THIS BACKUP365 PARTNER PROGRAM MSP (Wholesale) AGREEMENT (this “Agreement”)is made and entered into as of the date of the last signature (the “Effective Date”), by and between Backup365 Pty. Ltd. [B365], an Australian proprietary limited company [ACN 624 555 326] with its principal offices at 405/55 Holt Street, Sydney New South Wales 2000, Australia and the “MSP Partner”.

Background

A. B365 represents best of breed in the cloud SaaS (Software as a Service) vendors and desires to promote, market and sell these services with the most current description available on the B365 website www.backup365.io (“B365 Services”).

B. The MSP Partner desires to obtain the right to act as an independent partner forB365 Services.

C. The parties also desire that the MSP Partner promote the B365 Services as set forth herein.

Agreement

These are the terms on which B365 appoints MSP Partners to distribute and resellB365 Services. MSP Partner agrees to be bound by the terms of the Agreement by clicking “I AGREE”on the B365 Website.

1. Appointment

1.1 Appointment. On the terms and subject to the conditions set forth herein, B365hereby appoints the MSP Partner as an independent, non-exclusive authorised MSP Partner of B365, solely in the territory defined in Exhibit A (the “Territory”), and the MSP Partner hereby accepts such appointment.

1.2 Restrictions.

1.2.1 The MSP Partner may promote and resell the B365 Services solely to third party Customers in the Territory. For the purposes of this Agreement, the term “Customer”means a person or entity that desires to acquire the B365 Services for its own internal use, rather than for resale or distribution. Except as expressly authorised by B365 in writing, MSP Partners may not authorise or appoint any dealers, agents, representatives, subcontractors, or other third parties to resell, promote, market or provide the B365 Services.

1.2.2 To the greatest extent allowable under applicable law, the MSP Partner will not actively market, or solicit orders for the B365 Services, outside of the Territory. The MSP Partner will immediately forward to B365 all inquiries related to the B365 Services received from persons or other legal entities outside of the Territory, and the MSP Partner acknowledges and agrees that B365 has no obligation to pay any commissions or other amounts to MSP Partner with respect to any orders for any B365 Services received from any person or entity outside of the Territory.

1.2.3 The MSP Partner will not participate in the promotion and sale of B365 Services, as a MSP, distributor, channel partner or in any other capacity, except as expressly authorised by this Agreement. If at any time the MSP Partner participates in any other program to resell or otherwise distribute any B365 Services, then B365 will have the right to terminate this Agreement immediately upon notice to MSP Partner.

1.3 All Rights Reserved. All rights not specifically granted by B365 hereunder are reserved by B365. Without limiting the generality of the foregoing, B365 reserves the right to advertise, promote, market and sell the B365 Services, and to appoint third parties to advertise, promote, market and resell the B365 Services worldwide, including, without limitation, within the Territory. Further, B365 reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the B365Services or discontinue the sale of any or all of the B365 Services without liability of any kind or to reject a Customer order.

2. MSP Partner’s Promotion of the B365 Services

2.1 Promotion. The MSP Partner agrees to complete B365’s training programs deemed necessary by B365. The MSP Partner will use its best efforts to market and promote the B365 Services to its current and prospective Customers. The MSP Partner will at all times perform its activities hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by B365. MSP Partner will:(a) conduct business in a manner that reflects favorably at all times on the B365Services and the good name, goodwill and reputation of B365; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to B365, the B365Services, or the public, including but not limited to disparagement of B365 or the B365Services; (c) make no false or misleading representation with respect to B365 or theB365 Services; and (d) make no representations on behalf of B365 with respect to theB365 Services.

2.2 Sales Targets. B365 acknowledges that the MSP Partner is in the business of selling MSP services. B365 service sales are incidental to this process so no formal sales targets are placed on B365 MSP Partners.

2.3 Non-Competition. B365 acknowledges that the MSP Partner may sell products that are in competition to B365’s services.

2.4 Permits, Licenses and Compliance with Laws. The MSP Partner will, at its sole cost and expense, obtain all permits and licences necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations in the performance of this Agreement. Without limiting the generality of the foregoing, the MSP Partner acknowledges that the B365 Services may be subject to Australian or United States and local export control laws and may be subject to the export or import regulations of other countries. In the event that this Agreement authorises the MSP Partner to export or import the B365 Services, the MSP Partner agrees to comply strictly with all such laws and regulations. The MSP Partner agrees to comply with all applicable international, national, federal, state, and local laws, rules and regulations with respect to email, email abuse, and all other relevant aspects in the performance of the Agreement. Without limiting the generality of the foregoing, the MSP Partner agrees to comply with both the Australian SPAM ACT 2003 and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CANSPAM”).

The MSP Partner acknowledges that it has received B365’s “Tips for Complying With CAN-SPAM” as attached in Exhibit B and the statements contained therein are not intended as legal advice by B365. The MSP Partner at its sole discretion and at its own expense may seek advice from its legal counsel with respect to the SPAM ACT (Australian) and the CAN-SPAM ACT (USA).

2.5 Trademarks

2.5.1 Attribution. Subject to the terms and conditions of this Agreement and B365’s prior written approval of each such use, the MSP Partner will have the right to advertise, promote and distribute the B365 Services under the B365 Trademarks (as defined below), and B365 hereby grants to the MSP Partner a license to use the Licensed B365 Trademarks solely in connection with its advertising, promotion and distribution of the B365 Services in the Territory, provided that such uses and references are not misleading and comply with any guidelines issued by B365, and that the MSP Partner receives B365’s prior written approval of such use. The MSP Partner’s use of the Licensed B365 Trademarks must comply with any guidelines issued by B365with respect thereto. B365 reserves the right to withhold or withdraw approval of any use of the B365 Trademarks for any reason in B365’s reasonable discretion.

2.5.2 B365 Trademarks. “B365 Trademarks” means all names, marks, logos, designs, trade dress and other brand designations used by B365 in connection with its products and services. Except as set forth in Section 2.5.1, the MSP Partner is granted no right, title or license to, or interest in, any B365 Trademarks. The MSP Partner acknowledges and agrees that any use of the B365 Trademarks by the MSP Partner will inure to the sole benefit of B365.

2.5.3 Use in Campaigns. Without limiting the MSP Partner’s obligations under Section 2.4, the MSP Partner agrees that all email marketing campaigns using B365Trademarks or promoting B365 Services in any way must be sent only to recipient(s)who explicitly consent to receiving the email and are subject to approval by the B365Marketing Department, and the MSP Partner agrees to follow B365 marketing guidelines.

2.5.4 Ownership of B365 Trademarks. B365 is the sole and exclusive owner of theB365 Trademarks. The vendors that B365 represents are the sole and exclusive owners of their Trademarks. The MSP Partner will at no time use any trademarks, service marks, trade names, logos or designs that are similar to the B365 Trademarks or that could be confused with any B365 Trademarks, and the MSP Partner will not register or attempt to register in any country in the world any rights in or to any names, logos or designs that are similar to the B365 Trademarks. If the MSP Partner acquires any rights in any B365 Trademarks or any marks, names, designs or logos similar thereto, in any country in the world, by operation of law or otherwise, it will immediately, at no cost or expense to B365, assign such rights to B365 along with all associated goodwill, and take any reasonable action (including the execution of documents) to evidence such assignment.

2.6 Reporting. Not applicable.

3. B365 Marketing Assistance

3.1 B365 Marketing Materials. During the Term, B365 will provide to the MSP Partner marketing materials with respect to the B365 Services, including, but not limited to user manuals, training materials, documentation and other materials detailing the B365Services or software provided by B365 (“B365 Marketing Materials”), which may be provided in a format specified by B365. During the Term, B365 hereby grants to theMSP Partner a non-exclusive, non-transferable, right and license to use, reproduce and distribute the B365 Marketing Materials, solely for purposes associated with the MSP Partner’s conduct as authorised by this Agreement. The MSP Partner will not use theB365 Marketing Materials for any purpose other than promoting and marketing theB365 Services to current and prospective Customers and providing the B365 Services and related support to Customers. The MSP Partner will not use or create any derivative works from the B365 Marketing Materials for any purpose other than promoting and marketing the B365 Services. Furthermore, the MSP Partner agrees not to alter the B365 Marketing Materials in any way that changes the meaning, offer, intent or other aspects of the information contained therein.

3.2 Certain Communications. The MSP Partner understands that B365 may from time to time send electronic communications, such as channel newsletter, service alert and information, to the MSP Partner.

3.3 Media Releases. Either party may issue a media release, with the non-issuing party’s prior written consent, such consent not to be unreasonably conditioned, delayed or withheld.

4. MSP Partner Sales of the B365 Services.
The MSP Partner may resell the B365 Services solely to Customers, each of which Customers may authorise use of the B365 Services solely by its employees (“Customer Authorised Users”) solely for its internal business purposes.

5. Provisioning and Technical Support of B365 Services

5.1 Provisioning. The MSP Partner shall issue service order forms in the format as provided by B365 for Customers that have executed Customer Agreements subject to the terms set forth in Section 4. As between B365 and the MSP Partner, B365 will be responsible for provisioning the B365 Services to Customers. The MSP Partner will be responsible for ensuring that: (a) notifications are sent to B365 for the B365 Services to be de-provisioned when Customer Agreement expires or terminates, subject to B365’s written approval for any early cancellation; and (b) the MSP Partner provides B365 with at least seven (7) days’ prior written notice in the event that it intends to provide B365Services to any Customer that has more than 10,000 Customer Authorised Users. The MSP Partner acknowledges that B365 has the right to de-provision inactive users, domains, or Customers according to the then-current B365 operational procedures.Further, the MSP Partner will comply with any other guidelines and procedures issued by B365 with respect to the order processing and the marketing, activation, deactivation, and support of B365 Services, and will provide B365 with such assistance as is reasonably requested by B365 to enable the MSP Partner’s performance under this Agreement.

5.2 Customer Support. As between B365 and the MSP Partner, except for the provisioning of the B365 Services, the MSP Partner will be responsible for all obligations to Customers, including but not limited to technical support, training on the use of the B365 Services, ongoing customer service, and billing.

6. B365 Technical Support to MSP Partner.
During B365’s business hours, B365 will provide the MSP Partner with reasonable technical support, via telephone and/or email, with respect to the MSP Partner’s use and delivery of the B365 Services as authorised herein.

7. Ownership.
The B365 Services, B365 Marketing Materials and provisioning console are and will remain proprietary business assets of B365. B365 will retain sole ownership of all right, title and interest in and to the B365 Services, B365 Marketing Materials and provisioning console, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights. The MSP Partner will have no rights with respect to the B365 Services, B365 Marketing Materials or provisioning console, any derivative works thereof, or any individual components thereof, except as expressly set forth in this Agreement. The MSP Partner agrees not to allege that it owns any intellectual property rights, by adding any copyright legend of its own or other means, or in any of the B365 Services, provisioning console or B365Marketing Materials.

8. Consideration

8.1 Prices to MSP Partner. For each B365 Service ordered by the MSP Partner under the terms of this Agreement, the MSP Partner shall pay B365 the fees set forth in the Price List. B365 shall have the right, in its sole discretion, from time to time to change its Price List.The price list for B365 Services and the MSP Partners’ purchase price breaks are set forth in Exhibit A hereto.

8.2 Prices to Customers; Collection from Customers. MSP Partner will be entitled to set the prices at which it resells B365 Services to Customers in its sole discretion but understands that B365 does set a Manufacturer Suggested Retail Price (“MSRP”) for each of the B365 Services. The MSP Partner will bear all responsibility and risk associated with billings to and collections from Customers and bad debt. The MSP Partner shall pay B365 for all B365 Services provided to Customers regardless of whether the Customer pays the fees due to the MSP Partner.

8.3 Invoicing; Payment. B365 will invoice the MSP Partner on the 1st day of each month for: (a) advance payment of fees for the current month; plus (b) the prorated portion of any B365 Services provided in the prior month. B365 reserves the right on notice to invoice the MSP Partner on a different basis. Any change in billing arrangements will be notified in advance and/or be notified by email. B365 also reserves the right to set a credit limit for the MSP Partner and require the MSP Partner to provide or arrange a bond, guarantee, credit card authorisation or other security for any fees due. The MSP Partner authorises B365 to the full extent permitted by law, including under the Privacy Act, 1988 to give to and obtain from a credit reference organisation or other credit provider, information relating to the MSP Partner’s creditworthiness and to use that information.

Notwithstanding the foregoing, in the event the MSP Partner bills a Customer annually, the MSP Partner shall inform B365 and B365 shall invoice the MSP Partner the advance payment of fees for the annual periods. Other billing periods by the MSP Partner to Customers must be approved by B365 in advance and upon B365’s approvalB365 shall have the option to invoice the MSP Partner for those Customers with the corresponding billing periods. Unless otherwise agreed, all payments under this Agreement shall be in Australian dollars. Payment to B365 is due fifteen (15) days from the date of the B365 monthly invoice based on the number of Customer Authorised Users and as set forth in Section 8.1. The MSP Partner acknowledges and agrees thatB365 may pass through to the MSP Partner any associated fees and charges that are levied by any B365 suppliers in respect of B365 Services from time to time. Details of such charges will be set notified by email. The MSP Partner shall be entitled to no credits or offsets of charges. In addition, if during a subscription term for a pre-paid service the MSP Partner upgrades or otherwise changes the service, this will constitute a new service application. The MSP Partner shall be entitled to a credit related to any prepayments of the pre-existing service, but in no event will MSP Partner be entitled to a refund.

8.4 Expenses. Except as otherwise mutually agreed in writing, the MSP Partner will be responsible for all costs associated with its performance under this Agreement.

8.5 Late Payments. B365 reserves the right to: (a) suspend the B365 Services to MSP Partner and/or its Customers if an outstanding invoice is thirty (30) days past due; and/or (b) cease accepting new applications for service and/or (c) charge interest for the outstanding invoice at a rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower.

8.6 Audit. B365 will have the right, at its expense and with reasonable prior notice to the MSP Partner, to audit the MSP Partner’s compliance with the terms of this Agreement, including but not limited to the number of Customer Authorised Users. Information will be limited to B365 services only. The MSP Partner will afford B365 and its representatives, during normal business hours and with reasonable prior notice, full access to the MSP Partner’s books, records, personnel, and other resources that B365deems necessary to review in order to determine such compliance. B365 will cover any MSP Partner cost due to staff engagement in any audit at the standard billable rate for the MSP staff member. B365 will not unreasonably interfere with the conduct of the MSP Partner’s business. If any audit reveals that the MSP Partner has underpaid the fees due to B365 hereunder, the MSP Partner will promptly remit such underpaid amounts plus interest thereon at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Further, if any audit reveals that the amount of underpaid fees exceeds the greater of: (a) five percent (5%)of the fees payable with respect to the period audited; or (b) $1,000, the MSP Partner will reimburse B365 for its reasonable costs and expenses incurred in conducting the audit. 8.7 Taxes. All amounts due and payable hereunder will be exclusive of applicable federal, state, local and other taxes based or measured thereon. The MSP Partner will be responsible for the payment of all such taxes, excluding taxes based on B365’s income, unless the MSP Partner provides B365 with an appropriate certificate of exemption from such taxes. The MSP Partner will indemnify and hold B365 harmless from any obligation to pay to any governmental entity any employer statutory taxes, withholding taxes, social security taxes or other taxes, levies or duties in connection with the MSP Partner’s performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom.

9. Confidential Information

9.1 “Confidential Information” Defined. “Confidential Information” includes: (a) theB365 Services and any user IDs and/or passwords that allow the MSP Partner access to the Control Console Website and the Partner Portal, and the contents therein; (b) any and all information disclosed by a party, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary, including but not limited to a party’s business plans, strategies, financial information, marketing information, marketing strategies and customer lists; (c) any notes, extracts, analyses or materials prepared by the receiving party which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (d) the terms and conditions of this Agreement. “Confidential Information” does not include information that the receiving party can clearly establish by written evidence: (e) is or becomes known to the receiving party from a third party without an obligation to maintain its confidentiality; (f) is or becomes generally known to the public through no act or omission of the receiving party; or (g) is independently developed by the receiving party without the use of Confidential Information. In the event of any termination of this Agreement B365 may market to, sell to or support MSP Partner’s customers of the B365 services.

9.2 The Receiving Party’s Obligations. The receiving party will make no use of Confidential Information for any purpose except as expressly authorised in this Agreement. Except as expressly authorised in this Agreement, the receiving party will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly authorised in this Agreement, the receiving party will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorisation of the disclosing party. The receiving party will only disclose Confidential Information to its employees and professional advisors having a need to know for the purposes of this Agreement. The receiving party will inform such persons of the limitations, duties and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by this Agreement, and will be responsible for any breach thereof. The receiving party will notify the disclosing party immediately after learning of or having reason to suspect any breach of this Section 9.In the event that the receiving party is required to disclose Confidential Information pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the disclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a fashion that maximises protection of the Confidential Information from further disclosure.

9.3 Return of Confidential Information. Upon the expiration or earlier termination of this Agreement, each party will immediately terminate all use of and return to the disclosing party all Confidential Information of the disclosing party and all copies thereof or, at the disclosing party’s instruction, will certify in writing that it has destroyed the same.

9.4 Privacy

B365 may collect, hold, use and/or disclose MSP Partner’s and Customer’s data(including any Personal Information that is provided or otherwise made available toB365) (a) as expressly permitted in writing by the MSP Partner; (b) with respect to Personal Information, (i) in accordance with B365’s Privacy Policy (as may be amended from time to time); and (ii) to access such data to provide the B365 Services or prevent or address service or technical problems, or at the MSP Partners’ request in connection with MSP Partner or Customer support matters; and (c) as necessary in response to audit requests made by, or in connection with mandatory license reporting and other required disclosures to, third parties from whom B365 licenses or otherwise obtains rights to resell services that are included in the B365 Services. MSP Partner warrants that it will comply in all respects with the Privacy Act in respect of any Personal Information that MSP Partner provides or otherwise makes available to B365.

There are some circumstances where Personal Information is disclosed to parties outside of Australia. This may include where B365 engages a third party service provider located outside of Australia. This will include the following:

When B365 enters into any distribution arrangements with third parties located in the United States, United Kingdom or other regions to resell software or services in the Territory directly or via MSP Partners.

B365 takes reasonable steps to ensure that the overseas recipients of Personal Information are subject to appropriate contractual obligations to safeguard and protect the MSP Partner’s and Customer’s Personal Information and comply with applicable privacy obligations.

MSP Partner expressly authorises, acknowledges and agrees that MSP Partner’s data and the data of the Customers (including any Personal Information) may be collected, held, used and disclosed in accordance with the Privacy Policy and that B365 may act in accordance with the Privacy Policy in connection with providing the B365 Services or when otherwise necessary. In respect of any Personal Information that MSP Partner collects and discloses or otherwise makes available (or intends to disclose or otherwise make available) to B365, MSP Partner warrants that MSP Partner will (a) notify all the individuals to which the Personal Information relates that MSP Partner may disclose their Personal Information to B365 and its partners (including partners outside Australia), and (b) provide the Privacy Policy to such individuals at or before the time or, if that is not practicable, as soon as practicable after MSP Partner collects such Personal Information.

In this Section 9, the term “Privacy Act” means the Privacy Act 1988 (Cth); and the term “Personal Information” has the meaning given to that term in the Privacy Act.

10. Disclaimer of Warranties.
B365 MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE B365 SERVICES, B365 MARKETING MATERIALS, OR CONTROL CONSOLE WEBSITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCEPTABLE QUALITY,PERFORMANCE, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. THE MSP PARTNER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF B365.

11. Indemnification

11.1 Indemnification by the MSP Partner. The MSP Partner will indemnify, defend and hold harmless B365 from and against any proceedings, claims, demands, expenses(including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with: (a) the MSP Partner’s violation of the rights and licenses granted herein; (b) any acts or omissions of Customer Authorised Users and/or prospective Customer Authorised Users; or (c) the MSP Partner’s misrepresentations relating toB365, its products and services, the B365 Services, or this Agreement, regardless of the form of action.

11.2 Indemnification by B365. B365 will indemnify, defend and hold harmless the MSP Partner from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with a third party claim that Customer Authorised Users’ use of the B365 Services infringes an Australian/New Zealand patent, copyright or trademark. In the event that a claim of infringement is made or threatened, B365 may, at its option: (a) replace or modify the B365 Services to render them non-infringing; (b) secure for the MSP Partner and/or the affected Customers the right to use the B365 Services; or (c) terminate this Agreement in accordance with Section 13.

11.3 Additional Obligations Regarding Indemnification. Each party will provide the other party with prompt written notice of any claim, demand or action for which it is seeking or may seek indemnification hereunder. The indemnifying party will have the right to control the defense; provided that, it will: (a) keep the indemnified party fully informed concerning the status of any litigation, negotiations or settlements of any such claim, demand or action; and (b) allow the indemnified party, at its own expense, to participate in such litigation, negotiations and settlements with counsel of its own choosing; and provided further that, the indemnifying party will not have the right to settle any claim without the indemnified party’s written consent if such settlement arises from or is part of any criminal action, suit or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified party.

12. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW,B365’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY, IS LIMITED AS FOLLOWS: (A) WHERE A REMEDY IS PROVIDED FOR IN AN APPLICABLE SERVICE LEVEL AGREEMENT B365’S LIABILITY IS LIMITED TO THE RELEVANT CREDIT OR OTHER REMEDY PROVIDED UNDER SUCH SERVICE LEVEL AGREEMENT; OR (B) TO THE AMOUNT PAID BY THE MSP PARTNER HEREUNDER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL B365 BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF B365 HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NOTHING IN THIS AGREEMENT SHALL OPERATE OR EXCLUDE A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE OR FRAUD.

13. Term and Termination

13.1 Term. The initial term of this Agreement will commence on the Effective Date and will continue for a period of one year. Thereafter, this Agreement will automatically renew for successive one-year terms unless either party provides written notice of its intention not to renew the Agreement at least sixty (60) days prior to the end of the then current term.

13.2 Termination

13.2.1 Material Breach. Either party may terminate this Agreement upon written notice to the other party if the other party breaches any material term or condition of this Agreement, and such breach is not cured to the non-breaching party’s satisfaction within thirty (30) days of written notice specifying the breach.

13.2.2 Insolvency. Either party may terminate this Agreement upon written notice to the other party if B365 or the MSP Partner is liquidated or dissolved.

13.2.3 Termination in Accordance with Express Terms. B365 will have the right to terminate this Agreement in accordance with any section that expressly conveys such right, including, without limitation, Section 1.2.3 and Section 11.2.

13.3 Effect of Expiration or Termination. Upon the expiration or termination of this Agreement, the MSP Partner will immediately cease all marketing, promotion, sales, use and performance of the B365 Services and will cease to access the Control Console Website.

13.4 No Liability for Termination. Neither party will be liable for any damages arising out of the termination of this Agreement in accordance with this Section 13. The MSP Partner acknowledges and agrees that B365 is not responsible for the MSP Partner’s dependence on revenues hereunder, and the MSP Partner agrees to release, hold harmless and indemnify B365 from any and all claims and liabilities relating to the MSP Partner’s revenues, financial forecasts or economic value that may result from any termination by B365 of this Agreement as permitted hereunder.

13.5 Continuing Payment Obligation. Within fifteen (15) days from the expiration or termination of this Agreement, the MSP Partner will pay any and all fees owed to B365hereunder.

13.6 Survival. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination.Rights and obligations which by their nature would ordinarily be expected to survive the expiration or termination of this Agreement will remain in effect after the termination or expiration of this Agreement, including but not limited to Sections 1.3, 2.3.2, and 726.

14. Assignment.
B365 is entering into this Agreement with the MSP Partner based in substantial part on the unique attributes that the MSP Partner and its business offer; therefore, neither this Agreement nor any of the MSP Partner’s rights or obligations hereunder may be assigned, subcontracted or otherwise transferred (by merger, operation of law or in any other manner) by the MSP Partner without the prior written consent of B365. Any attempted assignment, subcontract or other transfer of this Agreement or any of the MSP Partner’s rights or obligations hereunder in contravention of this Section 14 will be void ab initio and will be considered a material breach of this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

15. Governing Law; Jurisdiction and Venue.
Any action related to this Agreement will be governed by the substantive laws of the State of New South Wales, Australia without reference to the choice of law rules thereof. The parties agree that any action will be brought exclusively in the state of New South Wales, Australia. The parties hereby submit themselves to the personal jurisdiction and venue of such courts.

16. Equitable Relief.
Each party acknowledges that any breach or threatened breach of this Agreement involving an unauthorised use of the other party’s Confidential Information or intellectual property will result in irreparable harm for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, the non-breaching party will be entitled to seek injunctive or other equitable relief, as appropriate, without posting any bond. If the non-breaching party seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement involving an unauthorised use of its Confidential Information or intellectual property, the other party agrees that it will not allege in any such proceeding that the non-breaching party’s remedy at law is adequate. If the non-breaching party seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will it be deemed to have made an election of remedies.

17. Attorney and Expert Fees.
The prevailing party in any controversy arising out of this Agreement will be entitled to recover its reasonable attorney and expert fees and costs, in addition to any other relief to which it may be entitled.

18. Relationship of the Parties.
This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. The MSP Partner acknowledges and agrees that its relationship with B365 is that of an independent contractor, and the MSP Partner will not act in a manner that expresses or implies are relationship other than that of an independent contractor.

19. Notices.
All notices and consents provided for hereunder will be in writing and will be delivered by hand, sent by express courier or delivery service that guarantees delivery within two (2) business days (such as Registered Post (Australia Post), Federal Express or DHL) to the address of the party set forth below or to such other address as the party may designate in writing, expenses prepaid. Copies of notices and communications will be sent in like fashion. Such notices and communications will be deemed to have been received by the addressee upon receipt, but in no event later than forty-eight (48) hours after the notice or communication is delivered to a courier or delivery service that guarantees delivery within forty-eight (48) hours. The parties’ current addresses are as follows:

If to B365:

Backup365 Pty. Ltd.
405/55 Holt Street,
Surrey Hills, New South Wales, 2010.

Attn: Chief Financial Officer
Tel: 1300 657 500

If to MSP Partner:

As per the MSP Partner details notified to B365 during signup.

20. Waiver.
Any waiver by either party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. Any waiver must be in writing.Failure by either party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive such party of the right to insist upon strict adherence to that term or any other term of this Agreement.

21. Severability.
If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.

22. Force Majeure.
If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a “Force Majeure Event”), the party who has been so affected will immediately give notice to the other party and will do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event.

23. Further Assurances.
The MSP Partner will execute such further documents as may reasonably be requested by B365 to achieve the intent of this Agreement.

24. Entire Agreement.
This Agreement (including any and all exhibits or attachments hereto) constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.

25. Amendments.
Except as provided herein, no amendments, modifications, or supplements to this Agreement will be binding unless they are in writing and signed by both parties hereto.B365 reserves the right to update, amend, modify or supplement the terms and conditions of its Privacy Policy and other applicable policies from time to time on notice to MSP Partner.

26. Export compliance.
MSP Partner agrees to comply fully and shall ensure that Customers comply fully with all applicable regulations of Australia and New Zealand, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of products in the B365 Services suite to assure that such products are not exported, imported or used in violation of law or applicable regulation.Where applicable B365 will provide MSP Partner ECCN classification details for any affected products made available under this Agreement.

EXHIBIT A

1. Territory. The MSP Partner’s appointment as an authorised Managed Service Provider partner of the B365 Services extends to any geography in which MSP Partner operates or its Customers reside. In relation to Intermedia Offerings the territory extends to Australia and New Zealand.

2. B365 Services. B365 services are defined as any services that are offered by Backup365 to its partners. These include, but are not limited to Backup365 (Cloud to Cloud backup services).

3. Price List:

Pricing details will be provided to MSP Partner at signup.

4. Line of Credit:

Subject to Backup365’s finance department’s approval, the MSP Partner will be granted a line of credit. The MSP Partner agrees to make advance payment to B365 for the monthly fees for B365 Services in excess of this line of credit, unless B365 issues a written waiver or grants an increase of the line of credit.

EXHIBIT B

The CAN-SPAM Act mandates that unsolicited commercial email whose primary purpose is the advertisement or promotion of a good or service must meet certain legal requirements, including:

A clear and easy to use opt-out removal process to enable recipients to opt-out of receiving further such emails. The opt-out mechanism may be a functioning email address or other Internet-based tool. All opt-outs must be honoured within ten business days of receipt;

A valid physical postal address and a valid email address;

Some indication that the message is an advertisement; and,

The email must identify the sender and subject matter at the beginning of the email

In addition, it is illegal to:

Use open proxies or relays to send unsolicited commercial email;

Falsify header or transmission information;

Use deceptive subject headings; and

Harvest email addresses without authorisation of web site. When obtaining email addresses from third parties, you must make sure that the individuals whose email addresses are being provided have:

Been given the opportunity to have their email address removed and have not opted- out; or,

Provided consent to receive solicitations from your company.

*This material is not intended to provide a comprehensive description of the“Controlling the Assault of Non-Solicited Pornography and Marketing Act” and is not intended as legal advice. You should consult your own legal advisors to determine your legal requirements.