Partner Registration Form

Sign-up and register for free to become a Vault America Authorized Partner and join the Vault America Partner Program.

The Vault America Partner Program is your gateway to the rapidly growing and lucrative hybrid cloud data protection market for backup, disaster recovery, business continuity, archiving, and discovery services.

Your submission will be processed and upon approval you will be assigned a Vault America Partner Development Manager who will contact you to schedule an on-boarding meeting, partner training, and provide you with credentials to access the Vault America Partner Portal.

Partner Type*

First Name*

Last Name*

Company*

Title*

Phone*

Email*

Website

Address*

City*

State/Province*

Zip*

Country*

Tax ID# or SSN*

Number of Employees*

Geographic Coverage*

Primary Business*

How did you hear about us?*

Product of Interest*

Total number of customers?*

How many years has your company been in business?*

VAULT AMERICA AGENT AGREEMENT

This Representation Agreement ("Agreement") is entered into by and between Network Access Corporation dba Vault America including its affiliates (hereinafter referred to as "Vault America"), and Agent Representative (hereinafter referred to as "Representative"). This Agreement will be effective only after it has been accepted by both parties, and the date it is accepted by the authorized Vault America executive will be the "Effective Date".

BACKGROUND:

1. Vault America is engaged primarily in providing online data backup and email archiving cloud storage services to customers.

2. Vault America desires to expand its customer base to include a greater number of customers through its representation program.

3. Vault America has agreed to permit Representative to market Vault America’s product and services under the terms and conditions set forth herein to permit customers that are not current customers of Vault America.

THE AGREEMENT:

The parties agree as follows:

1. Representative Responsibilities:

1.1 Representative may use employees to perform certain duties under this Agreement, provided that Representative must first obtain Vault America’s written consent. Vault America may withhold such consent or revoke any in its sole discretion. Representative will remain solely responsible for all actions or omissions.

1.2 Representative will, at its own cost, meet and continue to meet any required training criteria for the representation program.

1.3 Representative will obtain the authorized signature or other appropriate authorization of the Prospect on Vault America’s then-current standard service agreement. All standard service agreements and service order forms are subject to credit approval and acceptance by Vault America. Vault America reserves the right to cancel or reject any request for services and any service agreement or service order form for any reason without liability to Representative.

2. Representative’s Standard of Conduct:

In performing this Agreement, Representative will observe the highest standard of integrity and fair dealing and Representative will do nothing to discredit, dishonor, reflect adversely upon or in any manner injure the reputation or business of Vault America.

3. Appointment

3.1 Vault America appoints Representative on a non-exclusive basis as its authorized sales representative to obtain orders for services from Prospects located within the continental United States and the District of Columbia. Representative will only use the materials approved in advance in writing by Vault America or supplied by Vault America. Upon notice to Representative, Vault America may limit the prospects that Representative may solicit.

3.2 Representative’s appointment is non-exclusive and Vault America reserves the right at any time to offer to any third party (including other representatives and Prospects) the same or different arrangement. In addition, Vault America reserves the right at any time to offer to any party (including prospects) the same or different services through its employees or other persons who may be designated or appointed as authorized representatives. Representative may not at any time form a direct relationship with Vault America’s underlying service(s) and or software provider(s).

3.3 Representative agrees that after the delivery of an account or customer to Vault America, and provided that Vault America continues to pay commissions owed, if any, to Representative as provided in Exhibit A and or B, if applicable, that Representative during the term of this agreement and for a period of (1) year following the termination of this agreement shall not in any manner attempt to solicit those same accounts or customers to utilize remote access, remote data backup, collocation, and internet services of any other provider. Representative will not solicit customers deemed not creditworthy by Vault America or any customers not in regions where Vault America presently provides services or Vault America elects not to provide services. Representative will not convey to Prospect(s) that the services of Vault America are available only from Representative or are available only with another product(s) or service(s) provided by Representative.

4. Representative is an Independent Contractor:

4.1 Representative does not have the authority to bind Vault America, by contract or otherwise, or make representations as to the policies and procedures of Vault America. Representative’s employees or agents shall not be deemed to be Vault America’s agents, and Representative assumes all responsibility for the supervision, control, acts and omissions of its employees and agents. Neither Representative nor anyone employed by Representative or working with Representative as an agent or in any other capacity will be considered an agent of Vault America for any purpose, including but not limited to Workers’ Compensation coverage, the same being expressly waived and excluded by the parties hereto.

4.2 All of the expenses incurred by Representative in connection with Representative’s efforts to obtain orders for Vault America services will be entirely Representative’s responsibility. Vault America will not in any way be responsible or liable for such expenses.

4.3 Representative will be responsible for payment of all taxes and other fees due as a result of Vault America’s payment of Commissions (defined below).

5. Compensation

5.1 In exchange for Representative’s performance under this Agreement, Vault America will compensate Representative by paying commissions ("Commissions") for providing qualified sales to Vault America in accordance with Exhibit A.

5.2 No commission checks under $100 shall be mailed, but shall be accrued until Representative is due at least $100 of commission.

Terms and Duration of Agreement:

6.1 The term of this Agreement shall be effective for 12 months commencing on the Effective Date. This Agreement will be automatically renewed in consecutive additional periods of one year, unless terminated earlier in accordance with Section 6.2 of this agreement.

6.2 Vault America may terminate this Agreement effective immediately in the event of any of the following occurrences:

6.2.1 Representative’s insolvency, bankruptcy, receivership or dissolution;

6.2.2 Representative’s actual or attempted assignment of this Agreement or any duties under this Agreement to another party without Vault America’s prior written consent;

6.2.3 Representative’s material breach of any provision of this Agreement;

6.2.4 Representative’s making of misrepresentation’s about Vault America;

6.2.5 Representative’s attempted or actual sale of unauthorized services or unauthorized rates;

6.2.6 Conduct by Representative, or any of its employees or agents or any other person, firm or entity acting on its behalf which subjects Vault America to any fine, penalty, complaints, inquiry or investigation regarding customer slamming, cramming, or any other unfair, illegal or unethical business practice;

6.2.7 Termination of any other agreement between the parties by Vault America under a provision similar to one set forth in this Section 6.2;

6.2.8 Representative’s attempt to contract directly with Vault America’ underlying service and or software provider(s).

6.2.9 Representative fails to submit one new customer order per year.

6.2.10 Any regulatory, judicial or legislative body having jurisdiction over the services provided by Vault America issues any order, policy, procedure, ruling, action or mandate that effects in any way the manner, method or terms under which Vault America provides the services; or

6.2.11 Representative’s death or incapacity, if Representative is an individual and not a company.

In the event of a termination by Vault America under this Section 6.2, Vault America’s obligation to pay Commissions will cease immediately.

7. Submission of Orders:

7.1 Representative will submit orders from Prospects according to the procedures that Vault America provides to Representative and on those order forms that Vault America provides.

7.2 Vault America shall have no obligation to pay Commissions on any order that is not made or submitted in accordance with the terms of this Agreement, regardless of whether Vault America initially accepted such order.

8. Pricing:

Vault America reserves the right to prescribe the pricing and the terms and conditions under which its services are offered and provided. Vault America also reserves the right to change it prices and terms and conditions and to discontinue or modify any service offering with no advance notice to Representative or any Prospect ordering service.

9. Advertising Review and Trademark Use:

9.1 Representative may not use any service mark, trademark or logo design of Vault America except as set forth in this Section. Representative, under no circumstances, will advertise Vault America products or services without Vault America’ prior written approval. All advertising materials utilized by Representative, including but not limited to press releases or publications of Representative, or a third party on behalf of or with the authorization of Representative, are subject to prior written approval. Failure to obtain prior written Vault America approval for all advertising materials will be deemed a material breach of the Agreement, subject to immediate termination as set forth in Section 6.2.3.

9.1.1 Representative may use service marks, trademarks, trade names and logo designs of Vault America only in the marketing materials, advertising and promotional literature (collectively, the "Materials") used in its solicitation of Prospects for the sale of Vault America services, provided that any usage of any Vault America mark or trade name in such materials and the advertising claims associated therewith, in Vault America instance, has been approved in writing in advance by Vault America.

9.1.2 Representative acknowledges and agrees that: (i) the marks are owned by Vault America; (ii) it will do nothing inconsistent with such ownership; (iii) all use of the Vault America marks by it will inure to the benefit of and be on behalf of Vault America; (iv) all goodwill resulting from use of such marks or trademarks vest solely in Vault America; (v) that nothing in this grant will give it any right, title or interest in Vault America marks other than the right to use the marks in accordance herewith; (vi) it will not attack Vault America’ s title to the marks or the validity of this grant and Representative will neither have nor make any claim to such service marks or trademarks; and (vii) further agrees to use Vault America marks only in the form and manner prescribed from time to time by Vault America and not to use any other trademark or service mark in combination with any of Vault America’s marks without the prior written approval of Vault America.

9.1.3 This grant of a limited, non-exclusive authorization may not be assigned to any other entity or person without the prior written approval of Vault America.

9.1.4 Representative agrees, at its own expense, to defend, indemnify and hold Vault America harmless from and against any and all claims, suits, actions, proceedings, judgments, damages, liabilities, costs and expenses, including attorneys’ fees, arising whether from use of Vault America marks by Representative or any third party authorized by Representative or Representative advertising claims made in connection therewith, other than a claim based on an assertion by a third party either that Vault America does not own the marks, does not have the right to grant the authorization provided herein, or that the substance of an advertising claim approved by Vault America is materially false or misleading.

9.1.5 Upon termination of this Agreement, any permission or right to use the marks granted hereunder will cease to exist and Representative will immediately cease any use of such marks and immediately cease referring to itself as an authorized representative.

9.2 Representative must submit prior use to Vault America all advertising and marketing materials, including but not limited to business letterhead, press releases, flyers, brochures and electronic media content utilizing Vault America’s name.

10. Limitation of Liability:

10.1 THE LIABILITY OF VAULT AMERICA TO REPRESENTATIVE UNDER THIS AGREEMENT IS LIMITED TO THE OBLIGATION TO PAY COMMISSIONS AS DESCRIBED HEREIN.

10.2 VAULT AMERICA WILL NOT BE LIABLE, IN ANY EVENT, FOR CONSEQUNTIAL, INCIDENTIAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, WHETHER OR NOT VAULT AMERICA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR PUNITIVE DAMAGES, BY REASON OF ANY ACT OR OMISSION IN ITS PERFORMANCE UNDER THIS AGREEMENT.

10.3 VAULT AMERICA WILL HAVE NO LIABILITY TO REPRESENTATIVE FOR COMMISSIONS THAT MIGHT HAVE BEEN EARNED UNDER THIS AGREEMENT BUT FOR VAULT AMERICA’S DELAY IN ACCEPTING OR PROCESSING ANY ORDER, REFUSAL OF ANY ORDER OR THE INABILITY OR FAILURE OF VAULT AMERICA TO PROVIDE SERVICES TO ANY PERSON OR ENTITY OR IN THE EVENT OF DISCONTINUATION OR MODIFICATION OF THE SERVICES.

11. Indemnification:

Each party agrees to indemnify and hold harmless the other, its officers, directors, shareholders, employees, agents, successors, assigns and independent contractors from and against all losses, claims, damages, liabilities or expenses of any description, including but not limited to reasonable attorneys’ fees and costs and allocable costs of in house legal counsel, arising out of the indemnifying party’ acts or omissions, or those of its officers, directors, partners, employees, agents or other representatives, if any, including but not limited to the misrepresentation of prices or services or the payment or nonpayment of any sums to Prospects or other third parties. The indemnifying party must also allow the other party to participate in the defense. Each party will immediately notify the other of the commencement or threatened commencement of any action, suit or proceeding, and of the issuance or threatened issuance of any order, writ, injunction, award or decree of any court, agency or other governmental instrumentality involving activities under this Agreement or that may affect such indemnification.

12. Non-solicitation:

Representative agrees that, for a period of eighteen months following the termination of this Agreement, it will neither directly nor indirectly, solicit, or attempt to solicit, the business of any customer of Vault America with which Representative had contact, or any customer or prospective customer of Vault America which was provided to Representative by Vault America (whether on a lead list or otherwise) for the purposes of selling products or services that are substantially similar to the Services. Furthermore Representative agrees that it shall neither directly nor indirectly, divert or solicit or attempt to solicit, the business of any customer of Vault America for which Representative receives compensation from Vault America.

13. Confidential Information:

Representative will not disclose to any third party any information in any and all forms received from Vault America under this Agreement, including but not limited to information relating to Vault America technology, business strategies, development and pricing. All such information will remain the property of Vault America and Representative may make only copies of such information in tangible form as is reasonably required for Representative’s use. In consideration of the right to sell and market Vault America cloud storage services and for receipt of commissions, Representative specifically understands and agrees that the above referenced information, as well as the identity, names, addresses, telephone numbers and personal information about customer accounts contracted by Representative, are Vault America’s proprietary trade secrets and confidential to Vault America. Representative agrees not to divulge Vault America’s proprietary information to any entity or individual other than to employees of Vault America. Representative agrees that this provision is binding during the term of this Agreement and for a period of two (2) years thereafter.

The parties also agree that the potential damage from a breach of this Section would result in irreparable injury to Vault America and that monetary damages would be difficult or impossible to calculate and would not provide full relief to Vault America. Therefore, Representative agrees that Vault America may apply to a court of competent jurisdiction in the State of Massachusetts for injunctive relief, including the issuance of a mandatory permanent injunction. Further, if Representative violates this Section, Vault America and Representative agree that Representative forfeits its right to any outstanding or future commission payments. Nothing in this Agreement is intended to limit the remedies available to either party at law or in equity in the event of breach of this or any other provision of this Agreement.

14. Jurisdiction and Venue:

The parties agree that this Agreement shall be governed by, interpreted and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without regard to choice of law principals. The parties further agree that any suit, action or proceeding with respect to this Agreement shall be brought in the courts of the Commonwealth of Massachusetts. The parties accept the sole and exclusive jurisdiction of those courts for the purpose of any such claim, suit, action or proceeding. The parties waive their right to a trial by jury.

15. Assignment:

Neither this Agreement nor any of Representative’s rights or obligations hereunder may be sold, assigned, sublet, encumbered or transferred by operation of law or otherwise (hereafter, a "Transfer") without the prior written consent of Vault America which will not be unreasonably withheld. Any Transfer by Representative without Vault America’s prior written consent shall entitle Vault America, at its option to: (a) consider the Transfer void; (b) consent to the Transfer and hold the Representative and any transferee(s) liable hereunder; or (c) terminate this Agreement immediately upon delivering written notice to Representative. Subject to the foregoing this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or purported assigns. Vault America may transfer, assign or otherwise in any manner encumber this Agreement and its rights and obligations hereunder without Representative’s prior consent.

Notice:

16. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be given by: (a) hand delivery; (b) registered or certified mail with postage prepaid; (c) overnight receipted courier service; or (d) telephonically confirmed facsimile transmission, which notice is addressed to Representative at the address first given above and to Vault America at the address set forth below or such other address as may hereafter be designated in writing by the party. Notices given in accordance with subpart (b) shall be deemed delivered three days from the date of mailing. Notices given in accordance with subparts (a), (c) or (d) of this Section shall be effective upon receipt or when receipt is refused.

Vault America
One Post Office Square
Suite 3600
Boston, MA 02109

17. Miscellaneous:

17.1 The failure of either party to give notice as required hereunder or to enforce or insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of any right, term or condition of this Agreement.

17.2 If any claim, suit, arbitration is brought or an attorney is retained by either party to enforce the terms of this Agreement, to enforce a judgment of a court or the arbitrators or to collect any monies due hereunder or to collect money damages for breach hereof, the prevailing party shall be entitled to recover, in addition to any other remedy reimbursement for reasonable attorney’s fees, court costs, costs of investigation and other related expenses incurred in connection therewith.

17.3 If any provision of this Agreement is invalid or unenforceable under applicable law, the provision shall be ineffective only to the extent of such invalidity, without affecting the remaining parts of the provision or the remaining provisions of this Agreement. Representative and Vault America agree to negotiate any such invalid or unenforceable provision to the extent necessary to render such part valid and enforceable.

17.4 This Agreement includes Exhibit A and constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes any prior oral or written agreements or representations relating to such subject matter.

17.5 This Agreement may be executed in counterparts, and signatures exchanged by facsimile or other electronic means are effective for all purposes hereunder to the same extent as original signatures.

EXHIBIT A

COMMISSION SCHEDULE

A. Base Commission. The following schedule is applicable for Vault America Online Backup and Vault America Email Archiving cloud storage services. For each prospect submitted after the effective date of this agreement, Vault America will pay Representative submitting the order for such services monthly Commissions as follows, based on Monthly Recurring Charges (as defined below):

Cloud Storage Services

Commission Percentage

Vault America Online Backup

10%

Vault America Email Archiving

B. Vault America will pay Representative solely on Monthly Recurring Charges. "Monthly Recurring Charges" refers to the net monthly recurring charges actually paid to Vault America by a prospect hereunder where Vault America has accepted the applicable Prospect’s service order. Monthly Recurring Charges are calculated after netting the application of all discounts, credits (including any billing adjustments), commissions, waivers, promotions and non-payments greater than 60 days. Monthly Recurring Charges exclude:

1. all other charges or rate related adjustments, including but not limited to equipment charges, pass-through charges, access charges, non-recurring charges, hardware charges, and taxes, tax related or tax like charges or surcharges;

2. sales made to existing Vault America customers, including where such customers are converting from a current service type(s) to a new service type(s), unless Representative has obtained the prior written consent of Vault America to such conversion;

3. any Revenue associated with any fraudulent use of the services by any customer solicited by Representative; and

4. any accounts terminated by Vault America.

C. Representative expressly authorizes Vault America to offset any amounts that Representative owes to Vault America either under this Agreement or otherwise including refund of sign up bonus monies paid on any and all Prospects which do not fulfill a minimum one-year term with Vault America.

D. All Commissions will be paid on Monthly Recurring Charges for accounts in good standing. Accounts in good standing assume billing for customers is not greater than 60 days old. All commissions will be paid after the end of that month. For example, Commissions on July Monthly Recurring Charges will be paid 45 days from the end of July (i.e., mid-September).

E. With each Commission payment, Vault America will provide Representative a statement summarizing the computation of the amount paid. All such payments will be final and binding on Representative unless written objection is delivered to Vault America within 30 days of delivery to Representative of such payments. Representative will provide any additional information requested by Vault America that is in Representative’s possession or reasonably available to Representative necessary to resolve the objection.

F. Vault America, in its sole discretion and without prior notice, may terminate an account of a customer solicited by Representative for any reason, including but not limited to, that customer’s credit, bankruptcy or insolvency, inactivity, or breaches of contract terms and conditions. No Commissions will be due to Representative on terminated accounts.

I have read, accepted, and agree to these terms in the agreement above.

By clicking submit you verify that you have the authority to submit this information, on behalf of your company, for the sole purpose of becoming a Vault America Authorized Partner. If you have any questions, contact Vault America at channel@vaultamerica.com.

Vault America Wholesale Service Agreement

This agreement (the “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“You” or “you”), and Vault America. This Agreement governs your use of the Vault America Client software distributed with this Agreement, including any updates that may be provided to you and any accompanying written documentation (the “Software”) and the Vault America data protection service (“Service”).

COMMUNICATIONS
You acknowledge and agree that Vault America may occasionally send you administrative communications regarding your account or the Service via email.

ACCOUNTS, PASSWORDS, AND SECURITY
You must be a registered user to access the Service. You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you lose your password or the encryption key for your account, you may not be able to access your Data.

ACCEPTABLE USE AND CONDUCT
You are solely responsible for your conduct and your data related to the Service. You agree to indemnify, defend, and hold harmless Vault America and its suppliers from any and all loss, cost, liability, and expense arising from or related to your data, your use of the Service, or your violation of these terms.

The Software and Service are made available to you, your company, and/or your customers only for personal or commercial use, which use must be in compliance with all applicable laws, rules and regulations and must not infringe or violate third party rights.

Any unauthorized use of any Vault America computer system is a violation of this Agreement and certain federal and state laws. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.

CONSENT TO COLLECT NON-PERSONAL INFORMATION; USE OF DATA
The Software and Service may collect certain identifiable information that resides on your computer, including, without limitation, statistics relating to how often backups are started and completed, performance metrics relating to the Software, and configuration settings. This information collected will be sent to Vault America and may be used by Vault America in-house to provide reporting to our clients.

When you back up data via the Service, you agree that we will be storing such data as part of the Service to provide proper reporting and monitoring for a reseller’s own clients.

CHANGES TO THE SERVICE AND TERMS AND CONDITIONS
Vault America reserves the right at any time to modify, suspend, or discontinue providing the Service or any part thereof in its sole discretion with or without notice.

Vault America will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of the Service either by sending an email to the email address you provide with your registration or by a posting on Vault America.com website. However, in no event will Vault America be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.

Vault America reserves the right at any time to modify this Agreement in its sole discretion, without liability to you. This Agreement, as amended, will be effective upon acceptance of registration for new users and effective for all existing users 15 days after the posting of any amended terms on the Vault America.com website. You agree to be bound by this Agreement, as modified. If you do not agree to any changes to this Agreement, you must terminate your account immediately.

Please review the most current version of this Agreement from time to time, located at http://www.vaultamerica.com/wholesale-partner-tos (or such successor URL as Vault America may provide), so that you will be apprised of any changes.

USE OF SOFTWARE
Subject to the terms and conditions of this Agreement, Vault America grants you a non-exclusive license to install and execute copies of the Software (in executable code form only) on your company’s and/or customers’ computers and only for the purpose of accessing and using the Service. Certain third party code may be provided with the Software. The third-party license terms accompanying such code, and not the terms of this Section, will govern your use of such code.

The Software and its structure, organization, source code, and documentation contain valuable trade secrets of Vault America and its licensors, and accordingly you agree not to (and agree not to allow third parties to) (1) sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party who is not your customer, (2) modify, adapt, translate, or prepare derivative works from the Software or Service, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service, (4) extract portions of the Software’s files for use in other applications, or (5) remove, obscure, or alter Vault America’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service.

INTELLECTUAL PROPERTY
You acknowledge that Vault America or third parties own all right, title and interest in and to the Software and Service, portions thereof, or software or content provided through or in conjunction with the Software or Service, including without limitation all intellectual property rights. Except for the license granted in this Section, all rights in and to the Software and Service are reserved, and no implied licenses are granted by Vault America.

If you have comments on the Software or Service or ideas on how to improve them, please visit http://vaultamerica.com/contact-us. Please note that by doing so, you also grant Vault America a perpetual, royalty-free, irrevocable, transferable license, with right of sublicense, to use and incorporate your ideas or comments into the Software or Service (or third party software, content, or services), and to otherwise exploit your ideas and comments, in each case without further compensation.

TERM AND TERMINATION
Subject to the terms and conditions hereof, this Agreement is effective upon signing up for the Vault America Service and shall continue for a one month term. Upon completion of the initial term, and each subsequent term, the Agreement shall renew for another one month term thereafter unless notification is provided by either party 60 days prior to the expiration of the then current term. If you cancel Vault America Service prior to the completion of the then current contract term, you shall be responsible for payment for the next 60 days or the next two months. (Example: The Agreement is signed on January 1 and the initial term is January 1st through January 31st. You signed the Agreement with a Monthly Commitment of $125. If you cancel on January 31st, you will be responsible for the months of February and March or $250.)

This Agreement automatically terminates if you fail to comply with its terms and conditions. Vault America reserves the right to refuse or discontinue participation to any user at any time at its sole discretion. You agree that, upon such termination, you will destroy and permanently erase all copies of the Software and that your access rights to the Service will immediately terminate.

The terms of the Sections entitled Consent to Collect Non-Personal Information, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, and Miscellaneous will survive expiration or termination.

If this Agreement terminates, other than for your failure to comply, Vault America has no obligation to provide you with a copy of your Data and may remove and discard any Data.

Vault America shall not provide a refund for any unused portion of Service paid in advance by User.

DISCLAIMER OF WARRANTIES
THE SOFTWARE AND SERVICE AND ANY THIRD PARTY SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. VAULT AMERICA AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES.

YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE AND SERVICES.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL VAULT AMERICA, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF VAULT AMERICA HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).

WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF VAULT AMERICA, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO VAULT AMERICA FOR THE SOFTWARE OR SERVICES. IF THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT CHARGE, THEN VAULT AMERICA AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.

THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEE AGREES THAT LICENSOR WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.

MISCELLANEOUS PROVISIONS
You acknowledge and agree that the Software which is the subject of this Agreement, may be controlled for export purposes. You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. If you are located in a country subject to embargo by the United States government, you are not entitled to use the Software or Service.

This agreement will be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

The failure of Vault America to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.

This Agreement, which may incorporate exhibits and or addendums, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Vault America.

All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving Massachusetts, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit Vault America from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights.

You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of Vault America. Vault America may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning.

MONTHLY MINIMUM COMMITMENT AND RATE
Monthly minimum gigabyte commitment, rate per compressed gigabyte, and monthly minimum revenue commitment effective upon the acceptance and or placement of an order for Vault America Service(s).

CONTACT
Please address any questions or concerns regarding this Agreement by contacting Vault America by telephone at (888) 523-3282, by email at sales@vaultamerica.com, or through our website at www.vaultamerica.com/support.

I have read, accepted, and agree to these terms in the agreement above.

THIS REFERRAL AGREEMENT and the attached Exhibit(s) (collectively, the “Agreement”), effective as of the Effective Date set forth above, is entered into by and between Network Access Corporation DBA Vault America, a Massachusetts corporation (“Vault America”), having its principal place of business as set forth above, and the party identified above as Company (“Company”), having its principal place of business as set forth above.

BACKGROUND

Vault America is a provider of cloud storage products and services.

Company desires to locate and refer prospective suitable entities or persons desiring to purchase the Vault America products and services set forth in the attached Exhibit “A” (collectively, the “Products”) from Vault America, and Vault America wishes to receive such referrals, subject to the terms and provisions of this Agreement.

AGREEMENT

1. REFERRALS AND AUTHORITY.

1.1 Prospects. Company shall refer (as described in Section 1.2) to Vault America entities or persons that have expressed an interest in purchasing the Products from Vault America (the “Prospects”). Unless otherwise agreed by Vault America in writing, “Prospects” shall exclude any person or entity (i) with whom Vault America has a preexisting relationship; (ii) who is on Vault America’s sales forecast; or (iii) has been previously submitted by another Vault America marketing partner. Company is authorized to deliver to each such Prospect a copy of the then-current marketing materials and product literature, if any, Vault America provides to Company for such purpose (the “Materials”). Company shall use reasonable efforts to mention Vault America’s name and Company’s partnership with Vault America in connection with Company’s marketing and communication activities, including mentioning Vault America on Company’s web sites, and in advertisements, articles, and other similar communications. Company shall make no representations or warranties regarding Vault America, the Products or its business or prospects (other than those contained in the Materials) or in any other way act or represent that Company is authorized to act in a manner which would bind Vault America in any way whatsoever . Company will discontinue use of any Materials, and will return the same to Vault America, upon receipt of written notice from Vault America that such Materials have been withdrawn or replaced. Vault America will supply Company from time to time with sufficient copies of Vault America’s then-current Materials solely for use by Company in locating Prospects. Such Materials will bear Vault America’s logos and trademarks (the “Trademarks”), which are and will remain the sole and exclusive property of Vault America. Company will not misappropriate any of such Trademarks and will not remove or otherwise deface any Trademarks included on the Materials. Company shall make no use of advertisements, mass mailings or “cold calls” to persons not having a prior relationship to Company unless previously agreed to by Vault America. Company will conduct itself under this Agreement consistent with ethical business practices and in a manner that will reflect favorably upon the goodwill and reputation of Vault America.

1.2 Referrals. The “referral” of a Prospect to Vault America shall mean the fully and correctly completed Partner Referral Lead in the form specified in Exhibit B, the Vault America Partner Portal, or other means previously agreed to by Vault America.

1.3 Limited Appointment. Company shall not act on behalf of any Prospect and shall not negotiate on behalf of any Prospect or Vault America. Company’s duties under this Agreement shall be limited solely and exclusively to referring Prospects to Vault America. Company is not authorized, and does not have the right, to act as a referral source for any other product or service marketed, offered, licensed or sold by Vault America now or in the future. Vault America shall be under no obligation to enter into an agreement with any Prospect referred by Company. Vault America shall, in its sole and absolute discretion, contact, negotiate with, and enter into any agreement with any Prospect referred by Company. Company’s authorization to act as a referral source is not exclusive in any manner. Vault America reserves for itself the right to act on its own behalf, or to enter into similar agreements with others, for the purpose of selling and distributing the Products, either directly or indirectly, and, except as set forth in this Agreement Company shall not be entitled to any remuneration of any kind by reason of sales by Vault America that result from such efforts by Vault America or others.

2. FEES.

2.1 Fee Payable. Vault America shall endeavor to keep Company informed of the progress of its negotiations with each Prospect and shall notify Company of the effective date of any agreement Vault America enters into with a Prospect regarding the purchase of the Products. In consideration for Company’s services as a referral source under this Agreement, with respect to an agreement between Vault America and a Prospect regarding the purchase of the Products, provided such agreement is executed within three (3) months after the date of Company’s referral of such Prospect, Vault America shall pay Company a referral fee (the “Fee”) set forth in Section 2.2. The Fee shall be payable on a monthly basis, within thirty (30) after the end of each calendar month following receipt of the net fee by Vault America from the Prospect. Fees shall not include (a) sales or other excise taxes paid by the Prospect; (b) any sums paid to or allocated by Vault America related to the implementation, installation, maintenance, support, or providing of professional services, including consulting and/or training; (c) sums paid to Vault America for copies of third party products which Vault America is entitled to license, distribute, or sublicense to a Prospect; or (d) sums paid to Vault America for its hardware appliance products if applicable. Company shall not be paid a fee by any Prospect, or any other person or entity, in connection with the Prospect’s agreement with Vault America without the prior written consent of Vault America. Company shall not be paid any Fee related to any Prospect that has not been submitted on a Partner Referral Lead that has been accepted by Vault America.

2.2 Fee Amount. The Fee will be as stated in Exhibit C. The Fee applies to Fees related to orders from a Prospect received by Vault America following the effective date of Vault America’s contract with a Prospect. .

2.3 No Fee Payable. Company shall not be due any Fee unless the Prospect has been “referred” by Company pursuant to Section 1.2 and the Partner Referral Lead in the form attached as Exhibit B, the Vault America Partner Portal, or other means previously agreed to by Vault America has been accepted by Vault America. In addition, Company must recommend Vault America’s products to the customer exclusively; no fee will be paid for a multiple vendor recommendation in which the evaluation process is left to the customer.

3. TERM AND TERMINATION.

3.1 Term. Unless earlier terminated pursuant to Section 3.2, this Agreement shall remain in full force and subject to the terms and conditions hereof. This Agreement is effective upon acceptance and shall continue for a 12 month term. Upon completion of the initial term, and each subsequent term, the Agreement shall renew for another 12 month term thereafter unless notification is provided by either party 60 days prior to the expiration of the then current term.

3.2 Termination by Either Party. Either party may terminate this Agreement immediately upon notice to the other, if:

3.2.1 the other party breaches any obligation under this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach from the non-breaching party; or

3.2.2 the other party ceases to conduct business in the normal course, becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights.

3.3 Termination Rights and Obligations. Upon the expiration or termination of this Agreement for any reason:

3.3.1 Company will deliver no additional profiles to Vault America, will make no additional referrals to Vault America and will cease to act as a referral source of Vault America under this Agreement unless agreed to in writing by Vault America.

3.3.2 Company will promptly cease using and return to Vault America all Materials.

3.3.3 Vault America will pay Company all outstanding Fees due Company pursuant to Section 2 through the effective date of such termination.

4. INDEMNITY.

Company will defend, indemnify and hold Vault America harmless from all damages, liabilities and expenses (including attorneys’ fees) arising out of any representation (other than representations made in Vault America’s then-current Materials) or misrepresentation with respect to Vault America or the Products made by Company to any Prospect or third party.

5. MISCELLANEOUS.

5.1 Governing Laws. The internal laws of the Commonwealth of Massachusetts (irrespective of its choice of law principles) shall govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties.

5.2 Confidentiality. Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material that relates to past, present or future products, software (including source code and object code), research development, inventions, processes, techniques, designs or technical information and data, and marketing plans. (The “Confidential Information”). Each party agrees to preserve and protect the confidentiality of the Confidential Information and all physical forms, whether disclosed to the other party before this Agreement is signed or afterward. In addition, a party will not disclose or disseminate the Confidential Information for its own benefit or for the benefit or any third party unless otherwise provided in this Agreement. The foregoing obligations do not apply to any information that (1) is publicly known; (2) is given to a party by someone else who is not obligated to maintain confidentiality; or (3) a party had already developed prior to the day this Agreement is signed, as evidenced by documents unless, otherwise provided herein. Neither party will take or cause to be taken any physical forms of Confidential Information (nor make copies of same) without the other party’s written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party’s request), a party will return to the other party all copies of Confidential Information in tangible form. Despite any other provisions of this Agreement, the requirements of this section will survive termination of this Agreement.

5.3 Vault America disclaims all warranties with regard to its Products and services, including all express, implied, statutory or other warranties, and specifically disclaims all implied warranties of merchantability and fitness for a particular purpose.

5.4. Neither party shall be liable to the other party for any special, consequential, incidental, indirect, tort or cover damages, including, without limitation, damages resulting from the use or inability to use its products or services or for delay of delivery and implementation, or loss of profits, data, business or goodwill, whether or not such party has been advised or is aware of the possibility of such damages. Except for damages related to breach of Section 5.2 (Confidentiality) or for Company’s indemnification obligations, liability for all claims of any kind arising out of or relating to this Agreement shall not exceed the amount of Fees paid to Company during the twelve months prior to the claim..

5.5 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto.

5.6 Amendment and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived only by a writing signed by the party to be bound thereby. The waiver by a party of any breach of this Agreement or default in the performance hereof shall not be deemed to constitute a waiver of any other default or succeeding breach or default. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.

5.7 Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover, as an element of the costs of suit or arbitration and not as damages, reasonable attorneys’ fees to be fixed by the court (including without limitation, costs, expenses and fees on any appeal).

5.8 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties. Neither party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Neither party shall have the power to control the activities and operations of any other and their status is, and at all times will continue to be, that of independent contractors with respect to each other. Neither party shall have any power or authority to bind or commit any other. Neither party shall hold itself out as having any authority or relationship in contravention of this Section.

5.9 Assignment. Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations without the other party’s prior approval; provided, however, that upon prior notice to Company, Vault America may assign this Agreement to another company in the event of a merger or acquisition. Any attempt to assign, delegate or otherwise transfer this Agreement in violation of this Section will be void. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of the parties.

5.10 Notices. Any notice, demand or request with respect to this Agreement shall be in writing and shall be effective on the date received (unless the notice specifies a later date) only if it is sent by a courier service that confirms delivery in writing, or sent by certified or registered mail, postage prepaid, return receipt requested to the appropriate party at its address set forth on page 1. Notice to Vault America shall be addressed to the “Legal Department.” Any party may change its address for such communications by giving notice thereof to the other party in conformity with this section.

5.11 Severability. If any provision of this Agreement shall be deemed invalid or unenforceable, this Agreement shall be amended to delete or modify, as necessary, the invalid or unenforceable provision to render the Agreement enforceable, and, insofar as possible, consistent with the original intent of the parties.

EXHIBIT A

VAULT AMERICA PRODUCTS & SERVICES

This agreement covers: All Products including

(1) Vault America Cloud Backup & Recovery – VaultProtect
(2) Vault America Email Archiving – VaultArchive
(3) Vault America File Sync, Share & File Server Cloud Enablement – CloudBox

EXHIBIT B

PARTNER REFERRAL FORM

For each Prospect, Company will submit a Partner Referral Form via a specific URL provided by Vault America. When registering the prospective Prospect Company will provide the following information.

Key Partner Contact

Vault America Partner Information
Name of Partner/ Parent Account*
Name of Sales Rep/ Partner Contact*
Phone*
Email*

Opportunity Overview

Deal Information
Company/ Account Name*
Opportunity Name*
Product of Interest*
Address, City, State/Province, Zip*
Country*
Primary Contact First/ Last Name*
Primary Contact Title*
Primary Contact Phone*
Primary Contact Email*

Estimated Monthly Revenue ($)*
Close Date*
Stage*
Close Probability (%)*
Estimated Revenue/ Amount ($)*

EXHIBIT C

FEES

FEES:

The Fee will be equal to ten percent (10%) of the Fees as that term is defined in Section 2 of the Agreement.

Fee modifications can be made to this Exhibit C based on written

I have read, accepted, and agree to these terms in the agreement above.

* Required Field

Your email address and personal information are confidential and will not be sold or distributed to any third party.

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