First Distribution Master Distribution Agreement

: +27 (0) 11 540 2640

First Distribution Master Distribution Agreement

Master Distribution Agreement

This Master Distribution Agreement, together with any exhibits or other referenced or attached documents (the “Agreement”) is entered into by and between Epsidon Technology Distribution (Pty) Ltd t/a First Distribution, (Registration Number 1995/010958/07), a private company duly incorporated in accordance with the laws of the Republic of South Africa, with its business address at 51 Kyalami Boulevard, Kyalami Business Park, Midrand, 1684, (“First Distribution”) and you, the service provider (“Services Provider”) (each a “party” and together the “parties”). This Agreement is effective as of the date signed by First Distribution (the “Effective Date”).

RECITALS

First Distribution provides the CBS Master Catalogue (“CBSMC”), First Distribution’s proprietary online marketplace infrastructure for use in accessing on-demand, web-based commercial applications, and Services Provider provides such an application, which is described in Section 1.17 of this Agreement (the “Services”).

First Distribution and Services Provider desire that the Services be resold by First Distribution, First Distribution’s Affiliates and First Distribution’s Channel Partners (as defined in Section 1.2) in accordance with the terms of this Agreement.

In consideration of the mutual covenants contained in this Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree that First Distribution, its Affiliates and its Channel Partners are authorized to promote, offer and resell the Services to First Distribution Customers (as defined in Section 1.10), and Services Provider will host, support, and manage the Services for the First Distribution Customers, all in accordance with the attached terms and conditions, which are incorporated herein by reference.

First Distribution Master Distribution Agreement Terms and Conditions

Unless otherwise noted, all capitalized terms used in this Agreement shall have the definitions provided in this Section 1.

1. DEFINITIONS:

1.1. “Affiliate” means any corporation or other business entity controlled by, controlling, or under common control with First Distribution, or Services Provider, as applicable. For this purpose, “control” means (i) direct or indirect beneficial ownership of fifty percent (50%) or more of the voting control, or (ii) the power to direct or cause the direction of the management and policies of such corporation or other business entity.

1.2. “Channel Partners” means any corporation or other business entity controlled by, controlling, or under common control with First Distribution, or Services Provider, as applicable. For this purpose, “control” means (i) direct or indirect beneficial ownership of fifty percent (50%) or more of the voting control, or (ii) the power to direct or cause the direction of the management and policies of such corporation or other business entity.

1.3. “Claims” means any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys’ fees).

1.4. “Confidential Information” means, with respect to each party, information, in tangible or intangible form, concerning the other party’s business, personnel, financial condition, trade secrets, intellectual property rights (whether owned or licensed by such party), and other information held in confidence by such party, and similar and demographic information regarding First Distribution Customers and Users that either party collects, such as name, address, email, employer, telephone numbers and interests, and information that is designated as confidential or that, by its nature, should be considered confidential, including the terms of this Agreement.

1.5. “Content” means, with respect to each party, any and all data of any type, including logos, text, audio, graphics and video that is posted on, provided for use on, or communicated through the Services Site by such party.

1.6. “Continuing Customers” means First Distribution Customers who continue to obtain the Services pursuant to their Customer Contracts even after termination of this Agreement, in accordance with the terms of this Agreement.

1.7. “Customer Contracts” means the written or electronic agreements pursuant to which First Distribution Customers obtain the right to use the Services.

1.8. “Data” means any information input into the Services by or regarding any First Distribution Customer or User that is transmitted through the use of the Services or stored on Services Provider’s database, including demographic information regarding First Distribution Customers that either party collects, such as name, address, email, email address, employer, telephone numbers, interests, and any similar information.

1.9. “Data Integration Adapter” means the interface between the First Distribution Customer and the Services that enables First Distribution and/or First Distribution’s Affiliate to provision Users and allows Users to sign on to the Services.

1.10. “First Distribution Customer” means any individual or entity that accesses the Services through the Services Site pursuant to a Customer Contract for use in the regular course of such person or entity’s business or personal use and not for resale or sublicensing by such person or entity. First Distribution Customer includes customers of First Distribution and/or First Distribution’s Affiliate and First Distribution s Channel Partners.

1.11. “Level 1 Support” means the first line of support to Users, resolving the issues that can be resolved by referring to documentation and discussion with a trained subject matter expert. Such support will be provided by the First Distribution Channel Partners.

1.12. “Level 2 Support” means resolution of issues that cannot be resolved by Level 1 Support, though a workaround/alternate solution is possible. Level 2 Support issues can be resolved by a subject matter expert by referring to online knowledge bases provided by Services Provider. This support will be provided by First Distribution and/or First Distribution’s Affiliate through a ticketing system present in First Distribution Channel Partners webstores.

1.13. “Level 3 Support” means resolution of issues that cannot be resolved by Level 1 or Level 2 Support, and therefore requires the attention of Services Provider’s domain expert. Such support will be provided to First Distribution and/or First Distribution’s Affiliate who will in turn consult with the First Distribution Channel Partners to resolve the issue.

1.14. “Marks” means, with respect to each party, the trademarks, service marks or logos identified by such party in writing.

1.15. “Normal Business Hours” means between the hours of 8:00 a.m. and 5:00 p.m., CAT where the service is offered, Monday through Friday, excluding national holidays.

1.16. “Service Level Targets” means the minimum service level targets and case resolution obligations required by First Distribution and/or First Distribution’s Affiliate, or, if greater at any time during the term of this Agreement, those offered to Services Provider’s customers generally. The current Service Level Targets are described on Exhibit C.

1.17. “Services” means the web-based on-demand commercial application provided by Services Provider to its customers generally and to First Distribution Customers through the Services Site pursuant to the terms of this Agreement, as more fully described on Exhibit A.

1.18. “Services Site” means the websites and/or applications referenced in Section 1 of this Agreement that are provided by Services Provider, through which First Distribution Customers access and use the Services.

1.19. “User” means any end user authorized by a First Distribution Customer to use the Services in accordance with the terms of this Agreement.

1.20. “User Documentation” means documentation that explains the performance, features and functionality of the Services; all documentation necessary for the proper usage and administration of the Services, including but not limited to all materials that Services Provider customarily makes available to its customers; and all documentation, training material, and sales materials and other collateral, all such material as updated to reflect improvements to the Services.

2. CREATION AND OPERATION OF THE SERVICES SITE

2.1. Services Provider’s Obligations:

In addition to Services Provider’s responsibilities stated elsewhere in this Agreement, Services Provider agrees to the following:

2.1.1. Creation of the Services Site:

2.1.1.1. Services Provider agrees to create the Services Site to provide the Services to First Distribution Customers. The features and functions of the Services will be substantially equivalent to those made available directly by Services Provider to its customers, including all upgrades, releases, versions and other improvements that generally are made available to Services Provider’s customers.

2.1.1.2. Both parties agree that Services Provider may add, modify, change or upgrade the foregoing features and functions available at the Services Site at Services Provider’s discretion, provided such changes are made to the services provided by Services Provider to its customers generally. Services Provider agrees to pay the fees listed on Exhibit B to be added to the CBSMC of on-demand services.

2.1.2. Integration of the Services Site:

2.1.2.1. Services Provider acknowledges that offering the Services through the CBSMC requires a Data Integration Adapter, to be developed by the Services Provider at its own cost, unless specified differently in Exhibit B.

2.1.2.2. First Distribution and/or First Distribution’s Affiliate agrees to cooperate in good faith with Services Provider regarding the development of the Data Integration Adapter within a mutually agreed upon timeframe, including providing necessary technical specifications, and regarding data integration with other CBSMC services such as billing, reporting and monitoring.

2.1.3. Additional Servers:

2.1.3.1. Services Provider agrees to provide a staging server with administrative rights: (1) to create, update and/or delete First Distribution Customers and Users; (2) to test and/or develop the Data Integration Adapter; and (3) to provide demonstration account(s), which Channel Partners and current and prospective First Distribution Customers may use to evaluate the Services at no cost.

2.1.4. Maintenance and Hosting of the Services Site:

2.1.4.1. Services Provider agrees to maintain and host (or have hosted) the Services Site, including providing the server software and hardware required to operate the Services Site.

2.1.5. Performance and Availability:

2.1.5.1. Services Provider agrees to ensure that the Services meet or exceed the Service Level Targets or be subject to the price adjustments listed on Exhibit C.

2.1.5.2. Services Provider agrees to monitor the performance of the Services, as measured against the Service Level Targets, 24 hours a day, 7 days a week, year round, or to cooperate with First Distribution and/or First Distribution’s Affiliate in establishing a mechanism by which First Distribution and/or First Distribution’s Affiliate can monitor the performance of the Services Site directly. Services Provider will not schedule maintenance or downtime between 5:00 a.m. and 10:00 p.m. local time where the Service is offered and if such scheduled downtime does occur during those hours, it will be considered in determining attainment of the Service Level Targets.

2.1.5.3. Services Provider further agrees to notify the First Distribution and/or First Distribution’s Affiliate support contact identified on Exhibit D: (i) within thirty (30) minutes of any network or other failure of the Services Site or any unscheduled software or hardware maintenance or upgrades and (ii) at least five (5) business days prior to any scheduled software or hardware maintenance or upgrades related to the Services Site.

2.1.5.4. If these Services are offered globally in different time zones then Service Provider will agree to take downtime according to the non-operational hours of that region or time zone. Scheduled maintenance or downtime may occur during 10:01 p.m. and 4:59 a.m. and will not be considered in determining attainment of the Service Level Targets.

2.1.6. Support of the Services Site:

2.1.6.1. Services Provider agrees to provide technical support directly to First Distribution and/or First Distribution’s Affiliate, consisting of live support via telephone, fax, email and web, during Normal Business Hours. Channel Partners will provide Level 1, if applicable, and First Distribution and/or First Distribution’s Affiliate will provide Level 2 Support, while Services Provider agrees to provide Level 3 Support by analyzing and resolving the support request from First Distribution and/or First Distribution’s Affiliate. If requested by Services Provider, First Distribution and/or First Distribution’s Affiliate will perform certain components of Services Provider’s support obligations as described in Exhibit B at the prices listed in that exhibit. Services Provider agrees to provide Level 3 support 24×7 globally.

2.1.7. Maintenance of the Services Site:

2.1.7.1. First Distribution acknowledges that Services Provider may, in its sole discretion; make any changes to the Services that it deems necessary, desirable or appropriate. However, Services Provider agrees that changes to the Services will not adversely impact the performance of the Data Integration Adapter, and if so, Services Provider will provide a separate pre-modified version of the Services for First Distribution Customers or repair the Data Integration Adapter such that it is fully functioning, at Service Provider’s sole cost and expense. Service Provider agrees to provide forty five (45) days’ notice to First Distribution of development changes that may impact the Data Integration Adapter and provide the modified adapter at least thirty (30) days in advance of deployment.

2.1.8. Security and Privacy Obligations:

2.1.8.1. Services Provider agrees to meet or exceed the requirements contained in the Services Provider Security and Business Continuity Requirements document attached hereto as Exhibit E. Services Provider agrees to comply with all privacy and/or security regulatory requirements such as the Protection of Personal Information Bill or others as may be required by a First Distribution Customer if Services Provider chooses to supply its Service.

2.1.9. Documentation and Training:

2.1.9.1. Services Provider agrees to provide First Distribution with current User Documentation, in written and electronic form, and including updates as they are made available to Services Provider’s customers generally. Services Provider also agrees to provide First Distribution and/or First Distribution’s Affiliate with access to its electronic support knowledge base for use in User support, upon request, and to provide, the technical, sales and service training specified in Exhibit B.

2.1.10. Data Delivery:

2.1.10.1. Services Provider agrees to provide to First Distribution and/or First Distribution’s Affiliate the Data described in Exhibit B, in a comma separated values file or other format reasonably requested by First Distribution and/or First Distribution’s Affiliate, (i) on a monthly basis, (ii) within forty eight (48) hours of any request by a First Distribution Customer or by First Distribution and/or First Distribution’s Affiliate on behalf of any Customer and (iii) within forty eight (48) hours of the termination of the provision of Services by Services Provider to the First Distribution Customer.

2.1.11. Maintenance of Services Provider Information:

2.1.11.1. Services Provider agrees to maintain its section of the CBSMC website to include current marketing collateral in an editable word .doc format where applicable, warranty, list prices, service level agreement and sales contacts.

2.2. FIRST DISTRIBUTION’s obligations:

In addition to FIRST DISTRIBUTION’s responsibilities stated elsewhere in this Agreement, First Distribution agrees to the following:

2.2.1. Payment:

2.2.1.1. FIRST DISTRIBUTION agrees to pay Services Provider the consideration described in Exhibit A in exchange for the Services. Service Provider agrees that FIRST DISTRIBUTION Affiliates may pay all or part of the consideration due and payable to Services Provider hereunder.

2.2.2. Development of Data Integration Adapters:

2.2.2.1. With assistance from First Distribution, or as otherwise specified in Exhibit A, Services Provider agrees to develop the Data Integration Adapter that is required to offer the Services through the CBSMC as described in Section 2.1.1.

2.2.3. Promotion of the Services:

2.2.3.1. FIRST DISTRIBUTION agrees to use commercially reasonable and ethical efforts to promote the Services, and to refrain from publicly disparaging Services Provider or the Services.

2.2.4. First Distribution Customer Contractual Obligations:

2.2.4.1. FIRST DISTRIBUTION agrees to contractually obligate First Distribution Customers to acknowledge Service Provider’s rights by a written or electronic agreement for the provision of the Services containing terms at least as restrictive and protective of Services Provider’s rights as the terms of this Agreement.

2.3. Joint obligations:

The parties agree to the following:

2.3.1. Press Release:

2.3.1.1. First Distribution and Services Provider will issue a joint press release regarding this Agreement within a reasonable time following execution of this Agreement. The content and timing of the press release will be subject to each party’s prior written approval.

2.3.2. Export Restrictions:

2.3.2.1. Services Provider agrees to provide and First Distribution and/or First Distribution’s Affiliate with a list of countries where, to Services Provider’s knowledge, the Services cannot be resold due to export restrictions, local government regulations or other regulatory issues, and First Distribution agrees to contractually prohibit First Distribution Customers from exporting, re-exporting, transferring, or making the Services available in these countries.

2.3.3. Additional Services:

2.3.3.1. By mutual consent in writing, the parties may amend Exhibits A and B to add additional Services to be offered by Services Provider pursuant to the terms of this Agreement.

2.3.4. Responsible Individuals:

2.3.4.1. The parties shall identify and appoint the responsible individuals listed on Exhibit C for matters related to this Agreement.

2.3.5. Relationship of Parties:

2.3.5.1. First Distribution and Services Provider are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither First Distribution nor Services Provider will have the power to direct the day-to-day activities of the other or to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

3. OWNERSHIP AND LICENSES

3.1. Ownership:

3.1.1. Each party expressly reserves all rights not expressly granted herein, and acknowledges and agrees that the other party’s products and services shall remain the property of such other party or its licensors. No licenses are granted by implication, estoppel or otherwise to either party to any of the foregoing except as expressly set forth in this Agreement.

3.1.2. First Distribution acknowledges and agrees that no rights are granted hereunder to First Distribution, and First Distribution shall not authorize any third party, to use, transfer or convey all or part of the Services or other products, except as specifically provided in this Agreement.

3.1.3. Subject to the licenses expressly granted by Services Provider to First Distribution and its Channel Partners pursuant to this Agreement, all right, title and interest in and to Services Provider’s Marks, the Services Site (excluding any Content provided by First Distribution or its suppliers or licensors or and First Distribution Customers or Users) and the Services, including, without limitation, all intellectual property and proprietary rights therein, are and will at all times remain the sole and exclusive property of Services Provider and/or its suppliers.

3.2. Marks:

3.2.1. Each party will retain all right, title and interest in and to such party’s Marks and any goodwill associated therewith, including any goodwill arising from the use of such Marks by the other party, and ownership of its respective software and any other intellectual property.

3.2.2. With the other party’s prior written approval, each party hereby grants to the other a non-exclusive, nontransferable, paid-up license during the term of this Agreement to use and reproduce one another’s Marks: (i) to market the Services; (ii) in connection with the link on First Distribution Channel Partner’s webstore to the Services Provider’s Services Site; (iii) in marketing materials; and (iv) to refer on each party’s website to the parties’ business relationship.

3.2.3. Each party’s use of the other party’s Marks as authorized hereunder will conform to the reasonable requirements for color, dimensions, layout, placement and other similar requirements of the party that owns the Marks, and will be subject to prior review and approval by the party that owns the Marks. Neither party will seek to register any Marks of the other party in any country in the world.

3.3. License Grant:

3.3.1. Subject to the terms and conditions contained herein, Services Provider hereby grants to First Distribution a nonexclusive license during the term of this Agreement: (a) to market, offer, distribute, grant access to, and grant First Distribution Customers the right to obtain access to, the Services for use in accordance with the terms of this Agreement; (b) to access and use the Services in connection with First Distribution’s provision of the Services; (c) to grant Channel Partners the right to market, offer, distribute and grant First Distribution Customers access to the Services for use in accordance with the terms of this Agreement; (d) to use and permit Channel Partners to use the Services as reasonably required in connection with marketing and promotion of the Services; (e) to train First Distribution Customers and their Users regarding the proper use and operation of the Services, using User Documentation and/or other documentation developed by First Distribution and/or First Distribution’s Affiliates.

4. PRICE, INVOICE AND PAYMENT

4.1. Prices:

4.1.1. First Distribution will pay Services Provider the prices listed on Exhibit A in exchange for the Services.

4.2. Price Changes:

4.2.1. Services Provider agrees that it will not increase its prices during the first twelve (12) months after First Distribution’s launch of the Services. Thereafter, Services Provider may increase the prices it charges for the Services once annually, by no more than ten percent (10%), with at least one hundred twenty (120) days prior written notice to First Distribution.

4.2.2. If Services Provider decreases the prices it charges for the Service generally, then it agrees to provide First Distribution with prompt written notice of the changes and to revise Exhibit B so that First Distribution’s prices shall be decreased proportionally. If Services Provider desires to make any changes to Exhibit B other than price increases or decreases (such as bundling discounts, for example), then Services Provider agrees to provide not less than one hundred twenty (120) days prior written notice to First Distribution of such change, and to renegotiate with First Distribution the affected terms such that First Distribution’s consideration for providing the Services will not be less than the consideration it would have received under the previous pricing structure.

4.3. Invoices and Payments:

4.3.1. Within five (5) days after the end of each calendar month during the Term of this Agreement, Services Provider shall submit to First Distribution via _______________ an invoice comprised of two reports, the contents of which are described on Exhibit B, for the immediately prior month.

4.3.2. First Distribution and/or First Distribution Affiliates will validate these reports against its own internal data, and notify Services Provider of any discrepancy within ten (10) business days of receipt. The parties agree to negotiate in good faith to resolve any discrepancies within fifteen (15) business days of receipt of the reports.

4.3.3. Payment of invoices does not constitute acceptance of Services. First Distribution shall pay all applicable taxes arising in connection with the rights granted hereunder, except for taxes based on Services Provider’s net income, which shall be the Services Provider’s responsibility.

4.3.4. Payments shall be due forty-five (45) days after receipt of the invoice. Service charges in the amount of the lesser of the maximum rate permitted by law and one and one-half percent (1-1/2%) per month shall accrue on all invoices that are past due by more than thirty (30) days.

4.4. Trial Period:

4.4.1. Services Provider may as part of an agreed marketing strategy offer a thirty (30) day trial period for Services. If a First Distribution Customer terminates the Services within such time period, First Distribution will: (a) discontinue providing Services to that First Distribution Customer, (b) notify Services Provider of the termination of the Services. There will be no charge by the Service Provider to First Distribution and/or the First Distribution Customer for the Trial Period.

5. NON-DISCLOSURE

5.1. Non-disclosure:

5.1.1. Each party agrees that it will not use for its own account or the account of any third party, or disclose to any third party, any of the other party’s or any First Distribution Customer’s or User’s Confidential Information, except: (a) as expressly permitted by or required to achieve the purposes of this Agreement; (b) as required by law; or (c) to either party’s attorneys, accountants and other advisors, as reasonably necessary, and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information.

5.1.2. Confidential Information does not include information that is known to either party or the public prior to disclosure by the other party or a First Distribution Customer or User; or becomes known to the other party or the public other than through a breach of confidentiality, including this Agreement; or is independently developed by either party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest the disclosure.

5.2. Privacy:

5.2.1. Services Provider agrees that it will not contact First Distribution Customers without First Distribution’s prior written authorization except as reasonably necessary to provide the Services. Services Provider agrees that it will use Data received by it from First Distribution or from any First Distribution Customer or User only in conformity with First Distribution’s privacy policy, located at legal.enquiries@firstdistribution.com, which may be amended from time to time (“Privacy Policy”). The parties agree that, as between First Distribution and Services Provider, Data concerning First Distribution Customers and Users are proprietary to First Distribution.

5.3. Interim and Urgent Relief:

5.3.1. The parties acknowledge that the breach or threatened breach of this clause 5, may result in irreparable injury to the disclosing party and that, in addition to its other remedies, the disclosing party shall be entitled to seek interim and urgent relief to restrain any threatened or continued breach of this Section.

5.3.2. The parties hereby waive any requirement for the posting of a bond or other security in connection with the granting to the disclosing party of such interim and urgent relief.

6. TERM AND TERMINATION

6.1. Term:

6.1.1. This Agreement will commence on the Effective Date and will continue for a period of thirty-six (36) months (“Initial Term”), unless terminated earlier as provided in this Section 6.

6.1.2. Upon the expiration of the Initial Term, this Agreement shall automatically renew for consecutive, additional three (3) year terms (“Renewal Terms”, collectively with the Initial Term, “Term”) unless: (a) the Agreement has been earlier terminated pursuant to this Agreement or (b) either party has provided the other party with written notice of its intent not to renew this Agreement at least one hundred twenty (120) days prior to the expiration of the end of the Initial Term or any Renewal.

6.2. Termination for Convenience:

6.2.1. This Agreement may be terminated by either party for any reason or no reason, whether or not extended beyond the Initial term, by giving the other party written notice ninety (90) days in advance.

6.3. Termination for Cause:

6.3.1. Either party may terminate this Agreement at any time if any of the following conditions occurs:

a) the other party is in material breach of any representation, warranty, term, condition or covenant of this Agreement and fails to cure such breach within thirty (30) days of receiving notice of such material breach from the innocent party; or
b) the other party is in material breach of any representation, warranty, term, condition or covenant of this Agreement (and such breach is incapable of being cured);
c) the other party:

i. fails to pay its debts or perform its obligations in the ordinary course of business as they mature;
ii. admits in writing its insolvency or inability to pay its debts or perform its obligations as they mature; or
iii. becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or general assignment for the benefit of creditors; provided that if such condition is assumed involuntarily it has not been dismissed with prejudice within thirty (30) days after it begins.

d) Additionally, if the Services are not available to First Distribution Customers for at least ninety-eight percent (98%) of the time during core business hours 5:00 a.m. – 10:00 p.m. local time where the service is offered, measured monthly then First Distribution may terminate this Agreement immediately.

6.4. Customer Contracts:

6.4.1. Upon termination of this Agreement, First Distribution shall cease offering the Services to new First Distribution Customers, but may continue to offer the Services to Continuing Customers for a period not to exceed twelve (12) months from the effective date of termination of this Agreement, as long as Services Provider is still receiving the agreed upon payment for the applicable Services and First Distribution otherwise complies with the terms in this Agreement.

6.4.2. The terms and conditions of this Agreement will continue to apply with respect to Continuing Customers until the expiration or termination of its respective Customer Contract.

6.5. Effect of Termination:

6.5.1. After termination or expiration of this Agreement, except as otherwise required by Section 5.4, each party may request that the other party destroy or deliver to it all copies of Confidential Information or other materials then in its possession owned solely by such other party, including without limitation sales and marketing materials provided from each party to the other party, and if destroyed, shall provide the other party with written confirmation that such Confidential Information has been destroyed.

6.6. Force Majeure:

6.6.1. If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this agreement by any cause beyond the reasonable control of that party, including, without limitations, acts of God, civil commotion, riots, insurrection, acts of government, fire, explosion, the elements, epidemics, governmental embargoes or like causes (“force majeure”), the party so affected shall, to the extent so prevented, be relieved of its obligations hereunder during the period of such events and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage either general, special or consequential which the other party may suffer due to or resulting from such delay or failure; provided always that written notice of the occurrence constituting force majeure shall be given within twenty-four (24) hours by the affected party.

6.6.2. The parties agree that should force majeure last more than 6 (six) weeks, the party who has not invoked force majeure to excuse any non-performance of its obligations may terminate this agreement by giving thirty (30) days written notice to the other party.

6.7. Transition Assistance:

6.7.1. Upon notice of termina¬tion of this Agreement, to the extent technically feasible, Services Provider shall assist First Distribution in the migration of Data that are located on Services Provider’s servers, in a comma separated values file or other format reasonably requested by First Distribution, to a location of First Distribution’s choice.

6.7.2. If termination of this Agreement is due to Services Provider’s breach, Services Provider agrees to do so at no cost to First Distribution.

6.8. Non-Solicitation:

6.8.1. Services Provider acknowledges that First Distribution has invested considerable financial and other resources to obtain First Distribution Customers. Services Provider agrees that it will not attempt to solicit any First Distribution Customers, and that it will not provide any of the Services to First Distribution Customers directly during the term of this Agreement and for twelve (12) months thereafter without First Distribution’s prior written consent.

6.9. Survival:

6.9.1. Except as otherwise provided in Section 6.4 with respect to Continuing Customers, the following provisions will survive termination of this Agreement: 5, 6, 9, 10, 11 and 12.

7. CONTENT

As between First Distribution and Services Provider, each party is solely responsible for its respective Content. Each party agrees that it will not use the Services to communicate any Content that is harassing, libelous, threatening, obscene, would violate the intellectual property rights of any person or entity or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation.

8. WARRANTIES AND DISCLAIMERS

8.1. Services Provider Warranty:

8.1.1. Services Provider warrants that the Services will perform in substantial compliance with the specifications in the User Documentation. If the Services, including after upgrades or enhancements or other changes, fail to substantially conform to the specifications in the User Documentation, First Distribution will provide written notice to Services Provider of such non-conformity and Services Provider agrees to use commercially reasonable efforts to correct such deficiencies within a reasonable time following receipt of such notice.

8.1.2. The foregoing remedy is First Distribution’s exclusive remedy for a breach of warranty hereunder and Services Provider will not have any liability under this warranty if the alleged defect is due to causes not within Services Provider’s reasonable control. Furthermore, Services Provider shall grant First Distribution, and First Distribution may extend to First Distribution Customers, the same warranty generally provided to Services Provider’s customers from time to time, if any. Services Provider agrees to notify First Distribution of any material changes to its warranty at least ninety (90) days in advance of such changes. Except that First Distribution may provide First Distribution Customers with a description of the Services stating the features, functionality, limitations and restrictions of the Services, based on the documentation provided by Services Provider, First Distribution shall not make any additional warranty on behalf of Services Provider other than that authorized by Services Provider.

8.2. Disclaimers:

EXCEPT AS OTHERWISE PROVIDED IN CLAUSES 8.2 AND 8.2, NEITHER FIRST DISTRIBUTION NOR SERVICES PROVIDER MAKES ANY WARRAN¬TIES REGARDING THE CBSMC OR THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND THE CBSMC AND THE SERVICES ARE PROVIDED “AS-IS”. SERVICES PROVIDER AND FIRST DISTRIBUTION SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICU¬LAR PURPOSE. THE PARTIES SPECIFICALLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICU¬LAR PURPOSE. NEITHER PARTY WARRANTS TO THE OTHER THAT THE CBSMC AND THE SERVICES WILL MEET THE REQUIREMENTS OF FIRST DISTRIBUTION CUSTOMERS AND BOTH PARTIES HEREBY DISCLAIM ALL LIABILITY ON ACCOUNT THEREOF.

9. INDEMNIFICATION

9.1. Services Provider’s Indemnification:

9.1.1. Other than as to Claims for which First Distribution is obligated to indemnify Services Provider pursuant to Section 9.2 below, Services Provider agrees to indemnify, defend and hold harmless First Distribution, its Affiliates, officers, directors, employees, consultants, agents and Channel Partners from Claims to the extent arising from: (i) the Services Site or Content provided by Services Provider; (ii) any Claim that the sale, license, marketing, distribution or use of the Services as expressly authorized herein infringes or misappropriates any third party’s patent, trademark, copyright, trade secret or other proprietary right; and/or (iii) any grossly negligent or willful act or omission by or on behalf of Services Provider.

9.1.2. Notwithstanding the foregoing, Services Provider will have no liability regarding any Claim arising out of or related to: (i) the use of the Services in violation of this Agreement or (ii) any Data or other materials provided by First Distribution. In the event of any Claim that the sale, license, marketing or distribution or use of the Services infringes a third party’s intellectual property rights, Services Provider may, at its option, procure the rights to allow First Distribution to continue to use the Services and the Services Site or modify the Services and/or Services Site so that such sale, distribution and use are not infringing, or, if neither of the foregoing options is practicable, terminate this Agreement without further obligation or liability to First Distribution.

9.2. First Distribution’s Indemnification:

9.2.1. Other than as to Claims for which Services Provider is obligated to indemnify First Distribution pursuant to Section 9.1 above, First Distribution agrees to indemnify, defend and hold harmless Services Provider, its Affiliates, officers, directors, employees, consultants and agents from Claims to the extent arising from: (i) Content provided by First Distribution; (ii) any use of the Services by First Distribution, First Distribution Customers or Channel Partners in violation of this Agreement; and/or (iii) any grossly negligent or willful act or omission by or on behalf of First Distribution, First Distribution Customers or Channel Partners.

9.3. Indemnification Procedure:

9.3.1. The indemnified party pursuant to Section 9.1 or Section 9.2 as applicable, shall (i) give prompt written notice of any actual or threatened Claim to the indemnifying party, (ii) give the indemnifying party sole control to defend, compromise or settle the Claim; and (iii) provide reasonable information, assistance, and cooperation to the indemnifying party in such defense or settlement, at the indemnifying party’s expense, provided however, that indemnifying party will not stipulate, compromise or settle the Claim in a manner which would impose any obligation on the indemnified party or restrict any of the indemnified party’s rights, title or interest in its intellectual property or otherwise, without such party’s prior written consent. The indemnified party may participate in the defense or settlement of such Claim at its own expense.

10. LIMITATION OF LIABILITY

10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY (OR ITS AFFILIATES) WILL BE LIABLE TO THE OTHER PARTY (OR TO ANY THIRD PARTY) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2. EXCEPT FOR EITHER PARTY’S BREACH OF NONDISCLOSURE OBLIGATIONS UNDER SECTION 5 AND EITHER PARTY’S INDEMNITY OBLIGATIONS PURSUANT TO SECTION 8, NEITHER PARTY’S LIABILITY (INCLUDING LIABILITY OF SUCH PARTY’S AFFILIATE) SHALL EXCEED THE TOTAL AMOUNT PAID BY FIRST DISTRIBUTION FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO WRITTEN NOTICE OF ANY CLAIM.

11. GENERAL

11.1. Governing Law:

11.1.1. This Agreement is made under and will be governed by and construed in accordance with the laws of the Republic of South Africa.

11.2. Dispute Resolution:

11.2.1. A dispute in the widest sense in connection with these Terms or which relates in any way to any matter affecting the interests of the Service Provider and/or the End User and/or First Distribution and/or the Reseller(“the Parties”), in regard to these Terms (“Dispute”), shall be deemed to have arisen when either Party notifies the other Parties in writing to that effect.

11.2.2. Should any Dispute (other than a Dispute in respect of which urgent or interim relief may be obtained from a court of competent jurisdiction) arise, the Parties shall first use reasonable endeavors to resolve such Dispute through good faith negotiations. This entails one of the Parties inviting the other in writing to meet, either in person or by means of telephone or video conferencing facilities, and to attempt to resolve the Dispute within ten (10) Business Days from date of written invitation. In the event that such negotiations do not result in a mutually acceptable resolution within ten (10) Business Days of the commencement thereof, the Dispute shall be handled in accordance with the below.

11.2.3. Any Dispute shall be referred to arbitration on notice by one Party to the other, and be finally resolved in accordance with the rules of the Arbitration Foundation of the Republic of South Africa. Such arbitration shall be held in Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules.

11.2.4. Any arbitration award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction.

11.2.5. These provisions shall not prevent either Party from approaching any court or other judicial forum in any country having appropriate jurisdiction to obtain timely interim or other relief in cases of urgency.

11.2.6. The provisions of this clause shall constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement. Any rights or remedies granted to either party hereunder shall be in addition to and not in lieu of any other right or remedy of such party at law or in equity.

11.3. Severability; Waiver:

11.3.1. In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

11.4. Assignment:

11.4.1. This Agreement and any rights or obligations herein may not be assigned, transferred or delegated by either party without the prior written consent of the other, except in connection with a merger, reorganization or sale of all or substantially all of such party’s business, voting stock or assets. Any attempted transfer, assignment or delegation in violation of the foregoing shall be null and void and of no effect. Subject to the foregoing, this Agreement shall be binding on the parties’ permitted successors and assigns.

11.5. Notice:

11.5.1. Any notice required or permitted to be given under this Agreement shall be deemed given when delivered: (a) by hand; (b) by registered or certified mail, postage prepaid, return receipt requested, to the address of the other party on the first page of this Agreement, or to such other address as a party may designate by written notice to the other party no less than thirty (30) days prior to change of such address; (c) by overnight courier; (d) by facsimile either receipt of which is confirmed, or with confirming letter mailed under the conditions described in (b) above; or (e) by electronic mail, receipt of which is confirmed.

11.6. Entire Agreement; Counterparts; Originals:

11.6.1. This Agreement, including all documents attached hereto and incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, between the parties regarding such subject matter. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. In the event of a conflict between or among the terms in this Agreement, any exhibit and any other document made a part hereof, the documents shall control in the following order: any exhibit, the Agreement and other documents. This Agreement may be changed, and any of its terms waived, only by a written document signed by authorized representatives of First Distribution and Services Provider in accordance with this Section 11.6.

Exhibit List

Exhibit A: Description and Prices of Services

“Non-Cloud Services” means any offering supplied through a Webstore that is not a Cloud Service (eg: Consulting, Implementation, Training, Airtime, Software downloads etc), residing on the CBSMC.

“Cloud Services” means any Software as a Service (SaaS), Platform as a Service (PaaS), Infrastructure as a Service (IaaS) and/or Internal Applications exposed as a service, residing on the CBSMC.

Description and Prices of the Services

Exhibit B: Pricing Terms, Reporting and Training Obligations

A. Pricing Terms

Margin:
10% is the complete channel margin and includes the margin that is passed on to the Reseller.

B. Information to be Provided in Billing Reports

High-level Summary:

The aggregate number of users of the Services for the entire month
The aggregate number of users of the Services for part of the month, and the portion of the month for which the Services were used by each such user
The aggregate cost per summarized item
Any additional information required to calculate a Customer’s payment obligations

Detailed Summary:

Customer name
User names or identification numbers
If usage based, price per use for such Service, and name or identification numbers of user (per Service)
If user based, the number and identification numbers of users using the Service for the whole months and those using for part of the month
The name, identification number and pro-ration of users using the Service for part of the month
Any additional information required to calculate a Customer’s payment obligations

C. Training to be Provided by Services Provider to First Distribution at no cost

Exhibit C: Service Level Targets

A. Uptime Targets

Services Provider agrees that the Services will meet or exceed the following availability levels, measured monthly, or be subject to the following discounts of the amounts payable by First Distribution to Services Provider for the Services for the month in which such service level targets are not attained:

Uptime Targets	Discount
at least 99% of the time upon the creation of the Services Site	50 %
at least 99.5% of the time beginning three months after the Effective Date	50 %
at least 99.9% of the time beginning six months after the Effective Date	50 %

B. Case Resolution and Escalation Obligations

Service Level Targets	Discount
For all cases, Services Provider will assign the appropriate resources to resolve the case in an expedient manner. For Priority 1 cases, Services Provider will update First Distribution every 30 minutes regarding the status, plans and estimated time for resolution until the incident has been resolved. For Priority 2 and 3 cases, Services Provider will update First Distribution every 4 hours and 24 hours respectively, regarding the status, plans and estimated time for resolution. The updates can be provided more or less often if First Distribution so requests.	25 %
If any Priority 1 case has not been resolved within 4 hours, Services Provider’s senior technical officer or a delegate will immediately contact First Distribution with an escalation resolution plan.	25 %
Services Provider will contact First Distribution within fifteen (15) minutes of determining the reason for the Services unavailability.	25 %

(a) Priority 1 cases are cases in which the Services are not functioning or available to a Customer.

(b) Priority 2 cases are cases in which a significant functionality or feature of the Services is materially unavailable.

From time to time, depending on specific requirements of First Distribution Customers, First Distribution will require review of the SLA with Service Provider and work in best effort to adjust the SLA terms accordingly.

Exhibit D: Contact Information

To report a system failure or scheduled or unscheduled maintenance, each party should contact the following:

First Distribution and First Distribution’s Affiliates Contact Information
Name: Service Center (available 24 hours a day, 7 days a week)	Telephone Number in South Africa: 0861 00 99 88 International Telephone Number: 0861 00 99 88
	Email address: support@cbsafrica.com
Service Provider’s Contact Information
Name:	Telephone Number:
	Email address:

Incident Response Teams:

The parties agree to provide names and contact information for one another’s incident response teams within thirty (30) days of the Effective Date, and to update such information as necessary to keep current.

Responsible Parties

	Services Provider	First Distribution
Technical Owner
Relationship Manager

Exhibit E: Services Provider Security and Business Continuity Requirements

Throughout the term of this Agreement, Services Provider agrees to meet or exceed the following security requirements.

A. Security Policies and Personnel

1. Security Policies and Procedures. Services Provider shall have: (i) a clear security policy that is actively used and monitored; (ii) a documented process for evaluating operating system and application vendor security alerts and installing security patches and service packs; (iii) customer data access policies; (iv) documented disaster recovery procedures and business continuity plan; and (v) procedures for intrusion detection, incident response and incident escalation/ investigation. The security policy shall require Services Provider to perform background checks on personnel who will have administrative access to servers and applications, and to refuse to hire applicants with criminal backgrounds for those positions.

2. Security Personnel. Services Provider shall have a security organization with clear responsibilities, tasks, guidelines, reporting procedures and measures that are properly matched to the needs of Services Provider and customers. Services Provider’s security staff shall average at least three years’ experience in information/ network security. Services Provider shall require and provide appropriate training for its personnel on security policies, methods and procedures. Services Provider shall notify First Distribution of changes in its personnel positions having direct contact with First Distribution.

B. Security Infrastructure

1. Physical Site Security. Services Provider shall restrict access to its facilities to authorized parties, and shall ensure that its computers are physically inaccessible by anyone other than those authorized by Services Provider to have access to them.

2. Network Security. Services Provider will use commercially reasonable efforts to restrict unauthorized access to data managed by its computer network. Services Provider shall: (i) limit access to data to authorized users only, via an adequate authorization procedure for user access rights; (ii) provide application or transaction-based intrusion detection services; (iii) provide redundancy and load-balancing services for firewalls and other security-critical elements; and (iv) shall use commercially reasonable efforts to prevent and defend against unauthorized access by Internet hackers, including denial of service attacks. In the event of a confirmed breach of network security, Services Provider will comply with its emergency response guidelines, shall proactively notify First Distribution and all First Distribution Customers of the incident, and shall pursue appropriate legal proceedings against the violating parties.

3. Virus Protection and Defense. Services Provider shall take commercially-reasonable efforts to ensure that computer viruses and other attacks cannot be spread, including using virus prevention software and operating with up to date anti-virus information. Services Provider shall carefully check any and all software or data that is loaded onto its systems, and isolate customer data to prevent the spread of customer viruses to the operating system, any applications or to other customers.

4. Transmission Security. Information being sent between Services Provider and customers or First Distribution must be sent securely. Services Provider will protect customer information during transmission by using encryption, virtual private network (VPN) or Secure Sockets Layer (SSL) technology. Data that is being sent back and forth as part of integration with one or more First Distribution systems shall be protected via a virtual private network. Services Provider shall not send any customer data in open-text format. Digital signatures may be used in connection with encryption upon First Distribution’s request.

5. Data Segregation and Firewalls. Services Provider shall enact and enforce commercially reasonable controls to protect private customer information from access by unauthorized users. If Services Provider combines the data of different customers on shared physical servers, Services Provider shall have a documented set of controls to ensure separation of data and security information between customer applications. Services Provider shall ensure that data generated by one customer remains the confidential and private property of that customer and is not inadvertently revealed to any other customer.

Services Provider shall provide properly configured firewalls that are adequate for the protection of customer data. Services Provider shall perform periodic testing and examination of the firewall rules to ensure that adequate protection is maintained.

C. Contingency Planning

1. Data Back-Up. Services Provider agrees to perform a full back up of customer data at least monthly, with incremental daily back-ups and full weekly back-ups. Services Provider agrees to maintain copies of monthly and weekly back-ups of customer data for at least nine (9) months (or at least 24 months for financial applications). Media containing such data shall be stored in a secure offsite location. Upon request to Services Provider, a copy of the data backup tape will be provided to First Distribution Customers or First Distribution (on behalf of its customers). Services Provider shall also have in place measures appropriate to ensure that customer data and storage media or devices either: (i) are destroyed promptly after customer ceases to be a customer, or (ii) are returned to First Distribution or the customer upon reasonable request.

2. Redundancy. The Services Provider’s solution shall contain redundancies necessary to support continued operations despite the failure of any given piece of hardware or individual operator.

3. Emergency Response and Disaster Recovery. Services Provider shall have documented communication procedures to be used in case of security incidents, including successful hacker attacks, insider corruption of data or a computer virus. These procedures must include a business continuity plan that describes how Services Provider will restore its services within three (3) days in the event of a natural disaster. Services Provider shall have on hand the telephone numbers of persons involved at Services Provider, First Distribution (specifically including First Distribution’s Emergency Response Team), customer and/or vendor sites, in order to be able to respond to emergencies, maintain secure operations and provide any required notice to potentially affected customers.

To respond to security emergencies a Services Provider must have the expertise available to (i) determine that an incident has occurred; (ii) ensure that the incident is over; backup information remains intact and uncorrupted; and proper security measures are in place while recovery is taking place; and (iii) confirm that the incident is closed. In addition to dealing with the technical incident, Services Provider’s personnel must be able to determine responsibility to customers and to assess whether customer notification is required.

D. Security Enforcement

1. External Auditing. Services Provider shall maintain and retain detailed, well kept security logs in accordance with industry best practices, and a list of employees with administration rights and rights to alter the security logs. Services Provider shall perform (or have an experienced consulting company perform) external penetration tests on at least a quarterly basis and internal network security audits at least annually.

2. Separation of Duties. Services Provider’s customer data access policies shall compartmentalize administrator responsibilities to ensure that no single individual has complete authority to access customer data, alter customer data and alter system logs that document such access/alterations. Services Provider’s network administration shall require a separation between the review of administrative activity and the ability to change such logs.

3. First Distribution Certification. First Distribution will have the right to have a third party security audit performed regarding Services Provider in order to certify, and annually re-certify, that Services Provider and/or its hosting facilities meet or exceed these security requirements. Services Provider consents to these security audits.

4. Third Party Certification. Services Provider will provide First Distribution with its security certifications and ratings (such as SAS 70 compliant).

First Distribution Master Distribution Agreement

Master Distribution Agreement

First Distribution Master Distribution Agreement Terms and Conditions

1. DEFINITIONS:

2. CREATION AND OPERATION OF THE SERVICES SITE

3. OWNERSHIP AND LICENSES

4. PRICE, INVOICE AND PAYMENT

5. NON-DISCLOSURE

6. TERM AND TERMINATION

7. CONTENT

8. WARRANTIES AND DISCLAIMERS

9. INDEMNIFICATION

10. LIMITATION OF LIABILITY

11. GENERAL

Exhibit List

Exhibit A: Description and Prices of Services

Exhibit B: Pricing Terms, Reporting and Training Obligations

Exhibit C: Service Level Targets

Exhibit D: Contact Information

Exhibit E: Services Provider Security and Business Continuity Requirements

Contact Us

Follow Us