PARTNERSHIP REFERRAL / RESELLER AGREEMENT

Transcription

1 PARTNERSHIP REFERRAL / RESELLER AGREEMENT This Agreement (the "Agreement") is made by and between TRESORIT AG, of Switzerland ( TRESORIT") and a company located (the RESELLER ). Each hereinafter referred to as a "Party" and collectively the Parties." WHEREAS TRESORIT is a Swiss IT security company that provides encrypted cloud storage solution worldwide, and WHEREAS the RESELLER is a ; WHEREAS the Scope of the partnership is for the RESELLER to promote TRESORIT and its business packages among its customers, and offers TRESORIT application to them. NOW THEREFORE the Parties hereby agree as follows: 1. Definitions and Interpretation 1.1. Capitalized terms used in this Agreement shall have the following meaning: (a) Agreement means present Agreement, as may be amended from time to time in accordance with its terms. (b) Advanced Purchase means when the RESELLER pays for the TRESORIT subscription prior to its implementation with a User. (c) Day means calendar day. (d) Euro or EUR means the single currency of member states of the European Union participating in the European Monetary Union. (e) TRESORIT Application includes any commercially available application developed and supported by TRESORIT. (f) TRESORIT Premium Package means the commercially available TRESORIT Premium service provided only by TRESORIT, as defined at the TRESORIT website throughout the term of this agreement. (g) TRESORIT for Business Package means the commercially available TRESORIT for Business service provided only by TRESORIT, as defined at the TRESORIT website throughout the term of this agreement. (h) TRESORIT Free Package means the free service provided only by TRESORIT, as defined at the TRESORIT website throughout the term of this agreement. (i) Tracking Code means any code that TRESORIT may issue to the RESELLER of this Agreement in order to track business activities and to assure accurate and timely payment of commission, and for other purposes, such as promotions or special bonus programs. (j) Terms of Service All-time Term of Service, or Term of Use of the TRESORIT Application. (k) Privacy Policy All-time Privacy Policy of the TRESORIT Application. (l) Personal Identifiable Information or PII is any information that could identify or contain information that could lead to the identification of an individual person, a business account or other entities. (m) User Any user of any TRESORIT Application. (n) (o) (p) Marked User A User identified by and sold to by the RESELLER. Monthly Recurring Revenue (MRR) means the sum of the subscription fee of the TRESORIT Application paid by the Marked Users in a calendar month or one- twelfth (1/12th) of the yearly subscription fee of the TRESORIT Application paid by the Marked Users in the same calendar month. Force Majeure means any circumstance that (i) is not within the reasonable control of the Parties, and (ii) is not due to the deliberate act, default or negligence of the Parties, and (iii) causes damage to or destruction of the business or part of it or adversely affects the performance by any of the Parties of their obligations under this Agreement; including but not limited to fire, storm, tempest, flood and other extreme adverse weather conditions, war, hostilities, rebellion, insurrection, military or usurped power, civil war, terrorist action or any other similar cause or circumstance or strike, riot, commotion, disorder. For the avoidance of doubt the Parties agree that the voluntary dissolution, insolvency, liquidation or bankruptcy of any of the Parties, furthermore the changes of the commercial environment shall not be considered as Force Majeure. 2. Subject of the Agreement RESELLER offers TRESORIT Application to its customers, and promotes the TRESORIT for Business service among its customers, subject to and under the terms and conditions of this Agreement. 1

2 3. Obligation of the RESELLER RESELLER shall promote TRESORIT and its application to prospective business users and shall try to motivate its users to install or upgrade to TRESORIT Business. The RESELLER shall not promote TRESORIT Application as its own service. The RESELLERs sales activities are to be restricted to the following geographic areas and/or market segments: Geography: Market Segments (if any) 4. Use of TRESORIT Application by RESELLER RESELLER shall work with Users to assist them in installing and running TRESORIT. RESELLER shall not host or provide TRESORIT application on its own, it shall always redirect the Users to the standard place of distribution: Mac OSX and Windows Desktop version to TRESORIT website, Android to Google Play or ios version to Apple AppStore. RESELLER shall not modify the TRESORIT Application, and shall not try to gain access to user data or personal information, and it is strictly prohibited to monitor any user activity related to TRESORIT Application. Any activity which endangers the privacy of TRESORIT Users, which may include but is not limited to the Trusted Downloads Program Requirements of TRUSTe ( is prohibited by the RESELLER Forecast RESELLER is required to provide TRESORIT a forecast, at minimum on a monthly basis, of its prospective sales opportunities, and to identify the specific company and/or individuals that it is expecting to conclude a sale of the TRESORIT Application with. Unless already being worked by TRESORIT, the RESELLER shall maintain its interaction with the identified prospects until closed. If there is no activity for 6 months or more the RESELLER shall forfeit its right to the prospect. Should TRESORIT already be working the identified prospect, RESELLER will be notified and the identified prospect will be removed from the RESELLER s forecast. 4.2 Other obligations RESELLER agrees that the TRESORIT Application is distributed under the TRESORIT s general Terms of Service and Privacy Policy. RESELLER acknowledges that Users can use any TRESORIT Application only by accepting TRESORIT s Terms of Service and Privacy Policy. RESELLER shall make an effort to limit the TRESORIT Application distribution to embargoed countries, Cuba, Iran, North Korea, Sudan, Syria and persons or entities prohibited to receive TRESORIT service, as regulated in TRESORIT s Terms of Service. TRESORIT is entitled to deny the use of its TRESORIT Applications from the persons or entities prohibited by its Terms of Services. 5. Obligation of TRESORIT 5.1 Submit of TRESORIT Application For purposes of installation for Users identified by RESELLER, TRESORIT shall provide the free version of the TRESORIT Application on its website for download. Currently the Basic (free) Package contains 5 GB (gigabytes) encrypted storage. 5.2 The TRESORIT Application TRESORIT shall provide an up-to-date application. Additionally, the RESELLER hereby represents and warrants that prior to the execution of this Agreement, RESELLER has inspected the TRESORIT Application and that the TRESORIT Application is in compliance with the expectations of the RESELLER. 2

3 6. Purchase and Payment for TRESORIT for Business application services: a) RESELLER discount pertains only to the TRESORIT for Business subscription service. RESELLER should receive 25% discount off TRESORIT s then current List Price for a Business subscription. b) Events for receiving a discount during the Term of this Agreement. RESELLER provides the address(es) for the Business user(s) who want to purchase a TRESORIT for Business account. Our preference is that RESELLER uses a secure folder (tresor) for sharing the addresses, however, notification via is acceptable. Via normal credit card payment through the Tresorit website, RESELLER executes purchase of one or more TRESORIT for Business subscriptions, using the address provided to TRESORIT. RESELLER agrees to enforce TRESORIT s Terms and Conditions of Use. The average storage per user may not exceed 100 GB. c) Discount is based solely on TRESORIT s then published Price List, excluding any collected VAT or sales tax. d) TRESORIT will use reasonable commercial efforts to track the activity of the RESELLER, but RESELLER understands that in rare cases it may not be reasonably possible to track a user (for example, application is deleted and re-installed by the user from TRESORIT website, without any tracking code) e) The discount terms and percentages may change at any time pending thirty (30) day prior notification to RESELLER. 7. Privacy Of Users 7.1 Other than to TRESORIT, RESELLER shall not disclose any data about its Users or Personal Identifiable Information (PII). TRESORIT is not obligated to disclose any data about its Users, even if the User is a Marked User, except for the aggregated information below. TRESORIT may provide a reference to other prospective Users in its territory. All other details regarding Users shall be held confidential. TRESORIT is only obligated to disclose the aggregated statistics of the distribution process for discount calculation purposes, namely: 8. Audit number of Marked Users number of Marked Users, who upgraded to TRESORIT for Business aggregated discounts of all Marked Users. RESELLER can use Marked Users as reference with the Marked Users prior written consent. 8.1 TRESORIT, using its own employees or an authorized partners, has the right to review, test, audit and monitor RESELLER practices (Audit) for compliance with this Agreement, and any certification program TRESORIT is involved in. During Audit, TRESORIT is responsible for its expenses. 9. Confidentiality 9.1 Unless specifically permitted in this Agreement, with the exception of any disclosure that may be required for the performance of this Agreement and purposes of legal enforcement of their respective rights under this Agreement, the Parties, their employees, representatives and agents shall keep, and the Parties shall cause their respective employees, representatives and agents and their associated companies and such associated companies' employees, representatives and agents to keep the provisions of this Agreement, and all commercial terms between the Parties of this Agreement and with respect to all Users, strictly confidential and, except as may be required by Swiss law, or any other laws or regulations to which the said persons are subject, or the rules of any securities exchange to which the said persons are subject, shall make no disclosure thereof to any person, except the Parties' group 3

4 companies, respective legal counsel and accounting and other professional advisors, without the prior written consent of the other Party. 9.2 All details of present Agreement, Partnership Referral / Reseller Agreement, including this Agreement, are confidential, especially any Personal Identifiable Information (PII) or any User related data provided by TRESORIT the amount of the discount and the method of calculating it any statistics provided by TRESORIT related to its Users. 9.3 Present provisions will continue to be effective after the termination of this Agreement. Upon termination of this Agreement, Parties will return to the other Party all records, notes, documentation and other items that were used, created, or controlled by Parties during the term of this Agreement. Parties undertakes to treat as business secrets any material they became aware of from the other Party, the business partners thereof, if such material has been classified as confidential or which is, based on its nature, confidential. The Parties stipulate that confidential information in the course of the interpretation of this agreement (hereinafter as Confidential Information ) shall comprise: (i) Data and information related to TRESORIT or the RESELLER, their activities and their clients, including but not limited to the business or financial situation, persons, employees, business partners, direct or indirect members (owners), affiliates and the clients of such; also business and technical solutions, procedures applied by TRESORIT or the RESELLER, software, know-how and other intellectual property owned and applied by TRESORIT or the RESELLER, regardless of their registration as patent, trademark or them being in any way legally protected; or their capacity of being under such protection; having become known to TRESORIT or the RESELLER in verbal or in written form, from TRESORIT or the RESELLER or via other electronic means, regardless of the fact that the confidential nature of the information is denoted or indicated in any way. (ii) The obligations set out in Sections above shall survive the termination of the present contract. Parties shall remain bound by such obligations and the consequences of its breach shall apply without time limitation until the Confidential Information legitimately become publicly known in Switzerland or worldwide. TRESORIT or the RESELLER acknowledges that communication of any fact or data, whether verbal or written to unauthorised third parties, or making such available shall be deemed disclosure. TRESORIT or the RESELLER shall be liable for any damages caused by the breach of his obligation set out herein to the other party. 10. Using of Logos and Brand 10.1 Parties agree that in the course of performance of the present agreement Parties may use the other party s logos and brand subject to these restrictions: a) Any use, publication or disclosure of TRESORIT s name, logo, or any brand material inclusive the promotion of TRESORIT Application - shall correspond with TRESORIT s written consent and marketing instructions. b) The RESELLER shall be liable for any damages caused by the breach of present section set out herein to the other party. c) Any use of RESELLER s logo, or any brand material shall correspond with RESELLER s marketing instructions. 4

5 11. Term of The Agreement a) The Parties agree that the commencement date of the Agreement shall be the date this Agreement is signed by both Parties. b) This Agreement shall have an initial term of twelve (12) months from the TRESORIT signature Date given below. c) The Parties may extend the term of present Agreement, by mutual written consent, for subsequent twelve (12) month periods. In all other issues the provisions of this Agreement shall, mutatis mutandis, apply to the extended period. 12. TERMINATION OF THE AGREEMENT 12.1 This Agreement shall terminate 12 months after the signature Date, unless that it is renewed according to the provisions stated above The Parties shall be entitled to terminate the Agreement with thirty (30) days prior notice ( Ordinary Termination ) The Parties shall be entitled to terminate the Agreement in the event of material breach of the other party ( Extraordinary Termination ). In the event of breach the Party shall give a written notice to the Breaching Party to remedy the breach. If the Breaching Party fails to remedy the breach within eight (8) business days from receipt of the notice, the other Party may, within eight (8) business days terminate the Agreement and claim compensation for its damages. 13. BREACH OF THE AGREEMENT 13.1 Breach by the RESELLER Any of the following events shall be considered a material breach of this Agreement by the RESELLER: (a) (b) (c) (d) (e) (f) The RESELLER fails to maintain a conversion rate from the free TRESORIT app to a Pro or Business account at or above a two (2) percent conversion rate as stipulated above, misuse of the TRESORIT s name, logos or brand, the Court of Registration issues an order for the RESELLER to be officially deleted from the company registry, irrespective of its binding nature or enforceability; the RESELLER files or the RESELLER s creditors file a petition for bankruptcy against the RESELLER the RESELLER materially breaches any of its obligations regarding by law or this Agreement. the RESELLER does not handle PII or confidential information on a proper way Breach by the TRESORIT Any of the following events shall be considered a material breach of this Agreement by the TRESORIT: (a) (b) (c) if TRESORIT files or the TRESORIT s creditors file a petition for bankruptcy against the TRESORIT; if Court of Registration issues an order for TRESORIT to be officially deleted from the company registry, irrespective of its binding nature and enforceability; TRESORIT materially breaches any of its obligations regarding by law or this Agreement. 14. Indemnification 14.1 In the case of extraordinary termination of this Agreement the Breaching Party: (i) shall indemnify, defend, and hold harmless the other Party and its employees, affiliates, contractors, and agents from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, without limitation, reasonable attorneys fees) arising from or related to: Any breach of present Agreement by the indemnifying Party Any fraud or manipulation by the indemnifying Party 5

6 (ii) Any claims for infringement of any third party rights arising from or related to the indemnifying Party shall be liable for any damages inclusive profit lost - caused by the breach of present Agreement set out herein to the other party. Both Parties will reasonably notify the other Party of any such claim or demand that it is subject to the indemnifying Party obligation. 15. Notices Any notice required or permitted by this Agreement shall be in writing and shall be delivered via to the other Party and confirmed by the receiving Party The Parties agree that all notices to be given hereunder shall be considered to have been delivered if sent via or fax For the purposes of this Agreement, the addresses of the Parties are as follows (unless they give notice to the other of the change in address in accordance with this Article 14.): (a) (b) RESELLER Contact person: TRESORIT fred.eberlein@tresorit.com Contact person: Fred Eberlein 16. Dispute Resolution The Parties agree that they shall attempt to settle all disputes arising from or in connection with this Agreement amicably if possible. Should they not succeed in concluding a written agreement within thirty (30) Days from the commencement of the dispute in question, the Parties shall submit their dispute to the Arbitration Court of Zurich, Switzerland (the Arbitration Court ). The dispute shall be decided by a panel of three arbitrators. The language of the arbitration shall be English. Any decision of the Arbitration Court shall be final, binding and enforceable. The expenses of the arbitration shall be borne by the Party against whom the decision is rendered or in the event of a compromise decision, the extent and proportion in which the Parties shall bear the expenses of the arbitration shall be determined by the arbitral tribunal. 17. Miscellaneous Effect This Agreement shall enter into force upon its execution by both Parties Entire Agreement This Agreement constitutes the entire agreement between TRESORIT and RESELLER pertaining to the subject matter hereof and supersedes all prior understandings, preliminary and other agreements, letter of intents and heads of terms, negotiations and discussions, whether oral or written, of the Parties regarding the subject matter hereof Amendments Any amendment of this Agreement shall require the written agreement of the Parties Severability Should any provision of this Agreement be determined or declared by the Arbitration Court to be void or unenforceable, this shall not affect the validity of the other provisions of this Agreement. In this case the Parties shall replace the void provision with such an effective or enforceable provision that preserves to the greatest extent possible the spirit and business aim of the ineffective or unenforceable provision Force Majeure 6

7 If any obligations required to be performed under this Agreement cannot be performed because of an event or circumstance of Force Majeure then the deadline stipulated in this Agreement for the performance of such obligation shall be extended day for day for the duration of the event or circumstance of Force Majeure or its effects and no Party shall be entitled to claim a breach of this Agreement due to such non-performance Duty to Mitigate Losses Each Party shall use its reasonable efforts to mitigate any losses resulting from a breach of this Agreement by the other Party in accordance with Swiss law Governing Law This Agreement shall be governed by the laws of Switzerland. AFTER DUE READING and having understood its content and legal consequences, the Parties have executed this Agreement by their duly authorised representatives on the date written below and confirm that it is in accordance with their contractual intentions. Date TRESORIT AG Company Signature RESELLER Name Signature 7