledges that Company is and will remain the owner of all right, title and interest in and to each of the Company Marks in any form or embodiment thereof, and is also the owner of all goodwill associated with the Company Marks, and all goodwill generated by those sales will inure exclusively to the benefit of Company.

8.1. Term. The term of this Agreement commences on the Effective Date and continues for a period of one (1) year, unless and until earlier terminated in accordance with its terms (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless and until either party provides written notice of nonrenewal to the other party at least sixty (60) days prior to the end of the then-current Intial or Renewal Term as the case may be, or unless and until earlier terminated as provided under this agreement (such period from the Effective Date until termination or expiration in accordance with this Agreement, the “Term”).

8.2. Termination for Breach. In addition to any remedies that may be provided under this Agreement, restorVault may terminate this Agreement with immediate effect upon written notice to Channel Partner, if Channel Partner: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Channel Partner’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with the material terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

8.3. Termination for Convenience. Either party may terminate this Agreement for convenience upon sixty (60) days prior written notice to the other party.

8.4. Effect of Termination. Upon any termination of this Agreement, the licenses granted under this Agreement will terminate, Channel Partner shall cease soliciting new Subscribers and shall cease marketing or reselling the Services except that, as to Channel Partner’s active subscriptions to Services as of the effective date of termination of this Agreement:

• Upon written request of Company (email acceptable), Channel Partner shall provide Company copies of the then active Subscriber Contracts;
• Company and Channel Partner shall, at Company’s election and request on a Subscriber by Subscriber basis, cooperate in good faith to promptly transition the Subscribers to become direct subscribers of Company or Company’s designee for the Services in a manner so as to minimize disruption to relations with the Subscriber. Company may directly contact and solicit Subscribers for such purpose;
• To the extent such transition process occurs following the effective date of termination of this Agreement, the terms and conditions of this Agreement will continue to apply to Channel Partner’s subscriptions hereunder for such transitioning Subscribers until transitioned as though this Agreement were not terminated;
• Company is not obligated to pursue and may at any time terminate any such transition effort as to any one or more Subscribers in Company’s sole discretion and is not obligated to continue to provide Services to non-transitioned Subscribers following the termination of this Agreement;
• As an alternative to a Subscriber transitioning through the execution of a new agreement, at Company’s written request, Channel Partner shall assign to Company (or Company’s designee) those Subscriber Contracts specified by Company and Channel Partner hereby consents to any and all such assignments without the requirement of further consent or other acts by Channel Partner;
• Company may pursue all reasonable acts, including contacting and communicating with Subscribers in furtherance of pursuing the transition of active Subscribers in accordance with this Section 8.4, whether by Company’s entry into new agreements with Subscribers, by assignment of Subscriber Contracts or otherwise including disclosing to Subscriber that Channel Partner is no longer an authorized Channel Partner of Company and that Subscriber’s Services may be interrupted in the absence of Subscriber’s transition to a direct subscriber of Company or other Company Channel Partner. Upon a transition, the Subscriber will have no further obligation to Channel Partner for subscription commitments or other obligations accruing after the effective date of the transition.

9.1. General Warranties. Each party hereby represents and warrants to the other that: (a) it has all right, power and authority to execute, deliver and perform this Agreement and to grant the rights and consummate the transactions contemplated hereby; (b) this Agreement has been duly authorized, executed and delivered by such party, constitutes the legal, valid and binding obligation of such party, and is enforceable against such party in accordance with its terms.

9.2. Warranties. Company warrants that the Services will perform substantially in accordance with their documentation as in effect from time to time as provided by the Company.

9.3. Warranty Disclaimer. Except as expressly stated in Sections 9.1 and 9.2, Services provided in connection with this Agreement are provided to Channel Partner on an ‘as is’ and ‘with all faults’ basis. COMPANY HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, AND USAGE OF TRADE. Company does not warrant that (a) the Services provided by Company will meet Channel Partner’s or any Subscriber’s needs or requirements, (b) access to the Services will be uninterrupted or error-free, (c) the Services will be always available or available at any particular time, (d) defects in the Services will be corrected, (e) all malware will be identified or (f) there will be no loss of data.

10.1. IN NO EVENT WILL RESTORVAULT BE LIABLE TO CHANNEL PARTNER OR ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT RESTORVAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10.2. IN NO EVENT WILL RESTORVAULT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO RESTORVAULT FOR THE SERVICES PROVIDED BY RESTORVAULT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE.

Channel Partner shall, at its expense, indemnify, defend, and hold harmless Company and current and past Authorized Distributors and third party Channel Partners and their respective affiliates and each of the foregoing’s employees, directors, officers, owners, and agents (each jointly and severally, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against any and all third party demands, actions, lawsuits, claims and proceedings (collectively, “Claims” and each a “Claim”) and any resulting liabilities, damages, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and expenses (collectively, “Losses”), to the extent arising from or relating to any Claims based upon: (i) the negligent acts or omissions, and/or the intentional malfeasance of Channel Partner or Channel Partner’s agents, representatives, or subcontractors, (ii) Channel Partner’s breach of this Agreement, and/or (iii) Channel Partner’s breach of one or more Subscriber Contracts. The foregoing indemnity obligation with respect to a Claim is conditioned upon the Indemnified Party promptly providing Channel Partner with written notice of the Claim (except that the Indemnified Party’s failure to promptly notify Channel Partner of a Claim will not limit, impair or otherwise affect the Indemnified Parties’ rights under this Section 11 unless Channel Partner is prejudiced by that failure, and then only to the extent of the prejudice). Channel Partner’s choice of counsel is subject to Company’s prior written approval, which will not be unreasonably withheld, conditioned, or delayed. An Indemnified Party may, at its own expense, assist in the defense if it so chooses. Any settlement intended to bind the Indemnified Party will not be final without the Indemnified Party’s written consent, which will not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Channel Partner may settle any Claim without the written consent of the Indemnified Party if that settlement includes a full and final release of all Claims and Losses against the Indemnified Parties and does not impose any obligations on the Indemnified Parties or any of them.

12.1. Survival. Sections 5, 6, 7, 8.4, 9.3, 10, 11, any payment obligations arising pursuant to the terms hereof and any other provisions which by their nature are intended to survive the termination of this Agreement, will survive the termination of this Agreement.

12.2. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other 7.jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California, in each case located in the County of San Diego, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

12.3. Assignment. Neither party may assign any of its rights under this Agreement, except with the prior written consent of the other party, which shall not be unreasonably withheld, conditioned or delayed; provided, however, Company may assign this Agreement to a successor-in-interest in the event of a merger, consolidation or sale of substantially all of its assets. Any purported assignment of rights in violation of this subsection is void.

12.4. Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain valid, legal, and enforceable.

12.5. Notices. A party giving or making any notice, request, demand or other communication (each, a “Notice”) under this Agreement shall give the Notice in writing and use one of the following methods of delivery: personal delivery, registered or certified mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier (with all fees prepaid), or facsimile or Email with confirmation of receipt (excluding confirmation via automated email reply or ‘read receipt’). Any party giving a Notice shall address the Notice to the receiving party (the “Addressee”) at the address listed on the signature page of this Agreement or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the Notice has complied with this paragraph and if the Addressee has actually received the Notice. This Section 12.5 is not intended to govern the day-to-day business communications between the parties in performing this Agreement.

12.6. Entire Agreement. Without regard to any separate confidentiality agreement in effect between the parties, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and all earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.

12.7. Waiver; Amendment. The parties may waive a breach of this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay (i) in exercising any right or remedy, or (ii) in requiring the satisfaction of any condition, (iii) under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other party. The parties may amend this Agreement only by a written agreement signed by the parties that identifies itself as an amendment to this Agreement.

12.8. Attorney’s Fees. In the event of any action arising out of this Agreement, the prevailing party shall be entitled to recover from the other party its costs, expenses and reasonable attorney's fees incurred in connection with the dispute.

12.9. Construction. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement, which shall be considered as a whole.

12.10. Relationship of the Parties. Channel Partner and Company enter into this Agreement as independent contractors, and neither Channel Partner nor Company will be or construed to be a partner, joint venturer or employee of the other. Neither party has the authority to commit, act for or on behalf of the other, or to bind the other to any obligation or liability.

12.11. Compliance with Laws. Channel Partner agrees to comply with all laws, rules, and regulations in connection with its activities under this Agreement.

12.12. Force Majeure. Neither party will be liable to the other for any failure of performance under this Agreement due to acts of God, strikes, epidemics, lockouts, or other industrial disturbances; fires, floods, storms, droughts, or weather conditions; war, riots or terrorist acts; legal interferences; or, without limitation by enumeration, any other cause beyond the reasonable control of a party, on condition that the cause occurs without the fault, negligence or involvement of that party and that the party promptly and diligently takes all action as may be necessary and practicable under the then existing circumstances to remove the cause of failure and resume performance at the earliest reasonable time and gives notice of the circumstance to the other party as soon as practicable. If any event of force majeure continues for more than 60 consecutive days, the party whose performance is not affected by the event of force majeure may terminate this Agreement upon written notice to the other party.