EXHIBIT 5.6
XXXXXXXXX.XXX, INC.
- AND -
UNISYS OF CANADA INC.
SERVICE CONTRACT
April 1, 1999
SERVICE CONTRACT
THIS AGREEMENT entered into as of Effective Date, as defined below, between
XXxxxxxxx.xxx, Inc. ("XXxxxxxxx.xxx"), having its principal place of business at
Suite 280 - 4400 Xxxxxxxx Xx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, and Unisys of
Canada Inc. ("Reseller"), having its principal place of business at 0000
Xxxxxxxx Xxx. Xxxx, Xxxxx Xxxx Xxxxxxx, X0X 0X0, concerns the distribution of
remote data management services by Reseller in the Territory.
WHEREAS:
A. XXxxxxxxx.xxx is in the business of providing secured backup services for
application software, user data and configuration information for laptop
computers and replacement services in the event of destruction, loss or theft of
laptop computers.
B. Reseller is a information technology company and has customers and
potential customers who are prospective users of the Services.
C. XXxxxxxxx.xxx has agreed to provide the Services to customers of Reseller
in accordance with the terms of this Agreement.
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Agreement the following words and phrases have the
following meanings:
a) "Effective Date" means April 1, 1999.
b) "End-User" means a person, which term includes a corporation,
partnership or any other recognized legal entity, whose principal
residence or place of business is within Canada and who enters into an
agreement with Reseller for the provision of services including the
Services hereunder.
c) "XXxxxxxxx.xxx" means XXxxxxxxx.xxx, Inc.
d) "XXxxxxxxx.xxx Software" means the object code files of software
provided by XXxxxxxxx.xxx to Reseller from time to time including
software provided by StorageTek for sublicensing to End-Users in
connection with provision of the Services. Please see Schedule B.
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e) "XXxxxxxxx.xxx Trademarks" means such trademarks, logos, business
names and other indicators of the source of goods and services
provided by XXxxxxxxx.xxx as XXxxxxxxx.xxx may specify from time to
time including without limitation "xxxxxxxxx.xxx".
f) "Reseller" means Unisys of Canada Inc.
g) "Services" means the supply of remote data management and restoration
services to End-Users, as described in Schedule A.
h) "StorageTek" means StorageTek Canada, Inc.
i) "Service Fees" means the fees payable by Reseller to XXxxxxxxx.xxx
pursuant to this Agreement.
j) "Term" means the term of this Agreement.
1.2 Term. The Term shall commence on the Effective Date and shall expire on the
second anniversary of the Effective Date unless terminated earlier in accordance
with Article 4 (Termination) of this Agreement; provided, however, that the term
of this Agreement will automatically extend for successive twelve-month periods
after the second anniversary of the Effective Date unless either of the parties
notifies the other party in writing at least three months prior to such date, or
the end of any twelve-month extension period, as the case may be, that this
Agreement will not be so extended. The expiration or termination of this
Agreement shall not apply to, or otherwise affect, any obligations of
XXxxxxxxx.xxx pursuant to End-User agreements then in effect, or with respect to
any formal proposals outstanding by Reseller to prospective End-Users for
Services.
1.3 Amendment. No modification, change or amendment to this Agreement, nor any
waiver of any rights in respect hereto, shall be made by either party unless
agreed to in writing by the other party. The waiver of one breach or default
hereunder shall not constitute the waiver of any subsequent breach or default.
1.4 Relationship of the Parties. The relationship of XXxxxxxxx.xxx and Reseller
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. Reseller, its agents and employees are not the
representatives of XXxxxxxxx.xxx for any purpose 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 XXxxxxxxx.xxx for
any purpose whatsoever. In all
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matters relating to this Agreement, neither Reseller nor its employees or agents
are or shall act as employees of XXxxxxxxx.xxx 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 XXxxxxxxx.xxx by reason of an employment
obligation.
1.5 Entire Agreement. This Agreement supersedes all previous agreements
relating to the subject matter hereof and sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof and any
written and oral representations, terms and conditions relating thereto,
whenever made, and not incorporated herein shall not be binding on either party.
1.6 Controlling Law and Severability. This Agreement shall be governed by and
construed in accordance with the laws of the Province of British Columbia and
each of the parties hereto irrevocably attorns to the jurisdiction of the courts
of British Columbia. If for any reason a court of competent jurisdiction finds
any provision of this Agreement or portion thereof, to be unenforceable, that
provision of the Agreement shall be enforced to the maximum extent permissible
so as to effect the intent of the parties, and the remainder of this Agreement
shall continue in full force and effect.
1.7 Mediation Of Disputes. The parties shall attempt in good faith to promptly
settle all disputes and controversies which may arise under the contract. If
such good faith efforts to settle, however, do not succeed within 30 days from
when the dispute or controversy first arose, either party may, by notice in
writing to the other party, submit the matter to mediation. Immediately upon
delivery of such notice, the parties will make a reasonable, good faith effort
to identify a mutually acceptable mediator. If they cannot do so within a period
of 10 business days, either party may, by notice in writing to the other party
direct the matter to arbitration pursuant to 1.8 below. Within 10 business days
from appointment of the mediator, or such other period of time as may be agreed-
to with the mediator, the parties will meet with the mediator and attempt, in
good faith, to settle the matter. If they cannot do so within five business days
thereafter, either party may terminate the mediation by notice in writing to the
other party, with a copy to the mediator, and direct the matter to arbitration
pursuant to 1.8 below.
1.8 Arbitration. In accordance with the procedures outlined in section 1.7
above, either party may, by notice in writing, direct any dispute or controversy
under the Agreement to arbitration, The arbitration shall be undertaken before a
panel of three arbitrators. Each party shall select one arbitrator within five
business days of the notice and the arbitrators so chosen will select the third
arbitrator within a further period of 10 business days thereafter. The third
arbitrator will chair the panel. Failing agreement on the selection of the third
arbitrator within said time period, either party may make application to the
applicable court in British Columbia for appointment of the third arbitrator.
Following appointment of the third arbitrator each party
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will, forthwith, submit its argument in writing to the arbitration panel and
make oral argument should the arbitration panel so require. The arbitration
panel shall make its decision, and so advise the parties in writing within 60
days following the completion of argument. In so doing, the arbitration panel
shall be restricted to construing the terms of the Agreement. The arbitration
award cannot, under any circumstances, exceed the remedies available under the
Agreement. Each party will bear its own costs of the arbitration proceeding and
share, equally, the costs of the arbitration panel, unless the arbitration panel
in its discretion and pursuant to representations by the parties awards some or
all of the costs of the proceedings to one of the parties. The decision of the
arbitration panel shall be by majority vote and final and binding on both
parties. Any award by the arbitration panel may be filed in court and enforced
as a judgment of the court. Except as otherwise described above, the arbitration
proceedings shall be governed by the then current Commercial Arbitration Act of
British Columbia.
1.9 Recourse to Court. Nothing in Sections 1.7 or 1.8 will preclude a party's
recourse to a court of competent jurisdiction to (a) enforce the terms of an
arbitration award under Section 1.8; (b) seek temporary equitable relief
necessary to protect its interests; or (c) recover specific property, including
an action in replevin.
1.10 Privacy of Proceedings. Neither party nor the arbitrators may disclose the
existence or results of any arbitration hereunder without the prior written
consent of both parties.
1.11 Force Majeure. Neither party shall be responsible for any failure to
perform (other than payment obligations) due to unforeseen circumstances or to
causes beyond a party's control, including but not limited to: acts of God,
civil commotion, sabotage, partial or entire failure of utilities owned and/or
operated by governmental bodies, lockouts, strikes, other labour disturbances
(whether legal or illegal), labor shortages, failure of common or private
carriers to deliver anything within the required time, software viruses, or any
other event or cause, whether similar or dissimilar to the foregoing, beyond the
control of the party. In the event of any such delay, XXxxxxxxx.xxx may defer
the delivery date of orders for Services for a period equal to the time of such
delay.
1.12 Section Headings. The section headings contained herein are for reference
only and shall not be considered substantive parts of this Agreement. The use of
the singular or plural form shall include the other form and the use of the
masculine, feminine or neuter gender shall include the other genders.
1.13 Schedules. The following schedules are attached to and form an integral
part of this Agreement:
Schedule A XXxxxxxxx.xxx's Suggested List Price and Service
Description
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Schedule B Global Replace Product Brochure
ARTICLE 2
PROVISION OF SERVICES TO END-USERS
2.1 XXxxxxxxx.xxx to Provide Services. Subject to all the terms hereof,
XXxxxxxxx.xxx hereby agrees to provide the Services to End-Users during the
Term. Nothing in this Agreement shall restrict XXxxxxxxx.xxx from providing the
same or similar services to any other persons at any location. Notwithstanding
the foregoing, Xxxxxxxxx.xxx shall not offer or contract its services to any
party, once advised that such party is currently an End-User or a potential End-
User of Reseller. To qualify as a potential End-User, Reseller must have had
direct contact with such party for purposes of marketing the Services.
2.2 Exclusive Relationship. Reseller hereby agrees that it will use
XXxxxxxxx.xxx exclusively for the provision of Services to all End-Users in the
Territory and that Reseller will not directly or indirectly offer services
similar to or competitive with the Services in or outside of the Territory
during the Term.
2.3 End-User Agreements. Reseller covenants that it will solicit prospective
End-Users by providing them with information regarding the Services. Except only
as XXxxxxxxx.xxx and the Reseller may agree, the scope and content of the
Services in any End-User agreement will comply with the scope and content of the
Services described under this Agreement.
2.4 Technical Expertise. The Parties shall each appoint a contact person within
their respective organizations who will be the single point of contact between
the Reseller and XXxxxxxxx.xxx for technical issues. The contact person must be
conversant with the technical language conventional to the Services, the
XXxxxxxxx.xxx Software and similar computer products.
2.5 End-User Training. Reseller shall conduct training for End-Users when
requested by the End-User based on training materials that has been approved by
XXxxxxxxx.xxx. Training material will be provided by XXxxxxxxx.xxx for the
purpose of training End-Users and internal technical and sales staff. Reseller
shall pay for the cost of modifying any End-User training material for the
purpose of displaying Reseller's branding information.
2.6 Payment Terms. Reseller will pay XXxxxxxxx.xxx the Service Fee equal to 75%
of the XXxxxxxxx.xxx Suggested List Prices for Services as detailed in Appendix
A. Reseller will be solely responsible for all invoicing and collection
functions with End-Users. The Service Fee shall be payable by Reseller in
respect of each End User Agreement on the last business day of each calendar
month commencing in the month in which Services are first provided to the End-
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User by XXxxxxxxx.xxx. Reseller may, at the option of XXxxxxxxx.xxx, pay a late
payment fee of 1.5% per month (with an effective rate of 19.6% per annum) on all
outstanding amounts. The amounts payable to XXxxxxxxx.xxx as well as such
payment terms are subject to change by mutual agreement of the Parties.
2.7 Service Information. XXxxxxxxx.xxx shall, at its own cost, provide to
Reseller (i) information regarding changes and innovations in the performance,
serviceability, use and application of all Services; and (ii) data, product
brochures and manuals on the sale and support of the Services.
2.8 Training. XXxxxxxxx.xxx shall, at its own cost, once in each twelve-month
period, or more often as the parties both agree, provide to Reseller training in
the use of the Services for that number of persons annually chosen by Reseller
and agreed upon in writing by both parties, provided that Reseller shall pay all
salaries, travel and other out-of-pocket expenses of Reseller personnel taking
part in such training. XXxxxxxxx.xxx shall make reasonably sufficient quantities
of its training materials available to Reseller for such purpose. XXxxxxxxx.xxx
warrants that such training will be reasonably sufficient for Reseller to market
Services and to train End-Users.
2.9 Marketing Plan. XXxxxxxxx.xxx will provide reasonable assistance to
Reseller from time to time in connection with development of a marketing plan
for the Services. Reseller will develop and implement a marketing plan with
XXxxxxxxx.xxx's reasonable approval no later than November 30, 1999.
2.10 Reseller to Provide Information to XXxxxxxxx.xxx. Reseller will promptly
provide XXxxxxxxx.xxx with all information necessary for XXxxxxxxx.xxx to
provide the Services in accordance with the End-User Agreement and cooperate
with XXxxxxxxx.xxx to ensure that all such information is delivered to
XXxxxxxxx.xxx as directly and as quickly as possible.
2.11 Reports. XXxxxxxxx.xxx will provide Reseller monthly electronic reports
showing:
. Monthly sales volume by Salesperson by product
. Year to date sales volume by Salesperson by product
. Monthly lost customers by Salesperson by product
. Year to date lost customers by Salesperson by product.
XXxxxxxxx.xxx confirms that it will develop and implement an on-line method for
Reseller to obtain such reports on an immediate basis as part of XXxxxxxxx.xxx's
on-line development plan.
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Reseller will provide XXxxxxxxx.xxx monthly electronic reports showing:
. Backlog of unfilled customer orders
. Sales pipeline showing customer accounts under active solicitation
including expected number of each XXxxxxxxx.xxx product to be sold,
probability and expected date of close.
2.12 Non-Competition. Reseller agrees that for the duration of this Agreement
and for a period of twelve months following the termination of this Agreement,
it will not negotiate, consider, or enter into any agreement with StorageTek or
any of its affiliates for the provision of Services, or services similar to
Services. Such Non-Competition restriction shall not apply if this Agreement has
been terminated by Unisys for default.
ARTICLE 3
USE OF XXXXXXXXX.XXX SOFTWARE AND IP RIGHTS
3.1 License. XXxxxxxxx.xxx hereby grants Reseller a non-transferable, non-
exclusive, royalty free, limited license to grant sublicenses to use the
XXxxxxxxx.xxx Software to End-Users. On termination of this Agreement, the right
of Reseller to grant sublicenses to use the XXxxxxxxx.xxx Software and all such
End-User sublicenses of the XXxxxxxxx.xxx Software then outstanding will then
terminate automatically and Reseller will delete all copies of the XXxxxxxxx.xxx
Software from all storage media under Reseller's control. Reseller acknowledges
that neither it nor any End-Users will acquire any ownership rights in the
XXxxxxxxx.xxx Software. Reseller will not and will have no right to use or
permit any person other than End-Users to use the XXxxxxxxx.xxx Software.
Reseller will not reverse engineer, decompile, disassemble or create derivative
works from the XXxxxxxxx.xxx Software nor make any attempt or assist any person
to do so.
3.2 No Rights in Marks. Neither party shall obtain any rights in relation to
the trademarks or trade names of the other party, other than as specifically
provided for in this Agreement.
3.3 Right to Use Name. XXxxxxxxx.xxx and Reseller shall each be entitled during
the Term without charge to use the 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
promoting the Services provided that each party will advise the other in advance
before using any such name or trademarks and give the other party a reasonable
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 name and
trademark are used.
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3.4 No Authority. Neither XXxxxxxxx.xxx nor Reseller shall act in any manner
that would expose the other party to any liability, nor pledge nor purport to
pledge credit of the other party beyond the scope of commitments embodied in
this Agreement. Neither will, unless agreed to by the other party, describe
itself as associated with the other party in correspondence, commercial
documents and on any name place or sign on its premise which describes or
relates to the Services, except as required to execute this Agreement. The
parties will reasonably agree on the content and timely distribution of a news
release announcing the signing of this Agreement.
3.5 Confidentiality. The XXxxxxxxx.xxx Software and all aspects of the means by
and manner in which XXxxxxxxx.xxx provides the Services constitutes trade
secrets and confidential information of XXxxxxxxx.xxx and other owners thereof
(hereinafter "Confidential Information"). Reseller shall not make Confidential
Information available in any form to any person other than Reseller employees
whose job performance requires such access and to End-Users in strict accord
with this Agreement. Reseller shall take appropriate action to protect the
confidentiality of and to ensure that any person permitted access to the
Confidential Information does not provide or disclose it to others. This section
3.5 shall survive the termination of this Agreement.
3.6 Software Representation and Warranty. XXxxxxxxx.xxx warrants to Reseller
that XXxxxxxxx.xxx owns all rights necessary for it to grant the rights in the
Software to Reseller under this Agreement. Xxxxxxxxx.xxx warrants that the
XXxxxxxxx.xxx Software, when installed in accordance with XXxxxxxxx.xxx's
installation instructions, will not fail to execute their programming
instructions due to defects in material and workmanship in the media and will
substantially conform to the specifications in the applicable user manual that
accompanies shipment of the XXxxxxxxx.xxx Software for a period of 90 days after
receipt. XXxxxxxxx.xxx does not warrant that the XXxxxxxxx.xxx Software will
meet End-Users' or Reseller's requirements or that the operation of the
XXxxxxxxx.xxx Software will be uninterrupted or error-free. For all defects
reported to XXxxxxxxx.xxx within the warranty period, the liability of
XXxxxxxxx.xxx is limited to responding to End-User problem reports according to
XXxxxxxxx.xxx's standard assistance practices. This warranty shall not be valid
if the XXxxxxxxx.xxx Software has been altered in any manner whatsoever.
3.7 NO OTHER WARRANTIES. EXCEPT AS PROVIDED IN THIS SECTION, XXXXXXXXX.XXX
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, TO RESELLER WITH RESPECT TO THE
XXXXXXXXX.XXX SOFTWARE, OR ANY SOFTWARE LICENSED BY AND SUPPLIED BY
XXXXXXXXX.XXX, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
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ARTICLE 4
INDEMNITY AND LIMITATIONS OF LIABILITY
4.1 Mutual Indemnity. Subject to the limitations Hereunder, each party (the
"Indemnifying Party") agrees to indemnify and save harmless the other party (the
"Indemnified Party") from all third party actions, causes of actions, claims,
costs, expenses or other liabilities arising out of the negligence of the
Indemnifying Party or the Indemnifying Party's breach of this Agreement. Without
limiting the foregoing, Reseller will indemnify XXxxxxxxx.xxx for any costs
including delivery and recovery costs associated with any lost, damaged or
unreturned computers or other hardware provided by XXxxxxxxx.xxx to End-Users.
4.2 XXxxxxxxx.xxx Indemnity. XXxxxxxxx.xxx will promptly investigate and
defend, at its expense, all actions in which Reseller, is made defendant or
claimed potential defendant for any alleged infringement, contributory
infringement, inducement of infringement or unauthorized or unlawful use of any
patent, copyright, trademark, trade secret, mask work, proprietary data or other
information, or claim of right, title or interest by another party in any
Software ("Infringement"). In order to be entitled to the benefit of this
indemnity, Reseller must: (i) provide XXxxxxxxx.xxx with prompt written notice
of all details of the initial claim or lawsuit relating thereto; (ii) permit
XXxxxxxxx.xxx the right to defend, appeal, compromise or settle the claim or
lawsuit in the reasonable judgement of XXxxxxxxx.xxx; and (iii) provide
XXxxxxxxx.xxx with all available information, reasonable assistance, authority
and cooperation to enable XXxxxxxxx.xxx to defend, appeal, compromise or settle
the lawsuit. XXxxxxxxx.xxx will pay and discharge all judgments or decrees
rendered in any such claim or lawsuit against Reseller to the extent that the
XXxxxxxxx.xxx Product is the cause thereof. XXxxxxxxx.xxx may settle any action
on terms and conditions of XXxxxxxxx.xxx's selection, provided they are not in
conflict with the terms of this Agreement and XXxxxxxxx.xxx pays all settlement
amounts. Reseller may participate in any action at its expense, subject to the
additional rights described below. If XXxxxxxxx.xxx fails to promptly
investigate, defend, appeal or settle, then Reseller will, following written
notification to XXxxxxxxx.xxx and the elapse of at least 30 days after such
notice is received by XXxxxxxxx.xxx if during such time XXxxxxxxx.xxx has not
taken reasonable steps to investigate, defend, appeal or settle the matter, have
the right from that time on to have sole control of the defense of such claim or
lawsuit and all negotiations for its settlement or compromise, and XXxxxxxxx.xxx
will pay, as they become due, all costs, expenses, and reasonable attorneys' and
experts' fees incurred by Reseller in undertaking such actions and any judgments
or decrees which may be rendered against or any settlements or compromises that
may be entered into by Reseller relating to a claim indemnified against
hereunder to the extent that the XXxxxxxxx.xxx Software is the cause thereof.
XXxxxxxxx.xxx indemnifies and agrees to hold harmless Reseller from all costs,
expenses, liabilities, damages and attorneys' and experts' fees arising from any
alleged or actual Infringement and will pay all judgments and other amounts
payable on any settlement or compromise arising from all actions involving
Infringement.
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4.3 Claims. Reseller and XXxxxxxxx.xxx will notify the other party in writing
of any claim or proceeding arising hereunder within 10 days of learning of such
claim or proceeding. Each Party will promptly report to the other all claimed or
suspected defects in the Services, the XXxxxxxxx.xxx Software or any aspect
thereof.
4.4 Waiver of Claims Against Suppliers. Neither XXxxxxxxx.xxx nor any of its
suppliers including StorageTek or any other data centre operators or storage
service utility centre operators is assuming any responsibility or liability
under this Agreement for any damage to or any alteration, loss or destruction of
the information or data of third parties including Reseller and End-Users.
Reseller hereby waives all claims against facility operators or storage service
utility centre operators based on or arising from or in connection with any of
the Services, whether such claims arise by negligence, willful misconduct or
otherwise.
4.6 LIMITATION OF LIABILITY. Unless further limited elsewhere in this
Agreement, the entire liability of each party to the other and each party's
exclusive remedy for costs, damages or other losses from any cause related to or
arising out of this Agreement, regardless of the form of action, whether in
contract or in tort, shall be restricted to direct damages only and will not
exceed the payments received by Reseller from End-Users.
Further, neither party shall be liable for any incidental, indirect, special or
consequential damages, including but not limited to, loss of use, revenues,
profits or loss of or damage to data from any cause,
This limitation of liability does not apply to any of the indemnification
provisions hereunder.
4.7 Effective Limit of Liability. The Effective Limit of Liability means the
maximum amount of the actual loss for direct damages only for which
XXxxxxxxx.xxx may be liable to Reseller or any End-User, whether or not the loss
or damage results from gross negligence, which shall not exceed an amount equal
to the payments received by Reseller from End-User(s) for the Services. This
limitation applies whether the action or claim is for breach of contract or in
tort (including negligence).
ARTICLE 5
TERMINATION
5.1 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 30 days after
written notice itemizing such breach has been given to the Breaching Party. In
the case that the Reseller is the Breaching Party, all outstanding Service
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Fees accrued to the date of termination will be paid in full. Material breaches
shall include, but not be limited to:
a) any act of the Breaching Party that materially impairs the goodwill
associated with the business of the other party; or
b) failure by Reseller to pay any Service Fees when due; or
c) any breach by the other party of the confidentiality provisions in
this Agreement; or
d) any material misrepresentation of the features or functions of the
Service to potential or existing End-Users by either Party; or
e) failure by either Party to appoint a qualified technical contact ; or
f) failure by XXxxxxxxx.xxx to provide training reasonably sufficient for
Reseller to market Services and train End-Users.
5.2 Other Termination. This Agreement may be terminated by a party immediately
if any proceeding in bankruptcy, insolvency, liquidation or other law for the
relief of debtors, including the appointment of any receiver or trustee or
assignment for the benefit of creditors, shall be instituted by or against the
other party, if the other party is liquidated or dissolved, or if the other
party attempts to assign this Agreement or any rights hereunder without prior
written consent of the terminating party. If XXxxxxxxx.xxx is the party who
terminates pursuant to this section then all Service Fees shall cease to be
payable as of the time of termination.
5.3 Payment After Termination. In the event that this Agreement is terminated,
other than for cause as outlined in Section 5.1 or Section 5.2, then
XXxxxxxxx.xxx will be entitled to receive Service Fees for all Services provided
as of the date of termination in accordance with the terms hereof.
5.4 Return of Materials and XXxxxxxxx.xxx Software. Upon termination of this
Agreement for any reason whatsoever, Reseller shall return or destroy at
XXxxxxxxx.xxx's option all copies of the XXxxxxxxx.xxx Software in its
possession, all confidential information received from XXxxxxxxx.xxx and all
sales and service data and collateral received from XXxxxxxxx.xxx. Reseller
shall certify such return or destruction.
5.5 Use of Trademarks. Upon expiration of this Agreement, both parties shall
immediately cease to use the name, logos and trademarks of the other party and
shall ensure such cessation of use by all persons claiming to have received the
right to such use.
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5.6 Solicitation After Termination. After Termination for cause by
XXxxxxxxx.xxx, XXxxxxxxx.xxx is permitted to approach End-Users to continue
provision of Services, either by XXxxxxxxx.xxx directly or by a third party.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Notices. Any notice or report required or permitted by this Agreement shall
be deemed given if delivered personally and signed as being received or if sent
by either party to the other by facsimile or registered or certified airmail,
postage prepaid, return receipt requested, addressed to the other party at its
principal business address or at such other address as to which such party shall
give notice hereunder. If by registered or certified mail, delivery shall be
deemed effective three days after deposit with postal authorities.
Notices to Reseller should be addressed to:
Law Department
Unisys of Canada Inc.
0000 Xxxxxxxx Xxx. Xxxx
Xxxxx Xxxx, Xxxxxxx
X0X 0X0
Phone: (000) 000 0000
Fax: (000) 000 0000
Notices to XXxxxxxxx.xxx should be addressed to:
Xxxxxxx XxXxxx
XXxxxxxxx.xxx, Inc.
Xxxxx 000 - 0000 Xxxxxxxx Xx.,
Xxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Phone: (000) 000 0000
Fax: (000) 000 0000
6.2 Assignment and Enurement. Reseller shall not assign this Agreement nor any
rights hereunder without the prior written consent of XXxxxxxxx.xxx, which
consent XXxxxxxxx.xxx may withhold for any reason or without giving any reason
therefor. XXxxxxxxx.xxx shall be entitled to assign this agreement and its
rights hereunder to any of its associated or affiliated companies. XXxxxxxxx.xxx
shall not assign this Agreement nor any rights hereunder without the prior
written consent of Reseller, which consent shall not be unreasonably withheld.
In
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such event, if Reseller fails to give such consent within 30 days notice by
XXxxxxxxx.xxx, XXxxxxxxx.xxx shall be able to terminate this Agreement
immediately. Subject to the foregoing, this Agreement shall bind and inure to
the benefit of the respective parties hereto and their respective successors and
assignees.
6.3 Execute and Delivery. This Agreement may be executed in any number of
counterparts, each of which when delivered shall be deemed to be an original,
but all of which together shall constitute one and the same document, and may be
effectively delivered by facsimile transmission to the telephone number
identified herein or otherwise by any party hereto as a telephone number that
can be used for such purpose.
IN WITNESS WHEREOF the parties have by their respective authorized signatories
executed this Agreement as of the date first above written.
XXXXXXXXX.XXX, INC. UNISYS OF CANADA INC.
Per:___________________________ Per:___________________________
Authorized Signatory Authorized Signatory
SCHEDULE A
XXXXXXXXX.XXX'S SUGGESTED LIST PRICES AND SERVICE DESCRIPTION
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XXxxxxxxx.xxx Suggested List Price
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Service Offerings ($ Can) ($ US)
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Global Replace - Basic
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Up to 25 MB data storage Free Free
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Up to 100 MB data storage $ 9.95 $ 7.95
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Up to 200 MB data storage $ 16.95 $ 12.95
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Up to 300 MB data storage $ 22.95 $ 17.95
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Unlimited data storage / Full Image backup $ 24.95 $ 19.95
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Unlimited Online Data Restore Included Included
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User Requested partial image CD-ROM (600 MB max) $ 44.95/incident $ 39.95/incident
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Hardware replacement and full data restoration* $ 999/incident $ 699/incident
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* if suitable hardware is available
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Global Replace - Premium $ 44.95/month $ 56.95/month
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Unlimited Full Image Data Backup Included Included
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Unlimited Online Data Restore Included Included
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User Requested full image CD-ROM $ 74.95/incident $ 94.95/incident
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Hardware replacement and full data restoration Included** Included**
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** a deductible maybe charged for users that request repeated hardware
replacements.
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DESCRIPTIONS OF SERVICES
Data Storage. This service consists of client software, called Global Replace,
which allows an End-User to backup a subset of his data files using a dial-up or
local area network internet connection to XXxxxxxxx.xxx's secure data centre.
The price of this service varies according to the volume of data stored, as
shown in the table.
Unlimited Full Image Data Backup. This service consists of client software,
called Global Replace, which allows an End-User to create a full-image backup of
his computer data, applications, and configuration using a dial-up or local area
network internet connection to XXxxxxxxx.xxx's secure data centre.
Unlimited Online Data Restore. This service allows an End-User to restore
selected files or directories on-line.
Hardware Replacement. Hardware replacements include computer laptops of equal or
better performance and are provided free on loan for 10 business days, after
which the hardware may be rented for $75.00 per week.
Full Data Restoration. Full data restoration includes all user data,
applications and configuration, exactly as the End User had saved on his
hardware at the time of the last full backup.
User Requested partial image CD ROM. XXxxxxxxx.xxx will courier to the End-User
a CD containing the files which the End-User most recently backed up.
User Requested full image CD ROM. XXxxxxxxx.xxx will courier to the End-User a
CD containing the End-User's most recent full-image backup. The End-User can
then perform a full data restoration on his current or identical laptop.
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SCHEDULE B
PRODUCT BROCHURE FOR GLOBAL REPLACE
(attached)
