GUARDIANEDGE TRUSTED PARTNER PROGRAM
RESELLER AGREEMENT

Terms and Conditions

1. Definitions.  For purposes of this Agreement, the following terms shall be defined as indicated below:

"Affiliate" means any person or entity that now or at any time hereafter, directly or indirectly, controls, or is under common control with, or is controlled by, GuardianEdge.

"Agreement" means these terms and conditions.

"Annual Maintenance and Support Programs" or "AMS Programs" means the services and support programs offered by GuardianEdge to its Customers.

"Customer" means any end-user organization that purchases licenses to the Products for its own use and not for resale.

"End User License Agreement" means the software license agreement included with the Products and to which Customers' use of the Products is subject.

"GuardianEdge" means GuardianEdge Technologies Inc.

"Net Purchases" means the gross amount of purchases made by Reseller for licenses to Products and first-year AMS Programs ordered and invoiced from GuardianEdge less Product returns.

"Products" means any/all  products developed or distributed by GuardianEdge.

"Registered Opportunity" shall mean any opportunity identified by Reseller and registered with GuardianEdge using a mutually agreed upon registration form.

"Reseller" means the party whose name appears on the signature page to the Summary of Key Terms.

"Reseller Program" means the training, services and benefits provided by GuardianEdge to Resellers.

"Territory" means the territory set forth in Section 6 of the Summary of Key Terms.

2. Reseller Authorization.

(a) Subject to compliance by Reseller with the terms and conditions of this Agreement, GuardianEdge hereby authorizes Reseller, on a non-exclusive basis, to promote and sell licenses to the Products and sell AMS Programs to Customers in the Territory during the term of this Agreement. 

(b) Nothing contained herein shall restrict or prevent GuardianEdge from granting rights to any other party to sell licenses to the Products or sell the AMS Programs inside or outside the Territory.

3. Reseller's Rights and Obligations.

(a) During the term of this Agreement, Reseller shall:

(i) use its best efforts to promote GuardianEdge, the Products and the AMS Programs and take such measures as may be reasonably appropriate to identify potential Customers for the Products, including but not limited to representing the Products and the AMS Programs fairly and accurately to potential Customers, promptly responding to all leads and inquiries regarding the Products or the AMS Programs, using GuardianEdge supplied or approved marketing materials to promote the Products and AMS Programs and cooperating with GuardianEdge as reasonably requested regarding the promotion and sale of the Products and the AMS Programs;

(ii) on a monthly basis and as otherwise requested by GuardianEdge submit status reports to GuardianEdge on leads provided by GuardianEdge; and

(b) Reseller shall sell the licenses to the Products and sell the AMS Programs at prices and on the payment terms and conditions determined by Reseller in its sole discretion.

(c) Customers' use of the Products is conditioned on agreement to the terms of the End User License Agreement provided with the Product.  Reseller shall not make any changes to the End User License Agreement.  The AMS Programs are provided to the Customer under standard terms which can be viewed in Attachment A.  Reseller shall not make any changes to these terms.  Any changes to the End User License Agreement or to the AMS Program terms by Reseller shall not be binding on GuardianEdge.

(d) Reseller agrees to fully observe and comply with all applicable laws, ordinances, rules and regulations of all duly constituted authorities applicable to the promotion and sale of the licenses to Products and the AMS Programs, and applicable to Reseller's obligations under this Agreement.

(e) Following the sale of one or more Products and/or AMS Programs to a Customer, Reseller shall forward promptly to GuardianEdge all questions, comments and complaints from the Customer with respect to such Products and/or AMS Programs.

(f) Upon GuardianEdge's request, Reseller shall forward promptly to Customers any materials supplied by GuardianEdge relating to the Products or the AMS Programs, including but not limited to warranty information.

(g) Reseller will refer all support questions from Customers to the contact points identified in Section 5 of the Summary of Key Terms.

(h) Upon Reseller's registration of a customer opportunity, Reseller shall notify GuardianEdge in writing of such registration, and for a period of 180 days from the date set forth on the registration, GuardianEdge shall not provide to any other reseller any special pricing, guidance or notice of any opportunity with respect to such Registered Opportunity.  GuardianEdge will acknowledge acceptance of such Registered Opportunity by notifying reseller in writing within four (4) days of receipt of Reseller's registration notification.  GuardianEdge, at its sole discretion and for whatever reason, may reject any Registered Opportunity. Any Registered Opportunity not expressly rejected within five (5) days from the time sent by Reseller will be deemed accepted.

4. GuardianEdge's Rights and Obligations.

(a) Subject to Reseller's compliance with this Agreement, GuardianEdge shall provide Reseller, at no cost, with the training, services and benefits reasonably required to sell licenses to the Products and AMS programs; provided, however, that Reseller shall be responsible for its travel and living expenses associated with such training, services and benefits.

(b) GuardianEdge will provide Reseller with a reasonable amount of promotional and marketing materials for Reseller's use in promoting and selling the Products and the AMS Programs.

(c) GuardianEdge reserves the right to provide the same pricing and rebates to Reseller as it provides to other resellers who buy the same Products and/or AMS Programs in substantially the same amounts under substantially similar terms and conditions, and who compete with Reseller.

(d) GuardianEdge reserves the right to modify, add or eliminate Products which are available under this Agreement at any time provided that GuardianEdge will honor any outstanding purchase orders submitted by Reseller.

5. Sale of Licenses to Products and AMS Programs to Reseller.

(a) GuardianEdge shall sell licenses to the Products and sell AMS Programs to Reseller in accordance with the terms set forth herein.  Reseller will submit purchase orders for licenses for the Products or AMS Programs after Reseller has identified a Customer for the applicable Product or AMS Program.  All orders for the licenses to Products or AMS Programs shall be submitted in writing to GuardianEdge's contact for notice set forth in Section 8 of the Summary of Key Terms and shall include the information set forth in Section 2 of the Summary of Key Terms.  Each order for the licenses to the Products or order for an AMS Program containing the required information shall be deemed accepted by GuardianEdge unless notice of rejection is delivered to Reseller within two (2) business days of GuardianEdge's receipt of the applicable purchase order.  GuardianEdge shall have the right to accept or reject any order submitted by Reseller to GuardianEdge for licenses for the Products or for the AMS Programs.

(b) After acceptance of Reseller's order for the Products or for the AMS Programs, GuardianEdge shall make the applicable Products available for download by the applicable Customer.  Reseller shall pay for the Products and/or AMS Programs at the time of purchase or, subject to prior credit approval, within thirty (30) days of the date of GuardianEdge's invoice.  In addition to any other right or remedy it may have, GuardianEdge shall be entitled to interest at a rate equal to the lesser of  1.5% per month and the maximum allowed  by law on all overdue payments plus all costs and expenses of collection.  Reseller shall be responsible for all applicable taxes.  Changes to Product and AMS Program prices and other terms and conditions of purchase shall be effective thirty (30) days from the date of notification to Reseller Contact as described in Section 7 of the Summary of Key Terms.

(c) Products are available via electronic download only and, unless otherwise agreed by GuardianEdge, Products will be downloaded by the Customer only and not by Reseller.  If GuardianEdge approves delivery of a Product via tangible media, any related costs shall be the responsibility of Reseller.

6. Independent Contractor.  Reseller is an independent contractor of GuardianEdge.  Reseller shall not hold itself out as an authorized representative or agent of GuardianEdge.   Nothing in this Agreement is intended to or shall be deemed to establish an agency or franchise relationship between GuardianEdge and Reseller and shall not create any obligation of any kind, whether express or implied, on behalf of GuardianEdge and shall not bind GuardianEdge.  RESELLER SHALL CONDUCT ITS ENTIRE BUSINESS RELATING TO THIS AGREEMENT AT ITS OWN COST AND EXPENSE AND SHALL HAVE NO AUTHORITY TO MAKE ANY REPRESENTATION, GUARANTEE, WARRANTY, COMMITMENT OR AGREEMENT ON BEHALF OF GUARDIANEDGE, OR TO ASSUME OR INCUR ANY LIABILITY OR INDEBTEDNESS ON GUARDIANEDGE'S BEHALF OR TO BIND GUARDIANEDGE TO ANY OBLIGATION WHATSOEVER.  GUARDIANEDGE SHALL NOT BE LIABLE FOR ANY ACT OR FAILURE TO ACT BY RESELLER, ITS AGENTS OR EMPLOYEES.

7. Mutual Indemnification.

(a) Each party (the "Indemnitor") will indemnify, and hold harmless the other (the "Indemnitee") and its officers, directors, shareholders, and employees, from any and all damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney's fees) arising from any of Indemnitor's acts or omissions in exercising its rights or performing its obligations pursuant to this Agreement or from any breach or default by Indemnitor under this Agreement.

(b) GuardianEdge will defend, indemnify and hold harmless Reseller, its officers, directors, shareholders, and employees from any and all damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney's fees) arising from any claims by third parties for infringement of the third party's intellectual property rights by the Products.  GuardianEdge has no obligation under this Section 7(b) if the Products have been modified other than as authorized by GuardianEdge in writing or have been used other than in accordance with their documentation or license, or if the infringement results from a combination of the Products with the products, services, or information of a third party.  If the Products do or are likely to infringe or misappropriate the intellectual property rights of a third party, GuardianEdge shall have the right, at its option, either to (i) obtain for Reseller the right to continue using the Products as described in this Agreement, (ii) replace or modify the Products so that the Products become non-infringing, or (iii) terminate this Agreement upon written notice to Reseller.

(c) Reseller will defend, indemnify and hold harmless GuardianEdge, its officers, directors, shareholders, and employees from any and all damages, liabilities, costs and expenses (including, but not limited to, reasonable attorney's fees) arising from claims relating to Reseller's alleged (i) negligent or intentional misrepresentations concerning the Products or AMS Programs, (ii) modification of the Product warranty set forth in the EULA, as it presently exists or may exist in the future, or (iii) modification of the terms of the AMS Programs referenced in Attachment A, as it presently exists or may exist in the future.

(d) The indemnified party must (i) promptly notify the indemnifying party in writing of any suit or any claim covered by the foregoing indemnities, (ii) cooperate with the indemnifying party in the defense of any such claim, and (iii) not settle any claim without the indemnifying party's prior written consent, such consent not to be unreasonably withheld. 

8. Confidentiality.

(a) Each party (the "Recipient") may have access to and/or the other party (the "Disclosing Party") may disclose to the Recipient (orally, visually or in writing) certain proprietary information, data and documents including, without limitation, information relating to the Products, the Disclosing Party's business operations, markets, processes, services, trade secrets, market strategies, development, finances, suppliers, business systems and techniques (collectively, the "Confidential Information").  The Recipient shall have no obligation to protect any Confidential Information which the Recipient can document in writing (i) becomes generally available to the public (other than as a result of a disclosure by the Recipient), (ii) becomes available on a non-confidential basis from a source other than the Recipient which the Recipient reasonably believes is entitled to disclose it, or (iii) has been independently acquired or developed by the Recipient without reference or access to any Confidential Information and without violating any of its obligations under this Agreement.

(b) The Recipient shall at all times hold in strict confidence any Confidential Information disclosed to it, or to which the Recipient obtains access, and shall not, without the express written consent of the Disclosing Party, directly or indirectly, divulge, publish, release or otherwise disclose the Confidential Information.  The Recipient may disclose Confidential Information to those of its employees with a need to know who agree to protect such information under obligations of confidentiality at least as restrictive as those contained herein.

(c) All Confidential Information disclosed to the Recipient by the Disclosing Party is, and shall remain, the sole property of the Disclosing Party.  Upon termination of the relationship between GuardianEdge and Reseller, the Recipient agrees to promptly return to the Disclosing Party all Confidential Information which may be in the possession of or under the control of the Recipient.

(d) This Agreement does not constitute any right or license granted by the Disclosing Party to the Recipient to use the Disclosing Party's intellectual property (including, without limitation, copyrights, trademarks, trade names or the like) in any way; provided, however, that Reseller shall have the right to use GuardianEdge's  intellectual property in connection with its promotion and sales of the Products and AMS Programs hereunder through the use of marketing and presentation materials prepared or approved by GuardianEdge in advance.

9. Limited Warranty and Disclaimers; Limitation of Liability.

(a) EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ITS STANDARD LIMITED WARRANTY INCLUDED WITH THE EULA, AS IT MAY BE AMENDED BY GUARDIANEDGE FROM TIME TO TIME, GUARDIANEDGE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR USE, PURPOSE, NON-INFRINGEMENT, OR MERCHANTABILITY.

(b) IN NO EVENT SHALL GUARDIANEDGE BE LIABLE TO RESELLER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE BUSINESS, PROFITS, EXPENDITURES, INVESTMENTS OR OTHER COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, FOR LOSS OF DATA, COST OF SUBSTITUTE PRODUCTS, COST OF CAPITAL, OR FOR THE CLAIMS OF ANY THIRD PARTY, OR FOR ANY OTHER REASON WHATSOEVER, EVEN IF GUARDIANEDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  ANY DAMAGES THAT GUARDIANEDGE IS REQUIRED TO PAY FOR ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE, AND REGARDLESS OF THE FORM OF THE ACTION IN THE AGGREGATE, SHALL BE LIMITED IN AMOUNT TO THE PAYMENTS MADE BY RESELLER TO GUARDIANEDGE FOR THE SPECIFIC PRODUCTS TO WHICH GUARDIANEDGE LIABILITY RELATES.

10. Property of GuardianEdge.  The intellectual property used by GuardianEdge or by any of its Affiliates in connection with the Products or any of them shall be used by Reseller only with reference to such Products and only in the manner approved by GuardianEdge.  Reseller acknowledges that it has and will obtain no proprietary interest in GuardianEdge's intellectual property or other trademarks and trade names of GuardianEdge and agrees not to use the same as part of its corporate or business name and to discontinue all use thereof immediately upon termination of this Agreement.

11. Term and Termination.

(a) This Agreement shall have a term of one (1) year commencing on the Effective Date and shall automatically renew for successive one (1) year periods, unless either party provides the other with written notice of its intent not to renew the Agreement at least thirty (30) days prior to the expiration of the term.  Any acceptance of an order of licenses to the Product or for an AMS Program after the termination of this Agreement shall be governed by the terms of this Agreement for the purpose of such order only but shall not act as a renewal of this Agreement.

(b) This Agreement may be terminated by either party at its convenience upon thirty (30) days prior written notice to the other.

(c) Either party may terminate this Agreement upon written notice to the other party if the other party is in material breach of this Agreement and fails to cure such breach within ten (10) days of receiving notice of the breach. 

(d) Either party may terminate this Agreement upon written notice to the other if the other becomes insolvent, is unable to pay its bills as they become due, files for bankruptcy or has a petition in bankruptcy filed against it, makes an assignment for the benefit of creditors, commences liquidation or dissolution proceedings, or has a trustee or receiver appointed for it. 

(e) Any termination notice shall be sent in the manner required by Section 13 below.

12. Non-Solicitation.  During the term of this Agreement and for one (1) year thereafter, neither party shall directly or indirectly hire or solicit or induce or assist any third party in hiring, soliciting or inducing any employee or independent contractor of either party or its Affiliates to leave their employ and work for anyone in competition with either party or its Affiliates.

13. Notices. All notices, requests or communications required by this Agreement shall be in writing and shall be made by personal delivery or confirmed facsimile, or by recognized overnight courier (e.g., Federal Express), or by certified or registered mail, return receipt requested, addressed to the contact persons and at the addresses set forth in Section 8 of the Summary of Key Terms or to such other addresses as may be designated in writing by the respective parties.  Any notice shall be deemed given on the earlier of the date of delivery or on the third (3rd) business day after the date of mailing or transmission thereof.

14. Miscellaneous Provisions.

(a) Assignment.  Neither party shall assign or otherwise transfer this Agreement or any interest herein or any right hereunder without the prior written consent of the other, and any such purported assignment, transfer or attempt to assign or transfer any interest herein or right hereunder, without such prior written consent, shall be null, void and of no effect.  Notwithstanding the foregoing, both parties shall have the right to assign this Agreement to another entity without the prior written consent of the other in connection with the sale of all or any substantial portion of their business or assets to which this Agreement relates, or any merger or consolidation or other reorganization with any other person or entity.

(b) Non-Waiver.  Any failure on the part of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provisions or of any right of such party thereafter to enforce each and every such provision.

(c) Remedies Cumulative.  Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth herein and allowed under applicable laws.

(d) Entirety of Agreement.  This Agreement supersedes, terminates and otherwise renders null and void any and all prior written and oral agreements entered into between the parties regarding the subject matter hereof, and each party acknowledges that there are no warranties, representations, covenants or understandings of any kind, nature or description whatsoever made by either party to the other, except such as are expressly set forth in this Agreement.  To the extent there is an inconsistency between the terms herein and the terms of any purchase order submitted for the purchase of Products or AMS Programs, the terms herein shall govern and control.

(e) Amendments.  Except as provided herein with respect to changes to the prices of Products, AMS Programs or otherwise, this Agreement shall not be subject to change or modification except by the proper execution of another written instrument by the parties.

(f) Governing Law; Venue.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to its conflict of law principles that would require the application of the laws of a different jurisdiction.  All disputes arising out of this Agreement shall be resolved by a federal or state court located in the San Francisco County California, and both parties hereby consent to the jurisdiction of such courts. 

(g) Invalidity.  Should any part of this Agreement for any reason be declared invalid, such declaration shall not affect the validity of any remaining portions, which remaining portions shall remain in full force and such invalid provision shall be enforced to the fullest extent permitted by law.

(h) Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(i) Survival.  The provisions of Sections 1, 6, 7, 8, 9, 10, 12, 13 and 14 shall survive the expiration or termination of this Agreement.

Attachment A
AMS Programs Terms and Conditions

Annual Maintenance and Support

Annual Maintenance and Support Programs

Annual Maintenance and Support (AMS) can be purchased from GuardianEdge Technologies at the time of software purchase.  AMS has a term of one (1) year and is renewed annually thereafter.  AMS includes three programs based upon the number of licenses purchased.

I.  Premier Account Program

Clients who purchase a minimum of 2,000 software licenses for a given product and AMS, or an annual license for Encryption Anywhere CD-DVD to encrypt over 20,000 CDs receive the following services:

• Customer Support Portal access for 5 people - 24x7 availability
• Choice of Support Hours - US or European Support Hours, or both (extra fee)
• Software upgrades and patches
• 2 business hour response time to requests made through the portal or email during the selected Support Hours
• Deployment consultation  - up to 6 sessions of consultation with a Professional Services Project Manager regarding
• Deployment or Upgrade Strategy
• Technology
• Project Planning
• Deployment tools
• Checklist
• Project Plan template
• Best Practices
• Training
• Program Administrator training - 1 on-line Seminar (Webinar)
• Self-study End-user Training Presentation
• Product Demo Presentation
• At the time AMS or the annual license is renewed, the following deployment and training services are available
• Program Administrator Refresher Training Webinar
• 1 Deployment/Upgrade consultation session.

II. Enterprise Account Program

Clients who purchase 400 - 1999 software licenses for a given product and AMS, or an annual license for Encryption Anywhere CD-DVD to encrypt 2,500 - 20,000 CDs receive the following services:

• Customer Support Portal access for 3 people - 24x7 availability
• Choice of Support Hours - US or European Support Hours, or both (extra fee)
• Software upgrades and patches
• 4 business hour response time to requests made through the portal or email during the client's selected support hours
• Deployment consultation  - up to 2 sessions of consultation with a Professional Services Project Manager in a topic chosen from the following:
• Deployment Strategy
• Technology
• Project Planning
• Deployment tools
• Checklist
• Best Practices
• Training
• Program administrator training material
• Product demo presentation material
• At the time AMS or the annual license is renewed, the following deployment is available
• 1 Deployment/Upgrade Consultation session.

III. Standard Account Program

Clients who purchase 50 - 399 licenses for a given product and AMS, or an annual license for Encryption Anywhere CD-DVD to encrypt less than 2,500 CDs receive the following services:

• Customer Support Portal access for 2 people - 24x7 availability
• Choice of Support Hours - US or European Support Hours, or both (extra fee)
• Software upgrades and patches
• 4 business hour response time to requests made through the portal or email during the client's selected support hours
• Deployment tools
• Checklist
• Best Practices
• Training
• Product Demo Presentation Material

Note: No Consultation

Support Hours

Each AMS program includes support during one time period (Support Zone), either US Support Hours or European Support Hours.  At the time of purchase or renewal, customers may choose the Support Hours that best match their needs. 

• US Support Hours                       5:00am - 5:00pm Mon-Friday Pacific Time
• European Support                       9:00am - 6:00pm Mon-Friday GMT
• Asia-Pacific Support                   9:00am - 6:00pm Mon-Friday Tokyo Time
• 24x5 Support                               4pm Sunday - 5pm Friday Pacific Time

 

GuardianEdge holidays excluded.

Customer Support Portal

The Customer Support Portal (CSP) is a private Internet portal designed to facilitate client organizations in supporting their end users.  Each organization is given access to the Customer Support Portal based on the AMS program for their purchase.  The portal has the following features:

• Knowledge Base for answers to numerous technical issues
• Clients can log new support cases on the portal to request help from GuardianEdge Technical Support
• Clients can update open support cases with new information and attachments on the portal
• Clients can check status and review their company's history of support cases on the portal

Annual Maintenance and Support Options

Clients can select additional options to further meet their particular support needs.

Multi-Zone Support Hours

Recognizing that many multi-national companies require support across several time zones, GuardianEdge offers multi-zone support hours for an incremental 10% of the License Fee, renewable each year.  The multi-zone support hours include US and European Support Zone Hours.

Additional Customer Support Portal Contacts

Clients who wish additional staff to be given access to the Customer Support Portal may request this for an incremental one-time fee of $250 per person.