Kaspersky Reseller Agreement

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1. INTRODUCTION

1.1. First Distribution is an authorised distributor of the Kaspersky Application in the Territory.

1.2. Subject to the terms and conditions set forth in this Agreement, First Distribution hereby grants the Reseller, and the Reseller hereby accepts a non-exclusive, revocable, non-transferable license during the term of this Agreement to resell the Kaspersky Application in the Territory.

1.3. The Kaspersky Application is made available to the Reseller’s Subscribers only by download.

1.4. First Distribution is authorised to appoint the Reseller as a Reseller of the Kaspersky Application and the Reseller agrees to only act in that capacity, and in each case subject to the terms and conditions of this Agreement.

2. DEFINITIONS

Unless the context otherwise indicates, the following expressions shall have the meanings given to them:

2.1. The word “Schedule” refers to a schedule(s) attached to this Agreement, and as amended, replaced or added, by agreement between the Parties from time to time under the provisions of this Agreement.

2.2. “Activation Code” means unique identifier generated by Kaspersky that entitles a Subscriber to receive a unique license key during the activation procedure. An activation code consists of four groups containing five characters per group. The characters are from the ‘A’..’Z’ and ‘0..9’ ranges. E.g.: PUM7S-D5HQU-PUSXX-JVCCW;

2.3. “Active Subscription” means any active license for the Kaspersky Application that is in Use by a Subscriber during the Reporting period. This concept is used for the purposes of payment and to account for License Fee due pursuant to this Agreement. The Subscription is considered to be “Active” for the whole of current Reporting Period if it has not been suspended in the previous Reporting Period;

2.4. “AFSA” means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it);

2.5. “Agreement” means this Kaspersky Reseller Agreement together with its various Schedules (as concluded and substituted from time to time);

2.6. “Applicable Law” means the laws of any jurisdiction to which either of the Parties or the use of the Kaspersky Application may be subject;

2.7. “Antivirus Database Updates” means those software updates provided by Kaspersky from time to time;

2.8. “Application Updates” means new versions of the Kaspersky Application that are released by Kaspersky during the term of this Agreement;

2.9. “Business Day” means any day other than Saturday, Sunday or a public holiday officially recognized as such in the Republic of South Africa;

2.10. “Confidential Information” means any information or data in whatever form or medium whether tangible or intangible, oral or in writing, including but not limited to, documents, materials or data which by its nature or content is or should reasonably be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence or is marked as confidential information by the Disclosing Party, and of which the Receiving Party may obtain knowledge through or as a result of the relationship created in terms of this Agreement, access to the Disclosing Party and/or the Disclosing Party’s premises, or communications with the Disclosing Party’s employees, representatives or independent contractors. Without limiting the generality of the foregoing, “Confidential Information” shall include but is not limited to ideas, concepts, business plans, strategies, financial statements, pricing data, operations, inventions, discoveries, formulae, processes, designs, specifications, drawings, prototypes, sample, improvements, developments, applications, marketing data, Reseller names, projections, trademarks, trade names, and trade secrets, any commercial, financial, technical or strategic information, whether or not the same are or may be patented, registered, or otherwise publicly protected. For the sake of clarity Confidential Information shall include (a) pricing or other information concerning any products or services; (b) trade secrets and other proprietary rights of a party; (c) any business, marketing or technical information disclosed by First Distribution or the Reseller;

2.11. “Documentation” means any and all documentation that First Distribution may provide to the Reseller relating to the Kaspersky Application and which may include technical and user documentation (including user manuals, technical manuals, computer operation manuals, installation and operating standards, specifications and training materials);

2.12. “Effective Date” means the date on which this Agreement will be deemed to be in full force and effect;

2.13. “Evaluation Period” means the period till the end of the current month where the Reseller provides the Kaspersky Application for free to a new Subscribers, and as recorded in Schedule 1. For the avoidance of doubt the Evaluation Period for a Subscriber will begin on the date the Reseller signals the start of a new Subscription through the KSS integration. The Subscriber, during the Evaluation Period, should be mentioned in the Report but will not be included in the calculation of the License Fee;

2.14. “First Distribution” means 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;

2.15. “Intellectual Property” means any form of knowledge or information that is capable of protection under Applicable Law and includes things such as patents, inventions, copyrights, moral rights, design rights, trademarks, trade names, business names, service marks, logos, graphics, multimedia works, service names, trade secrets, know-how, domain names and database rights, relating to the Kaspersky Application including all products and services ancillary or related thereto as may exist at the Effective Date and as may be developed, created or adapted thereafter;

2.16. “Kaspersky” means Kaspersky Lab UK Ltd, a company incorporated in the United Kingdom, and/or Kaspersky Lab South Africa (Pty) Ltd, a company incorporated in the Republic of South Africa, and who are jointly and/or severally the proprietor(s) of the Kaspersky Application and the KSS;

2.17. “Kaspersky Application” means the software product(s) listed in Schedule 1 to this Agreement, that are proprietary to Kaspersky, and that are distributed by First Distribution, and shall include any additional software applications that may be added or substituted upon written agreement between the Parties from time to time and recorded in separate or updated Schedule 1 to this Agreement;

2.18. “Kaspersky License Agreement” means the standard Kaspersky agreement which is required for each new licence of the Kaspersky Application and which specifies the terms and conditions under which any Subscriber may use the Kaspersky Application;

2.19. “KSS”/“Kaspersky Subscription Software” means the server application, produced by Kaspersky, designed to manage Subscriptions for Kaspersky Applications for Subscribers;

2.20. “Monthly License Fee” means the monthly fee due to First Distribution by the Reseller, based on the number of Active Subscriptions of the Kaspersky Application reported at the end of each Reporting Period, and invoiced by First Distribution to the Reseller in accordance with clause 9 and at the per Kaspersky Application price stated in Schedule 1;

2.21. “Party” means either First Distribution or the Reseller and “Parties” means both of them collectively and shall be deemed to mean and include their respective successors and permitted assigns;

2.22. “Report” means the monthly report required to be provided by Reseller to First Distribution, in substantially the same format as Schedule 2;

2.23. “Reporting Period” means one calendar month;

2.24. “Reseller” means the party who resells the Kaspersky Application to its customer;

2.25. “Subscriber” means a customer of the Reseller who purchases the Kaspersky Application for its own use and is identified as the licensee in the Kaspersky License Agreement;

2.26. “Subscription” means an arrangement for making Use of the Kaspersky Application on continuing or periodic basis and within specified parameters (i.e. expiry date, application, number of protected devices, etc.), and as confirmed by a Subscriber;

2.27. “Subscription Period” means a period in time (measured by amount of days), during which the Subscriber makes Use of the Kaspersky Application;

2.28. “Territory” means territory as stated in Schedule 1 to this Agreement;

2.29. “Termination Date” means the date upon which this Agreement terminates for any reason whatsoever;

2.30. “Use” means when the point in time when the Kaspersky Application is considered to be in use, which will occur once Kaspersky receives the signal to start the Subscription through the KSS integration from the Reseller (or First Distribution as the case may be) and until Kaspersky receives the signal to stop the Subscription through the KSS integration from the Reseller (or First Distribution as the case may be);

2.31. “VAT” means value added tax levied in terms of the Value Added Tax Act, 1991 (Act 88 of 1991).

3. INTERPRETATION

3.1. Unless the context indicates otherwise, an expression which indicates: (i) any gender includes the other gender; (ii) a natural person includes a juristic person and vice versa; and (iii) the singular includes the plural and vice versa.

3.2. Headings are for convenience only and do not affect the interpretation of this Agreement.

3.3. In the event of ambiguity or conflict, and unless stated explicitly to the contrary in the relevant clause, the order of precedence in the interpretation of the Agreement shall be:

3.3.1. this Agreement;

3.3.2. the Schedules.

3.4. The expiration or termination of this Agreement shall not affect those provisions of this Agreement that expressly provide that they will operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not provide for this.

3.5. The rule of construction that this Agreement shall be interpreted against the party responsible for the drafting or preparation of this Agreement, shall not apply.

3.6. When any number of days is prescribed in this Agreement, same shall be reckoned exclusive of the first day and inclusive of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding Business Day.

3.7. A law shall be construed as any law (including common law) or statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order or any legislative measure of any government, local government, statutory or regulatory body or court as at the Effective Date and as amended or re-enacted from time to time, where applicable.

4. APPOINTMENT

4.1. First Distribution hereby appoints the Reseller as a non-exclusive reseller, to market, promote, sell and support the Kaspersky Application for the purpose of securing Subscribers within the Territory and the Reseller hereby accepts such appointment.

4.2. The Reseller shall not be entitled, whether directly or indirectly, without the express written authorisation of First Distribution, to solicit orders for any Kaspersky Applications which are not specifically listed in Schedule 1 hereto.

4.3. The Reseller shall not be entitled to assign or sub-contract any of its rights or obligations under this Agreement or appoint any agent to perform such obligations.

4.4. The Reseller represents and warrants to First Distribution that it has the ability and experience to carry out the obligations assumed by it under this Agreement and that by virtue of entering into this Agreement it is not and will not be in breach of any express or implied obligation to any third party binding upon it

5. AGREEMENT DURATION AND COMMENCEMENT DATE

5.1. This Agreement shall commence on the Effective Date and shall endure for a period of 1 (one) year (“Initial Period) and the Parties agree that upon the expiration of the Initial Period, as well as any subsequent Renewal Periods, this Agreement shall renew automatically on the same terms and conditions for further successive periods of 1 (one) year (“Renewal Period”), unless or until terminated by either Party giving the other no less than 30 (thirty) days prior written notice, but at all times subject to early termination as provided for elsewhere in this Agreement.

6. RESTRICTIONS

6.1. Except as specifically permitted by this Agreement or by Applicable Law, the Reseller warrants that it will not, directly or indirectly:

6.1.1. use any Confidential Information of First Distribution and/or Kaspersky to create any computer software program which is substantially similar to any Kaspersky Application;

6.1.2. reverse engineer, disassemble or decompile, or otherwise attempt to derive the source code for any Kaspersky Application;

6.1.3. encumber, time-share, rent or lease the rights granted by this Agreement; or

6.1.4. copy, manufacture, adapt, create derivative works of, translate, localise, port or otherwise modify any Kaspersky Application or other Confidential Information of First Distribution and/or Kaspersky or grant any party a licence to engage in similar conduct;

6.1.5. take actions or make statements, written or oral, which denigrate, disparage or defame the goodwill or reputation of First Distribution and/or Kaspersky and its trustees, officers, security holders, partners, agents and former and current employees and directors or which are intended to, or may be reasonably expected to, embarrass or adversely affect the morale of the employees of First Distribution and/or Kaspersky, or any actions or statements by the Reseller that may cause harm to First Distribution’s and/or Kaspersky’s business activity;

6.1.6. receive any payments on First Distribution’s behalf without prior written authorization from First Distribution to that effect.

6.2. The Reseller does not have, and will not claim that it has, any right in or to any of the Kaspersky Applications or any Confidential Information of First Distribution and/or Kaspersky other than as specifically granted by this Agreement. The Reseller will promptly notify First Distribution of any actual or suspected unauthorised use of the Kaspersky Application or disclosure of Confidential Information, and shall provide all reasonable assistance to First Distribution and/or Kaspersky in the investigation of such unauthorised use or disclosure.

7. OBLIGATIONS OF THE RESELLER

7.1. During the term of this Agreement the Reseller warrants that it shall:

7.1.1. promote, market and distribute the Kaspersky Application;

7.1.2. provide First Distribution, on written request, with its Subscriber database;

7.1.3. message Subscribers who have signed up for the Kaspersky Application, but have not activated such Kaspersky Application, notifying them that they are paying a monthly fee and that they should activate;

7.1.4. ensure that all Subscribers are provided with, and enter into, the Kaspersky License Agreement;

7.1.5. keep secure any Activation Codes obtained by it and any access to Kaspersky’s database in order to obtain the Activation Codes. Once obtained, the Reseller shall not copy, duplicate, alter or modify any Activation Code without the prior express written authorisation of First Distribution and/or Kaspersky (as applicable). The Reseller shall only collect Activation Codes as required to market and sell the Kaspersky Application in its possession;

7.1.6. сomply with all Applicable Laws relating to the marketing and licensing of the Kaspersky Application;

7.1.7. use all commercially reasonable efforts to actively market the Kaspersky Application and when required attend meetings and perform marketing functions with First Distribution;

7.1.8. when First Distribution or Kaspersky (as applicable) provides any Application Updates to the Reseller, the Reseller will use all commercially reasonable efforts to incorporate such Application Updates into its next build of the Kaspersky Application. In any event, the Reseller will use all commercially reasonable efforts to cease distributing the prior version of the Kaspersky Application and to distribute only the most recent Application Update within forty-five (45) days after receipt of any such Application Update(s) from First Distribution or Kaspersky (as the case may be);

7.1.9. set up and maintain specialist(s) with a good knowledge of the Kaspersky Application who shall use all reasonable efforts to maintain and promote the good name and reputation of Kaspersky and the Kaspersky Application;

7.1.10. At its expense, indemnify, defend, save and hold harmless First Distribution from and against any claim, loss, expense, or judgment (including legal costs on an attorney and own client scale) which arises from:

7.1.10.1. any failure of the Reseller to act, or claims made that the Reseller has not acted, in accordance with this Agreement;

7.1.10.2. misrepresentations made or alleged to have been made by the Reseller, their employees, agents or sub-contractors;

7.1.10.3. any warranties granted in excess of those made by First Distribution in this Agreement;

7.1.10.4. inadequate or alleged inadequate installation, maintenance or support by the Reseller, their employees, agents or sub-contractors;

7.1.10.5. the marketing of the Kaspersky Application by the Reseller.

7.1.11. The Reseller shall promptly advise First Distribution of any market information that comes to the Reseller’s attention in respect of the Kaspersky Application, Kaspersky’s market position or the continued competitiveness of the Kaspersky Application within the Territory.

8. CONTRACTING PROCESS

8.1. The Reseller shall process all orders for the Kaspersky Application through the KSS, and shall ensure that all necessary information of the Subscriber is included.

8.2. The Kaspersky server will then automatically generate and send an email to the Subscriber with the download link and Activation Code;

8.3. All cancellations by a Subscriber will be processed through the KSS.

8.4. A Subscriber will continue to be billed, and the Reseller will be obligated to make corresponding payment to First Distribution, for as long as the Subscriber has an Active Subscription for the Kaspersky Application;

8.5. The Reseller shall not, without the prior written consent of First Distribution, enter into negotiations with any prospective Subscriber, including but not limited to, negotiations on any of the following matters:

8.5.1. The imposition of penalties or a waiver of any penalties already imposed; and/or

8.5.2. Warranties or guarantees in respect of the performance of the Kaspersky Application.

9. REPORTING AND PAYMENT

9.1. The Reseller shall provide First Distribution with written reports in the format and frequency as set out in Schedule 2 to this Agreement, and as may be updated and amended by First Distribution on written notice to the Reseller.

9.2. Each Schedule 1 to this Agreement is valid for the period stated therein whereafter First Distribution shall be entitled on written notice to the Reseller to amend, update, and/or replace Schedule 1.

9.3. Unless expressly stated to the contrary, all prices specified in Schedule 1 or an invoice shall be exclusive of VAT calculated and levied in terms of the Value-added Tax Act No. 89 of 1991 and any other tax which the Reseller becomes obligated to pay arising out of this Agreement.

9.4. First Distribution may include on any invoice any amount not previously billed for calendar months prior to the current month.

9.5. All tax invoices shall be payable by the Reseller on or before the due date thereof by electronic funds transfer into a banking account specified by First Distribution in writing.

9.6. Overdue amounts will bear interest at the prime interest rate as charged by First National Bank plus 3% (three Percent), from the date that payment was due to the date on which payment is actually effected. The prime interest rate may be proved by a certificate signed by any manager of that bank, whose appointment it shall not be necessary for First Distribution to prove and which certificate will constitute prima facie evidence of its contents.

10. RELATIONSHIP BETWEEN THE PARTIES

10.1. Nothing in this Agreement shall render the Reseller a partner or (except for the purpose of securing End-User Agreements or Customer payments in the manner permitted by this Agreement) an agent of First Distribution and the Reseller shall not (except as expressly permitted or contemplated by this Agreement) purport to undertake any obligation on First Distribution’s behalf, nor expose First Distribution to any liability, nor pledge or purport to pledge First Distribution’s credit.

10.2. The relationship between the parties will not be deemed to be one of employer and employee, including for the purposes of all labour laws and regulations (including the Labour Relations Act of 1995, the Basic Conditions of Employment Act of 1997, the Unemployment Insurance Act of 2001, or any other relevant legislation that may normally be applicable to an employer-employee relationship) and the Reseller specifically agrees that First Distribution will not be liable to the Reseller under the provisions of any legislation purporting to create or recognise such an employment relationship.

10.3. It is specifically recorded that-

10.3.1. the Reseller has an existing, established business of its own (including but not limited to, its own billing system, architect solutions team and sales team), which business is entirely associated with the Reseller’s own brand, trademarks, copyrights and advertising; and

10.3.2. the Reseller currently or will in the future, sell, market, promote and distribute its own products and services and those of other parties, which products and services will be associated with the brand names and trademarks of such parties, and which are in no way linked to First Distribution or Kaspersky.

11. EVALUATION COPIES

11.1. First Distribution may, at its discretion, make available to the Reseller for provision to prospective Subscribers with the Kaspersky Application, free of charge, only for the Evaluation Period and solely to demonstrate the same to prospective Subscribers. The Reseller shall be required to ensure that access is not made available to any other parties.

11.2. The Use of the Kaspersky Application during the Evaluation Period will still be subject to the terms of this Agreement and the Kaspersky License Agreement.

12. SUPPORT AND MAINTENANCE

12.1. Support and maintenance services will be provided to Subscribers in accordance with Schedule 3 to this Agreement, as may be updated, amended, and replaced by First Distribution on written notice to First Distribution.

13. USE OF TRADE MARKS AND DOMAIN NAMES

13.1 The Reseller may use Kaspersky’s trademarks, service marks, or logos solely to promote the Kaspersky Application and strictly in accordance with Kaspersky’s policies in force.

14. INTELLECTUAL PROPERTY

14.1 Nothing in this Agreement shall give the Reseller any rights in respect of Kaspersky’s and/or First Distribution’s Intellectual Property and the Reseller hereby acknowledges that it shall not acquire any rights in respect thereof and that all such Intellectual Property is and shall at all times remain vested in Kaspersky and/or First Distribution (as applicable).

14.2 To the extent that Kaspersky and/or First Distribution makes any Intellectual Property available to the Reseller and/or the Subscriber, whether as part of the Kaspersky Application or in order to enable the Reseller and/or Subscriber to make full use of the Kaspersky Application, the Reseller may not (directly or indirectly, in whole or in part) except to the extent permitted under the terms of this Agreement and/or the Kaspersky License Agreement, under which such Intellectual Property is made available: (a) make any copies of the Intellectual Property, (b) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of any Intellectual Property (c) sell, rent, sublicense, distribute, disclose, publish, assign, commercially share or otherwise transfer any rights in any such Intellectual Property without Kaspersky’s and/or First Distribution’s prior written consent; (d) permit any third party to access any such Intellectual Property; and (e) will not, and will not permit to be done, anything which might negatively affect Kaspersky’s and/or First Distribution’s right, title and interest in or to that Intellectual Property.

14.3 The Reseller shall notify First Distribution of any actual, threatened or suspected infringement in the Territory of any Intellectual Property of Kaspersky and/or First Distribution which comes to the Reseller’s notice. In addition, the Reseller shall notify First Distribution of any claim by a third party that the promotion or licensing of the Kaspersky Application in the Territory infringes the rights of any other person as soon as the Reseller becomes aware of such claim.

14.4 This clause 14 will remain in full force and effect indefinitely even after the termination of this Agreement.

15. LIABILITY

15.1 Nothing in this Agreement shall limit or exclude either Party’s liability for fraud or for death or personal injury resulting from negligence, or to the extent otherwise not permitted by Applicable Law. Reseller shall ensure that all Subscribers fully complies with the terms of the Kaspersky License Agreement and the Reseller shall be fully responsible and liable for any actions, non-performance/improper performance, infringement, etc. by a Subscriber.

15.2 Subject to the foregoing, the Parties agree that the total liability to each other for damages of any kind, excluding intellectual property infringement, in any year of this Agreement, whether based on breach of contract, tort (including without limitation negligence), or otherwise under or in connection with this Agreement will be limited only to the amount of payments received by First Distribution from the Reseller under this Agreement in that year. In no event will either Party be liable to the other party for any lost profits or savings, lost business, loss of data, loss of revenue, loss of use or money, loss of business, loss of opportunity or any incidental, special, indirect, or consequential damages (whether or not also constituting one of the foregoing specific types of loss), whether based on breach of contract, delict (including without limitation negligence), or otherwise and whether or not such Party has been advised of the possibility of such damage.

15.3 Subject to clause 15.1 and save as provided in clause 15.2, in no circumstances will the First Distribution or its employees, agents or sub-contractors be liable for any loss or damage of any kind whatsoever whether in contract, delict (including negligence and breach of statutory duty) or otherwise in connection with or arising out of the supply of the Kaspersky Application or in connection with any advice or statement given or made by or on behalf of First Distribution (unless such advice or statement was given or made fraudulently).

15.4 First Distribution’s total liability is as set out in this clause 15.

15.5 The limitation of liability contained in this clause 15 shall apply to the fullest extent permissible in law and shall be for the benefit of the Parties and their directors, employees and agents in relation to the performance of this Agreement.

15.6 Whilst every effort is made to eliminate any errors, the Reseller acknowledges that no information and communications technology is error-free and that the Kaspersky Application is provided to the Reseller “as is”. As a consequence, the Reseller agrees and undertakes to perform regular back-ups of all data, messages and other information generated, sent, received and/or stored arising from or in relation to any software and/or devices provided and acknowledges that First Distribution shall not be liable for any loss or damage the Reseller, its clients, or any Subscriber may suffer as a result of an error occurring in relation to the operation or use of the any of the Kaspersky Application. The Reseller acknowledges and agrees that First Distribution will have no liability to the Reseller in the event of the Reseller being unable to access or make use of any of the Kaspersky Application as a consequence of the failure of any information and communications technology systems, including third party communications systems.

15.7 The provisions of this clause 15 will survive the termination of this Agreement for whatever reason.

16. INDEMNITIES

16.1. The Reseller hereby indemnifies and holds harmless First Distribution, its respective officers, directors, employees, agents, successors, and assigns, from any and all losses and threatened losses arising from, in connection with, or based on allegations of, any of the following:-

16.1.1. any claim or action arising from the Reseller’s or any of the Subscriber’s failure to observe or perform any duties or obligations to be observed or performed on or after the Effective Date by the Reseller in terms of this Agreement and/or the Kaspersky License Agreement;

16.1.2. any claim or action arising from the Reseller’s or any Subscriber’s negligent or intentional conduct or any contravention by the Reseller, agent, representative or any End User of any applicable law, including but not limited to the Consumer Protection Act 68 of 2008, and POPI;

16.1.3. any actual or threatened claim, demand, charge, action, cause of action, or other proceeding by any third party based on any failure by the Reseller, its employees and/or subcontractors and their employees, any Subscriber or any Subscriber’s employees, to comply with the security obligations set forth in this Agreement relating to the protection against fraudulent or other inappropriate or unauthorised use of or access to the Kaspersky Application, Intellectual Property, and/or Confidential Information described herein.

17. WARRANTIES

17.1. Save as expressly provided in this clause 17, no warranty, condition, undertaking or term, whether statutory, express or implied as to condition, satisfactory quality, performance, durability, fitness for purpose or otherwise is given or assumed by First Distribution and all such terms and warranties are hereby excluded and for the avoidance of doubt, no warranty is given by First Distribution in respect of any Kaspersky Application or media upon which copies of the Kaspersky Applications are made.

17.2. First Distribution does not warrant that the use of Kaspersky Application will be uninterrupted or error free.

17.3. First Distribution will pass on the Kaspersky indemnity that indemnifies the Reseller against all claims that the use of the Kaspersky Application infringes the intellectual property rights of any third party provided that the Reseller will not have the benefit of this indemnity should the Reseller fail to give First Distribution written notice of the claim within 5 (five) days of becoming aware, or the Reseller has not provided all reasonable assistance to First Distribution and/or Kaspersky to enable Kaspersky to defend the claim, or Kaspersky has not been given the right to control the defence or settlement of any claim.

18. TERMINATION

18.1 Termination for convenience

18.1.1 Notwithstanding the Initial Period (or any subsequent Renewal Period) set out in this Agreement, either Party shall be entitled in its sole discretion and without cause, to terminate this Agreement by giving the other Party 30 (thirty) days’ prior written notice of its intention to terminate and which termination.

18.1.2 The Reseller acknowledges that First Distribution shall be entitled to terminate this Agreement with immediate effect should Kaspersky terminate its right to distribute the Kaspersky Application in the Territory.

18.2 Termination for cause

Without prejudice to any rights and remedies that may have accrued, either Party may terminate this Agreement by providing the other Party with 30 (thirty) day’s written notice of its intention to do so if the other Party:

18.2.1 ceases to trade (either in whole, or as to any part involved in the performance of this Agreement);

18.2.2 becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed for the whole or any part of its assets or business;

18.2.3 the control (as defined in Section 2 of the Companies Act 71 of 2008) of the Party shall be transferred to any person or persons other than the person or persons in control of the Party at the date hereof;

18.2.4 either Party is provisionally or finally liquidated or shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order.

18.3 Breach

18.3.1 If either Party breaches a provision of the Agreement and remains in breach 14 (fourteen) days after the other Party has given written notice to the Party in breach calling upon them to correct that breach, then the other Party may give written notice to the Party in breach terminating this Agreement with immediate effect. In the event of this Agreement being terminated, the Party that terminates Agreement will nevertheless still be entitled to make such claims against the Party in breach as Applicable Law allows and will also, be entitled to claim for such losses as it may have suffered in connection with that breach.

18.4 Upon termination, the Reseller shall immediately cease to distribute and market the Kaspersky Application and shall destroy any material containing Kaspersky’s and/or First Distribution’s Intellectual Property or Confidential Information, including information and materials provided by First Distribution and/or Kaspersky. However, First Distribution agrees that it shall co-operate with the Reseller to seamlessly transition the Subscribers, whose Subscription have not expired and that First Distribution will use its best endeavours to ensure that the Kaspersky Application remains available to such Subscriber

19. CONFIDENTIALITY

19.1 Both Parties agree and undertake:-

19.1.1 except as permitted by this Agreement, not to disclose or publish any Confidential Information, including this Agreement, without the prior written consent of the other Party;

19.1.2 except as permitted by this Agreement, not to use the Confidential Information for any purpose whatsoever without the prior written consent of the other Party;

19.1.3 to restrict the dissemination of the Confidential Information to only those of its employees who are actively involved in activities for which use of the Confidential Information is authorised and then only on a ‘need to know’ basis and to take all practical steps, both before and after disclosure, to impress upon its employees who are given access to Confidential Information, the secret and confidential nature thereof.

19.2 The Parties acknowledge that, in respect of Confidential Information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or which otherwise comes to the knowledge of the Receiving Party, the Disclosing Party has not conferred any rights of whatever nature in such Confidential Information on the Receiving Party.

19.3 During the term of this Agreement, each Party to this Agreement may disclose certain Confidential Information to the other Party. Each Party shall refrain from using or exploiting any and all Confidential Information of the other Party for any purposes or activities other than those specifically authorized in this Agreement. Except as otherwise specifically permitted herein or pursuant to written permission of the Party to this Agreement owning the Confidential Information:

19.3.1 each Party represents and warrants that it will hold Confidential Information in confidence and protect the Confidential Information to the same extent and by the same means it uses to protect the confidentiality of its own proprietary or confidential information that it does not wish to disclose;

19.3.2 neither Party shall disclose or facilitate disclosure of Confidential Information of the other Party to anyone except its employees who are authorized according to this Agreement and who need to know such information for purposes set forth in this Agreement and will procure that those of its employees and consultants to whom the Confidential Information is disclosed comply with its obligations under this Agreement with respect to the Confidential Information;

19.3.3 all Confidential Information made available hereunder, including copies thereof, shall be returned to the Disclosing Party or shall be certified as destroyed at the request of the Disclosing Party.

19.4 Exclusions. The obligations of each Party under this Agreement will not extend to any information that:

19.4.1 is known to the other Party on the date of disclosure and/or has independently and legally derived or developed by the Receiving Party at the time of disclosure;

19.4.2 becomes publicly known by public use or by publication or otherwise ceases to be secret or confidential through no fault of the other Party;

19.4.3 is acquired by either Party from a third party which was not, to the recipient’s knowledge, under an obligation to the Disclosing Party not to disclose such information;

19.4.4 has been approved for release by written authorization of the Disclosing Party; or

19.4.5 has been disclosed pursuant to a requirement of law, provided however, that in such an event, as soon as practical after receiving the order or requirement of a court, administrative agency or other governmental body, the Receiving Party shall give the Disclosing Party a written notice of such order or requirement and in any event such notice shall be prior to disclosure of such information.

19.5 This clause 19 is severable from the rest of the Agreement and shall remain valid and binding on the Parties for a period of 5 (five) years after the termination or expiration of the Agreement.

19.6 The Parties acknowledge and agree that, for the purposes of Section 64(1) of the Promotion of Access to Information Act, No. 2 of 2000, the Confidential Information is provided in confidence by the Parties.

19.7 Data Privacy and Protection

19.7.1 The Reseller acknowledges that it is responsible for complying with any and all data protection obligations imposed in terms of Applicable Law, including the common law, and shall obtain any consents necessary for the disclosure of personal information to First Distribution for the purposes of this Agreement.

20. FORCE MAJEURE

20.1. A Party shall not be liable for a failure to perform any of its obligations in terms of this Agreement in so far as it is able to prove that:

20.1.1. such failure was due to an impediment beyond its reasonable control;

20.1.2. it could not reasonably have been expected to have taken such impediment and its effects upon such Party’s ability to perform into account at the time of conclusion of this Agreement; and

20.1.3. it could not reasonably have avoided or overcome the impediment or at least its effects and, for purposes of this clause 20, the following events (which list is not exhaustive) shall be deemed to be impediments beyond the control of each of the Parties, namely:

20.1.3.1. war, whether declared or not, civil war, civil violence, riots and revolutions, acts of piracy, acts of sabotage;

20.1.4. natural disasters such as violent storms, cyclones, earthquakes, floods and destruction by lightning;

20.1.5. acts of authority, whether lawful or unlawful, apart from acts for which the Party seeking relief has assumed risk; and

20.1.6. acts and omissions of any other service provider or any utility provider.

20.2. Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date on which the Party seeking relief gives notice of the impediment relied upon and shall terminate upon the date on which such impediment ceases to exist, provided that if the impediment continues for a period of more than 60 (sixty) consecutive calendar days, the other Party shall be entitled to terminate this Agreement by written notice to the Party seeking relief.

20.3. The payment of any amounts due to First Distribution by the Reseller are expressly excluded from the ambit of this clause 20.

21. DISPUTES

21.1. In the event of a dispute, the Parties will attempt to resolve any such disputes through informal negotiation and discussion. Formal proceedings should not be commenced until such informal negotiations and discussions are concluded without resolution;

21.2. Should the Parties fail to resolve a dispute within 10 (ten) days from the date the dispute arose, such dispute shall be referred to the Parties respective Chief Executive Officer, Head of Department or their nominees (“Representative”), the Representatives will take whatever action may be necessary to reach an agreement that is acceptable to the Parties.

21.3. Should the Representative’s fail to resolve the dispute within 10 (ten) days of referral, then any Party (“the Referring Party”) shall be entitled to refer a dispute to arbitration, in terms of clause 22.4 below, by notifying the other Parties to the dispute in writing of its intention to do so (“the Arbitration Notice”). The Arbitration Notice shall include the names of not less than 3 (three) natural persons whom the Referring Party proposes for appointment as arbitrator.

21.4. Any dispute arising from or in connection with this Agreement shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator agreed to between the Parties, failing agreement such arbitrator appointed by the Foundation, which resolution will be final and binding on the Parties.

21.5. Notwithstanding the provisions of this clause, the Parties agree that in the event of a breach or potential breach of the terms of this Agreement, the Party aggrieved by such breach will be entitled to seek and obtain urgent injunctive relief in respect of such breach. To this end, the Parties agree to the non-exclusive jurisdiction of the South Gauteng High Court of South Africa.

21.6. The Parties record that:

21.6.1. the submission to arbitration as herein provided does not constitute an ouster clause which precludes the right of access to the Courts.

21.6.2. This clause is a separate and divisible contract from the rest of this Agreement and shall remain in effect, even if the Agreement terminates or is cancelled.

21.7. First Distribution retains the right to institute collection proceedings in a court of law of competent jurisdiction for matters involving outstanding payment. In this regard the Parties hereby consent to the jurisdiction of the Magistrates Court otherwise having jurisdiction in respect of any proceedings (not subject to arbitration in terms of this Agreement) in respect of or arising out of the Agreement or it’s cancellation notwithstanding that the amount of the claim may exceed the normal jurisdiction of the Magistrate’s Court; this document shall constitute the required consent by the Parties to the jurisdiction of the Magistrates Court in accordance with section 45 of the Magistrates Court Act. And the Reseller hereby agrees that it will be liable for all costs incurred by First Distribution in executing collection proceedings on the scale as between attorney and own client.

22. GENERAL WARRANTIES

22.1. Each of the Parties hereby warrants to and in favour of the other that –

22.1.1. it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;

22.1.2. the execution of this Agreement and the performance of its obligations hereunder does not and shall not –

22.1.2.1. contravene any law or regulation to which that Party is subject;

22.1.2.2. contravene any provision of that Party’s constitutional documents; or

22.1.2.3. conflict with, or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.

22.2. The Reseller warrants that –

22.2.1. it is and will for the duration of this Agreement be solely responsible for complying with all Laws governing the on-sale of the Kaspersky Application as a Reseller (as specified in the Electronic Communications Act, 2005), and the fulfilment of the Reseller’s obligations under the Agreement;

22.2.2. it will in the sale and marketing of the Kaspersky Application, and in all of its engagements with Subscribers or prospective Subscribers, comply with the provisions of the Consumer Protection Act 68 of 2008 and any Regulations thereunder.

22.3. The Reseller hereby warrants, represents and undertakes in favour of First Distribution, that it shall:

22.3.1. at all times strictly comply with all the provisions and requirements of the Protection of Personal Information Act (“POPI”) when dealing with any personal information;

22.3.2. indemnify First Distribution from any liability arising from the Resellers failure to comply with its statutory obligations contained in POPI;

22.3.3. that it has obtained all necessary consents, where required, from the Subscribers when requesting their personal information;

22.3.4. that it shall comply with all laws, policies and procedures relating to the protection, storage, handling, privacy, processing and retention of data as well as the destruction of data, including personal data.

22.4. It has the necessary permits, licences and authorisations to on-sell the Kaspersky Application and that it will comply with the provisions of such permits, licences and authorisations in the fulfilment of its obligations under this Agreement.

22.5. Each of the representations and warranties given by the Parties in terms of this Agreement, shall –

22.5.1. be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;

22.5.2. continue and remain in force notwithstanding the completion of any or all the transactions contemplated in this Agreement; and

22.5.3. prime facie be deemed to be material and to be a material representation inducing the other Party to enter into this Agreement.

23. NOTICES AND DOMICILIA

23.1. First Distribution select as its respective domicilia citandi et executandi the following physical addresses, for the purposes of giving or sending any notice provided for or required under this Agreement, the said physical addresses-

Company Name: Epsidon Technology Distribution (Pty) Ltd t/a First Distribution

Physical Address: 26 Augrabies Road, Waterfall Office Park, Midrand, 1686

Postal Address: P O Box 783276, Sandton, 2146

For Legal Notices: Richard Hammond (richard.hammond@firstdistribution.com)

For Financial Notices: Caron Pain (caron.pain@firstdistribution.com)

For all other notices: Brad Stein (Brad.Stein@firstdistribution.com)

Jason

provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or telefax number by written notice to the other Party to that effect. Such change of address will be effective 5 (five) days after receipt of the notice of the change.

23.2. All notices to be given in terms of this Agreement will be given in writing, in English, and will –

23.2.1. be delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a business day will be presumed to have been received on the following business day; and

23.2.2. if sent by email during business hours, be presumed to have been received on the date of successful transmission of the email.

23.3. Notwithstanding the above, any notice given in writing in English, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with this clause.

23.4. The Parties record that whilst they may correspond via email during the currency of this Agreement for operational reasons, no legal notice required in terms of this Agreement, may be given or concluded via email.

24. GENERAL

24.1. Everything that the Parties have agreed relating to the subject matter of the Agreement and Schedules is set out in this Agreement and the Schedules. Anything that is not set out in this Agreement and Schedules will not have any legal effect and none of the Parties will be entitled to rely on that. This Agreement and Schedules overrides anything that was agreed between any of the Parties prior to concluding this Agreement.

24.2. This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa. If a particular term of this Agreement or Schedules is not lawful, that will not affect the rest of this Agreement.

24.3. This Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Parties or either of them.

24.4. This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.

24.5. No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.

24.6. No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless in writing and signed by the Party giving the same. Any such waiver will be effective only in the specific instance and for the purpose given. Failure or delay on the part of either Party in exercising any right, power or privilege hereunder will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

24.7. All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to being void, invalid, illegal, unlawful or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

24.8. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement as at the date of signature of the Party last signing one of the counterparts.

24.9. Each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement.

24.10. No failure, delay, relaxation or indulgence on the part of either Party in exercising any power or right conferred on such Party in terms of this Agreement shall operate as a waiver of such power or right nor shall any single or partial exercise of any such power or right preclude any other or further exercises thereof or the exercise of any other power or right under this Agreement.

24.11. This Agreement is signed on behalf of the Parties, with each signatory hereto warranting that he/she has due authority to do so.

24.12. Rights of Third Parties. A person who is not a Party to this Agreement has no right to enforce any term of this Agreement under Applicable Law and the Parties to this Agreement, however this clause shall not apply to Kaspersky who shall be entitled to enforce any rights granted to it in terms of this Agreement and such provisions shall constitute a stipulatio alteri in favour of Kaspersky and capable of acceptance and enforcement by Kaspersky at any time.

25. ACCEPTANCE OF TERMS AND CONDITIONS

The Reseller acknowledges that Kaspersky may have built into any or all of Kaspersky Applications disabling mechanisms that Kaspersky is capable of activating in the event of the Reseller contravening any of the terms of this Agreement. The Reseller further agrees that First Distribution will be entitled to request that Kaspersky activate such disabling mechanisms in the event of the Reseller and/or the Subsriber contravening any of the terms of this Agreement and/or the Kaspersky License Agreement, or failing to pay any amounts when due in terms of the Agreement and that in the event of First Distribution so doing, the Reseller and/or the Subscriber will have no claim against First Distribution or Kaspersky.

Schedule List

SCHEDULE 1 – Product List, Monthly License Fee, and Validity Period

Distribution Territory	Application	Evaluation period for new Subscribers	License Fee due to First Distribution per each Active Subscription per one month, in USD, excl. taxes	License Fee Validity Period

Schedule 2 – Reporting Requirements

Varies based on the Reseller

Schedule 3 – Support and Maintenance and Technical Requirements

25.1. Support and maintenance services will be provided to Subscribers in accordance with the following:

1.1. Depending on the Subscriber request category, technical support is provided on one of the three levels:

1.1.1. Support Services provided by the Reseller (hereinafter – TS the Reseller);

1.1.2. Support Services provided by First Distribution (hereinafter – TS First Distribution);

1.1.3. Support Services provided by Kaspersky (hereinafter – TS Kaspersky).

1.2. Request categories; relationship with Technical support level; request routing:

Request Category	Support Level	the Reseller’s TS activities	Routing in case the request cannot be completed
Questions on Application payments by Subscribers	TS the Reseller	Inform as per regulations
Questions on the conditions of Application provision to Subscribers	TS the Reseller	Inform as per regulations
Issues when delivering Activation Codes to Subscribers	TS the Reseller	Inform as per regulations	TS First Distribution
Application installation and activation issues	TS the Reseller	Inform as per regulations	TS First Distribution
Issues due to malware infection of Subscriber computers preventing Application installation	TS the Reseller	Inform about signs of infection, ways of curing the infection, etc.	TS First Distribution
Questions on Application usage after its installation and activation	TS Kaspersky	Inform the Subscriber about ways of getting the Kaspersky’ technical support
Questions on integration the Reseller’s provisioning platform usage and Kaspersky Subscription software platform usage	TS First Distribution	Routing to the TS First Distribution	TS Kaspersky

1.3. Provision of technical support by the Reseller:

1.3.1.1. the Reseller provides technical support to Subscribers according to clause 1.2 above.

1.4. Provision of technical support by First Distribution:

1.4.1.1. In case if the Reseller cannot resolve the Subscriber’s request, the Reseller generates a request to First Distribution’s technical support.

1.4.1.2. First Distribution provides technical support to the Reseller on issues related to the implementation and usage of Application as well as the delivery of Activation Codes to the Reseller’s Subscribers.

1.4.1.3. Technical support is provided by way of phone consultations and email.

1.5. Provision of technical support by Kaspersky:

1.5.1.1. In case if the request category necessitates the contact with the Kaspersky’s technical support, the Reseller provides the Subscriber with information about the Kaspersky’s web resources (URLs) containing information relevant to the Subscriber’s question, as well as technical support tools:

1.5.1.1.1. Subscriber’s personal profile with the Kaspersky: https://my.kaspersky.com/

1.5.1.1.2. Interactive support: http://support.kaspersky.com/fts_start

1.5.1.1.3. Application knowledge base: http://support.kaspersky.com/desktop

1.5.1.1.4. Official Kaspersky’s forums: http://forum.kaspersky.com/

1.5.1.1.5. All of these resources can also be accessed by the Subscriber from the software GUI.

1.5.1.2. Subscriber shall look for and receive the necessary information using official Kaspersky resources, and, if necessary, contact Kaspersky’s technical support, on their own.

2. First Distribution reserves the right (at its sole discretion) to update, modify, or replace the contents of this Schedule 3, on 30 (thirty) days prior written notice to the Reseller.