The purpose of this Document is to establish an Agreement “Agreement” between eFolder and an eFolder Partner as a prerequisite for offering eFolder products and services for end use by the Partner and the Partner’s clients. In return for the right to offer eFolder products and services, Partner agrees to adhere to the Terms and Conditions contained herein. eFolder and Partner are herein sometimes referred to individually as a Party and collectively as the Parties.
BDR – “BDR” shall mean business and disaster recovery products and services offered by eFolder to Partners.
Component Licensors. “Component Licensors” shall mean persons and entities that have licensed software to eFolder that eFolder has bundled or otherwise included in the Software, including, but not limited to the companies listed in Exhibit A of this Agreement.
End-User. “End-User” shall mean an end user of any of the eFolder Software, Hardware or services.
Hardware. “Hardware” shall mean equipment eFolder offers for sale, for lease or as a service to Partners pursuant to the terms of this Agreement, or otherwise, and any other physical equipment or products, that are not software, and which eFolder offers for sale, for lease or as a service to Partners.
Service. “Service” shall mean any services offered currently or in the future including the current disaster recovery, back-up, email filtering and email archiving services provided by eFolder to Partners for use by Partner and resale to Partner’s customers.
Software. “Software” shall mean any client computer programs including component software licensed from third parties and the user documentation for any of the eFolder products or Services and includes any corrections, enhancements, updates, or other modifications, including custom modifications, to such computer programs and user manuals other modifications, including custom modifications, to such computer programs and user manuals.
2. License and Terms and Conditions.
a. Grant of License. During the term of this Agreement and any renewal term of this Agreement, subject to the terms and conditions herein, eFolder grants to Partner a non-exclusive, limited license to: (i) distribute, market and use eFolder’s Software, Services and Hardware; (ii) install or assist in the installation of eFolder’s Software, Services and Hardware at Partner’s customers’ premises; and (iii) support and maintain eFolder’s Software, Services and Hardware. Certain Responsibilities of each Party pursuant to the terms of this Agreement are outlined in Exhibit B to this Agreement; however, such listing is not intended to be an all-inclusive list of a Party’s responsibilities and obligations pursuant to this Agreement. eFolder’s pricing for various Software and Services is set forth in Exhibit C to this Agreement.
b. Recommended Software and Equipment. eFolder recommends the following operating systems for use with the eFolder Backup Manager Software: any Windows based operating system from Windows98 forward including Vista, Windows 7 and any current Microsoft Server software from NT4 forward. Other Software and Hardware utilized in conjunction with any of the eFolder services and Hardware may use 3rd party software with different operating system requirements that must be followed. eFolder shall not be obligated to provide any Partner support or service, unless otherwise provided by this Agreement, with respect to any software or hardware issue arising out of the use of non-recommended computer software and equipment.
c. Use. During the term and any renewal term of this Agreement, Partner may, and is hereby expressly authorized by eFolder to (i) permit any parent, subsidiaries, and affiliated entities to provide the Services (ii) process or permit to be processed the data of any third party, and (iii) use the Software in the operation of a managed service provider; provided, however that any parent, subsidiaries or affiliated entities of Partner using the Software to offer the Service shall first agree in writing to be bound by the terms of this Agreement, including payment of all amounts due eFolder hereunder, and provided further that Partner shall not allow any other third parties to use or access the eFolder datacenter server software or portal without the prior written consent of eFolder.
d. Copies. Except for any software licensed by StorageCraft (the “StorageCraft Licensed Software”) component, Partner may make one or more copies of the Software’s computer programs, provided that such copies shall include the copyright and any other proprietary notices of eFolder and its Component licensors, as applicable. With respect to the StorageCraft Licensed Software component, Partner, its resellers and End-Users, may not make any copies of that component of the Software. Further, with respect to such component, Partner, its resellers and End-Users must uninstall, erase or destroy all such component software installed on a computer upon termination or cancellation of this Agreement, upon notice from eFolder, or upon transfer of the computer to another person or entity, whichever occurs first. Further, Partner, its resellers and End-Users may not copy any printed material accompanying or related to the StorageCraft Licensed Software.
e. Restrictions. Except as expressly authorized in this Agreement, Partner shall not: (i) disassemble, decompile or otherwise attempt to reverse engineer any portion or component of the Software or any component thereof, except and only to the extent that such activity is expressly permitted by applicable law; (ii) copy, alter, use, or modify any portion or component of the Software or any documentation provided with respect to the Software (“Documentation”) or any component thereof; (iii) use the Software, or any component thereof, or Documentation for any purpose, at any location or in any manner not specifically authorized by this Agreement; (iv) make or retain any copy of the Software, or any component thereof, or Documentation except as specifically authorized by this Agreement; (v) modify, adapt, translate or create derivative works based upon the Software, any component thereof, or Documentation, or combine or merge any part of the Software, or any component thereof, or Documentation with or into any other software or documentation; (vi) remove, modify, erase, obscure, or tamper with any copyright, trademark, or other proprietary rights notice printed or stamped on, affixed to, encoded or recorded, or contained in any copy of the Software, or any component thereof, or Documentation, or fail to preserve all copyright and other proprietary notices in any copy of the Software, or any component thereof, or Documentation; (vii) sell, market, license, sublicense, distribute or otherwise grant to any third party, including any customer, outsourcer, vendor, consultant or partner, any right to use the Software, or any component thereof, or Documentation, except as described and agreed to in this Agreement; (viii) authorize any customer to use the Software, or any component thereof, except as authorized by the applicable end user license agreement; (ix) use the Software, or any component thereof except as described and agreed to in this Agreement.
f. License Agreements. Partner agrees to comply with all license agreements provided to Partner in connection with the Software, or any component thereof, including the End-User license agreements embedded in the Software. Partner agrees to provide a copy of any applicable license agreement to each customer of Partner to whom Partner licenses the Software, including all components thereof, prior to the use of the Software by or for such customer, which license agreements typically will be embedded in the Software. If Partner intends to use its own brand name, Partner may modify the End User license agreement by substituting its name for eFolder’s name as Licensor and its brand name for the Software. Partner may also substitute its name and address in the Licensor’s address for notice, for eFolder’s name and address, and if so, will indicate a copy of the notice is to be sent to SOFTWARE NOTICE RECIPIENT at eFolder’s address as provided herein (or such other address of which eFolder may provide to Partner in writing). PARTNER AGREES TO MAKE NO OTHER CHANGES TO ANY LICENSE AGREEMENT.
g. Branding – While Partner is authorized to use and market the Product(s), Partner may use trademarks, trade names, service marks, and/or service names for the Product(s) in association with the marketing of the Product(s) or may market the Product(s) under its or their own brand, or in connection with the eFolder and third party providers’ brands, provided that Partner is in compliance with all trademark policies of eFolder or the appropriate third party provider.
Partner is not permitted to use any eFolder or third party trademarks, trade names, service marks, and/or service names in connection with any domain name. Partner hereby agrees if any such marks are included in a domain name owned by the Partner, Partner shall assign all right, title, interest and ownership rights in the domain name to the appropriate third party upon request and at no cost to the owner of the mark.
h. No Stand-Alone Use of Components. At no time may any component of the Software be separated from the eFolder Software or from any software bundled with hardware components or used in a stand-alone fashion, except as necessary for debugging, testing, maintenance or support purposes by Partner in coordination with eFolder.
i. Documentation. eFolder will provide Partner with English language documentation for the Software, and applicable components thereof, in electronic form only (the “Documentation”). Partner may use and distribute the Documentation, solely in connection with Partner providing Services or Hardware licensed hereunder to Partner’s customers. Partner may (i) reproduce and distribute the Documentation, either separately with respect to applicable components, or at the direction of eFolder, in combination with the other eFolder documentation, in hard copy as well as in electronic form solely for the aforementioned permitted use. Partner shall not change the Documentation without eFolder’s prior written consent. All Documentation distributed by Partner shall bear a proprietary rights legend as provided to Partner by eFolder.
j. Discontinuance. eFolder may discontinue prior to the end of the term or any renewal term of the Agreement, without any liability from eFolder to Partner, the license of the right of Partner to use the Software, or any component thereof (i) six (6) months from the date eFolder gives Partner written notice of eFolder’s discontinuance; or (ii) ninety (90) days from the failure of any technology licensor to eFolder (“Component Licensor”) to offer or support the licensed technologies within the Software, or any component thereof. Any such discontinuance of a component of the Software shall not terminate or otherwise affect the Agreement.
k. Versions. Partner acknowledges that eFolder may provide to Partner changes or modifications at any time to the version of the Software, or any component thereof, that is current at the time of execution of this Agreement. Upon any such change or modification, Partner shall cooperate with eFolder in the incorporation of such change or modification in all copies of the Software, or any component thereof, in the possession of Partner or its customers and resellers.
l. Trademarks and Other Rights. Partner shall use the then current trade names, trademarks, service marks and similar designations (the “Marks”), whether or not registered, of eFolder and/or of eFolder’s Component Licensors or suppliers only in advertising, marketing, instructional or other material prepared by or authorized by eFolder. Partner shall not, during the term or any renewal term of this Agreement, assert or claim any interest in any such Marks or take any action that might affect adversely the validity or enforceability of any such Marks or the rights of eFolder and/or eFolder’s Component Licensors or suppliers therein. Partner’s use of such Marks shall inure to the benefit of eFolder or its Component Licensors or suppliers, as applicable. Notwithstanding the foregoing, upon this Agreement’s termination or the earlier discontinuance of the license of Partner to use and distribute the Software, including all components thereof, and, at eFolder’s written request, Partner shall take all action reasonably necessary to transfer and assign to the applicable owner thereof any right, title or interest in or to any of the Marks, and the related goodwill, that Partner may have acquired while marketing and selling the Software or any component thereof.
m. No Rental. Except as otherwise expressly provided by this Agreement and the eFolder services offered, Partner, Partner’s resellers, and Partner’s End-Users may not rent, lease, lend, pledge, or directly or indirectly transfer the Software, or any component thereof, to any third party, and, except as otherwise expressly provided by this Agreement, may not permit any third party to have access to and/or use the functionality of the Software, or any component thereof.
n. Export Restrictions. The Software, including, but not limited to, any StorageCraft Licensed Software component, is of United States origin for purposes of United States export control laws. Partner agrees to comply, and cause its resellers and End-Users to comply with all applicable international and national laws that apply to the Software, including the United States Export Administration Regulations, as well as the End-User, End-Use and destination restrictions issued by the United States and other governments.
o. United States Government Restricted Rights. RESTRICTED RIGHTS LEGEND. All eFolder products, including software licensed from eFolder’s Component Licensors are commercial in nature. The software and software documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1) and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and its Documentation, including all components and their documentation, are licensed to the United States Government end users with only those rights as granted to all other end users, accordingly to the terms and conditions contained in this Agreement and the applicable end user license agreements.
p. Network Configuration Liability. Partner acknowledges that the StorageCraft Licensed Software component of the Software includes the Network Configuration Utility based on a derivative created by StorageCraft under a license granted by Pierre Mounir (The Truth), a proprietary software copyrighted © 2003-2010 with all rights reserved.
q. Microsoft® Windows® Preinstallation Environment License (Windows PE). With respect to the StorageCraft Licensed Software component of the Software, Partner acknowledges that the StorageCraft Licensed Software may include or be used with the Microsoft Windows Preinstallation Environment software (“WinPE”), which StorageCraft licenses from Microsoft. Windows PE is limited to use as a boot, diagnostic, disaster recovery, set up, restoration, emergency services, installation, test/configuration utilities program, and is not for use as a general purpose operating system or as a substitute for a fully functional version of any operating system products. WinPE contains a security feature that will cause the computer system to reboot without prior notification to the user after 24 hours of continued issues. THIS TIME-OUT FEATURE WILL RESET EACH TIME THE COMPONENT CONTAINING WINPE IS RELAUNCHED. Any and all Microsoft and Microsoft affiliate liability related to the Software is disclaimed in full and without condition and Microsoft has no support obligations to you or Company. You are prohibited for reverse engineering, decompiling, or disassembling WinPE, except to the extent expressly permitted by applicable law, and your are specifically informed that Windows PE is subject to U.S. export jurisdiction.
r. Termination of Agreements between Partner and its Resellers or End-Users. Upon termination of an agreement between Partner and its resellers or End-Users governing use of the Software, or any component thereof, Partner shall use its best efforts to (a) remove and/or deactivate all copies of the Software, or component thereof, from all computers of the applicable reseller or End-Users on which it is installed; and (b) ensure that the applicable reseller or End-Users returns or destroys any media containing the Software, or any component thereof.
s. Agreements between Partner and its Resellers or End-Users for Use of the StorageCraft Licensed Software Component. Partner shall include in all agreements between Partner and its resellers or End-Users relating to the StorageCraft Licensed Software component of the Software terms substantially identical to (and no less restrictive) than those contained in this Agreement.
t. Support for StorageCraft Licensed Software. With respect to the StorageCraft Licensed Software, any product support to Partner for the software is provided by eFolder and not StorageCraft.
3. Software Delivery, Installation and Acceptance
Software acceptance shall occur upon Partner’s delivery of a signed Partner Agreement and payment of any corresponding sign-up requirements. Partner shall not use the Software, except for testing purposes, until Partner delivers the signed Partner Agreement to eFolder.
All Hardware purchases from eFolder will be in accordance with, and subject to, the then current terms and conditions (the “Hardware Purchase Terms and Conditions) for Hardware product purchases. The current Hardware Purchase Terms and Conditions will be included as part of eFolder’s website, currently https://www.efolder.net/legal-notices (the “eFolder website”), or will otherwise be provided to Partner. The then current version of such terms and conditions are incorporated by reference as part of the contract for any future sale of Hardware by eFolder to Partner.
5. Payments To eFolder
In General. Partner and eFolder have agreed to payments as described below for allowing the Partner to distribute the eFolder products and services to others under the terms of this Agreement:
Partner acknowledges that, except as expressly licensed herein, eFolder and/or its Component Licensors and suppliers, as applicable, own, and retain (i) all copyrights, patent rights, trade secret rights, as well as any and all other intellectual property and proprietary rights in or to the Software and Hardware, and all components thereof and the Documentation, and all copies thereof, and (ii) all service marks, trademarks, trade names or any other designations of eFolder and/or such Component Licensors and suppliers. Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect the Software, including all applicable components. Partner’s, Partner’s resellers’, or Partner’s customer’s possession, access, or use of the Software, including all components thereof, does not transfer to Partner, Partner’s reseller, or Partner’s End-User any ownership of the Software, or any component thereof, or of any intellectual property rights.
7. Confidential Information
Partner agrees that the Software contains proprietary information, including trade secrets, know-how, and confidential information, that is the exclusive property of eFolder and, where applicable, its Component Licensors. During the period this Agreement is in effect and at all times after its termination, Partner and its employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose, or otherwise make available this information to any third party except to such third parties that Partner deems to have a need to know in order to effectively carry out the business purposes for which Partner has entered into this Agreement and provided further that such third party executes a written confidentiality agreement with eFolder, and, where applicable, eFolder’s Component Licensors.
8. Use and Training
Partner shall limit the use of the Software and Hardware to persons who have been appropriately trained. eFolder shall provide, at a mutually convenient time, training for Partner via on-line training and documentation. For additional training over the standard training provided, Partner shall pay eFolder upon receipt of invoice from eFolder, eFolder’s typical charges for the providing of such additional training, including, but not limited to, the services of eFolder’s trainers, whose services shall be billed at the then current rate for all hours, including travel time incurred in connection with such training and all costs for transportation, lodging meals and incidental expenses incurred in connection with such training.
a. Scope of Warranty. For Software, eFolder warrants to Partner that for a period of one (1) year commencing upon acceptance by Partner in accordance with Paragraph 3 of this Agreement, Software and all other related matters and things required pursuant to this Agreement shall be free from defects in material and workmanship under normal use and service at the time of delivery in accordance with Paragraph 3 of this Agreement. During such warranty period, eFolder shall provide Partner the support and maintenance services required to cause the Software and all such other matters and things to be free from defects in material and workmanship as set out above. For Hardware, the applicable eFolder warranty will be as set forth in the then current Hardware Purchase Terms and Conditions as maintained on the eFolder Website or otherwise provided to Partner at the time of the sale of the Hardware to Partner by eFolder.
b. Disclaimer of Any Other Warranty. THE WARRANTIES SET FORTH OR REFERENCED IN PARAGRAPH 9.a OF THIS AGREEMENT, ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF EFOLDER OR ANY COMPONENT LICENSOR, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
c. NO-FAULT Tolerance. Partner acknowledges that the Software, INCLUDING, BUT NOT LIMITED TO THE STORAGECRAFT LICENSED SOFTWARE, containS technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Software could lead to death, personal injury, or severe physical, property or environmental damage. Partner agrees not to use the Software in such environments and shall cause its resellers and customers not to use the software in such environments.
d. No StorageCraft Warranties or Liabilities. With respect to StorageCraft Licensed Software, THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS. STORAGECRAFT MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, REGARDING THE SOFTWARE, THE PARTNER, OR SERVICES PROVIDED BY PARTNER, OR IN CONNECTION WITH THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STORAGECRAFT DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY (IF ANY) WARRANTIES OR CONDITIONS OF OR RELATED TO MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, NONINFRINGMENT, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. ALSO, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THERE IS NO WARRANTY, DUTY, OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR CORRESPONDENCE TO DESCRIPTION. ANY WARRANTIES, LIABILITY FOR DAMAGES AND, REMEDIES, IF ANY, ARE PROVIDED SOLELY BY PARNTER OR EFOLDER AND NOT BY STORAGECRAFT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PARTNER DISCLAIMS ANY LIABILITY BY STORAGECRAFT OR ITS LICENSORS FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OF THE SOFTWARE OR YOUR AGREEMENT OR RELATION WITH EFOLDER.
10. Limitations Period
No arbitration or other action either under or arising out of this Agreement may be brought by either party against the other more than one (1) year after the cause of action arises.
11. No Consequential Damages
No party hereto shall be liable to any other party hereto, and any eFolder Component Licensor or Hardware manufacturer, distributor, or supplier, shall not be liable to Partner, for indirect, special, incidental, exemplary or consequential damages (including, without limitation, lost profits) related to this Agreement or resulting from any such party’s use or inability to use the Hardware or Software, arising from any cause of action whatsoever, including contract, warranty, strict liability, or negligence, even if any such party has been notified of the possibility of such damages. Further, in any event, any liability of eFolder, and liability to Partner of any eFolder Component Licensor or Hardware manufacturer, distributor, or supplier, arising out of this Agreement shall not exceed: (i) with respect to Software, the amount of fees received by eFolder from Partner pursuant to Paragraph 5.a of this Agreement during the term or any renewal term of this Agreement from which the claim of Partner arose; and (ii) with respect to Hardware, the purchase price of the Hardware actually paid by Partner to eFolder.
12. Intellectual Property Indemnification
Should a third-party assert any suits or claims against Partner, its customers or resellers, alleging that the Software, or any component thereof, licensed pursuant to this Agreement, or the Hardware, infringes any patent, copyright, trademark, trade secret or similar or proprietary right, eFolder shall indemnify and hold harmless Partner, its customers or resellers, in the defense of such suits or claims, provided that Partner, its customers or resellers, promptly notifies eFolder in writing of such suit or claim, takes all actions necessary to render assistance to eFolder, eFolder’s Component Licensors, or the Hardware manufacturer, distributor, or supplier, and permits eFolder, eFolder’s Component Licensors or the Hardware manufacturer, distributor, or supplier to direct the defense or settlement negotiations. The foregoing obligation of eFolder does not apply with respect to any portion of the Software, or any component thereof, or the Hardware, which is or was: (i) modified outside of the specifications of the Software, or any component thereof, or the Hardware, or by any unauthorized party, if the alleged infringement arises as a result of such modification, (ii) where Partner, its customers or resellers, continues allegedly infringing activity after receiving a modification to the Software, or any component thereof, or the Hardware, from eFolder, or its Component Licensors, or the Hardware manufacturer, distributor, or supplier, that would have avoided the alleged infringement and after having had two (2) weeks’ time to implement the modification, or (iii) where Partner’s, its customers’ or resellers’, use of the Software, or any component thereof, is not in accordance with the Documentation and the alleged infringement arises as a result of such non-conforming use. In the event of such infringement with respect to the Software, eFolder may replace, in whole or in part, the Software with a substantially compatible and functionally equivalent computer program, or modify the Software to avoid the infringement.
13. Alternate Remedies
Should the use of the Software, or any component thereof, or the Hardware, by eFolder, Partner, or Partner’s customers or resellers, be enjoined, or in the event eFolder or one or more of eFolder’s Component Licensors wishes to minimize its potential liability, eFolder or its applicable Component Licensor or Hardware manufacturer, distributor, or supplier, may, at their option, either: (i) substitute a fully functionally equivalent, non-infringing portion of the Software, or any component thereof, or of the Hardware; (ii) modify the infringing item so that it no longer infringes; or (iii) obtain for Partner, its customers or resellers, at the expense of eFolder, its applicable Component Licensor, or Hardware manufacturer, distributor, or supplier, the right to continue use of such item. In the event of such injunction, Partner agrees to accept as full satisfaction of any claim arising out of such injunction, such alternate remedy as provided by eFolder, its applicable Component Licensor, or its Hardware manufacturer, distributor, or supplier. Partner shall have no right or claim against eFolder or any of its Component Licensors or Hardware manufacturers, distributors, or suppliers as a result of, or arising out of, such injunction.
14. Partner Indemnity
Partner shall defend, indemnify and hold eFolder, its Component Licensors and suppliers, and its Hardware manufacturers, distributors, and suppliers, and their affiliated companies, harmless from any and all claims by any other party (including reasonable attorneys’ fees and costs of litigation) related to any suits or claims by a third party brought against eFolder or one or more of its Component Licensors or suppliers or its Hardware manufacturers, distributors, and suppliers, resulting from: (i) Partner’s breach or violation of applicable export laws or regulations with respect to the Software or Hardware, including any component thereof; and (ii) claims resulting from Partner’s combining, or its authorizing others to combine, the Software or any component thereof and Documentation with any products, other than the eFolder Products; provided that Partner is promptly notified and is rendered reasonable assistance by eFolder and/or its Component Licensors or suppliers or its Hardware manufacturers, distributors, and suppliers.
15. Term and Termination
Effective Date; Termination. This Agreement, and the license granted hereunder, shall take effect as of the date the referring Agreement or Order Form is signed and shall continue for three years. The Amended Agreement, and the licenses granted hereunder, shall automatically renew for successive three-year terms, unless sooner terminated pursuant to the provisions of this Agreement. Partner may terminate this Agreement at any time by providing eFolder with written notice 30 days prior to a termination date.
Early Termination. Each party shall have the right to terminate this Agreement and the license granted herein upon the occurrence and failure to cure, if applicable, of the following events (an “Event of Default”):
(i) If the other party violates any provision of this Agreement;
(ii) If the other party (A) terminates or suspends its business; (B) becomes subject to any bankruptcy or insolvency proceeding under Federal or State statute; (C) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (D) has wound up or liquidated, voluntarily or involuntarily.
Nonpayment by eFolder to Component Licensors. Partner acknowledges: that eFolder’s and Partner’s right to use components of the Software, including, but not limited to, the StorageCraft component, will terminate if eFolder fails to pay its contractual fees to the Component Licensor; and, accordingly, Partner, or its resellers or end users, could lose the right to use components of the Software should eFolder fail to pay its contractual fees to the Component Licensors.
Obligations Upon Termination. In the event of termination or cancellation of this Agreement, Partner, Partner’s resellers, and Partner’s End-Users, except as otherwise specifically provided by this Agreement, must stop using and/or accessing the Software, including all components thereof, and destroy all copies of the Software and all of its component parts. In the event of such termination or cancellation, Partner shall cooperate with eFolder and shall cause its resellers and End-Users to cooperate with eFolder in: (a) the removal and/or deactivation of all copies of the Software from the computers on which it is installed; and (b) removal or destruction of all media containing the Software.
Either party shall have the right to assign or otherwise transfer the Software license, Hardware, or this Agreement to anyone, including any parent, subsidiaries, affiliated entities, or third parties, or as part of the sale of any portion of its business, or pursuant to any merger, consolidation, or reorganization; provided, however, that eFolder’s prior written consent is required for Partner to assign or otherwise transfer the Software license or the Agreement. eFolder shall not unreasonably withhold its consent to a request for assignment or transfer received from Partner. eFolder’s consent to any such request for assignment or transfer from Partner shall be conditioned upon the Partner’s assignee or transferee assuming liability under this Agreement or signing a similar agreement with eFolder.
17. Force Majeure
No party hereto shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party’s employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a delay in the performance of this Agreement.
The parties shall settle any dispute, claim or controversy arising out of this Agreement, and including any dispute as to the enforceability of this arbitration provision, by arbitration in Atlanta, Georgia in accordance with the Commercial Arbitration rules of the American Arbitration Association. After a demand for arbitration, the parties shall attempt to agree upon a single arbitrator to arbitrate the dispute. If the parties do not agree upon an arbitrator within thirty (30) days of the applicable demand for arbitration, then the parties agree that the dispute shall be arbitrated before a single arbitrator appointed by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator may award injunctive relief, actual damages, and attorneys’ fees and costs as part of the award, but shall have no authority to award any penalties or any special, consequential, punitive, or exemplary damages or to alter or modify any express provision of this Agreement or to render any award which by its terms affects such a modification or alteration. The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction, including either of the two courts referred to in Paragraph 20.h of this Agreement. The Parties consent to the jurisdiction of such courts referred to in Paragraph 20.h for such purpose.
Notwithstanding the foregoing, nothing in this Paragraph 18 shall preclude a party from seeking and obtaining injunctive relief in either of the two courts referred to in Paragraph 20.h based upon a breach of this Agreement or facts arising out of this Agreement where such party does not have an adequate remedy at law.
All notices under this Agreement are to be delivered by (i) depositing the notice in the mail, using certified mail, return receipt requested, addressed to the address below or to any other address as the party may designate by providing notice, (ii) overnight delivery service addressed to the address below or to any other address as the party may designate by providing notice, or (iii) hand delivery to the individual designated below or to any other individual as the party may designate by providing notice. The notice shall be deemed delivered (i) if by certified mail, on the day of delivery, (ii) if by overnight delivery service, on the day of delivery, and (iii) if by hand delivery, on the day of hand delivery.
IF TO eFOLDER:
eFolder Systems, LLC
2340 Perimeter Park Drive, Suite 100
Atlanta, Georgia 30341
Attention: Notice Recipient
IF TO PARTNER:
The legal address provided on the signature page of the referring order form or agreement and will be used for notices sent to the Partner unless Partner designates another address by providing written notice.
20. General Provisions
a. Complete Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to this Agreement.
b. No Change to Standard Contract Form Language. No change to this standard eFolder contract form will be effective, even if eFolder signs the Agreement after the change, unless the change is conspicuous and is initialed by the all of the parties to this Agreement.
c. Amendment. This Agreement may not be modified, altered, or amended except by written instrument duly executed by all parties.
d. Waiver. The waiver or failure of any party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
e. Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
f. Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of Georgia without regard to its conflicts of laws doctrines.
g. Future Software Development. The parties hereto recognize that from time to time eFolder may offer additional software or Hardware for resale to Partner’s customers, or obtain the desired software through a license with a Third-Party Licensor. In such event, such additional software shall be licensed by eFolder to Partner on the same terms and conditions as set forth in this Agreement. eFolder shall have no obligation to develop any additional software or to obtain a license for such software from a Third-Partner Licensor.
h. Jurisdiction. The Parties agree that the United States District Court for the Northern District of Georgia shall have jurisdiction, subject only to the limitations of that jurisdiction, over any disputes arising from this Agreement which are not subject to arbitration in accordance with Paragraph 18 of this Agreement. If that court lacks jurisdiction, the parties agree that jurisdiction shall be with the Superior Court of DeKalb County, Georgia. eFolder and Partner hereby consent to the jurisdiction of such Courts and agree that such Courts shall have exclusive jurisdiction for such disputes, unless they decline to accept jurisdiction of such matters.
i. Headings and References. The headings to the Paragraphs of this Agreement are inserted for convenience of reference and shall not constitute a part hereof. As used herein, all references to the singular shall include the plural, references to the plural shall include the singular, and all references to the masculine or neuter genders shall include the feminine gender and vice versa.
j. Construction. The parties hereto acknowledge that they have been represented by counsel or have had the opportunity to be represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law, regulation, holding or ruling of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. Each party shall be deemed to have participated equally in the drafting of this Agreement.
k. No Solicitation of Partner’s End-users. During the term of this Agreement, eFolder will not knowingly solicit end-user customers of Partner for services that Partner provides to the end-user customer in the geographical area for which partner provides such services.
EXHIBIT A TO eFolder Partner Agreement
Licensor Software Component
Oracle America, Inc. (“Oracle”) VirtualBox Server
StorageCraft Technology Corporation Software licensed by StorageCraft
Email Management, Inc. DoubleCheck
eFolder, Inc. Backup Software
Dell, Inc AppAssure Software
Kroll Ontrack, Inc. Ontrack® PowerControls™
Acronis International GmbH Backup & Recovery Software
Cloudfinder Sweden AB Cloud Application Backup
Ascensio System SIA Web Components
EXHIBIT B TO eFolder Partner Agreement
eFolder will have the following responsibilities under this Agreement, in addition to any other responsibilities provided by other portions of the Agreement, subject to and in accordance with the terms of this Agreement:
Partner will have the following responsibilities under this Agreement:
EXHIBIT C TO eFolder Partner Agreement
Pricing, Services, Signup Terms and Conditions
The Partner has the right to provide all eFolder Services and products to Partner’s End-Users under the terms and conditions outlined in this Agreement. Partner agrees to pay for all products and services utilized by Partner and Partner’s End-Users by the due date of each invoice received. The cost of the products and services will be invoiced at the then current rates.
Partner agrees to pay for all products and services utilized by Partner and Partner’s customers by the due date of each invoice received. The cost of the products and services will be invoiced at the then current rates.
All products and services will be charged at then current pricing as shown on the eFolder Global Price list provided in the eFolder Portal or as provided in writing from eFolder. All amounts are in US dollars unless provided by the Canadian data center. For services provided out of the eFolder Canadian data center, all services will be invoiced in Canadian dollars per the eFolder Canadian Price List.
Price Changes – Pricing may change in the future and when changes occur, Partner will receive 30 days’ notice for services and 10 days’ notice for hardware price changes. The new pricing will replace the then current pricing.
Overnight Data Restoration – The cost of restoring data to a USB drive for a customer is $150 plus the cost of the media (USB drive or drives) if the media is not returned plus any same day or overnight shipping charges.
Additional Services, i.e. extra training, customization charges, onsite service/support are not included and will be billed separately as needed at the then current rates.
Past Due Accounts – Payments are due by the last day of the month billed. eFolder reserves the right to discontinue service to any Partner’s customers when any payments due eFolder are over 30 days past due.