RESELLER TERMS AND CONDITIONS

These Reseller Terms and Conditions, the Business Terms and any Sales Program in which Reseller has enrolled constitute the entire agreement between Sonic E-Learning Inc. ("Sonic") and Reseller signing below with respect to the subject matter thereof (the "Agreement"). Any and all written or oral agreements previously existing between Sonic and Reseller pertaining to such subject matter are expressly cancelled. This Agreement may only be modified by the prior written approval of a duly authorized representative of each party. Unless defined within the body of these Reseller Terms and Conditions, capitalized words and phrases have the meanings given to them in the Definitions Addendum attached to and forming part of these Reseller Terms and Conditions.


Article 1 - APPOINTMENT OF RESELLER.

1.01         Grant. Subject to the terms and conditions of this Agreement, Sonic hereby grants to Reseller a personal, revocable, non-exclusive, non-transferable, right and license for the Term for the Reseller to: (a) market, promote and sell Licenses for use within the Territory; and (b) access and use the Software for the purposes of administering the issuance, use and revocation of Licenses for its Customers' Authorized Users and to provide troubleshooting assistance in the use of the Software to its Customers' Authorized Users. Reseller may not sublicense any of the foregoing rights. Sonic reserves all rights not expressly granted herein.

1.02         Training . Sonic will provide technical support and sales training to the technical support personnel and sales personnel of Reseller, at such times and dates as are mutually agreed by the parties . Such training may be provided remotely through teleconferencing or other methods of telecommunications.

1.03         Changes to Software . Sonic reserves the right to improve, update or modify the Software or the Website at any time . Sonic will make commercially reasonable efforts to provide advance notice of any such modifications that are reasonably anticipated to affect the use of the Software or Website.

1.04         Other Services. During the Term, subject to both parties' written approval, Sonic may provide additional Services, such as the development of Custom Modules or the development of a white-label version of the Website, subject to the terms of this Agreement and subject to Sonic's standard and reasonable hourly rates for such Services. Before Sonic is obligated to perform any development Services, such development must be documented in a Statement of Work that is executed by Sonic and the Reseller.

 

Article 2 - Reseller's Obligations.

2.01         Downstream Agreements. Reseller shall ensure that its agreements with Customers will include provisions whereby Customers acknowledge and agree that: (a) the Customer and its Authorized Users will comply with Applicable Law, and Section 2.04 and Section 3.02 of this Agreement in their use of the Software; (b) Sonic's rights as set out in Article 5, the disclaimer in Section 7.04 and the limitations of Sonic's liability in Article 8 of this Agreement apply; (c) the Customer shall maintain, and will require that its Authorized Users maintain the confidentiality and use restrictions in respect of Sonic's Confidential Information as set out in Article 6 of this Agreement; (d) the representations and warranties in Sections 7.03 of this Agreement are made, with the necessary modification as the context may require, by Customer to Reseller; (e) the Customer provides an indemnity to Sonic in respect of Customer Data that is no less fulsome than the indemnity from Reseller to Sonic as set out in Section 9.02; (f) the Customer's Authorized Users must agree to the Terms of Use before receiving access to the Software; and (g) the Customer will ensure that its Authorized Users have provided their consent to the disclosure of their Personal Data to Sonic and to Sonic's use of such data to provide the Services and use of the Software, in accordance with Sonic's Privacy Policy.

2.02         Registration of Authorized Users. Using the Software, Reseller is responsible for administering access to the Software for its Customers' Authorized Users. To register its Customers' Authorized Users, Reseller shall access the Software and upload the name and email address for each of its Customers' Authorized Users. Reseller shall ensure that each such Authorized User has granted his/her consent to the disclosure of his/her Personal Data to Sonic as well as the use of such data by Sonic to perform its obligations under this Agreement and Reseller shall provide evidence of such consents upon request from Sonic. The Software will assign a password for the User ID of each such Authorized User and the Reseller may then download and provide to its Customers such User IDs and passwords for distribution to the applicable Authorized Users. Reseller shall require that its Customers at all times maintain a current list of their Authorized Users on file with Reseller. Reseller shall add and delete Authorized Users' access to the Software to reflect amendments to such lists.

2.03         Compliance with Applicable Law. Reseller shall comply with all applicable local, state, provincial, federal and international laws and regulations of the Territory in the performance of its obligations under this Agreement, including without limitation all applicable export laws, trade embargo laws, privacy laws; telecommunication laws; electronic communications and anti-spam laws, and laws concerning bribery and corruption of public officials ("Applicable Law"). Reseller shall: (a) obtain and maintain all government permits, licenses and authorizations, including export and import licenses and permits; and (b) pay all customs charges, duties and other applicable Taxes (defined below), as necessary for the marketing, promotion, distribution and sale of Licenses within the Territory.

2.04         Restrictions. Reseller shall not: (a) engage in deceptive, misleading or unethical practices; (b) make any representations, warranties or guarantees to any party on behalf of Sonic or otherwise bind Sonic in any manner; (c) make any statements, whether public or otherwise, or take any action that disparages or defames Sonic, or its products and services; (d) make any claims, representations or warranties pertaining to the Sonic Services that exceed, contradict or are inconsistent with, claims made by Sonic in the Documentation and other materials provided by Sonic to Reseller; or (e) transmit any communication that is unlawful, harassing, libellous, defamatory or threatening. Except as otherwise approved in writing by Sonic, Reseller shall not do any "mirroring" or "framing" of any part of the Website, or create Internet links to the Website which include log-in information, user names, passwords, and/or secure cookies.

2.05         Terms of Use. Reseller acknowledges that Reseller and all Authorized Users will be required to accept Sonic's Terms of Use and Privacy Policy prior to Sonic granting them access to the Software. The Terms of Use are listed in the attached document entitiled AlertDriving Website Terms of Use.pdf and the Privacy Policy is available at http://www.alertdriving.com/home/privacy-policy and may be updated from time to time in Sonic's sole discretion. Reseller shall indemnify and hold Sonic harmless from and against any and all claims, losses, penalties, fines, expenses (including reasonable legal fees and litigation costs), damages and other liabilities arising from any abuse, misuse, or use of the Software (whether lawful or unlawful), or any breach of the Terms of Use by Reseller or any Authorized Users. Sonic may terminate access to the Software and/or the account of Reseller or of any Authorized User who violates the Terms of Use. Reseller agrees to maintain a current list of all Authorized Users approved by Reseller's Customers to have access the Software and to notify Sonic of changes to such list. In no event will Sonic be liable for Reseller's failure to fulfill its obligations in the previous sentence or for the termination of access of any Authorized User as a result of such failure.

2.06         Deal Registration. Reseller agrees to participate in Sonic's "Deal Registration Program", the details of which are attached in the document entitled Buisiness Terms- Deal Registration Program.pdf, and which is hereby incorporated by reference . Sonic reserves the right to modify the "Deal Registration Program" from time to time in Sonic's sole discretion.

Article 3 - LICENSES.

3.01         Scope. Reseller may purchase Licenses from Sonic pursuant to this Agreement at the prices set out in the Business Terms. Sonic will issue a License Key to Reseller for each License purchased. Each License is valid for use by the Authorized User in the Territory only, and commences on the date that it is delivered to Customer and expires on the earlier of: one (1) year thereafter, and the date that is thirty (30) days following the date that the applicable Authorized User has completed all evaluations and tests presented through the Software for which he/she has received a License Key. Reseller may issue purchase orders for Licenses, but any of Reseller's pre-printed or standard terms on such purchase orders are void and of no force or effect. Sonic reserves the right to reject any erroneous purchase order or other document. Additional Licenses may be ordered at the prices set out in the Business Terms upon written request. All other rights are reserved.

3.02         License Restrictions Each License and Reseller's right to access and use the Software may be revoked for a breach of any material provision of this Agreement or the Terms of Use, including the non-payment of any Fees. Reseller shall not: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; reproduce or copy any Licenses or the Software or any part thereof; modify, port, create derivative works of, adapt or translate the Software, the Website or any Services; interfere in any manner with the Website, the Software or any Services, including hosting Services, associated therewith; access or attempt to access any data that is controlled or provided by any other Sonic reseller, customer or authorized user; duplicate in hard copy or any other format whatsoever, any Documentation delivered in connection with this Agreement, except that, with proper copyright notices, a single copy of the Documentation may be made for each Authorized User; remove, modify or obscure any copyright, trade-mark or other proprietary rights notices that appear as part of the Software, Documentation or the Website; or permit any other Person to do any of the foregoing.

3.03         Internet Communications Reseller understands that the electronic processing and transmission of electronic communications is fundamentally necessary to use of the Software. DSL, cable, wireless or another high speed Internet connection is required for proper use of the Software. Customers are solely responsible, at their own expense, for acquiring, installing, maintaining, and updating all connectivity equipment, hardware, software, and other equipment as may be necessary for Authorized Users to connect to, access, and use the Website and Software as permitted by this Agreement and Reseller shall ensure that all of its Customers are aware of such responsibility. Reseller acknowledges and understands that transmission to the Website involves transmission over the Internet, and over various telecommunications networks, which are not under the control of Sonic and that such transmissions may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Sonic assumes no responsibility for the reliability or performance of Reseller's, its Customers' or any Authorized User's Internet connections to the Software and/or Website. Sonic is not responsible for any electronic communications, Customer Data or either of them that are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across telecommunications networks, including, but not limited to, the Internet.

 

Article 4 - FEES AND TAXES.

4.01         Fees. Reseller shall pay to Sonic all Fees as and when due. All Fees due to Sonic under this Agreement shall be paid by Reseller within thirty (30) days following the date of Sonic's invoice in respect thereof. Reseller will also reimburse Sonic for any travel expenses incurred by Sonic for any Services that Reseller has requested in writing to be performed on site at Reseller's or any Customer's premises . Sonic reserves the right to amend any Fees on thirty (30) days written notice to Reseller. Reseller agrees that it will advertise the Licenses and any Services provided by Sonic at Sonic's suggested list price.

4.02         Taxes and Other Charges. The Fees payable under this Agreement are exclusive of all applicable governmentally required charges, duties, levies, taxes, service fees or withholdings, including, without limitation, sales tax, use tax, excise tax, value added tax, ad valorem taxes, and any governmentally imposed telecommunications or universal service fund fees, excepting only taxes assessed on the net income of Sonic (collectively, "Taxes") unless Reseller furnishes proof of exemption from payment of such Taxes that is in a form reasonably acceptable to Sonic. Any Taxes payable by Reseller shall be billed as separate items on Sonic's invoices and shall not be included in the Fees. Any sums not paid when due shall automatically accrue interest from the date due until actually paid at rate of one per cent (1%) per month or the highest rate allowed by law, whichever is less.

4.03         Collection of Taxes from Customers. Reseller will be the supplier of all Licenses to Reseller's Customers and shall be responsible to collect and remit any and all Taxes in respect of such supplies. Reseller shall indemnify Sonic from any and all claims, losses, penalties, fines, expenses (including reasonable legal fees and litigation costs), damages and other liabilities arising from Reseller's breach of the foregoing obligations.

4.04         Records and Reports; Audit Rights. Reseller shall maintain accurate and complete records of its marketing and sales activities under this Agreement. Throughout the Term of this Agreement, Reseller shall provide information as reasonably requested by Sonic to ensure compliance by Reseller with the terms of this Agreement, and Sonic or its representatives may, upon reasonable notice to Reseller and during normal working hours, inspect the business records of Reseller as reasonable to verify Reseller's compliance. Reseller shall promptly provide Sonic full access to any records requested by Sonic.


Article 5 - INTELLECTUAL PROPERTY.

5.01         Sonic's Intellectual Property. Reseller acknowledges and agrees that all right, title and interest, (including all Intellectual Property Rights), in and to the Software, the Documentation, the Website, (including the Look and Feel of the Website), the Domain Name and all Custom Modules, including, without limitation, all Intellectual Property Rights in any ideas, concepts, designs, inventions, and expressions embodied in such materials, will be at all times be vested in and remain the property of Sonic. No title or ownership rights whatsoever are transferred to Reseller in respect of the Software, Documentation, Website (or its Look and Feel), the Domain Name, or any Custom Modules. Sonic hereby reserves all rights not expressly granted in this Agreement.

5.02         Data. Sonic acknowledges and agrees that all right, title and interest, (including all Intellectual Property Rights), in and to all Customer Data, will be at all times be vested in and remain the property of the Reseller's Customers, as applicable. No title or ownership rights whatsoever are transferred to Sonic in respect of the Customer Data. Reseller shall ensure that each Customer to whom Reseller sells Licenses grants to Sonic a royalty-free, non-exclusive, worldwide, transferable license to use Customer Data that the Customer supplies to Sonic, and all derivatives of such data, for the purposes of Sonic providing access to and use of the Software to Authorized Users of such Customer.


Article 6 - CONFIDENTIALITY AND PRIVACY.

6.01         Confidentiality. Throughout the Confidentiality Period, neither party shall disclose the other party's Confidential Information or the terms and conditions of this Agreement to any third parties except to: (i) such party's employees, agents, representatives, accountants, attorneys, and financial advisors with a "need to know" and subject to the reasonable confidentiality restrictions; or (ii) as otherwise required by law. Confidential Information disclosed in tangible or electronic form may be identified as confidential with conspicuous markings, or otherwise identified with a legend as being confidential, but in no event shall the absence of such a mark or legend preclude disclosed information which would be considered proprietary or confidential by a party exercising reasonable business judgment from being treated as Confidential Information. Throughout the Confidentiality Period each party shall use the same care to prevent disclosing to third parties the Confidential Information of the other party as it employs to avoid disclosure, publication, or dissemination of its own Confidential Information, but in no event less than a reasonable standard of care. Except as contemplated by this Agreement, throughout the Confidentiality Period neither party shall make any use of the other party's Confidential Information (except as required to perform its obligations under this Agreement) or refuse to promptly return, provide a copy of, or destroy the other party's Confidential Information upon request of the other party. To the extent that Reseller requires the return of any Confidential Information of Reseller that is essential to the performance of Sonic's obligations under this Agreement, Sonic shall be relieved of such obligations. The Recipient shall immediately notify the Discloser upon gaining knowledge of any disclosure, loss, or use of the Discloser's Confidential Information in violation of this Agreement. Each party acknowledges that its disclosure of the Discloser's Confidential Information may cause irreparable harm to the Discloser which cannot be sufficiently compensated by monetary damages and that the Discloser shall be entitled, without waiving any other rights or remedies, to seek such injunctive or equitable relief as is deemed just by a court of competent jurisdiction. Neither party may use the other party's name in advertisements or press releases, nor otherwise disclose the content of this Agreement without the other's prior written consent. The obligations stated in this section shall survive the expiration or termination of this Agreement.

6.02         Privacy . Sonic shall maintain all Customer Data in compliance with the Data Protection Legislation and in accordance with Sonic's Privacy Policy, provided, however, that, upon ninety (90) days written notice, Sonic may terminate the Licenses of Authorized Users of those Customers in jurisdictions in which compliance with the Data Protection Legislation as amended from time to time, is financially or operationally onerous in Sonic's opinion. Sonic shall provide such co-operation, assistance and information as the applicable Customer(s) may reasonably request, to enable such Customer(s) to comply with its obligations under the Data Protection Legislation and to respond to inquiries from, and co-operate as necessary with, any relevant regulator in relation to Customer Data.

 

Article 7- REPRESENTATIONS AND WARRANTIES.

7.01         General. Each party represents and warrants to the other party that: (a) such party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (b) the entering into of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; (c) when entered into by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (d) such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.

7.02         By Sonic. Sonic represents and warrants to Reseller that: (a) the Software and the Website shall function in accordance with the Documentation during the Term; (b) all Services shall be performed in a good and workmanlike manner; and (c) the driver training provided by the Software will comply with the legal requirements in the Territory.

7.03         By Reseller. Reseller represents and warrants to Sonic that: (a) Reseller has obtained all required consents in respect of Customer Data that are necessary to provide, access, Process and modify the Customer Data and for Sonic to perform its obligations under this Agreement including all rights to grant the license to Sonic in Section 5.02; (b) the Customer Data do not violate any national or international law or any regulations having the force of law, including any law or regulation regarding privacy rights, or any law or regulation regarding harassment or defamation or other tort, and the Customer Data otherwise are not objectionable; (c) the Customer Data do not infringe the Intellectual Property Rights or privacy rights of any Person; (d) Reseller will not access any information or data provided or controlled by any other reseller, customer or end user of Sonic and will abide by and will not circumvent or otherwise disable any security or data protection measures implemented by Sonic; (e) Reseller shall not permit the use of the Software in any manner: (i) that is not authorised by this Agreement, (ii) that is not described in the Documentation, (iii) that has not been otherwise authorised by Sonic in writing (including by email), or (iv) that would interfere with or disrupt the Website or the servers or networks connected to the Website, or that would violate any requirements, procedures, policies or regulations of Sonic that have been provided to the Reseller; and (f) Reseller will use reasonable commercial efforts not to, and will not permit any Person to, upload, post, email, transmit or otherwise make available using or in connection with the Website any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

7.04         DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT: (A) SONIC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE, THE SOFTWARE AND ANY SERVICES; (B) SONIC DOES NOT WARRANT THAT THE OPERATION OF THE WEBSITE, THE SOFTWARE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR ACCURATE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, THE SOFTWARE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS; (C) SONIC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE, THE SOFTWARE, THE SERVICES OR ANY CUSTOMER DATA IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, SECURITY, TIMELINESS, SEQUENCE, AUTHENTICITY OR COMPLETENESS OR OTHERWISE AND DISCLAIMS ANY RESPONSIBILITY THEREFOR; AND (D) SONIC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE EFFECTIVENESS OF THE CONTENT PRESENTED THROUGH THE WEBSITE OR THE SOFTWARE OR THAT THE USE OF THE WEBSITE OR THE SOFTWARE WILL RESULT IN AUTHORIZED USERS' SAFE OPERATION OF THEIR VEHICLES.


Article 8 - LIMITATIONS OF LIABILITY.

8.01         THE FOLLOWING CATEGORIES OF CLAIMS DESCRIBED IN THIS SECTION 8.01 ARE NOT SUBJECT TO ANY LIMITATION OF LIABILITY:

(a)            THIRD PERSON CLAIMS BROUGHT WITH RESPECT TO A BREACH BY SONIC OF ARTICLE 6 IN RELATION TO BUSINESS CONFIDENTIAL INFORMATION;

(b)            CLAIMS AGAINST SONIC FOR A BREACH BY SONIC OF SECTION 9.01; AND

(c)            CLAIMS AGAINST SONIC ARISING FROM SONIC'S WILLFUL MISCONDUCT.

8.02         CLAIMS AGAINST SONIC, ITS AFFILIATES OR ITS LICENSORS FOR BREACH OF ARTICLE 6 IN RELATION TO CONFIDENTIAL INFORMATION THAT DOES INCLUDE PERSONAL INFORMATION OR PERSONAL DATA ARE SUBJECT TO AN AGGREGATE CAP OF FIVE (5) TIMES THE AGGREGATE AMOUNT OF FEES PAID TO SONIC HEREUNDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM.

8.03         ALL OTHER CLAIMS AGAINST SONIC, ITS AFFILIATES OR ITS LICENSORS, RESULTING FROM THE USE OF THE SOFTWARE, THE WEBSITE, THE SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF SONIC'S OBLIGATIONS UNDER THIS AGREEMENT, ARE SUBJECT TO AN AGGREGATE CAP OF TWO (2) TIMES THE AGGREGATE AMOUNT OF FEES PAID TO SONIC HEREUNDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM.

8.04         TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SONIC, NOR ITS AFFILIATES OR LICENSORS SHALL BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, FAILURE TO RECOGNIZE EXPECTED SAVINGS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR CERTAINTY, THE FOREGOING DISCLAIMER OF LIABILITY FOR LOST PROFITS AND LOST REVENUE DOES NOT APPLY TO RESELLER'S OBLIGATION TO PAY FEES AND ALL OTHER AMOUNTS DUE TO SONIC PURSUANT TO THIS AGREEMENT.

 

Article 9 - INDEMNITIES.

9.01         Sonic Indemnity. Subject to Section 9.04 below, Sonic shall defend and indemnify Reseller from any and all claims, liabilities, losses, damages, expenses, or causes of action, including reasonable legal fees and expenses, arising out of or related to any action brought by a third Person against any of them to the extent that the action is based on a claim that the Website, the Software or any of the Services infringes the Intellectual Property Rights of such third Person enforceable in the Territory. Notwithstanding the foregoing, Sonic is not liable for any third Person claim in respect of the infringement of such third Person's Intellectual Property Rights if: such infringement would have been avoided by the use of a functionally equivalent new version or workaround of the allegedly infringing intellectual property and such new version was made available by Sonic at no charge prior to the commencement of the claim; the infringement claim is based on designs, requirements or specifications supplied by Reseller or any Customer; the infringement claim is based on any unauthorized use or disposition of Sonic's intellectual property by Reseller or any Customer; continued use of the allegedly infringing intellectual property after written notice from Sonic to cease use on account of such alleged infringement claim; Reseller or any Customer acquired a trade secret that is the subject of such infringement claim: (i) through improper means; or (ii) from a Person (other than Sonic or its Affiliates) who owed to the third Person asserting the claim a duty to maintain the secrecy or limit the use of the trade secret; the combination, operation or use of the allegedly infringing intellectual property with programs or data not furnished, recommended or required by Sonic if such infringement would have been avoided without such programs or data; or any modifications or changes to the allegedly infringing intellectual property based on requests made by Reseller or any Customer.

9.02         Reseller Indemnity. Subject to Section 9.04 below, Reseller shall defend and indemnify Sonic and its Affiliates and each of their employees, officers, directors, shareholders, contractors and agents from any and all claims, liabilities, losses, damages, expenses, or causes of action, including reasonable legal fees and expenses, arising out of or related to any action brought by a third Person against any of them to the extent that the action is based on a claim that any Customer Data, any data or other materials supplied by the Reseller infringes the Intellectual Property Rights or privacy rights of such third Person, breaches any applicable laws or that any of the Reseller's representations and warranties in Section 7.03 are untrue in any material respect.

9.03         Injunctions. In the event an injunction is obtained against the use of the Software or the Website as a result of any infringement claim, Sonic may, at its sole option and expense, promptly: procure for the affected Authorized Users the right to continue using the Website or affected Software; replace or modify the Website or affected Software so that it does not infringe while providing functionally equivalent performance; or terminate this Agreement or the affected Licenses and refund to the Reseller the amount of any prepaid License Fees for any Licenses that have not been activated.

9.04         Indemnification Procedure. If any claim is commenced against an indemnified party, notice thereof will be given to the indemnifying party as promptly as practicable. Upon receipt of such notice the indemnifying party shall immediately take control of the defence and investigation of such claim and to employ and engage legal counsel to handle and defend the same, at the indemnifying party's sole cost and expense. The indemnified party will co-operate, at the cost of the indemnifying party, in all reasonable respects with the indemnifying party and its counsel in the investigation, trial and defence of such claim and any appeal arising therefrom; provided, however, that the indemnified party may, at its own cost and expense, participate, through its counsel or otherwise, in such investigation, trial and defence of such claim and any appeal arising therefrom. No settlement of a claim will be entered into without the approval of the indemnifying party provided that no settlement may admit any liability on behalf of the indemnified party or require the payment of money by the indemnified party without the approval of indemnified party. After the indemnifying party assumes control of the defence of any such claim, the indemnifying party will not be liable to the indemnified party for any further legal expenses or other costs incurred thereafter by such indemnified party in connection with the defence of that claim. If and to the extent the indemnifying party does not assume full control over the defence of a claim subject to such defence as provided herein, the indemnified party may conduct such defence on written notice to the indemnifying party, in a commercially reasonable manner, at the cost and expense of the indemnifying party.


Article 10 - TERM AND TERMINATION.

10.01       Term. Unless terminated sooner in accordance with the provisions of this Agreement, the term of this Agreement shall be for the Initial Term, and thereafter will automatically be extended for successive Extension Terms on the same terms and conditions set forth in this Agreement unless either party gives the other party written notice of non-extension not less than sixty (60) days prior to the Term or any Extension Term, as applicable.

10.02       Termination - Non-Payment Sonic may terminate this Agreement on ten (10) days' prior written notice if Reseller fails to pay any Fees when due unless Reseller pays all amounts outstanding to Sonic, plus accrued interest, if any, during such notice period.

10.03       Termination for Convenience This Agreement may be terminated by either party at its convenience on thirty (30) days' prior written notice for any reason.

10.04       Termination - Insolvency. This Agreement may be terminated by either party immediately upon written notice to the other if the other party: becomes or is declared bankrupt; becomes the subject of any proceeding related to its liquidation or insolvency which is not dismissed within sixty (60) days; makes an assignment for the benefit of creditors; suffers or permits the appointment of a receiver for its business and assets; ceases to do business; or voluntarily or involuntarily dissolves or liquidates its business; and as a result is unable to perform its obligations hereunder.

 

Article 11 - TRANSITION PROVISIONS.

No obligation of either party accrued prior to the expiry of the Term or the date of termination, as the case may be, is affected or discharged on expiry or termination of this Agreement. Upon expiry or other termination of this Agreement: (a) subject to the Run Off Period described below, all Licenses are automatically revoked and Sonic shall terminate access to the Website and Software and otherwise cease providing all Services to Reseller; (b) Reseller shall notify its Customers of the expiry or termination and advise that all of their Authorized Users must cease all use of the Software; (c) Reseller will pay all Fees then outstanding to the date of expiry or termination, as the case may be, plus applicable Taxes and accrued interest, if any; (d) each party shall return or destroy all copies, in whatever media, of the other party's Confidential Information in its possession or control, and a senior officer of each party shall certify such return or destruction, except that, if Reseller is then in default of its obligations under this Agreement, Sonic's then-standard fees for the destruction or migration of such data will apply; (e) if requested by the Reseller for its Customers for which Sonic has initiated and activated an account and subject to payment of any applicable Fees in relation thereto, Sonic shall continue to provide access to and use of the Software to the applicable Customer's Authorized Users so that such Authorized Users may continue to access and use the Software for a run-off period equal in length to the lesser of: (i) twelve months; or (ii) the remaining term of the applicable Customer's contract in force with the Reseller at the time of termination or expiry of this Agreement (the "Run Off Period"); and (f) the parties shall not otherwise undertake any action that infers any commercial or other relationship between them.

 

Article 12 - U.S. Government Licensing.

THE SOFTWARE and Services are "Commercial Item(s)," as that term is defined at 48 C.F.R. Section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. RESELLER agrees, AND WILL ENSURE THAT ALL u.s. GOVERNMENT CUSTOMERS AND THEIR AUTHORIZED USERS AGREE, consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, THAT the Software and ANY Documentation are being licensed to THE U.S. Government AND ITS AUTHORIZED users (a) only as Commercial Items and (b) with only those rights as are granted to all other AUTHORIZED users pursuant to the terms OF USE AND THAT Unpublished-rights ARE reserved under the copyright laws of the United States, canada and all other countries worldwide.

 

Article 13 - GENERAL PROVISIONS.

13.01       Notices All notices, consents, approvals, statements, authorizations, documents or other communications (collectively "notices") required or permitted to be given hereunder shall be in writing, and shall be delivered by fax, personally or mailed by registered mail, postage pre-paid, to the said parties at the respective addresses set forth hereunder, namely: to Sonic at: 12 Concorde Place, Suite 800, Toronto, Ontario M3C 3R8, Attention: the President, Fax: (416) 750-7862 and to Reseller at the address indicated on the Business Terms or at any such other address or addresses as may be given by either of them to the other in writing from time to time . Such notices, if mailed, shall be deemed to have been given on the second (2nd) Business Day following such mailing, or, if delivered by fax or personally, shall be deemed to have been given on the day of delivery, if a Business Day, or if not a Business Day, on the Business Day next following the day of delivery; provided that if such notice shall have been mailed and if regular mail service shall be interrupted by strike or other irregularity before the deemed receipt of such notice as aforesaid, then such notice shall not be effective unless delivered.

13.02       Miscellaneous. Neither party shall be held responsible for any delay or failure in performance under this Agreement (except for the payment of any Fees by Reseller) to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labour conditions, earthquakes or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party ("Force Majeure Events"). Disputes arising out of or relating to this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario, and the parties irrevocably and unconditionally consent to the jurisdiction of such courts. In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable legal fees and costs. The failure of either party to enforce at any time or for any period of time, the provisions of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision. In the event that any provision of this Agreement shall be held by law, or found by a court or other tribunal of competent jurisdiction to be unenforceable as stated herein, such provision shall remain enforceable to the extent permitted by applicable law or the findings of the court or other tribunal of competent jurisdiction, and the remaining portions hereof shall remain in full force and effect. The parties hereto are independent contractors. Nothing contained herein or done in pursuance of this Agreement shall constitute either party the agent, partner, or co-venturor of the other party for any purpose or in any sense whatsoever, or create any form of joint enterprise whatsoever between the parties. The parties agree to jointly create and issue a press release concerning the execution of this Agreement and their business relationship. The parties' rights and obligations contained in Articles 5, 6, 8, 9 and 11 and Section 7.04 as well as any obligations to make payments of Fees accrued or due hereunder prior to termination, shall survive any termination of this Agreement. Reseller may not assign, transfer, sub-contract or in any other manner assign to any third party the rights and/or duties of this Agreement (whether by assignment, change of control, operation of law or otherwise), except to an Affiliate of the Reseller whom Sonic, in its discretion, determines is financially sound and who has agreed in writing with Sonic to be bound by all of the provisions of this Agreement, without the prior written consent of Sonic, which shall not be unreasonably withheld, and any such assignment, transfer or sub-contract shall be void and of no force or effect. Sonic may assign, transfer, sub-contract any of its rights or obligations under this Agreement. The headings used in this Agreement and its division into articles, sections, schedules, and other subdivisions do not affect its interpretation. References in this Agreement to articles, sections, schedules, and other subdivisions are to those parts of this Agreement. The parties agree that any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this Agreement.

 

 


 

DEFINITIONS ADDENDUM

 

"Affiliate" as to any Person means any other Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. The term "control" (including, with correlative meanings, the terms "controlled by" and "under common control with" as used with respect to any Person) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person whether through ownership of voting securities, by contract or otherwise.

 

"Authorized User" means any individual who is employed by or is under contract with any Customer for whom a License has been purchased and who has accepted the Terms of Use and Privacy Policy.

 

"Billing Information" means the data that Sonic receives and generates concerning the Software, the number of Licenses issued to Authorized Users and charges for all other Services provided by Sonic to Reseller.

 

"Business Confidential Information" means Confidential Information excluding any Customer Data or other Personal Data contained therein.

 

"Business Day" means a day other than: a Saturday, a Sunday, or any other day on which the principal chartered banks located in Toronto, Ontario are not open for business.

 

"Business Terms" means the particulars of the business deal agreed between Sonic and Reseller from time to time for the purchase and resale by Reseller of Licenses and Services from Sonic, including, without limitation, the following: number of Licenses to be purchased, the type(s) of Services purchased, pricing, payment terms, Territory and address notice/contact person(s) of Reseller.

 

"Confidential Information" means any business or technical information relating to either party, including, but not limited to equipment, software, designs, technology, technical documentation, product or service specifications or strategies, marketing plans, pricing information, financial information, inventions, applications, methodologies and other know-how, and from time to time which is disclosed by a party (the "Discloser") in tangible form, electronic form, oral form, or visual form to the other party (the "Recipient"). The Software, Documentation, all Billing Information and the terms and conditions of this Agreement form part of the Confidential Information of Sonic. Customer Data form part of the Confidential Information of Reseller's Customers, as applicable. Confidential Information does not include any information that the Recipient can demonstrate: (i) was in the public domain at the time of disclosure to it; (ii) was published or otherwise became a part of the public domain, after disclosure to the Recipient, through no fault of its own; (iii) was in the possession of the Recipient at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the Discloser; or (iv) was independently developed by the Recipient without reference to Confidential Information of the Discloser.

 

"Confidentiality Period" means the Term of this Agreement and the period of three (3) years immediately thereafter.

 

"Custom Modules" means those Training Modules developed by Sonic pursuant to a Statement of Work.

 

"Customer" means Persons to whom Reseller resells Licenses and Services.

 

"Customer Data" means all data provided by Reseller's Customers and their Authorized Users to Sonic (including all Personal Data), and all data generated from the use of the Software by Authorized Users of Reseller's Customers.

 

"Data Protection Legislation" includes: Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and all national legislation implementing the same (the "EU Data Protection Directive"); the Council of Europe Convention of 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data; the Personal Data Protection and Electronic Documents Act (Canada) and all Canadian provincial legislation for which the Governor in Council (Canada) has granted an exemption order on the basis that such provincial legislation is substantially similar thereto; the Fair Credit Reporting Act (U.S.); and any other privacy laws of general application in the Territory that are applicable to the Services, including laws applicable to the processing of any end-user Customer Data, as amended from time to time.

 

"Data Subject" means an individual natural Person to whom Personal Data relate.

 

"Documentation" means such user guides, release notes and/or training manuals concerning the Software in printed or electronic format, which Sonic may make available for use with the Software.

 

"Domain Name" means alertdriving.com and all other domain names through which the Software may be accessed.

"Effective Date" means the date that Sonic sends notice to Reseller that Sonic has approved Reseller.

 

"Evaluation Software" means Sonic's online program known as the "Online Hazard Perception Evaluation Software".

 

"Extension Term" means a period of twelve (12) months commencing on the expiry of the Initial Term or an Extension Term.

 

"Fees" means the License Fees and all other amounts payable by Reseller to Sonic as set out on a Business Terms.

 

"Initial Term" means a period of twelve (12) months commencing on the Effective Date.

 

"Intellectual Property Right" means any and all rights, in any jurisdiction, provided under: (a) patent law; (b) copyright law (including moral rights); (c) trade-mark law (including laws governing trade-marks, trade names and logos); (d) design patent or industrial design law; (e) semi-conductor chip or mask work law; or (f) any other statutory provision (including laws governing domain names) or common law principle (including trade secret law and law relating to information of the same or similar nature and protected in the same or similar way) governing intellectual property, whether registered or unregistered, and including rights in any and all applications and registrations in respect of the foregoing.

 

"License" means a revocable, non-exclusive, non-transferable right for one (1) Authorized User to access and use specific components and/or modules of the Software for which the Authorized User has been issued a License Key, subject to: the restrictions in Section 3.02; the Reseller being in good standing under this Agreement, and the Authorized User's compliance with the Terms of Use.

"License Fee" means the fee payable to Sonic for each License Key purchased under this Agreement.

 

"License Key" means the alphanumeric string of characters issued by Sonic that permits an Authorized User to access and use specific components and modules of the Software.

 

"Look and Feel" means the distinctive and particular elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress and stylistic convention (including the digital implementations thereof) within the Website and the overall appearance and impression substantially formed by the combination, coordination and interaction of such elements.

 

"Person" means any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, joint venture, body corporate, a government or any department or agency thereof, and a natural person in such person's capacity as trustee, executor, administrator or other legal representative.

 

"Personal Data" means any information relating to an identified or identifiable natural Person.

 

"Privacy Policy" means the online privacy policy, as determined and amended by Sonic from time to time, and posted on the Website.

 

"Process/Processing", "Controller", and "Processor", (whether such terms are capitalized or are lower case) has the same meaning as in the EU Data Protection Directive applicable in the country where the data subject of the relevant Personal Data is located.

 

"Sales Program" means any incentive, advertising or other program offered by Sonic from time to time.

 

"Services" means all services rendered by Sonic to Reseller under this Agreement.

 

"Software" means the Training Software and the Evaluation Software, as updated and revised from time to time.

 

"Statement of Work" means a separate document, executed by Sonic and Reseller that outlines specific deliverables to be created by Sonic for Reseller, and the associated fees and timelines for delivery.

 

"Term" means the Initial Term and all Extension Terms.

 

"Terms of Use" means Sonic's terms and conditions for the use of the Software by Authorized Users, as determined and amended by Sonic from time to time, and posted on the Website.

 

"Territory" means the jurisdiction(s) listed in the Business Terms, and their respective territories and possessions, if any, in which Reseller is authorized to resell Licenses and Services. If Reseller wishes to purchase Licenses for use in Canada, Reseller must enter into a separate agreement with Sonic in respect of such Licenses to comply with Canadian Tax laws.

 

"Training Module" means each discrete lesson forming part of the Training Software.

 

"Training Software" means Sonic's online program known as the "AlertDriving Traffic Safety Training Program" that provides online driver safety training, and includes any Custom Modules developed by Sonic for Reseller.

 

"User ID" means an Authorized User's valid email address provided to Sonic for registration and administration purposes.

 

"Virus" means computer programs or sub-programs that are added, whether intentionally or unintentionally, to the Software and that can disrupt operations of the same or of another computer program, hardware or systems or cause file deletions or file modifications or other effects not part of the functionality of the Software.

 

"Website" means the collection of computer files on the Internet located at the URL: www.alertdriving.com (and any successor or additional URLs) and all underlying websites maintained for Reseller and/or its Affiliates by Sonic hereunder as updated and revised from time to time.