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VINCHIN NON-EXCLUSIVE RESELLER PARTNER AGREEMENT

 

This Reseller Partner Agreement (hereafter called "AGREEMENT") is signed by and between CHENGDU VINCHIN TECHNOLOGY CO., LTD, a Chinese limited cooperation having its office at F4, Block 8, National Information Security Industry Park No.333 YunHua Road, High-Tech Zone, Chengdu, China (hereafter called "Party A") and company name entered into the online application (hereafter called “Party B”) having a primary place of business at the company address entered into the online application ("Territory").

This agreement is entered into between both parties concerned on the basis of equality and mutual benefit to develop business on terms and conditions mutually agreed upon as follows:

 

1. DEFINITIONS

1.1. The Products: means the products developed by Party A under its brand, which are sold by Party B in the Territory.

1.2. Territory: means the area that Party B can market, promote and resell the Products.

 

2. TERRITORY

Subject to the terms and conditions set forth herein, Party A hereby authorizes Party B to resell its products set forth in Section 3 ("PRODUCTS") in the Territory as Party A's NON-EXCLUSIVE RESELLER. Party B shall not advertise, sell or ship the Products outside the Territory without the prior written consent of Party A. The territory shall not be amended once the Agreement is signed, the Agreement must be re-signed in case an amendment happened.

 

3. PRODUCTS

The Products mentioned in this Agreement are the following products if there is no particular explanation:

Product Name	Edition Description
Vinchin Backup & Recovery	Standard
Vinchin Backup & Recovery	Enterprise

Note: This agreement is not restricted to any specific software version of Vinchin Backup & Recovery, the present release version shall prevail.

 

4. RESPONSIBILITY AND OBLIGATION

Party B shall use its best efforts, at its own expense, to sell, promote, and increase sales of the Products in the Territory. Party B will comply with all requirements set forth in any price list or other literature issued by Party A. All the commercial terms of the order signed by Party B should comply with the requirements set forth by Party A. If the agreement cannot be reached, Party A shall have the sole right and discretion to modify, reject and cancel the order.

4.1. Support and Services

Party B shall be responsible for answering service inquiries from customers within a maximum of twenty-four (24) hours.

Party A shall perform installation and after-installation support and services including but not limited to remote technical support on software update and debugging, providing suggestions on backup solution design, online deployment and installation guidance to help Party B better serve his customers and expand his business.

4.2. Training

Party B Shall provide adequate and trained service personnel to service Products in the Territory and shall meet Party A's reasonable requirements regarding training, including, but without limitation, having its service personnel acquire the general and special technical knowledge necessary to sell and service the Products. Party A shall provide online training to Party B's sales and service personnel. If on-site training is necessary, Party A shall arrange the training courses at Party A’s place with accommodation and food expenses therefore borne by Party A.

4.3. Promotion

Party B shall use its best efforts to market and promote Products in his Territory, including by: (a) attendance by Party B at trade shows at which Party B promotes the Products, (b) listing the Products in Party B's product lists and Party B 's other marketing materials, (c) advertising the Products in trade journals, magazines, and other appropriate publications, and (d) at Party A's request, translating and distributing Party A's press releases and other publicity and sales materials in the Market.

4.4. Marketing Practices

Party B will at all times perform hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by Party A. Party B will: (a) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Party A; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Party A, the Products or the public, including but not limited to disparagement of Party A or the Products; and (c) make no false or misleading representation with respect to Party A or the Products

4.5. Promotional Materials

Party B consents to the listing of its business name, address, phone number and web site addresses in such Party A advertising and promotional materials as Party A may determine in its sole discretion, including product literature and Party A's web sites. During the term of this Agreement, Party A shall provide Party B with marketing and technical information concerning the Products, brochures, instructional materials, advertising literature, and other Product data, with all such material in the English language. Party B may not use the promotional materials for any purpose other than advertising and promoting the Products to the market in his territory. Notwithstanding anything to the contrary herein, Party B may not distribute any himself created promotional materials with respect to Party A or the Products without Party A's prior written approval of such materials.

 

5. CONSIDERATION, ORDERS AND DELIVERY

Party B's initial price ("Price") for Products shall be as set forth in a subsequent product and pricing agreement after receiving the Party B’s application. Party B acknowledges that Party A has the right, at any time and from time to time, to modify any or all of the products Prices. Party A shall give written notice to Party B of any price change at least THIRTY (30) days prior to the effective date thereof. The price in effect as of the date of Party B's receipt of notice of such price change shall remain applicable to all orders and registered deals received by Party A prior to that effective day.

Party A shall ship Products upon acceptance of Party B's written order and Party B's payment in full, except as otherwise mutually agreed in writing, for the Products. Party B shall pay for the Products in U.S. dollars in immediately available funds by wire transfer, or in such other manner as Party A may approve.

Orders shall be shipped via the internet from Party A. Except as otherwise mutually agreed in writing, Party B shall be responsible for all costs associated with its performance of this Agreement. All freight, insurance, duty and taxes applicable to Party B's purchase and sale of Products shall be paid by Party B. Party B will indemnify and hold Party A harmless from any obligation to pay any governmental entity any employer statutory taxes, withholding taxes, social security taxes or other taxes, levies or duties in connection with Party B's performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs of litigation) arising out of or resulting therefrom.

 

6. OWNERSHIP

As between Party A and Party B, all right, title and interest in and to the Products and associated Party A promotional materials and documentation, including without limitation all copyrights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights are and will remain the property of Party A, and such items may only be used by Party B as expressly permitted hereunder. Party B shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Products, Party A promotional materials and/or documentation.

 

7. CONFIDENTIAL INFORMATION

7.1. "Confidential Information" Defined

"Confidential Information" includes: (a) the Products; (b) any personally identifiable data or information regarding any customer; (c) any and all information disclosed by Party A to Party B, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary; (d) any notes, extracts, analyses or materials prepared by Party B which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (e) the terms and conditions of this Agreement. "Confidential Information" does not include information received from Party A that Party B can clearly establish by written evidence: (x) is or becomes known to Party B from a third party without an obligation to maintain its confidentiality; (y) is or becomes generally known to the public through no act or omission of Party B; or (z) is independently developed by Party B without the use of Confidential Information.

7.2. Party B's Obligations

Party B will make no use of Confidential Information for any purpose except as expressly authorized by this Agreement. Except as expressly provided in this Agreement, Party B will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in this Agreement, Party B will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of Party A. In the event that Party B is required to disclose Confidential Information pursuant to law, Party B will notify Party A of the required disclosure with sufficient time for Party A to seek relief, will cooperate with Party A in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.

 

8. DISCLAIMER OF WARRANTIES

EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE TO THE END USER IN THE APPLICABLE PARTY A’S END USER LICENSE AGREEMENT, PARTY A MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED. PARTY A DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS OR THE MEDIA ON WHICH PRODUCTS ARE SUPPLIED. PARTY B WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF PARTY A.

 

9. LIMITATION OF LIABILITY

PARTY A'S AGGREGATE LIABILITY TO PARTY B UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE PRICE PAID BY PARTY B FOR THE COPY OF THE PRODUCT WHICH GIVES RISE TO THE CLAIM. IN NO EVENT WILL PARTY A BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF PARTY A HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

 

10. INDEMNIFICATION BY PARTY B

Party B will indemnify, defend and hold harmless Party A from and against any and all claims, damages and expenses (including reasonable attorneys' fees and costs of litigation) by any third party resulting from any acts or omissions of Party B relating to its activities in connection with this Agreement, Party B's breach of this Agreement, or Party B's misrepresentations relating to Party A, the Products or this Agreement, regardless of the form of action. Party B will be solely responsible for any claims, warranties or representations made by Party B or Party B's representatives or agents which differ from the warranties provided by Party A in the applicable end user license agreement.

 

11. INFRINGEMENT

Party A agrees to defend or, at its option, settle any claim or action against Party B to the extent arising from a third party claim that a permitted use of a Product by End Users infringes any patent or copyright under the laws of the Territory, provided Party A has control of such defense or settlement negotiations and Party B gives Party A prompt notice of any such claim and provides reasonable assistance in its defense. In the event of such a claim of infringement, Party A, at its option, may provide Party B with substitute Products reasonably satisfactory to Party B to replace those affected Products then in Party B's inventory. Party A will not be liable under this Section if the infringement arises out of Party B's activities after Party A has notified Party B that Party A believes in good faith that Party B's activities will result in such infringement.

The foregoing states the entire liability of Party A with respect to infringement of intellectual property rights.

In the event that Party B finds out any illegal activities which infringe Party A's intellectual property rights, Party B shall inform Party A immediately. And Party B shall in his best efforts to avoid the harm incurred by such activities to Party A.

 

12. TRADEMARKS

"Trademarks" means all names, marks, logos, designs, trade dress and other brand designations used by Party A in connection with its products and services.

12.1. Usage

During the term of this Agreement, Party B may use trademarks owned by Party A which are associated with the Product(s) in connection with promotion of the Products, subject to the following conditions. Party B agrees to use the appropriate trademark symbol (either .< or .< in a superscript following the Product name) and clearly indicate Party A's ownership of the trademark whenever the Product name is mentioned in any advertisement, brochure or in any other manner in connection with the Products. Should Party A notify Party B that the use of the Party A trademarks does not confirm to the standards set by Party A, Party B shall immediately bring such use into conformance and provide Party A with specimens of such conforming use. All uses of Party A trademarks will be in accordance with the Party A trademark guidelines as issued by Party A from time to time and shall be subject to Party A's prior written approval. Party B shall not combine Party A 's trademarks and other marks so as to effectively create a unitary composite mark. Party B shall not do or cause to be done any act or anything contesting or in any way impairing or reducing Party A 's right, title, and interest in any trademarks or any other intellectual property. Party B acknowledges Party A 's ownership of the Party A trademarks and agrees not to register Party A's trademarks or any confusingly similar trademarks in any jurisdiction and that it will do nothing inconsistent with Party A 's ownership of its trademarks.

12.2. Infringement Proceedings

Party B agrees to promptly notify Party A of any unauthorized use of the Party A trademarks by others as it comes to Party B's attention. Party A shall have the sole right and discretion to bring legal or administrative proceedings to enforce Party A's trademark rights, including actions for trademark infringement or unfair competition proceedings involving the Party A trademarks.

12.3. Trademark Registrations

Party B, at Party A's request and expense, shall provide Party A with any specimens, execute all applications for trademark assignments or similar documents, and shall perform any other similar act reasonably necessary (1) to take full liability to the related register cost (2) to effectuate the lawful right to use product names, designations or trademarks as reasonably required by Party A.

 

13. RELATIONSHIP OF PARTIES

This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. Party B acknowledges and agrees that its relationship with Party A is that of an independent contractor, and Party B will not act in a manner that expresses or implies a relationship other than that of an independent contractor. Party A and Party B acknowledge and agree that: (a) Party B is permitted to promote and sell products and services of companies other than Party A; (b) Party B is not required to promote Party A products or services exclusively; and (c) Party B’s decision to devote all or some of its business efforts to the products or services of any particular company is solely in the discretion of Party B.

 

14. VALIDITY TERM

This Agreement shall be effective for a term of one year from the Effective Date. It shall be automatically extended for further one-year terms unless either party gives written notice to the other at least 60 days before the expiration, subject to the termination rights set forth in Section 15.

 

15. TERMINATION

15.1. Party A may terminate this Agreement immediately if:

a. There is a change in ownership or control of Party B;

b. Party A ceases to manufacture the Products or for any reason desires to cease its sales in the Territory;

c. The Party B fails to achieve any of its sales task;

d. Party B becomes the subject of proceedings related to bankruptcy or insolvency, or is rendered insolvent, or makes an assignment for the benefit of creditor, or becomes financially unstable in the good faith opinion of Party A;

e. Party B attempts to assign, convey or otherwise transfer in whole or in part any of Party B's rights hereunder to any third party without Party A's express prior written consent;

f. Party B engages in negligent or illegal conduct or submits false or untrue information to Party A;

15.2. Either party may terminate this Agreement if:

The other party materially breaches the terms of this Agreement for reasons other than as specified in Clause 15.1 above, and the breach is not remedied within fifteen (15) days after the non-breaching party gives the breaching party notice of such breach.

15.3. Upon termination of this Agreement for any reason, Party B shall:

a. Immediately return to Party A all Product registrations and other registrations obtained and/or held by Party B;

b. Within thirty (30) days after the termination of this Agreement, return all confidential information of Party A and any other related Party A materials. Party B shall not make or retain any copies of any confidential Items or information which may have been entrusted to it.

c. Party B's appointment as an authorized reseller partner of Party A Products shall immediately terminate, and Party B shall immediately cease using the Trademarks and discontinue all representations that it is an authorized Party A reseller partner.

 

16. FORCE MAJEURE

Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of but not limitation to conditions hereunder strikes, shortage, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.

 

17. ARBITRATION

Except where a party hereto is requesting an injunction to prevent irreparable harm other equitable relief, any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination, or invalidity of this Agreement shall be finally settled under the Rules of the Chinese Arbitration Association then in force by one or more arbitrators appointed in accordance with said Rules. The place of arbitration shall be the city of Sichuan, PR China. The law applicable to the arbitration procedure shall be determined by referring to the law of China. The English language shall be used throughout the arbitral proceedings.

 

18. MISCELLANEOUS

The written documents signed by both parties on the basis of this Agreement shall be deemed part of this Agreement. If there is no provision for specific items in the written documents, the relevant terms in this Agreement shall be applied. The Agreement contains the entire understanding of the parties, and there are no commitment, agreement, or understanding between the parties other than those expressly set forth herein. This Agreement shall not be altered, waived, modified or amended except in writing signed by the parties hereto and notarized. This Agreement is prepared in English, and in four copies, each party hereto holds two originals of the English version.

 

This contract is not effective until executed by Party B, and received and accepted by Party A by an electronic approval confirmation letter.

 

IN WITNESS WHEREOF, by clicking on the agree box in the partner online application the undersigned parties have entered into this Agreement as of the Effective Date of being approved by Party A.