EXHIBIT 10.7
SERVICES
DISTRIBUTION
AGREEMENT
Between
MANAGEDSTORAGE
INTERNATIONAL
And
ACCESSCOLO, INC.
AGREEMENT NUMBER MSI001122
Agreement
Number: MSI001122
TABLE OF CONTENTS
-----------------
1. DEFINITIONS.............................................................3
2. APPOINTMENT.............................................................4
3. TERM....................................................................4
4. CHARGES.................................................................4
5. DISTRIBUTOR OBLIGATIONS AND REPRESENTATIONS.............................5
6. MANAGEDSTORAGE OBLIGATIONS..............................................8
7. MUTUAL OBLIGATIONS......................................................9
8. INDEMNIFICATION BY DISTRIBUTOR.........................................11
9. INDEMNIFICATION BY MANAGEDSTORAGE......................................11
10. DISCLAIMER OF WARRANTY ON SERVICE......................................12
11. LIMITATION OF REMEDIES.................................................12
12. TRADEMARKS.............................................................13
13. COVENANT AGAINST COMPETITION AND DISCLOSURE............................15
14. TERMINATION............................................................15
15. PROPRIETARY RIGHTS.....................................................17
16. GENERAL................................................................17
ManagedStorage International - Services Distribution Agreement Page 2 of 21
Agreement
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This Services Distribution Agreement (This "Agreement") is made between
MANAGEDSTORAGE INTERNATIONAL INC. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (hereinafter called "ManagedStorage" or "MSI") and AccessColo, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (hereinafter called "Distributor" or
"Access").
Whereas, ManagedStorage has developed a combination of hardware and software
products into services more fully described in Schedules A2 and A3, and;
Whereas, ManagedStorage desires to grant and Distributor desires to obtain
certain rights to market and resell said Service under its Access Storage on
Demand(TM) Brand in accordance with the terms and conditions of This Agreement
and;
Now therefore, in consideration of the above premises and mutual promises set
forth below, and intending to be legally bound, the parties agree as follows:
1. DEFINITIONS
Defined terms in This Agreement may be used in the singular or the plural, as
the context requires. As used in This Agreement, the following terms shall have
the meanings set forth below:
"Agent" means any sales representative utilized by Distributor.
"Billing Period" means the period selected by each Subscriber in the
Subscription Agreement as to which the Subscriber will be billed for in
advance and for which the Subscriber is then entitled to the use of the
Service.
"Client Software" means the software provided by ManagedStorage and
licensed to each Subscriber solely for the purpose of accessing the said
Services.
"Distributor Direct Subscribers" means those Subscribers who contract
directly with Distributor for the use of Services and other Distributor
services.
"Distributor Indirect Subscribers" means those Subscribers who contract
with a reseller of Distributor for use of Services and other Distributor's
services.
"Distributor Subscribers" means either Distributor Direct Subscribers or
Distributor Indirect Subscribers.
"Effective Date" means the date of last signature by authorized
representatives of each of the parties on the signature page of This
Agreement.
"Level 1 Support" means providing assistance to ManagedStorage in
installing the Subscriber's software, taking first calls from Subscribers,
answering routine Subscriber configuration and operational questions on
the service, attempting to diagnose the source of Subscriber's difficulty,
applying known fixes, ensuring that Subscriber has correctly installed the
client software, where applicable, ensuring that the source of the
difficulty does not reside in Distributor's services to Subscriber that
facilitate access to the Service, and if none of the above resolves the
problem, logging and dispatching the suspected software or hardware
problem to ManagedStorage.
"Services" or "Service" means the supply of remote data management
services, including the registration systems, to Subscribers based on
ManagedStorage and Distributor's hardware and software delivered through
ManagedStorage as more fully described in Schedules A2 and A3 as well as
Schedules B2 and B3.
"Subscriber" means customers of ManagedStorage or Distributor, including
without limitation, individuals, partnerships, corporations, government
agencies, and other commercial and noncommercial enterprises who use
Services for internal business purposes.
"Subscription Agreement" means the agreement whereby Distributor
Subscribers agree to become contractually bound to Distributor to pay for
and obtain the right to use, the Service, substantially in the form of
Schedule D to This Agreement.
"Symbols" means the name or any abbreviation thereof, its acronym,
logotype or other trademarks, service marks or trade names of either
ManagedStorage International or Distributor.
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"This Agreement" means this Services Distribution Agreement and the
schedules and exhibits attached hereto.
2. APPOINTMENT
Subject to the terms and conditions set forth in This Agreement, ManagedStorage
appoints Distributor as a non-exclusive reseller of the Services under
Distributor's trade names and trademarks and Distributor accepts the
appointment.
Distributor shall be entitled to resell the Service to Distributor Subscribers
either directly, or through the use of Agents who solicit orders on behalf of
Distributor, or through the use of resellers who will resell the Service to
Distributor Subscribers provided that such Agents meet ManagedStorage's
standards of understanding of the Services and provided further that such Agents
do not have any conflicts of interest through representation of other services.
Any Agent shall be treated as the agent of Distributor and subject to the
relevant obligations of This Agreement Distributor shall be liable to
ManagedStorage for any actions of such Agents in the same manner as if
Distributor performed such actions. Distributor also agrees to obligate any
reseller to adhere to provisions substantially similar to the provisions herein
contained.
In connection with the resale of the Service, Distributor is hereby granted the
limited, nonexclusive license to distribute the Client Software needed to access
the Service to potential Subscribers, but only pursuant to a license agreement
substantially in the form of Schedule E hereto, which license agreement must
either be signed by the potential Subscriber, acknowledged by means of an
on-line "click" prior to download, when delivered electronically, or through an
enforceable "shrink-wrap" format.
3. TERM
a. Effective Date
This Agreement shall take effect on the Effective Date and continue for a
period of three (3) years, except as it relates to the purchase of
equipment (the "Purchased Equipment") which may extend beyond such three
(3) years to the term set forth for such purchase on the Schedules hereto.
Unless This Agreement has been terminated earlier pursuant to Section 14,
This Agreement will be automatically extended for additional one (1) year
periods unless either party elects to terminate any extension period by
providing the other party with ninety (90) days written notice prior to
the commencement of any extension period.
4. CHARGES
a. Applicable Charges
Distributor will pay the Purchased Equipment payments as specified in
Schedule C-2 in accordance with the schedule set for the therein.
Distributor shall pay ManagedStorage the Variable Monthly Fee as set forth
in Schedule C within thirty-five (35) days from the date of invoice by
ManagedStorage. ManagedStorage will provide, monthly, a master invoice
which will include a list of all Subscriber accounts for the previous
month.
b. Charges
Charges for services supplied to Distributor by ManagedStorage, and
related to the Service but not covered by This Agreement shall be
performed at ManagedStorage's then-current time-and-materials rate. If
Distributor hereunder does not make any payment due within thirty (30)
days after the invoice date, late charges of one and one-half percent
(1 1/2%) per month may, at ManagedStorage's option, be due and payable
with respect to such payment.
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c. Taxes
All prices referred to hereunder are exclusive of any taxes, duties or
governmentally imposed levies (including but not limited to value added,
property, sales, transfer, use, privilege, excise or similar taxes or
import duties or fees) imposed or levied by the U.S.A., any other
applicable jurisdiction, the shipping point jurisdiction or any other
federal, state, provincial or local governmental or regulatory authority
or entity (or other amounts levied in lieu thereof) based upon or measured
by charges set forth in This Agreement, including sales of Service its use
the licensed Client Software, or other services provided. Distributor
shall be responsible for and shall promptly pay any such taxes, duties or
levies (or reimburse ManagedStorage therefor, and ManagedStorage may
adjust remittances otherwise due to Distributor to reflect such sums),
except taxes based upon the net income of ManagedStorage.
d. Travel and Lodging Expenses
It will be the responsibility of the Distributor to pay all travel and
lodging expenses for their own employees while attending ManagedStorage
courses. It will also be the responsibility of Distributor to pay all
lodging and travel expenses for ManagedStorage employees when providing
courses at the Distributor's designated location.
e. Billing Responsibility
Distributor will assume the responsibility for billing Distributor
Subscribers and collecting the amounts due.
f. Assumption of Billing
To ensure the full and complete payment of all amounts owed to
ManagedStorage under This Agreement, ManagedStorage shall be permitted to
withhold revenues and remittances otherwise due to Distributor to the
limit of the amounts under dispute, until all debits and credits are
cleared.
5. DISTRIBUTOR OBLIGATIONS AND REPRESENTATIONS
a. Orders for Services
All orders for the Service will be submitted by Distributor or Distributor
Subscribers to ManagedStorage electronically by means of the processes
identified in Schedules B2 and B3 utilized during the Client Software
registration. Fulfillment by ManagedStorage of any order shall be
dependent upon the grant of appropriate licenses and permits and the
compliance with any applicable export, import and other laws as may be
applicable.
b. Promotion of Service
i. Distributor Facilities and Personnel
Distributor agrees to provide and maintain, without any expense to
ManagedStorage, a suitable place of business with adequate and
efficient sales and service personnel and facilities. Distributor
further agrees to provide all ordinary service to Distributor
Subscribers, as the nature of the business makes necessary or
desirable in connection with the sale or distribution of the Services.
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ii. Sales Activity and Advertising
Distributor agrees to actively and diligently canvass and
solicit the trade in connection with the Services, and in
general to make commercially reasonable efforts to sell the
Services. Distributor's promotion efforts shall include:
a) Disseminating information, created for the
Subscriber provided by ManagedStorage to the
Distributor field personnel which information may
include any Subscriber service bulletin, and
Subscriber field application notes;
b) The participation in a minimum of one seminar or
trade show per year. With ManagedStorage's prior
approval, the reasonable costs directly arising from
conducting or attending seminars and trade shows may
be deducted from the advertising and promotional
allowance set forth in Section 6.h of This
Agreement.
c) Advertising relating to the Service shall follow the
general statements made in the advertising prepared
and distributed by ManagedStorage. Distributor shall
not make claims in its advertising which exceed or
contradict claims made by ManagedStorage in its
prepared or printed material referring to the
Service. Distributor shall have the option but not
the obligation to display secondary reference to
ManagedStorage's name indicating the actual
commercial origin of the Service advertised,
provided that Distributor comply with the Trademark
Useage Guidelines attached to This Agreement as
Schedule G. All such sales activity and advertising
by Distributor shall be the responsibility of
Distributor without any expense to ManagedStorage,
except as set forth in Section 6.h herein.
Distributor acknowledges that ManagedStorage, at its
own expense, shall have the right to continue
promotion and advertising activities to Subscribers
in order to encourage sales of the Service.
c. Staff Competence
Distributor shall provide a staff conversant with the technical language
conventional to the Services and similar computer products in general, and
develop sufficient knowledge of the industry, the Services, and
competitive products, including specifications, features and benefits, so
as to be able to explain in detail to Subscribers and prospective
Subscribers the difference between the Services and competitive products
or services.
d. Pass-Through of Terms and Conditions
Distributor must secure its Subscribers' acceptance of the terms and
conditions attached hereto as Schedule D, by means of either a "click-on"
box in an online Subscription Agreement or a signed document reviewed and
accepted by each Subscriber during registration to the Service.
e. Distributor Subscriber Training
When requested by Subscriber the Distributor shall conduct training for
Distributor Subscribers based on ManagedStorage's training materials or
materials approved by ManagedStorage only.
f. Distributor Subscriber Support
Distributor shall provide "Level 1 Support" (as described in the
Definitions section of the Services Distribution Agreement) to its
Subscribers. ManagedStorage will review escalated problems on a monthly
basis. Of the calls that were escalated, if 10% or more were resolved by
applying known fixes, ensuring that such Subscriber had correctly
installed the client software, where applicable, or ensuring that the
source of the difficulty did not reside in Distributor's services to
Subscriber that facilitate access to the Service, then ManagedStorage will
increase Distributor's Variable Monthly Fees for the Services as otherwise
determined according to Schedule C by ten percent (10%) for that month.
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Distributor must provide all of the following at a minimum
1. a dedicated telephone number at which a subscriber can receive
support
2. an email address at which a subscriber can request support
3. an Internet web site at which it deploys offer information and
documentation, which information and documentation ManagedStorage
shall supply.
g. Subscriber Authentication
Authentication of the Subscriber will be the sole responsibility of
Distributor. ManagedStorage will not assume any responsibility for
legitimacy of the Subscriber, Subscriber's password discipline or any
related billing issues.
h. Capacity Requirements
Distributor will communicate to ManagedStorage any information, which
could affect Subscriber access or load, including but not limited to:
i. Distributor's communications infrastructure (dial-in
numbers, pop servers, and the like), and;
ii. Any special promotions offered by Distributor, and;
iii. Distributor system change (network, server, etc.), and;
iv. Distributor support structure (contact numbers, escalation
process, etc.), or;
V. Any customer contracts that will result in a material
increase in the demand for Services. Once such information
has been communicated to ManagedStorage, ManagedStorage
will have thirty (30) days in which to make the necessary
adjustments to its infrastructure, broadly defined, in
order to satisfy the demand, pursuant to the service level
agreements described in Schedules B2 and B3.
i. Use of Service
Distributor Subscribers shall not use the Service for storage, possession
or transmission of any information, the possession, creation or
transmission of which violates any state, local or federal law, including
without limitation, stolen materials, obscene materials or child
pornography.
SUBSCRIBER'S STORAGE SPACE AND DATA FILES THEREOF MAINTAINED BY
MANAGEDSTORAGE ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR
OTHERS WITHOUT DISTRIBUTOR'S OR ITS SUBSCRIBER'S CONSENT UPON PRESENTATION
TO MANAGEDSTORAGE OF A SEARCH WARRANT OR SUBPOENA, PROVIDED SUCH
EXAMINATION COMPLIES WITH THE ELECTRONIC COMMUNICATIONS PRIVACY ACT, 18
U.S.C. ss.2701 et.seq.
j. Access to Service
Distributor is responsible for ensuring that Distributor Subscribers have
adequate communication services necessary to access the Service whether
through Distributor facilities or otherwise.
k. Termination by Distributor Subscribers
Distributor must permit Distributor Subscribers to terminate the Service.
Upon notice from the Distributor, ManagedStorage will suspend such
Distributor Subscriber's account access at the end of the then current
Billing Period. Failure to provide such notice to ManagedStorage at least
seven (7) business days prior to the end of a Billing Period will result
in liability for another full Billing Period. After suspension of access,
ManagedStorage will retain the data as set forth in Section 6.e.
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1. Internet Accessible Web Page
Distributor will maintain an Internet accessible web page containing the
following minimum information:
i. ManagedStorage-approved high level description of the
Service.
m. Use of Name
ManagedStorage may make reasonable use of Distributor's name and
Distributor Subscribers' names in lists of customers distributed for
reference purposes with prior written consent from Distributor, which
consent will not be unreasonably withheld.
6. MANAGEDSTORAGE OBLIGATIONS
a. Supply of Service
ManagedStorage shall supply the Service to Distributor's Subscribers
through Distributor, subject to the terms of This Agreement.
ManagedStorage's obligation to sell to Distributor, supply and deliver
Service is, at all times, subject to the most recent usage capacity
requirements forecasted by Distributor and accepted by ManagedStorage.
b. No Responsibility for Data
No bailment or similar obligation is created between Subscriber (and/or a
Subscriber's designated users) or Distributor and ManagedStorage with
respect to any Subscriber's stored data. Subscriber will be responsible
for assigning passwords, where applicable, to restrict access to the
Subscriber's data. Subscriber is solely responsible for maintaining the
confidentiality of such passwords, including restricting the use of the
password by Subscriber's designated users. Each Subscriber shall be
responsible for all use of the Service accessed through the use of
Subscriber's password.
MANAGEDSTORAGE SHALL HAVE NO RESPONSIBILITY OR OBLIGATION TO DISTRIBUTOR,
SUBSCRIBERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR
OVERSEE THE CONTENTS OF FILES STORED ON THE SERVICE.
c. Right to Perform System Backups
ManagedStorage may make copies of all files stored as part of the servers
utilized in connection with some of the Services. ManagedStorage is not
obligated to archive such copies and will utilize them only for backup
purposes. They will not be accessible to Subscriber or Distributor.
d. Training, Support and Sales
i. Technical Support Training
ManagedStorage agrees to provide Distributor with a reasonable amount
of technical support training as set forth in the Standard Operating
Procedures contained in Schedules B2 and B3.
ii. Training Materials
ManagedStorage shall make its training materials available to
Distributor as set forth in the Standard Operating Procedures
contained in Schedules B2 and B3.
iii. Support Services
ManagedStorage shall provide reasonable "Level 2" and "Level 3"
telephone support services to Distributor for Services as set forth
in the Standard Operating Procedures contained in Schedules B2 and
B3. The support phone number will be available twenty-four (24)
hours each day including weekends and holidays. ManagedStorage will
respond to Distributor in accordance with the Standard Operating
Procedures defined in Schedules B2 and B3.
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iv. Sales
ManagedStorage shall make available sufficient account managers or
sales representatives in the New York/New Jersey geography whose
duties shall be to actively and diligently canvass and solicit the
trade in connection with the Services and in general to make
commercially reasonable efforts to sell the Services. This
representative or representatives will have presales support from
ManagedStorage to enable such assistance.
The parties agree that the Services to be marketed under This
Agreement are part of MSI's xSP agreement with EMC. For the duration
of the term of MSI's xSP agreement with EMC, EMC Sales
representatives shall be compensated for storage sold by MSI or
Distributor, in accordance with MSI's xSP agreement with EMC.
e. Subscriber Access to Data
If Distributor suffers some event, including a Force Majeure event that
takes Distributor off-line for a prolonged period, ManagedStorage will
hold the data of Distributor's Subscribers online for a period of sixty
(60) days and make such data available to those Subscribers when requested
by the Subscriber. ManagedStorage will not redirect access to such
Subscribers data through another party except at the direction of
Distributor, and will require that Subscribers wishing to switch to
another participating reseller of the Service download their files and
comply with Distributor's then-existing exit procedures. In addition,
ManagedStorage will deny access to any Subscriber's data upon request of
Distributor; provided, however, that Distributor shall hold ManagedStorage
harmless from, and defend ManagedStorage against, any claims, losses, cost
or damage that results from compliance by ManagedStorage with such
instructions.
f. Standard Operating Procedures
ManagedStorage will provide Distributor with Standard Operating Procedures
("SOPs") covering such processes as Service branding, sales, support,
order and delivery of the Services, reporting requirements and data
access. The current SOPs are attached to This Agreement as Schedules B2
and B3. in the event of a conflict between the SOP and This Agreement, the
SOP shall control.
g. Marketing Collateral and Advertising Formats
ManagedStorage will provide Distributor with Marketing Collateral and
Advertising formats as defined in Schedules B2 and B3 as attached to This
Agreement.
h. Advertising and Promotional Allowance
In addition to advertising ManagedStorage may provide, ManagedStorage will
provide to Distributor a promotional allowance equal to that amount
determined using the calculation provided in Schedule F - Section a less
any distributions due to ManagedStorage as outlined in Section 4.b of This
Agreement. If not exhausted in the current month such allowance or any
remaining portion thereof may be carried forward for not more than six (6)
months). The allowance shall not exceed fifty percent (50%) of moneys
actually expended by Distributor and shall be paid to Distributor within
thirty (30) days from receipt of paid invoices representing allowable
promotional expenses as defined by ManagedStorage in Schedule F -
Section b.
The promotional allowance is intended solely as an additional incentive
for advertising and shall not be construed as an additional obligation to
rebate an amount equal to the resulting value of the calculation provided
in Schedule F - Section a without proof of actual expenditure by
Distributor.
7. MUTUAL OBLIGATIONS
a. Right to use Name
Distributor and ManagedStorage shall each be entitled during the term
without charge to use the Symbols, name and trademarks of the other party
in its advertising, promotions, marketing documents, sales information and
similar materials (in physical or electronic media) for the limited
purpose only of disclosing to the public that ManagedStorage provides the
Services, provided that
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each party will advise the other in advance before using any such Symbol,
name or trademarks and give the other party an opportunity to review the
manner in which they will be used, it being recognized that each party is
entitled to control the manner in which its Symbol, name and trademarks
are used.
b. Disclosure
The parties each acknowledge that This Agreement may be disclosed pursuant
to governmental regulation, requirement, or order, including regulations
of the Securities and Exchange Commission. However, subject to Section 7.d
below, each party shall use reasonable efforts not to disclose the terms
and conditions of This Agreement.
c. Compliance with Export and Import Laws
ManagedStorage and Distributor hereby each acknowledge that the Service,
software and technical data referred to in This Agreement may be subject
to the laws and regulations of the United States Department of Commerce
Office of Export Administration ("OEA") and agree that none of such
Service, Client Software or technical data shall be exported or
re-exported unless properly authorized by the OEA, and further that the
import of the Client Software into certain jurisdictions may also be
prohibited or regulated by the governments of those countries, and that
Distributor will not do so unless properly authorized.
d. Confidentiality
Both parties agree that they shall keep confidential and not disclose in
any manner whatsoever, including through the use thereof, and shall make
no use of except in order to perform under This Agreement, all products,
pricing and technical information and materials, customer names and
information of any nature and in any form supplied by either party
pursuant to This Agreement, as well as any and all trade secrets and other
proprietary information furnished to them by the other party which is
marked as "top security," "protected," "restricted," "secret,"
"confidential," or "trade secret" or similar words, or, if disclosed
orally is identified as confidential at the time of disclosure
(collectively, the "Proprietary Information").
Both parties will cause each of their respective employees, agents,
contractors or consultants, whom such party knows or should know to have
access to any such Proprietary Information to execute such agreements as
shall be necessary to assure that such individuals maintain the
confidentiality of the Proprietary Information and not to use the
Proprietary Information except in accordance with This Agreement.
It is further agreed that the restrictions of this section shall not apply
to any Proprietary Information which:
i. Was publicly available at the date of receipt;
ii. Was in the receiving party's possession before the
date of receipt from the disclosing party;
iii. Has become publicly available after the date of
receipt from the disclosing party, without
disclosure through any means by the receiving party;
iv. Has become legally available to the receiving party
from any third party without restriction on
disclosure or use, or;
v. Is disclosed pursuant to the operation of a statute,
governmental regulation, order or decree of a court
or other governmental body provided the disclosing
party is given notice and an opportunity to seek a
protective order.
e. Operational Review
The parties agree to meet at least every three months, or more often as
the parties desire, to review the operation and delivery of the Services
and Distributor's business. The parties will reasonably
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agree on improvements to the Services and the timetable in which to make
the improvements required to promote the Services.
f. Employee Solicitation
During the period from the Effective Date of the Agreement and for one
year after termination, neither party will solicit for hire, directly or
indirectly, one another's employees without the express written consent of
the other party.
8. INDEMNIFICATION BY DISTRIBUTOR
Distributor hereby agrees to defend and indemnify ManagedStorage its employees,
agents and successors from any claim arising from or related to the use of, or
attempt to use, the Service by Distributor's Subscribers including the billing
and collection services on behalf of Distributor, to the extent that such claim
is based upon any representation, warranty or contractual commitment made by
Distributor that exceeds the terms set forth in the Subscription Agreement
attached hereto as Schedule D and the License Agreement attached hereto as
Schedule E.
The foregoing applies regardless of whether ManagedStorage voluntarily or
involuntarily becomes a party to such a claim.
Distributor further agrees to submit to personal jurisdiction in any forum in
which ManagedStorage is sued on any claim subject to indemnification.
The foregoing obligations are conditioned on the following:
i. Prompt written notice by ManagedStorage to
Distributor of any claim or proceeding subject to
indemnity,
ii. Distributor's control of the defense and/or
settlement of such claim by Distributor, all at the
expense of Distributor, and;
iii. Cooperation by ManagedStorage in said defense at
Distributor's expense.
9. INDEMNIFICATION BY MANAGEDSTORAGE
ManagedStorage shall, at its option and expense, either defend or settle any
action brought against Distributor its employees, agents and successors alleging
that any Services furnished by ManagedStorage under This Agreement infringes a
U.S. patent or copyright. ManagedStorage will pay any costs and damages finally
awarded against Distributor that are attributable to such claim, provided that
Distributor (a) notifies ManagedStorage upon discovery of such claim or action,
in writing of the action; (b) provides ManagedStorage all reasonable information
and assistance to settle or defend the action, and; (c) grants ManagedStorage
sole authority and control of the defense or settlement of the action.
a) In lieu of the provisions of this Section 9 if an infringement claim is
made, or in ManagedStorage's opinion is likely to be made ManagedStorage
may at its option and expense either (a) replace or modify the infringing
software or other protected intellectual property, so that it becomes
non-infringing or (b) procure for Distributor and Subscribers the right to
continue using the infringing intellectual property. If neither of the
foregoing alternatives is reasonably available or financially practicable,
ManagedStorage will accept the return of the infringing intellectual
property and refund to Distributor the fees paid by Distributor for the
Service for the three month period preceding the event forming the basis
of the claim.
[b)] ManagedStorage shall have no liability if the alleged infringement is
based upon (a) the combination of the Client Software with any product not
furnished by ManagedStorage to Distributor (b) the modification of Client
Software other than by ManagedStorage, (c) the use of the Client Software
or Service as part of any infringing process (d) the use of other than a
current unaltered release of Client Software, or (e) any software designed
or produced by Distributor or Subscribers; unless any
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such alleged infringement would lie independent of any such modification,
combination, process or alteration.
10. DISCLAIMER OF WARRANTY ON SERVICE
a) The Service is distributed on an "as is" basis without warranty of any
kind, either express or implied. ManagedStorage warrants only that it has
the right to offer the Service and the Client Software.
b) DISTRIBUTOR EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT DISTRIBUTOR'S
AND ITS SUBSCRIBER'S SOLE RISK. NEITHER MANAGEDSTORAGE NOR ANY OF ITS
LICENSORS, EMPLOYEES NOR AGENTS WARRANT THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES MANAGEDSTORAGE NOR ANY OF ITS
LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE
OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN "AS
IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE,
OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF
EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS
AGREEMENT.
c) THE FOREGOING WARRANTIES ON THE SERVICE ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, AND MANAGEDSTORAGE SPECIFICALLY DISCLAIMS
ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
Distributor will indemnify ManagedStorage for and hold ManagedStorage
harmless from any warranties or representations made by Distributor to
the Distributor Subscribers that exceed the above warranties.
d) Nothing herein shall derogate from the standards set out in Schedules B2
and B3 or limit ManagedStorage's obligations thereunder,
11. LIMITATION OF REMEDIES
a) Subject to the provisions of Schedules B2 and B3 and any other particular
remedies expressly provided for herein, ManagedStorage's entire liability
and Distributor's exclusive remedy shall be as follows:
i. ManagedStorage's entire liability and Distributor's
exclusive remedy for damages to Distributor for any cause
whatsoever, and regardless of the form of action, whether
in contract or tort, including negligence or any other
theory of liability, shall be limited to the greater of (i)
$25,000, (ii) the amounts paid by Distributor for the
Service for the three month period preceding the event
forming the basis of the claim, or (iii) the amounts paid
to Distributor by a Subscriber during the twelve month
period preceding the event forming the basis of a claim
being made by that Subscriber which is the underlying basis
of the claim between Distributor and ManagedStorage.
ii. IN NO EVENT WILL MANAGEDSTORAGE OR ANYONE ELSE INVOLVED IN
CREATING, DELIVERING OR MAINTAINING THE SERVICE BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES, OR FOR ANY LOST PROFITS, SAVINGS, USE,
REVENUES OR OTHER CONSEQUENTIAL DAMAGES, EVEN IF
MANAGEDSTORAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, ARISING OUT OF USE OF THE SERVICE OR INABILITY TO
USE THE SERVICE, OR ARISING FROM PERFORMANCE OR
NON-PERFORMANCE OF THE CLIENT SOFTWARE, OR OUT OF ANY
BREACH OF ANY WARRANTY, OR CAUSED BY DISTRIBUTOR'S FAILURE
TO PERFORM DISTRIBUTOR'S OBLIGATIONS
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HEREUNDER, OR FOR ANY CLAIM AGAINST DISTRIBUTOR BY ANY
OTHER PARTY, NOR SHALL MANAGEDSTORAGE BE LIABLE FOR ANY
DAMAGES THAT ARE INCURRED AS A RESULT OF DATA WHICH IS LOST
OR DESTROYED DURING THE OPERATION OR USE OF SERVICE OR THE
CLIENT SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM IS MADE
BASED UPON A CONTRACT OR TORT THEORY OF LIABILITY.
iii. Distributor's entire liability and ManagedStorage's
exclusive remedy for damages to ManagedStorage for any
cause whatsoever, and regardless of the form of action,
whether in contract or tort, including negligence, or any
other theory of liability, shall be limited to the greater
of (i) $25,000, (ii) the amounts paid by Distributor for
the Service for the three month period preceding the event
forming the basis of the claim, plus any amounts due and
payable for use of the Service by Subscribers, or (iii) the
amounts paid to Distributor by a Subscriber during the
twelve month period preceding the event forming the basis
of a claim being made by that Subscriber which is the
underlying basis of the claim between Distributor and
ManagedStorage, plus any amounts due and payable for use of
the Service by Subscribers.
iv. IN NO EVENT WILL DISTRIBUTOR BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR
ANY LOST PROFITS, SAVINGS, USE, REVENUES OR OTHER
CONSEQUENTIAL DAMAGES, EVEN IF DiSTRIBUTOR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
b) The limitations set forth in Section 11.a will not apply to claims by
third parties for personal injury or damage to real or tangible personal
property arising out of the negligence of ManagedStorage or Distributor,
nor to the cost of providing the remedies set forth in either Section 8
or Section 9 or Section 10 or Section 11.
c) Neither ManagedStorage nor Distributor shall be liable for any failure or
delay in performance hereunder, which is due, in whole or in part, to any
cause beyond its control.
d) In no event shall ManagedStorage have any liability to Distributor for
the lawful exercise of ManagedStorage's rights of termination under
Section 13, or for failure by ManagedStorage to renew This Agreement at
the end of any term.
12. TRADEMARKS
a. In General
The Service must be sold under trademarks owned by Distributor. In the
event that Distributor includes references to those trademarks owned,
licensed or claimed by ManagedStorage as specified by ManagedStorage from
time to time, Distributor shall use the trademarks in accordance with the
Trademark Usage Guidelines attached to this Agreement as Schedule G,
including appropriate trademark notices. Except as specifically set forth
in Section 12b below in respect of ManagedStorage's logotype, neither
Distributor nor ManagedStorage shall use the other's Symbols without the
owner's prior written approval nor shall either party use or be authorized
to use the other party's Symbols except in connection with and directly in
furtherance of marketing the Service unless prior written consent has been
obtained from the owner of such Symbols. Both parties agree not to obtain
or attempt to obtain, and to cause their Distributors and Subscribers not
to obtain or attempt to obtain, by registration or other method whether or
not sanctioned by law, any rights, title or interest in or to any of the
trademarks or the trade names of ManagedStorage or Distributor or any
other trademarks or tradenames which may be confusingly similar thereto,
except with the written consent and authorization of ManagedStorage and
Distributor. All rights, title and interest in and to said Symbols,
trademarks and trade names owned by either party shall inure to the
benefit of the party owning same. By using any Symbols, trademarks or
trade names owned by the other, the using party does not acquire any
proprietary right to such trademarks or trade names.
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b. Limited Right to Use Logotype
Distributor and ManagedStorage each shall have the limited right to use
the other's stylized logotype subject to the following conditions to which
both parties hereby agree:
i. That any such use of the other party's logotype in no
manner implies any ongoing rights of or to such use and is
only granted for such term as This Agreement is in effect;
ii. That if This Agreement terminates for any reason, the right
to use the other party's logotype terminates as well;
iii. That such limited right to use the other party's logotype
shall not give the user the right to register such
logotype;
iv. That such limited use of the other party's logotype shall
not create any authority to act on behalf of the other
party in any agency or representative capacity;
v. To defend and indemnify the other party for any liability
to third parties which may result from claims of trademark,
trade name or service ▇▇▇▇ infringement, misrepresentation
of authority or apparent authority of one party to act on
behalf of the other party which may be caused by such
limited use of the other party's logotype, and to pay the
costs and damages finally awarded in such suit or
proceeding (or agreed upon in settlement thereof); provided
such party is promptly informed and furnished a copy of
each communication notice or action relating to such claim
and is given authority, information and assistance (at the
indemnifying party's expense) necessary to defend or settle
such suit or proceeding;
vi. To use the other party's logotype only as determined and
approved in advance of such use by the owner of such
logotype. Both parties shall provide a sample of their
requirements to the other for the purpose of producing
proofs prior to use by the party contemplating any use
permitted herein. Such party shall then submit such proofs
to the other party for approval;
vii. That Distributor shall not use, in any manner, the letters
"MSI" or "MSII" at any time to represent ManagedStorage nor
the word "MANAGEDSTORAGE" in any stylized form other than
ManagedStorage's known logotype, nor shall ManagedStorage
use, in any manner, the word(s) representing Distributor or
any other applicable trademarks as sent to ManagedStorage
by Distributor from time to time referencing Distributor in
any stylized form other than Distributors known logotype;
viii. Both parties will comply at all times with the rules and
regulations furnished to the other party with respect to
the use of such party's trademarks, trade names and
service marks, and will express and identify properly
the authorized reseller relationship with ManagedStorage
for distribution of the Services, and;
ix. Neither party will publish or cause to be published by any
statement, or encourage or approve any advertising or
practice, which might mislead or deceive any parties or
might be detrimental to the marks, name, goodwill or
reputation of the other party or the Services. Such party
will upon request withdraw any statement and discontinue
any advertising or practice deemed by the other party to
have such effect.
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13. COVENANT AGAINST COMPETITION.
To accord to Access the full value of its purchase, MSI shall not, directly or
indirectly, during the Term of this Agreement, provide, offer or market, Managed
Storage Services to (1) those persons or entities with whom Distributor has an
existing customer relationship, or (2) tenants in the same building in which
Distributor is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, or at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ provided, however, this restriction shall not
apply to those persons or entities with whom ManagedStorage has an existing
customer relationship or installation or to resellers of ManagedStorage Services
that may move into the same building in which Distributor is located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ or at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇. ManagedStorage shall make commercially reasonable efforts to ensure that
no other ManagedStorage sales representative(s), other than the ones assigned to
Distributor, will call on Distributor's customers or targeted potential
customers. In addition, ManagedStorage will not share any target account,
pipeline, sales forecasts or sales processes from Distributor to other
ManagedStorage distributors and shall institute other appropriate procedures
necessary for commercially reasonable efforts to ensure separation of the sales
process. In the event that a ManagedStorage sales representative should take
Distributor's customer or targeted potential customer to another ManagedStorage
distributor, that sales representative will not be paid commission on services
purchased by the customer.
14. TERMINATION
a. Termination by Mutual Consent
This Agreement shall be subject to termination prior to the expiration of
the term by mutual consent of the parties, evidenced by a written
agreement providing for termination.
b. Termination by Bankruptcy
This Agreement may be immediately terminated by either party if the other
party files a voluntary petition in bankruptcy or under any similar
insolvency law, makes an assignment for the benefit of its creditors, or
if any involuntary petition in bankruptcy or under any similar insolvency
law is filed against such other party, or if a receiver is appointed for,
or a levy or attachment is made against all or substantially all of its
assets, and such involuntary petition is not dismissed or such receiver or
levy or attachment is not discharged within sixty (60) days after the
filing, appointment or making thereof. To the extent that applicable
bankruptcy law does not permit the exercise of ManagedStorage's rights
under the immediately preceding sentence:
i. Distributor hereby consents to the termination of
Distributor's right to grant further sublicenses of
Licensed Program, and
ii. Distributor agrees that adequate assurance of performance
by Distributor of the balance of This Agreement as a
"Debtor-in-possession" or any similar entity under
successor bankruptcy laws will include assurances both of
such entity's ability to adequately promote
ManagedStorage's Service and such entity's willingness and
ability to protect ManagedStorage's proprietary rights.
As a personal contract, exercise of Distributor's rights by a trustee or
assignment of Distributor's rights hereunder would not be appropriate and
that understanding is an essential part of ManagedStorage's willingness to
enter into This Agreement.
c. Option to Terminate with Cause
Either party to This Agreement shall be entitled, at its sole option, to
terminate This Agreement by notice in writing if the other party (the
"Breaching Party") commits any material breach of its obligations under
This Agreement which is not remedied within thirty (30) days after written
notice has been given to the Breaching Party. Material breaches shall
include, but not be limited to:
ManagedStorage International - Services Distribution Agreement Page 15 of 21
Agreement
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i. failure by ManagedStorage to provide the Services to
Distributor or any Subscribers pursuant to Schedules B2 and
B3,
ii. failure by Distributor to pay fees for Services when due;
iii. any breach by the other party of the confidentiality
provisions in This Agreement, or;
iv. any failure by Distributor to comply with Section 7.c
(Compliance with Export and Import Laws).
v. In the event of any termination of this Agreement pursuant
to this Section 14 c, the Breaching Party shall be liable
for all amounts due to be paid by the Breaching Party to
the other party hereunder to that date upon which the
Agreement terminates, together with all interest owed
thereon.
d. Merger or Sale
In the event that (a) either Distributor or ManagedStorage, including
their successors or permitted assigns, is merged or consolidated in
accordance with applicable statutory provisions for the merger or
consolidation, or (b) a corporation partnership or other business entity
acquires all or substantially all of the property and assets of
Distributor or ManagedStorage, its successors or permitted assigns, then
the Agreement is terminable without penalty by the party that is subject
to the event described in clause (a) or (b) upon six months prior written
notice.
Provided, however, in the event Distributor exercises its termination
right pursuant to this section, such termination shall not affect
Distributor's obligation to purchase the equipment as set forth in
Schedules C, C1 and C2 attached hereto.
e. Effect of Termination and Survival of Terms
i. Surviving Obligations
The following obligations shall survive any rescission, expiration,
termination or cancellation of This Agreement: Section 6.e (Subscriber
Access to Data), Section 7 (Mutual Obligations), Section 8
(Indemnification by Distributor), Section 9 (Indemnification by
ManagedStorage), Section 10 (Disclaimer of Warranty), Section 11
(Limitation of Remedies), Section 12 (Trademarks), Section 16
(General), and all payment obligations.
ii. Limitation of Rights
The rights upon lawful termination contained in this section are
absolute except as to remedies otherwise specifically provided for
in This Agreement. However, in any event, neither party shall be
liable to the other for any loss, damages or indemnity including,
without limitation, lost profits, goodwill, advertising or
promotional costs, termination of employees, salaries of employees
or severance payments, creation of customer base, or future
expectations, by reason of the exercise of any rights of
termination, and all such rights to any such loss, damages or
indemnity are hereby expressly waived.
f. Post Termination Archive Responsibilities
In the event ManagedStorage terminates This Agreement, all customer data
will be archived electronically and made available to Distributor and/or
any Distributor Subscribers of Services for a period of sixty (60) days
and thereafter ManagedStorage may erase the data.
g. Return of Material upon Termination
Both parties shall immediately return all material provided by the other
party in furtherance of This Agreement, including material provided by
ManagedStorage in stock or used for demonstration purposes, all
Proprietary Information received from the other party and all sales and
service data and collateral received from the other party. Such party
shall certify such return or destruction.
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h. Use of Trademarks
Upon expiration or termination of This Agreement, both parties shall cease
to use the Symbols, name, logo and trademarks of the other party or any
confusingly similar Symbols, name, logo or trademark and shall ensure such
cessation of use by all persons claiming to have received the right to
such use from either party.
i. No renewal
The acceptance of any order from, or the sale or license of any services
to Distributor, after the expiration, notice of termination, or
termination of This Agreement shall not be construed as a renewal or
extension thereof or as a waiver of termination. Provisions identical with
the applicable provisions of This Agreement shall govern all such
transactions.
15. PROPRIETARY RIGHTS
a. Ownership
As a result of the execution of This Agreement, no rights to the Service
or intellectual property, including trademarks, patents, copyrights and
trade secrets, other than those expressly provided under This Agreement,
are granted to the other party.
b. Limitation on Use of ManagedStorage Service
Distributor shall use the Service and any documentation related to the
Service consisting of or containing Proprietary Information related to the
Service solely for the purpose of performing under This Agreement.
c. Modifications
ManagedStorage shall own all proprietary rights in any modifications to
the ManagedStorage Service.
16. GENERAL
a. Headings
Headings, which include the underlined portion following the section
number, have been used for reference purposes only and shall have no
operative effect with respect to the construction of the rights or
obligations pursuant to This Agreement.
b. References
Any reference to a section number shall include all subsections of such
section, unless a certain subsection is specifically referenced.
c. GOverning Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey (USA), except its provisions with respect
to choice or conflict of laws, and in accordance with the laws of the
United States of America, as applicable. The venue for all legal
proceedings involving or arising from this contract shall be the state of
New Jersey.
d. Force Majeure
Neither party shall be liable for delays (including delays in
manufacturing, shipping or delivery, or failure to manufacture, ship or
deliver Service or failure of a supplier to deliver), or to otherwise
perform any obligation owing to the other party under This Agreement due
to any cause beyond the delayed party's reasonable control including, but
not limited to, acts of God, acts of civil or military authority, labor
disputes, fire, riots, civil commotion, sabotage, war, embargo, blockage,
floods, epidemics, power shortages, or when due to governmental
restrictions.
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Agreement
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e. Progressive Dispute Negotiation Process
i. This section will govern any dispute between the
parties arising from or related to the subject
matter of This Agreement that is not resolved by
agreement between the respective personnel of the
parties responsible for day-to-day administration
and performance of This Agreement.
ii. Prior to the filing of any suit with respect to such
a dispute (other than a suit seeking injunctive
relief with respect to any intellectual property
rights) the party believing itself aggrieved (the
"Invoking Party") will call for progressive
management involvement in the dispute negotiation by
notice to the other party. Such a notice will be
without prejudice to the Invoking Party's right to
any other remedy permitted by This Agreement.
iii. The parties will use their best efforts to arrange
personal meetings or telephone conferences as
needed, at mutually convenient times and places,
between negotiators for the parties at the following
successive management levels, each of which will
have a period of allotted time as specified below in
which to attempt to resolve the dispute:
Level ManagedStorage Distributor Allotted Time
-------------------------------------------------------------------------------------------------------
First Line of Business Director ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
for the Service Vice President, Managed Three (3) Business Days
Storage Services
-------------------------------------------------------------------------------------------------------
Second Line of Business Vice ▇▇▇▇ ▇▇▇▇▇▇▇▇[,]
President General Counsel Five (5) Business Days
-------------------------------------------------------------------------------------------------------
Third Designated Corporate A ▇▇▇▇ ▇▇▇▇,
Officer President/CEO Ten (10) Business Days
-------------------------------------------------------------------------------------------------------
iv. The allotted time for the first level negotiator
will begin on the effective date of the Invoking
Party's notice.
V. If a resolution is not achieved by negotiators at
any given management level at the end of their
allotted time, then the allotted time for the
negotiations at the next management level, if any,
will begin immediately.
vi. Any controversy or claim arising out of or relating
to This Agreement, or the breach thereof, shall be
settled by arbitration administered by the American
Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
vii. The prevailing party in any action based on This
Agreement, by way of arbitration or court action if
allowed hereunder, shall be entitled, as a part of
its award of damages, to recover its reasonable
attorneys' fees in such action.
Notwithstanding the above provisions relating to progressive dispute
negotiation and arbitration, the parties agree that in respect of a
violation of any provision of This Agreement, including without limitation
violation of any Proprietary Information, for which an award of damages is
an inadequate remedy to protect the injured party, the injured party is
entitled to seek injunctive relief, including a preliminary injunction, in
a court of competent jurisdiction, in addition to any other relief
available to it under the progressive dispute negotiation and arbitration
procedure specified above in Section 15.e.
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f. Computation of Time
If a time period provided in This Agreement requires a certain action be
performed within ten (10) or less days, then intervening Saturdays,
Sundays and legal holidays shall not be included in the computation of
time. If a time period requires a certain action be performed within
eleven (11) or more days, then intervening Saturdays, Sundays and legal
holidays shall be included in the computation of time. In the event that a
time period expires on a Saturday, Sunday or legal holiday, the time
period shall be deemed to expire on the next day that is not a Saturday,
Sunday or legal holiday. "Legal holidays" shall mean New Year's Day,
Birthday of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., President's Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day
and the Friday thereafter, and Christmas Day.
g. Costs and Expenses of Other Party
Except to the extent This Agreement expressly provides otherwise, neither
party shall be responsible for paying any costs or expenses the other
party incurs in connection with This Agreement.
h. Third Party Beneficiaries
This Agreement is not intended to be for the benefit of and shall not be
enforceable by any third party, including Customers. Nothing in This
Agreement, express or implied, is intended to or shall confer on any third
party any rights (including third-party beneficiary rights), remedies,
obligations or liabilities under or by reason of This Agreement. This
Agreement shall not provide third parties with any remedy, claim,
liability, reimbursement, cause of action or other right in excess of
those existing without reference to the terms of This Agreement. No third
party shall have any right, independent of any right that exists
irrespective of This Agreement, to bring any suit at law or equity for any
matter governed by or subject to the provisions of This Agreement.
i. Assignment
This Agreement can not be assigned by Distributor, Distributor's parent,
or any subsidiary or affiliate substantially controlled by Distributor,
and except as permitted, none of the licenses granted hereunder nor any of
the Licensed Programs or copies thereof may be sublicensed, assigned or
transferred by Distributor, except as allowed under Section 2, without the
prior written consent of ManagedStorage which consent cannot be
unreasonably withheld, conditioned or delayed. Any attempt by Distributor
to sublicense, assign or transfer any of the rights, duties or obligations
under This Agreement, except as allowed in Section 2, is void.
Notwithstanding the foregoing, either party may assign This Agreement
without such consent to a successor in interest or in connection with any
merger, consolidation, any sale of all or substantially all of such
party's assets or any other transaction in which more than fifty percent
(50%) of such party's voting securities are transferred, and
ManagedStorage may assign This Agreement to a successor in interest that
portion of its business relating to the Services defined in Schedules A2
and A3.
j. Relationship of the Parties
The relationship of ManagedStorage and Distributor established by This
Agreement is that of independent contractors, and nothing contained in
This Agreement shall be construed to (a) give either party the power to
direct and control day-to-day activities of the other or (b) constitute
the parties as partners, joint ventures, co-owners or otherwise as
participants in a joint or common undertaking. Distributor, its agents and
employees are not the representatives of ManagedStorage for any purpose
except as expressly set forth in This Agreement, and they have no power or
authority as agent, employee or in any other capacity to represent, act
for, bind or otherwise create or assume any obligation on behalf of
ManagedStorage for any purpose whatsoever. In all matters relating to This
Agreement, neither Distributor nor its employees, or agents are, or shall
act as, employees of ManagedStorage within the meaning or application of
any laws of any country or other jurisdiction covering unemployment
insurance, old-age benefit, social security, workers' compensation or
industrial accidents or under any other laws or regulations which may
impute any obligations or liabilities to ManagedStorage by reason of an
employment obligation. All financial obligations associated with
Distributor business are the sole responsibility of Distributor. All
collection of invoices
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Agreement
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or other Agreements between Distributor and its Subscribers are
Distributor's exclusive responsibility and shall have no effect on
Distributor's, obligations under This Agreement. Distributor shall be
solely responsible for, and shall indemnity and hold ManagedStorage
harmless from any and all claims by others, costs and damages (including
the attorneys' fees at trial and on appeal) arising out of the acts of any
Distributor employees, servants, or agents.
k. Integrated Agreement/Amendment
The entire agreement between the parties with respect to the subject
matter hereof is contained in This Agreement Except as provided below, no
provision of This Agreement shall be deemed waived, amended or modified by
either party unless such waiver, amendment or modification is in writing
and signed by the party against whom the waiver, amendment or modification
is claimed. The terms and conditions of any purchase order or other
instrument issued by Distributor in connection with This Agreement shall
not be binding on ManagedStorage and will not apply to This Agreement,
except such terms which refer to the type and quantity of Service. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their permitted successors and assigns. Notwithstanding the
foregoing, the terms of all resellers of the Service and any Standard
Operating Procedures established by ManagedStorage from time to time for
the use of the Service may be amended by ManagedStorage by means of notice
published over the Service from time to time.
l. Existing Intellectual Property
All right, title and interest in and to any inventions, discoveries,
patents, ideas, concepts, methods, works of authorship, improvements or
derivative works thereof, made, created, developed, or authored prior to
the effective date of This Agreement, is and shall remain the property of
the party who made, created, developed, authored or presently owns such
intellectual property, and unless expressly provided for in This
Agreement, no other license is implied or granted herein by virtue of This
Agreement. Nothing contained in This Agreement and none of the activities
contemplated herein will give either party an interest, license or other
proprietary right in any existing or new product or intellectual property
of the other party.
m. Equitable Remedies
The Parties recognize that money damages may not be an adequate remedy for
any breach or threatened breach of any obligation hereunder by either
party involving intellectual property. The Parties therefore agree that in
addition to any other remedies available hereunder, by law or otherwise,
Distributor and ManagedStorage shall be entitled to obtain injunctive
relief against any such continued breach of such obligations.
n. Counterparts
The parties may execute two (2) copies of This Agreement, each of which
shall constitute an original copy of This Agreement.
o. Notices
Notices will be effective on the date of receipt. All notices under this
Agreement will be in writing and sent by certified or registered mail,
return receipt requested or overnight mail delivery services to the other.
Communications to ManagedStorage with Communications to Distributor with regard to This
regard to This Agreement should be addressed Agreement should be addressed to:
to:
ManagedStorage International As to Company: AccessColo, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Contracts Administration Attn: General Counsel
ManagedStorage International - Services Distribution Agreement Page 20 of 21
Agreement
Number: MSI001122
With a copy to: ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
1251 Avenue of the ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
In witness whereof, the parties have executed This Agreement by their duly
authorized representatives, effective as of the Effective Date.
MANAGEDSTORAGE
INTERNATIONAL, INC ACCESSCOLO, INC
/s/ ▇. ▇▇▇▇▇▇▇ III /s/ A. ▇▇▇▇ ▇▇▇▇
------------------------------- ------------------------------
Authorized Signature Authorized Signature
▇. ▇▇▇▇▇▇▇ III A. ▇▇▇▇ ▇▇▇▇
------------------------------- ------------------------------
Printed and/or typed name Printed and/or typed name
C.E.O. Pres/CEO
------------------------------- ------------------------------
Title Title
7/17/01 7/16/01
------------------------------- ------------------------------
Date Date
ManagedStorage International - Services Distribution Agreement Page 21 of 21