Reseller Agreement

THIS AGREEMENT is made on the date when accepted on the Backup247 website Backup247.com.au.

BETWEEN:

BACKUP247 PTY LTD ACN 129 964 209 of Suite 30, 139 Cardigan Street, Melbourne VIC 3053, Australia.

(“Backup247”)

AND

The party being the same legal entity as set out in the Mutual Non-Disclosure Agreement. (“Reseller”)

RECITALS

1. Backup247 is engaged in (amongst other things), the provision of Services (“Business”).
2. The Reseller wishes to enter into a business relationship with Backup247 on the terms contained in this Agreement, whereby the Reseller will purchase Services from Backup247 and on-sell the Services to the Reseller’s customers.

THE PARTIES NOW AGREE AS FOLLOWS:

1.DEFINTIONS AND INTERPRETATION

1.1Definitions

In this Agreement including the recitals, unless the context otherwise requires:

“Acceptable Use Policy” means Backup247’s Reseller Acceptable Use Policy attached hereto as Annexure B;

“Agreement” means this agreement including all schedules and annexures attached hereto;

“Associates” has the same meaning under the Corporations Act 2001 (Cth);

“Backup247” means Backup247 Pty Ltd ACN 129 964 209 and includes all officers, agents and representatives of Backup247 and all Backup247 trading divisions including Online Backup Services (OBS);

“Backup247 Customer” means a customer of the Backup247 or a purchaser of Services from Backup247 directly;

“Business Days” means Monday through Friday, excluding public holidays that fall on any of these days in the State of Victoria, Australia;

“Business Hours” means 09:00 to 17:00 hours during a Business Day.

“Confidential Information” means, in relation to Backup247:

1. all information relating to or used by Backup247, including know- how, trade secrets, ideas, marketing strategies and operational information;
2. all information concerning the business affairs (including products, services, customers, and suppliers) or property of Backup247, including any business property or transaction in which Backup247 may be or may have been concerned or interested;
3. any other information disclosed by or on behalf of Backup247 which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential,including any such information made available to Backup247 by any third party, but excluding any information in the public domain;

“Constraint” means the limits and reduction in Services as described at clause 13.4(a);

“Contact Details” means the Reseller’s legal entity details and contact details as provided in the Mutual Non-Disclosure Agreement.;

“CPI” means the consumer price index published by the Australian Government Statistician under the heading All Groups, weighted average of eight (8) capital cities in Australia;

“Cut-off Day” means the day each month that account changes made prior to midnight on the Cut-off Day will be included in the next direct debit payment schedule to occur on the next “Payment Day”.

“GST” means goods and services tax imposable pursuant to the GST Act;

“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Intellectual Property Rights” means all rights in or to any patent, copyright, registered design or other design rights, utility model, trademark (whether registered or not and including any rights in get up or trade dress), brand name, services mark, trade name, eligible layout right, chip topography and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for any of the forgoing rights;

“Link” means a URL hyperlinked to text, a graphic, a search field or another information object on the Reseller’s Website, and includes a text link or a banner;

“Moral Rights” has the meaning given under the Copyright Act 1968 (Cth) and also includes any personal right, wherever existing in the world, protecting an author’s intellectual and personal relations to a work and includes those rights contemplated by Articles 6bis and14ter of The Berne Convention;

“Mutual Non-Disclosure Agreement” means the agreement established with the Potential Reseller prior to the execution of this Reseller Agreement and acceptance by Backup247.

“Order” means an order for the Services for a Reseller Customer placed by the Reseller with Backup 247 in accordance with the terms of this Agreement;

“Payment Day” means the date on which the Reseller pays the Rates by direct debit to the Backup247, being the date set by Backup247;

“Potential Reseller” means the legal entity wishing to join the Backup247’s Reseller Program and has agreed to be bound by the terms of Mutual Non- Disclosure Agreement , but has not yet been approved by Backup247 as a Reseller;

“Privacy Policy” means Backup247’s Reseller Privacy Policy, a copy of which is attached hereto in Annexure A;

“Rates” means the rate/s payable by the Reseller with respect to the Service for each of the Reseller Customers as set out in either Item 4 in Schedule 1 or the website Backup247.com.au ;

“Reseller” includes all officers, agents and representatives of the Reseller and is the same legal entity as documented in the Mutual Non-Disclosure Agreement and has also accepted the terms and conditions set-out in this Reseller Agreement located on website Backup247.com.au;

“Reseller Code” means the Reseller’s Username (email address) and Password, which are used to access the OBS website in accordance with the terms of this Agreement;

“Reseller Customers” means those customers identified, signed-up and managed by the Reseller;

“Reseller’s Website” means the website maintained by the Reseller (as indicated on the Reseller Program Application Form) or any other website owned by or under the power, authority or control of the Reseller as the case may be;

“Spam” means unsolicited or incomplete commercial electronic messages as further defined under the Spam Legislation;

“Spam Legislation” means the Spam Act 2003 (Cth) and any associated regulations and any other associated or relevant legislation that deals with Spam;

“Service” or “Services” means the offsite data backup service or services provided by Backup247 to the Reseller and/ or the Reseller’s Customers as a part of the Business;

“Term” means the term of this Agreement as indicated in clause 2;

“Terms and Conditions” means the terms and conditions for the Service as set out on the Website and as may be amended from time to time; and

“Website” means the Backup247 website Backup247.com.au and any other websites owned or controlled by Backup247 or its trading divisions and used in the course of the Business.

“Website Tabs” mean the Tabs selectable within the website Backup247.com.au. The specific tabs entitled “New Orders” and “Bulk Orders” contain the Rates that are applicable to each of the Resellers Customers.

1.2 Interpretation

In this Agreement, including the recitals, unless the context otherwise requires:

1. a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision;
2. a word denoting the singular number includes the plural number and vice versa;
3. a word denoting an individual or person includes a corporation, firm authority, government or governmental authority and vice versa;
4. a word denoting a gender includes all genders;
5. a reference to a recital, clause, schedule or annexure is to a recital, clause, schedule or annexure of or to this Agreement;
6. a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemental or replaced from time to time;
7. a reference to any party to this Agreement, or any other document or arrangement, includes that party’s executors, administrators, substitutes, successors and permitted assigns;
8. a reference to “dollar” or “$” is to an amount in Australian currency;
9. a reference to the word “including” or “includes” means “including” but not limited to” or “including without limitation”; and
10. this Agreement must not be construed adversely to a party solely because that party was responsible for preparing it.

2. TERM

The Term commences on the date of this Agreement once executed and continues in full force and effect until terminated in accordance with clause 13.

3. APPOINTMENT OF RESELLER

3.1 Backup247 appoints the Reseller as a reseller of its Services and grants to the Reseller a non-transferrable licence in Australia to:

1. re-sell the Services during the Term;
2. the right to provide a link from the Reseller’s web site to Backup247’s web site and/ or Backup247’s Service for the sole purpose of servicing the Reseller Customers; and
3. to apply the Reseller’s own interface to the Services, on the terms set out in this Agreement.

3.2 The Reseller will secure and protect the Services and ensure that its employees, and agents do not breach their respective obligations under this Agreement.

4. RESELLER ACCOUNT

4.1 Establishing Reseller Account:

1. This Agreement has been prepared in response to the Potential Reseller’s application Form generated on the Website.
2. The Potential Reseller will become a Reseller upon execution of this Agreement.
3. This Reseller Agreement is not transferable.
4. Backup247 will provide the Reseller with access to the Website to enable the Reseller to manage the Reseller Customer accounts.
5. The Reseller acknowledges and agrees to make changes to the Reseller’s Customer backup set scheduled backup times as requested by Backup247.
6. The Reseller acknowledges and agrees to make changes to the Reseller’s Customer accounts as considered necessary and requested by Backup247.
7. The Reseller is liable and shall pay the Rates for the Services provided under this Agreement in accordance with the Terms and Conditions.
8. The Reseller acknowledges and accepts that the Reseller will establish and manage the Reseller Customer accounts using separate Orders.
9. The Reseller acknowledges and accepts that each of the Reseller Customer’s Orders will be offered in accordance with the Terms and Conditions.
10. The Reseller acknowledges and accepts that Backup247 will only offer commission based Sign Ups arrangements on the proviso that the Reseller achieves continuous growth with at least one additional sign achieved each calendar quarter otherwise Backup247 may remove the commission based arrangement.

4.2 Reseller Order Management:

The Reseller will be solely responsible for:

1. managing each of the Reseller Customer Orders;
2. providing each Reseller Customer with the training necessary to correctly; create backup sets, establish and set Retention policy and performing regular testing to prove backup functionality; and
3. making any and all necessary amendments and arrangements with respect to a Service, software or storage capacity to suit the Reseller Customer’s needs.

5. CONTACT DETAILS
6. 1 The Reseller warrants that the Contact Details are true and correct at the date of this Agreement.

5.2 The Reseller undertakes to notify Backup247 in writing of any changes to the Contact Details within five (5) business days after they are changed.

5.3 Backup247 will only use the Contact Details in accordance with its Privacy Policy.

5.4 Backup247 may contact the Reseller using any of the Contact Details in relation to any matters arising under this Agreement and other relevant matters related to Backup247 and the Business.

6. GENERAL DUTIES OF RESELLER

6.1 The Reseller must observe the highest level of professional integrity and fair dealing and will not do anything to discredit, dishonour, reflect adversely upon, or in any way injure the reputation of Backup247 or the Business.

6.2 The Reseller must:

1. immediately bring any improper or wrongful use of Backup247’s patents, trade marks, emblems, designs, models or other similar industrial or commercial monopoly rights which come to their notice or to the attention of the Reseller. The Reseller must use every effort to safeguard the property rights and interests of Backup247 concerning this resale agreement and must assist Backup247 at the request of and at the cost of Backup247 in taking all steps to defend the rights of Backup247 other than by the institution of legal proceedings;
2. promptly bring to the notice of Backup247 any information received by them which is likely to be of interest use or benefit to Backup247 for the marketing of its products in Australia;
3. when requested by Backup247, supply to Backup247 reports, returns and other information relating to the resale of Services in a form acceptable by Backup247 within fourteen (14) days of the request and in any event no more than six (6) times a year;
4. ensure the Reseller Customer accounts are fully functional and that the Backup reports are being submitted to the correct email addressee for monitoring;
5. not assign, transfer, charge or in any manner make over or purport to assign, transfer, charge or deal with any part of this agreement or their rights under this agreement (whether this dealing is absolute or defeasible) without the consent in writing of Backup247;
6. not alter, obscure, remove, conceal or otherwise interfere with any markings or other indication of the source of origin of the goods which may be placed by Backup247 on the Service unless the Reseller has subscribed to the Re-branding Additional Offer and pays the relevant fees set out in the website Backup247.com.au; and
7. not alter the function or source code or application of the Service without prior written consent of Backup247 which consent is at the sole discretion of Backup247.

6.3 The Reseller and the Reseller Customers are bound by Backup247’s Terms and Conditions made or changed by Backup247 and notified to the Reseller either generally or for any particular purchase. The Reseller is required to incorporate the Backup247 terms and conditions as part of its contract with its Reseller Customers. The Reseller must not make any promises, representations, warranties or guarantees with reference to the products except such as are consistent with those conditions or as are expressly authorised by Backup247 in writing.

6.4 The Reseller is solely responsible for the provision of any support services and after-sales services to the Reseller Customers.

6.5 This Agreement does not preclude the Reseller from owning securities of a corporation or trust which are quoted on a recognised stock exchange in Australia or elsewhere provided that they hold not more than five percent (5%) each and fifteen percent (15%) in the aggregate of the total securities of any corporation or trust carrying on a business which provides services or goods in competition with Backup247.

6.6 Any representation, accurate or otherwise, made by the Reseller to any person does not bind Backup247 unless that representation is expressly included within the terms of an agreement between Backup247 and a Backup247 Customer or Backup247 agrees in writing to be bound by the representation.

7. ADVERTISING AND MARKETING

7.1 Approval of advertising material

The Reseller must not create, publish or distribute any item (in paper, electronic or other form) that contains references to Backup247 or the Business or the Reseller’s affiliation with Backup247 without Backup247 providing written consent to its use (which shall not be unreasonably withheld or delayed).

7.2 Spam

1. The Reseller undertakes not to promote Backup247’s Business, products or Services in a way that does or may:
   1. constitute Spam; or
   2. contravene or offend the Spam Legislation.
2. The Reseller hereby fully indemnifies Backup247 against any loss or damage suffered by it (including damages for loss of business, loss of profits, or the like) resulting from or in connection with any suits, claims, demands or actions that arise in connection with the Reseller’s acts or omissions in contravention of clause 7.2(a).

7.3 Use of Reseller’s Websites

1. Backup247 may, upon request, offer the Reseller as an additional service to the Reseller, web-client access.
2. The Reseller must not reformat, resize, or otherwise modify the Backup247 Link without the prior written consent of Backup247.
3. In the event that the Reseller chooses to utilise a Backup247 Link, the Reseller must not make any representations, warranties or other statements concerning Backup247, the Website or any of Backup247’s products or Services without prior written consent from Backup247.
4. The Reseller is, and during the Term remains, solely responsible for the development, maintenance and operation of the Reseller’s Website or any website it uses in connection with its marketing activities under this Agreement and for all materials and content that appears on such websites.

8. PAYMENTS

8.1 Reseller Order Payments:

(a) When the Reseller makes account changes to either existing Orders or creates additional Orders, Backup247 will process the changes affective from the Order change date. The Order change payment adjustments will be processed as follows:

(i) The Order change will be calculated following the next payment cycle Cut-off Day and payment changes (negative or positive) processed in the direct debit on the associated Payment Day as follows:

1. a) When more than two changes to an existing Sign Up occur during a calendar month will attract an administration cost as set out in Item 4 of Schedule 1
2. b) Data Storage Capacity change price component will be calculated on a daily basis for the period from the Order change date and the next payment cycle Cut-off Day and will be included in the invoice under the description of ‘pro- rata’ price component; and
3. c) The Software License price component is calculated on the maximum number of Software Licenses provided during each calendar month, therefore the ‘pro-rata’ price component of the invoice will be calculated using the maximum software Licenses; and
4. d) The on-going Order change price will be applied as from the next payment cycle Cut-off Day and will be included in the invoice under the description of regular ‘on-going’ component ; and
5. e) The ‘extra services’ provided as part of the Order change will be included in the invoice under the description of ‘miscellaneous invoicing’.

(b) The Reseller acknowledges, accepts and authorises Backup247 to add an additional fee of two percent (2%) to those inclusive of GST Order costs for payments using credit cards.

(c) The Reseller acknowledges and accepts that if the Reseller’s nominated bank account (or credit card) dishonours a direct debit payment request made by Backup247 in accordance with clause 8.1, this dishonoured payment will be deemed as a breach by the Reseller and authorises Backup247 to automatically apply the dishonoured payment fee as set out in Item 4 of Schedule 1if the direct debit payment auto-retry.

(d) The Reseller accepts it is the Resellers responsibility to provide Backup247 with any changes to credit card details necessary to ensure that Backup247 is in possession of valid credit card details at times. Such changes to include but not limited to card cancellations, card replacements, updated expiry date.

(e)When the Reseller selects the optional service, whereby Backup247 provide the direct debit payment service, the process will be as follows:

(i) It is the responsibility of the Reseller to ensure the Reseller’s customer completes and returns the completed Direct Debit Payment Form to Backup247 in accordance with the instructions on the website.

(ii) The Reseller acknowledges and accepts that payment to Reseller will not commence until the completed Direct Debit Payment Form to Backup247.

(iii) The Reseller acknowledges and accepts that payments to the Reseller are subject Backup247 receiving payments from the Resellers’ customer.

(f) When Backup247 provides additional and optional services which are not listed in either Item 4 Schedule 1 or the website Backup247.com.au then Backup247 will offer at its sole discretion the services at a fixed fee or hourly charge rate to the Reseller. Only once the Reseller has accepted the Backup247 offer will Backup247 commence the service.

8.2 Rates:

(a) Backup247 may, at its sole discretion giving sixty (60) days advance notice, amend those recurring Rates for storage space (Gb’s) and Software Licenses as detailed in the Website Tabs “New Orders’ and ‘Bulk Orders’ .

(b) If Backup247 increases those recurring Rates for storage space (Gb’s) and Software Licenses as detailed in the Website Tabs “New Orders’ and ‘Bulk Orders’ at a rate greater than the CPI increases over the corresponding period, then the Reseller may within five (5) Business Days request in writing for clarification from Backup247 as to justify the increased amount above the equivalent CPI increase.

(c) Backup247 must respond in writing to a request provided under clause 8.2(b) within five (5) Business Days.

(d) The Reseller will have the right to terminate this Agreement within five (5) Business Days of receiving the response from Backup247.

9. OTHER RESPONSIBILITIES AND LIMITATION OF LIABILITY

9.1 Subject to clause 6.6, the Reseller acknowledges that the arrangement with Backup247 set out in this Agreement is not exclusive and Backup247 may enter into similar arrangements with other persons at its sole discretion.

9.2 Backup247 may sell its products and services directly to customers or through third parties in any manner it chooses at its sole discretion.

9.3 Backup247 warrants that it has all the requisite corporate power and authority to enter into this Agreement.

9.4 Backup247 shall not be liable for any indirect, special, incidental or consequential damages, loss of business, loss of profits or the like, whether based on breach of contract, tort (including negligence), product liability or otherwise, suffered by the Reseller in relation to the arrangement forged by

this Agreement, the contents of the Website or the Services and/or products provided by Backup247 to Backup247 Customers.

9.5 Backup247 does not warrant that the Website or anything contained thereon will meet the Reseller’s requirements or that performance or operation of the Website or the operation of Backup247’s systems and servers will be uninterrupted or error-free.

9.6 The Reseller is responsible for providing and maintaining a functioning internet connection and all related costs and maintenance of computers, servers, telephones, cables, ADSL connections or other communication equipment used by the Reseller in meeting its obligations under this Agreement and in the Reseller’s business, particularly maintaining the Reseller’s Website.

9.7 The Reseller and its officers, agents and representatives have sole responsibility to make sure that its Reseller Code is not misused by any person in any way. Backup247 shall not be held liable for any indirect, special, incidental or consequential damages, losses or costs resulting from any misuse by any person of the Reseller Code.

9.8 Backup247 gives no other warranty of any kind, whether expressed, implied, statutory or otherwise, including, without limitation, warranties of merchantability, fitness for a particular use or purpose, course of dealing or performance and non-infringement.

9.9 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy which is conferred by the Trade Practices Act 1974 (Cth) or another piece of consumer legislation (“Consumer Legislation”) which cannot lawfully be excluded, restricted or modified. Where Backup247 breaches a non-excludable condition or warranty which has been implied by the Consumer Legislation, Backup247’s liability for breach will be limited, to the extent lawfully permissible, to (at Backup247’s discretion):

(a)in the case of supply of goods, the replacement of the goods or the supply of equivalent goods.

9.10 If the Rates are not received by Backup247 due to incorrect or inadequate details being provided by the Reseller, the Reseller will be liable for any loss, damages or costs resulting from the same to Backup247 and Backup247 may exercise its rights under clause 13.

9.11 The Reseller agrees that Backup247 shall not be liable for and hereby fully indemnifies Backup247 against any loss or damage suffered by it, including indirect, special, incidental or consequential damages (including damages for loss of business, loss of profits, or the like), whether based on breach of contract, tort (including negligence), product liability or otherwise, resulting from or in connection with any suits, claims, demands or actions that arise in connection with the Reseller’s acts or omissions in contravention of this Agreement.

9.12 The Reseller is required to hold and maintain Insurance cover providing a minimum of $2,000,000 Professional Indemnity cover. The Reseller must provide Backup247 certificates of currency with respect to the insurances

effected and maintained by the Reseller for the purposes of this clause 9 at any time and from time to time within 5 Business Days of request.

10. WARRANTIES

10.1 In addition to the Reseller’s other obligations in this Agreement, the Reseller warrants that:

(a) any representative who enters into this Agreement on behalf of the Reseller is 18 years of age or older and has valid legal capacity to enter into this Agreement and to perform its obligations and has all of the requisite corporate power and authority to enter into this Agreement;

(b) every officer, agent or representative of the Reseller who will be in any way involved in providing services to Backup247 in accordance with this Agreement has read and agreed to the obligations in this Agreement;

(c) the Reseller will not breach the Acceptable Use Policy;

(d) the Reseller will not engage in or otherwise be involved in any fraudulent activity;

(e) all content on the Reseller’s Website is owned by or validly licensed for use by the Reseller;

(f) the Reseller’s Website content does not and will not contain unlawful, threatening, defamatory, offensive, pornographic or excessively violent material or material that intentionally or unintentionally, violates any applicable local, state, national, or international law, or any rules or regulations established under such or gives the indication that such violation may be occurring; and

(g) the Reseller’s Website content does not and will not infringe or violate any Intellectual Property Right of any third party, or otherwise violates or breaches any duty towards or rights of (including without limitation, rights of privacy and publicity), of any other person.

11. INTELLECTUAL PROPERTY RIGHTS AND WAIVER OF MORAL RIGHTS

11.1 The Reseller agrees that all Intellectual Property Rights subsisting in the Confidential Information or any other information issued by Backup247 to the Reseller or any other person or produced by Backup247 remains the exclusive property of Backup247.

11.2 The parties hereby acknowledge and agree that Backup247 owns the Intellectual Property Rights in the Website and the Services.

11.3 The Reseller must not cause or permit anything to be done, which may damage or endanger Backup247’s Intellectual Property Rights or assist or allow any other person to do so.

11.4 The Reseller hereby grants Backup247 during the Term a revocable, non- exclusive, world-wide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by the Reseller solely for co-branding purposes or as a return Link from the Website to the Reseller’s Website.

11.5 In consideration of the terms of this Agreement, the Reseller hereby assigns to Backup247, all the present and future Intellectual Property Rights that may arise as a result of the arrangement between the parties under this Agreement.

11.6 The Reseller waives absolutely and irrevocably all Moral Rights that may arise as a result of the arrangement between the parties under this Agreement. For the purposes of this clause 11, a Moral Right may be waived by consenting to any act or omission which could otherwise constitute an infringement of that Moral Rights.

11.7 The Reseller hereby irrevocably and unconditionally appoints Backup247 and its Directors and Secretary from time to time as its attorney to complete, execute and deliver on its behalf, where the Reseller defaults in doing so, all documents and take all actions necessary to give effect to the provisions of this clause 11.

12.DISPUTE RESOLUTION

12.1 A party that believes an act or omission of the other party has caused it a grievance of any kind must give the other party written notice of the nature of this grievance as soon as practicable after the event giving rise to the grievance.

12.2 On receipt of notice, the parties must seek to resolve the grievance within ten (10) Business Days of the event giving rise to the grievance.

12.3 If a grievance arises out of or relates to this Agreement, or it’s breach, termination, validity or subject matter the parties expressly agree to endeavour in good faith to settle the grievance by mediation administered by the Australian Commercial Disputes Centre or such other similar entity as agreed by the parties before having recourse to arbitration or litigation.

12.4 Nothing precludes Backup247 from seeking urgent interlocutory relief to protect its Intellectual Property Rights or other valuable rights or interests in the event of any grievance.

13. SUSPENSION AND TERMINATION OF AGREEMENT

13.1 Suspension of Agreement

In addition to its other rights in this Agreement, Backup247 may suspend the provision of services if the Reseller breaches any clause of this Agreement, as follows:

1. Backup247 must send a notice in writing to the Reseller to either the email or facsimile or postal addresses given in the Contact Details provided in Mutual Non-Disclosure Agreement or subsequently updated by the Reseller, detailing the nature of the Reseller’s breach, giving the Reseller five (5) Business Days to rectify the breach detailed in the Notice to Backup247’s satisfaction;
2. the Reseller must rectify the breach detailed in the notice to Backup247’s satisfaction within the time frame given in the notice referred to in clause 13.1(a);
3. if the Reseller does not rectify the breach detailed in the notice referred to in clause 13.1(a) by the date given in the notice, Backup247 may terminate this Agreement with immediate effect and without further notice.

13.2 Material breach of Agreement

Clauses 6, 7.1, 7.2(a), 8.1(c), 10 and 11 are considered essential terms of this Agreement. Notwithstanding any other provision in this Agreement breach of any of these essential clauses constitutes a material breach of this Agreement and gives Backup247 the right to take any one or more of the following actions at its sole discretion (and without adhering to any notice periods or other requirements that may otherwise be required):

(a) immediately terminate or suspend the Services provided to the Reseller;

(b) provide the Reseller with a notice to cease the activities or conduct giving rise to the breach;

(c) warn the Reseller that any further repetition of the activity or conduct giving rise to the breach will result in Backup247 immediately terminating or suspending the Services provided to the Reseller and/or terminate this Agreement; or

(d) report the activities or conduct giving rise to the breach to relevant authorities.

13.3 Mutual Termination of Agreement

In addition to any other termination rights given to either party in this Agreement, this Agreement may be terminated by Backup247 or the Reseller by giving the other Party sixty (60) days notice in writing, which is then subsequently accepted by the party receiving the notice.

13.4 Constraint and Termination by Backup247

(a) In addition to any other suspension rights given to either party in this Agreement, Backup247 may find it necessary to limit or reduce the quantity, quantum or variety of Services available to the Reseller (“Constraint”). If the Reseller can demonstrate the Constraint has had and/or may have a significant, long-term unsupportable detrimental effect on the Reseller’s business then the Reseller will have the right to terminate the Agreement, not withstanding the obligations of clause 13.5.

(b) In addition to any other termination rights given to either party in this Agreement and notwithstanding clause 13.3, Backup247 may at its sole discretion terminate this Agreement by giving the Reseller three (3) calendar months notice.

13.5 Process following termination of Agreement

Upon termination of this Agreement for any reason, the following applies:

(a) all of Backup247’s obligations under this Agreement cease;

(b) all Reseller payments due or overdue for Services provided by Backup247 will be immediately due for payment;

(c) within ten (10) Business Days of termination of this Agreement, the Reseller must return any software or any other material or items provided by Backup247 to the Reseller.

(d )Backup247 will deactivate the Reseller and the Reseller’s Customers accounts without further notice; and

(e) the Reseller must:

(i) immediately cease and forever desist from creating, publishing or distributing any item (in paper, electronic or other form) that contains references to Backup247, the Business and/or the Reseller’s affiliation with Backup247; and

(ii) remove, delete, erase or destroy any Links, advertising, files, items or other material (in paper, electronic or other form) that contains references to or provides access to Backup247, the Services, the Business or the Reseller’s affiliation with Backup247.

14. CONFIDENTIAL INFORMATION

14.1 From time to time, the Reseller may receive, be privy to or otherwise have access to information that is confidential to Backup247 (including, but not limited to marketing or advertising campaign information, any beta or preview versions of Backup247’s software, any special pricing or Rates and special offers).

14.2 The Reseller acknowledges the confidential nature of the Confidential Information.

14.3 The Reseller agrees to ensure that the Confidential Information is kept confidential and the Reseller shall not directly or indirectly divulge or communicate or otherwise disclose the Confidential Information, in whole or part to any third party and the Reseller shall make no use of any of the Confidential Information without the express written consent of Backup247.

14.4 The Reseller shall take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties and shall inform Backup247 of any suspected or actual disclosure of the Confidential Information.

15. GST

15.1 All prices listed in this Agreement are exclusive of GST.

15.2 Terms used in this clause 15 have the same meanings as in the GST Act.

15.3 Where applicable, if a party (“GST Supplier”) makes a supply to another party (“GST Recipient”) in connection with this Agreement, the GST Recipient must pay the GST Supplier an amount equal to any GST payable by the GST Supplier in relation to that supply (“GST Amount”), unless the amount payable by the GST Recipient for that supply is already expressed to be inclusive of GST.

15.4 The GST Amount must be paid at the same time and the same manner as making payment for any monetary consideration on which the GST is calculated. If the GST Amount is not calculated on monetary consideration, the GST Recipient must pay the GST Amount within seven (7) days of receipt of a written demand from the GST Supplier.

15.5 The GST Recipient’s obligations to pay the GST Amount is conditional on the GST Supplier providing the GST Recipient with a tax invoice that complies with the relevant law. The GST Supplier must do all other things reasonably requested by the GST Recipient to enable the GST Recipient to obtain any input tax credit to which it is entitled.

15.6 The amount recoverable on account of GST and this clause 15 will include any fines, penalties, interest and other charges incurred as a result of late payment or other default by the GST Recipient under this Agreement.

15.7 If a party is required to pay, reimburse or indemnify another party for any cost, expense or other amount that the other party has incurred or will incur in connection with this Agreement, that amount will be reduced by any part thereof for which the other party can claim an input tax credit.

16. GENERAL

16.1 Variation

This Agreement may only be varied in writing by both parties, except where otherwise expressly allowed by a provision of this Agreement.

16.2 Force Majeure

Backup247 shall not be liable for any non-performance, delay, errors, data loss or other loss caused by any event reasonably beyond Backup247’s control including, but not limited to, acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.

16.3 Notices

All notices required under this Agreement must be in writing and delivered to the other party by email or facsimile transmission if receipt stamped acknowledging successful transmission or registered post.

Notices will be deemed as having been received as follows:

(a) Email delivery during Business Hours will be deemed to have been delivered on the date sent to the documented email address, otherwise the next Business Day will apply;

(b) Facsimile transmission delivery if duly receipt stamped during Business Hours will be deemed to have been delivered on the date receipt stamped, otherwise the next Business Day will apply;

(c) Registered post delivery will be deemed to have been delivered on the third Business Day after the registered post receipt date.

16.4 Severability

Each clause of this Agreement operates separately and in the event that one clause or part of one clause is found to be unenforceable, the unenforceable clause will be severed and this will not affect the enforceability of the remainder of the Agreement.

16.5 Waiver

Any waiver of any rights or obligations of a party must be in writing and delivered to the other party.

16.6 Governing law

The parties unconditionally agree that this Agreement is governed by the laws of the State of Victoria Australia and the parties each submit to the non- exclusive jurisdiction of the Courts of that State.

16.7 Counterparts

This Agreement may be executed as one of a number of counterparts. Each of which is binding, provided each is properly executed.

16.8 Entire Agreement

The parties agree that this Agreement forms the entire understanding between the parties and any previous discussions, negotiations or representations do not form part of this Agreement. Further, neither party has relied on any representation of the other party in entering into this Agreement or is relying on any representation or promise made by either party which is not contained in this Agreement.

16.9 Survival

Notwithstanding anything to the contrary, clauses 6.1, 10.1(c), 11, 14 survive termination of this Agreement.

16.10 Relationship

(a) Nothing in this Agreement creates a partnership, agency relationship or joint venture between the parties or appoints the Reseller as agents of Backup247 for any purpose whatever.

(b) The Reseller has no authority or power to bind Backup247 or to contract in the name of and create a liability against Backup247 in any way or for any purpose.