Wasabi Partner Agreement

This Wasabi Partner Agreement (the “Partner Agreement”) is between Wasabi Technologies LLC ("Wasabi" or “We”) and the Partner entity set forth below ("Partner" or “You”) (each a “Party” and together the “Parties”), and is effective as of the date of final signature (the “Effective Date”).

This Partner Agreement shall be governed by the terms set forth herein, the applicable addendum you execute dictating your specific partnership model (the “Addendum”), and any Wasabi quote you execute (the “Quote”) (collectively, the “Agreement”).  In the event of conflict, the terms of the Quote shall govern, followed by the Addendum, followed by this Partner Agreement.  Partner is not authorized to resell Wasabi services until it has executed an Addendum detailing its specific partnership model.

1.  Grant of Rights; Use of Wasabi Service. 

(a) Grant of Rights.  Wasabi grants to Partner, subject to the terms and conditions of this Agreement and payment of all applicable fees, a nonexclusive, nontransferable right to resell and/or use the Wasabi service (the “Service”) in the manner set forth in this Partner Agreement and the applicable Addendum.   Ownership of, and title to, the Service (which term includes all Software, Documentation and other materials provided with the Service as such terms are defined in the Wasabi Customer Agreement) is and will be held by Wasabi and our licensors. Partner acknowledges that its rights are non-exclusive and Wasabi and others may also resell and/or use the Service, including (where applicable) within any Partner territory.  Partner may not sublicense any of its rights to sub-resellers, except as may be specifically permitted herein.

(i) Partner Portal.  Wasabi grants Partner a non-exclusive license to access the Wasabi partner portal (the “Partner Portal”). Partner will provide Wasabi the information for those of Partner’s employees required to access the Partner Portal, for which Wasabi will provide appropriate log in credentials.  Access to the Partner Portal may require acceptance of policies and terms provided by Wasabi upon initial access.

(ii) Program Guide. Partner will comply with the requirements, and receive the benefits, described in the applicable Wasabi partner network program guide for their relevant partnership type. The relevant program guide(s) is located at https://info.wasabi.com/wasabi-partner-network-guides and is incorporated into this Agreement by reference.   

(b) Use of Wasabi Service; Customer Agreement.  All use of the Wasabi Service under this Agreement shall be governed by the terms of the Wasabi Customer Agreement, available here:  https://wasabi.com/legal (as may be updated by Wasabi from time to time) (the “Wasabi Customer Agreement” or “Customer Agreement”). “Customer” shall mean a user of the Service. Where Partner uses the Service, Partner shall be considered a Customer and bound by the terms of the Customer Agreement.  Where Partner resells the service to Customers or (where applicable) other resellers, Partner shall ensure such Customers agree to the terms of the Customer Agreement, and Partner will be liable for any deviation from the terms of the Customer Agreement.  In no event shall Partner enter any agreement that creates additional obligations or liability for Wasabi without Wasabi’s signed written consent.

2.  Restrictions.  Except as expressly authorized in this Agreement, Partner may not rent, lease, sublicense, distribute, transfer, copy, reproduce, modify or time-share the Service, nor permit publication or distribution of results of any benchmark tests run on the Service.  The source code for the Service and other trade secrets embodied in the Service are not disclosed to Partner, and Partner shall immediately advise Wasabi if Partner or any third party in relation to this Agreement obtains any access to Wasabi trade secrets.  Partner is not permitted (a) to decompile, disassemble, reverse-compile, reverse-assemble, reverse-translate or otherwise reverse-engineer the Service, (b) to use any similar means to discover the source code of the Service or to discover the trade secrets in the Service, or (c) to otherwise circumvent any technological measure that controls access to the Service.  Except as explicitly stated in this Agreement, Partner agrees not to remove or alter any copyright notice or restrictive rights legend from the Service.

3.  Right to Use Trademarks.  Subject to Partner’s compliance with this Agreement, Wasabi hereby grants to Partner a nonexclusive, nontransferable, royalty-free right and license to use certain Wasabi trademarks made available to Partner (the “Wasabi Trademarks”) in connection with the promotion and marketing of the Service during the Term.  Wasabi must provide its prior written approval of the branding of the Service (and of any changes to the branding), and Partner’s use of the Wasabi Trademarks must at all times comply with the Wasabi Partner Branding Guidelines (which will be provided to Partner upon request).  All right, title and interest to the Wasabi Trademarks will remain with Wasabi and no other license relating thereto is granted hereunder.  Upon any expiration or termination of this Agreement, the license to Partner to use the Wasabi Trademarks will immediately terminate.  Prior to any use of the Wasabi Trademarks, Partner will provide Wasabi with a sample of all promotional materials that make use of the Wasabi Trademarks for purposes of permitting Wasabi to approve each such use; provided, that once particular promotional materials have been approved, Partner may reuse them in a similar context (without modification) without obtaining separate approval from Wasabi.  Partner will not challenge, directly or indirectly, Wasabi’s rights in respect of the Wasabi Trademarks.

4.  Partner Obligations.  In addition to Partner’s other rights and obligations under this Agreement, Partner will:  (a) actively market, promote and sell the Service in the Territory, including by (i) listing Wasabi in Partner’s marketing materials and on web sites listing Partner’s third-party service providers, except where Partner is permitted to resell Wasabi as a white-label service in the relevant partner Addendum, and (ii) cooperating with Wasabi in creating sales leads and marketing opportunities; (b) maintain sufficient personnel trained on an ongoing basis with sufficient knowledge and technical competency to effectively promote and resell the Service; (c) provide to Customers the Wasabi Customer Agreement, either in hard copy or via a URL made available by Wasabi; (d) conduct its business in a professional manner, not use deceptive, misleading, illegal, or unethical practices in its business, and not damage the goodwill or reputation of Wasabi, disparage or misrepresent the Service, or otherwise fail to act in the best interests of Wasabi in any manner; (e) not remove, have removed, or permit its Customers to remove, from any copies of the Service, Wasabi’s proprietary rights notices; (f) keep Wasabi informed as to any problems encountered with the Service; and (g) upon request from Wasabi, within thirty (30) days following the end of each calendar quarter, provide a non-binding quarterly forecast of Partner’s storage requirements for its Customers for the subsequent two (2) calendar quarters. 

5. Fees and Payment. 

5.1 Fees.  Fees for the Wasabi Service will be calculated and billed based on the Wasabi Service selected by Partner, as set forth on the Quote provided to Partner, the Pricing Page (available here: https://wasabi.com/pricing/), and the Product Descriptions Page (available here: https://wasabi.com/product-terms) (in that order of precedence). Partner will be free to determine the price at which it resells the Service to others.  Wasabi may increase or add new Fees for any Wasabi Service by giving Partner at least thirty (30) days’ prior notice, provided however, that the Fees for any prepaid purchase will not change during the then-current prepaid term. If purchasing through a Wasabi channel partner, Fees will be as set forth in the quote provided to Partner by such channel partner and Wasabi will seek all payment from, and provide any credits or refunds to, such channel partner. Wasabi’s ability to fulfill any orders to Partner shall be subject to the right and ability of Wasabi to make such sales and obtain required licenses and permits (if any) under applicable law.

a. Discounts Under Multiple Partner Models.  Partner shall select its relevant partnership model(s) via execution of a separate Wasabi Partner Addendum.  Where Partner is authorized to resell the Service under different partnership models (e.g. VAR, MSP, Distributor), Partner will advise Wasabi of the relevant designation prior to receiving the Quote so that Wasabi may apply the appropriate discount (if any) for the partner relationship applicable to the purchase.  If Wasabi determines that Partner mistakenly designated a greater discount than it was due for a particular purchase, Wasabi may invoice Partner for the difference plus 1.5% interest (or the highest rate permitted by law, if less). Partner shall not be owed any credit or refund where Partner mistakenly designates a lower discount than it was due for a particular purchase.  In the absence of Partner’s designation, Wasabi may select the lowest discount from the Addendums executed by Partner.

5.2 Payment. Payments to Wasabi are due within thirty (30) days of the invoice date. Payment is due in the currency set forth in the quote. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. If we suspect that your account is at risk of non-payment, as reasonably determined in our discretion, we may bill you more frequently. You will be responsible for any costs of collection incurred by Wasabi, including attorneys’ fees, in the event of non-payment. All fees are non-refundable except where explicitly stated otherwise in this Agreement. Wasabi may withhold availability of the Service in the event of any overdue payment.  Partner will not withhold, deduct, or offset any amounts due to Wasabi for any reason, including (but not limited to) any amounts claimed to be owed by Wasabi to Partner, or for nonpayment to Partner by Partner’s Customers.  Each order will be separately invoiced and paid for when due without regard to other orders. 

5.3 Credit Card Payments.  Where applicable, Wasabi utilizes third party payment providers to process credit card payments (“Payment Provider”). Such Payment Provider’s policies govern the processing of Partner’s payment, and Partner must refer to those policies to determine Partner’s rights and liabilities. By providing Partner’s credit card information to the Payment Provider, Partner authorizes Wasabi, through such Payment Provider, to immediately charge the Fees for the Wasabi Service during any applicable term for the Wasabi Service.   Partner is solely responsible for maintaining valid payment methods, and Partner’s failure to maintain its current credit card information or other alternative payment method may result in an interruption of Partner’s use of the Wasabi Service.

5.4 Taxes. All Fees and charges are exclusive of taxes or duties, including, without limitation, value-added, use, excise, sales and transactions taxes, surcharges or levies (“Taxes”), which you must pay. If we have a legal obligation to pay or collect Taxes, we will invoice for and you will pay such Taxes, unless you furnish us with a valid exemption certificate. Taxes may not be deducted from payment owed to Wasabi. If you are required by law to withhold Taxes from any payment due hereunder, you must increase the payment as necessary so that Wasabi will receive an amount equal to the amount it would have received had no such deductions or withholdings been made.

5.5 Invoice Disputes. If you desire to dispute in good faith an invoiced amount, you must, within thirty (30) days of the invoice date: (a) pay the invoiced amount, and (b) provide notice of the details of the dispute, together with all supporting documentation. If you do not timely submit a documented dispute notice per this Section, you waive all rights to dispute such amounts, including any claim of set-off or reimbursement.

6.  Confidentiality.

6.1 Either party may, from time to time, provide to the other certain non-public information, including business information, pricing, forecasts, financial plans and data, marketing plans, and unannounced product information (“Confidential Information”). Confidential Information shall also include the Wasabi Content (as defined in the Wasabi Customer Agreement), and any other information disclosed by a party to the other party, in whatever form, and designated in writing as proprietary or confidential, or which a reasonable person would understand to be proprietary or confidential in nature. During the term of this Agreement and for three (3) years following its termination, each party will not disclose any such Confidential Information except as set forth herein. The receiving party shall hold in confidence, and shall not disclose any Confidential Information to any person or entity except to an Affiliate, a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event, shall less than reasonable care be used. The parties expressly agree that the terms of this Agreement are Confidential Information and you further agree you will not use the Wasabi Service for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the services and will not publicly post any analysis or reviews of the services without Wasabi’s prior written approval. A receiving party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.

6.2 Confidential Information excludes information that: (a) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (b) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that, where legally permitted to do so, it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure. For clarity, this Section 6 does not apply with respect to content stored on the service, which is instead governed by the terms of the Wasabi Customer Agreement.

6.3 Notwithstanding any other provision of this Agreement, both parties acknowledge that any unpermitted use of the disclosing party’s Confidential Information may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use. Either party may request the other party return or destroy their Confidential Information at any time, except such Confidential Information retained through industry-standard automatic archival processes.

7.  Warranties and Disclaimers.  

(a) Partner Warranty.  Partner represents and warrants that it will comply with all applicable laws and regulations and has obtained all applicable permits, rights and licenses. It is the sole and exclusive responsibility of Partner to determine the suitability of the Service for Partner's intended purposes and uses and those of the Customer.  Partner will not make any representations, warranties, or claims about Wasabi or the Service beyond or inconsistent with those provided by Wasabi in this Agreement or in Wasabi’s own marketing materials. Except as explicitly set forth in the Customer Agreement, Partner will be responsible for making all warranties to its Customers.

(b) Wasabi Warranty.  Wasabi warrants that the Service will perform substantially in accordance with the Documentation under normal use.  “Documentation” means the user, technical and admin guides for the Wasabi Service, available here: https://docs.wasabi.com.  In the event of a breach of this warranty, as Wasabi’s sole obligation and Partner’s sole remedy, but in addition to and without derogating from Wasabi's obligation to provide service credits under the SLA, Wasabi will, at its option and expense, correct or replace the nonconforming Service or, if neither of the foregoing is commercially feasible, refund the prorated portion of any prepaid, unused fees for the nonconforming Service.  These warranties (and Wasabi’s support obligations) will not apply to the extent the defect or non-conformance is due to (i) accident, alteration, abuse, or misuse of the Service; (ii) installation, maintenance, operation or other service not in compliance with Wasabi’s specifications or documentation; (iii) use in conjunction with a product or service not provided by Wasabi or which is otherwise incompatible with the Service; (iv) any error, act or omission by anyone other than Wasabi or Wasabi’s agents, employees, and subcontractors; (v) failure by Partner or the End User to use the current release of the Service or the immediately prior release; or (vi) where written notice of the defect has not been given to Wasabi by Partner in a timely manner.

(c) Disclaimer. THE WASABI SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN SECTION 7(b), OR AS PROHIBITED BY LAW, OR TO THE EXTENT OF ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE WASABI SERVICE OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE WASABI SERVICE OR ANY THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.  YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS AGREEMENT ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF WASABI SERVICE. THE DISCLAIMERS AND LIMITATIONS HEREIN WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

8.  Indemnification. 

8.1 Partner Indemnity Obligations. You will defend and indemnify us, our Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) arising out of or relating to any third-party claim concerning: (a) use or resale of the Wasabi Service by you, your Affiliates, and/or your Customers or resellers; (b) content stored on the Wasabi Service in relation to this Agreement; (c) violation of applicable law, rule or regulation by you, your Affiliates, and/or your Customers or resellers; and (d) failure to pay any applicable Taxes by you, your Affiliates, and/or your Customers or resellers. 

8.2 Wasabi Indemnity Obligations.

(a) Subject to the limitations in this Section 8, Wasabi will defend and indemnify you and your employees, officers, and directors against any Losses arising out of or relating to any third-party claim alleging that the Wasabi Service infringes or misappropriates a third party’s intellectual property rights. 

(b) We will have no obligation or liability under this Section 8.2 arising from infringement by combinations of the Wasabi Service with any other product, service, software, data, content or method. In addition, Wasabi will have no obligations or liability arising from use of the Wasabi Service after Wasabi has provided notice to discontinue such use. The remedies provided in this Section 8.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Wasabi Services.

(c) For any claim covered by Section 8.2(a), Wasabi will, at its election, either: (i) procure the rights to use that portion of the Wasabi Service alleged to be infringing; (ii) replace the alleged infringing portion of the Wasabi Service with a non-infringing alternative; (iii) modify the alleged infringing portion of the Wasabi Service to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Wasabi Services and this Agreement.

8.3 Process. The obligations under this Section 8 will apply only if the indemnified party: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

9.   LimitationS of Liability.  

(A) EXCEPT IN THE CASE OF WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION. 

(B) EXCEPT IN THE CASE OF WASABI’S WILLFUL MISCONDUCT OR FRAUD, WASABI AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO WASABI UNDER THIS AGREEMENT FOR THE WASABI SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. IF THE WASABI SERVICE (OR ANY OTHER WASABI PRODUCT) IS PROVIDED TO YOU WITHOUT CHARGE, THEN WASABI WILL HAVE NO LIABILITY TO YOU WHATSOEVER. 

(C) YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF WASABI SERVICE. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. 

10.  Support. 

(a) Wasabi shall provide reasonable support to Customers in accordance with Wasabi’s Service Level Agreement (“SLA”) (available here: https://wasabi.com/legal/sla) and the applicable support plan details (available here: https://wasabi.com/support-plans).  Wasabi and Partner may separately agree to provide Customers with specific technical support levels in accordance with Exhibit A.  

(b) Partner is responsible for ensuring Customers receive any refund and/or credits provided by Wasabi to Partner in connection with claims submitted under the Wasabi Service Level Agreement. Wasabi shall promptly notify Partner of such refund and/or credit, and Partner shall keep records of such refunds and/or credits provided to Customers, which shall be made available to Wasabi upon requests.

11.  Termination. 

(a) Termination For Convenience.  This Agreement may be terminated at any time with at least ninety (90) days’ prior written notice or unless terminated earlier as described in this Agreement. 

(b) Termination For Cause. Either party may terminate this Agreement in the event of a material breach by the other party that has not been cured within thirty (30) days of receipt of written notice of such breach.  Either party may also terminate this Agreement immediately upon notice if the other party becomes insolvent or bankrupt, or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or ceases to function as a legitimate business.

(c)  Effect of Termination or Expiration.   Upon termination or expiration of this Agreement:  (i)  Partner will discontinue reselling and/or using the Service; (ii) each party will discontinue any and all use of trade names, logos and/or trademarks of the other party authorized for use under this Agreement; and (iii) each party will return to the other party or certify in writing to the other party that it has destroyed all documents and other tangible items it or its employees or agents have received or created pursuant to this Agreement pertaining, referring or relating to the Confidential Information of the other party.  Termination of this Agreement by either party for any reason will not affect the rights and obligations of the parties that accrued prior to the effective date of termination of this Agreement or release either party from obligations made prior to the date of termination, or otherwise affect: (1) validly existing agreements with Customers; (2) orders for Service that have been accepted by Wasabi as of the effective date of termination; or (3) orders from a Customer that have been accepted by Partner as of the effective date of termination and of which Partner notifies Wasabi in writing within 5 business days of the termination date.  Wasabi may request Partner assign any Customer agreements active at the time of termination from Partner to Wasabi, subject to a preliminary review of the applicable agreements by Wasabi. 

12.  Miscellaneous

12.1 Assignment. You may not assign or otherwise transfer this Agreement or any of the rights and obligations under this Agreement, without Wasabi’s prior written consent. Any assignment or transfer, or attempt thereof, in violation of this Section 12.1 will be void. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate, or to any entity that acquires by sale, merger or otherwise, all or substantially all or a portion of such party’s assets, stock or business. “Affiliate” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with such party. For purposes of this definition, “control” means the direct possession of a majority of the outstanding voting securities of an entity.

12.2 Affiliates, Subcontractors and Vendors. Some or all of the Wasabi Service, including support services, may be provided by Wasabi’s Affiliates, agents, subcontractors and information system vendors. The rights and obligations of Wasabi may be, in whole or in part, exercised or fulfilled by the foregoing entities, provided that Wasabi remains responsible for compliance with this Agreement.

12.3 Entire Agreement. This Agreement incorporates any policies or other information found at the published links by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement including those: (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this Agreement are inconsistent with the terms contained in documents referenced or linked herein, the terms contained in such documents will control.

12.4 Force Majeure. We and our Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. 

12.5 Governing Law. The laws of the state of Delaware, without reference to conflict of law rules, governs this Agreement and any dispute of any sort that might arise between the parties. Disputes arising under this Agreement shall be brought exclusively in the state or federal courts of New Castle County, Delaware. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

12.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, you are solely responsible for compliance related to the manner in which you choose to resell and/or use the Wasabi Service, including (where applicable) your transfer and processing of content, the provision of content to Authorized Users (as defined in the Customer Agreement), and the Wasabi region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.

12.7 Independent Contractors. Both parties are independent contractors with respect to each other.  Neither party will have the authority to make any statements, representations or commitments or to take any actions which will be binding on the other party, except as may be explicitly authorized in writing by such other party.

12.8 Non-Exclusive Rights. Both parties reserve the right: (a) to develop or have developed for it: products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.

12.9 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

12.10 Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Wasabi website; or (ii) sending a message to the email address then associated with your account. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time posted to Wasabi’s website, or within twenty-four (24) hours of the time emailed to you. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact Wasabi as follows: (i) by email transmission to legal@wasabi.com; or (ii) by personal delivery, overnight courier or registered or certified mail to either Wasabi Technologies LLC, the attention of the Legal Department and CFO. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent. 

12.11 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement. 

12.12 No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit a party’s right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.

12.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.

12.14 Marketing. Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the Wasabi Service and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.  Wasabi may identify Partner on Wasabi’s website and in marketing materials as an authorized reseller of the Service. Partner also agrees to cooperate with Wasabi to issue subsequent joint customer announcements and in obtaining the permission of Customers to identify such Customers as users of Wasabi’s Service. Partner must obtain Wasabi’s prior written approval of any press releases or marketing materials relating to Wasabi prior to their release.

12.15 Export Controls. Your use and/or resale of the Wasabi Service is subject to compliance with United States and other applicable export control and trade sanctions laws, rules and regulations (collectively, “Export Control Laws”). You will not export, reexport, download or otherwise transmit the Wasabi Service, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, you acknowledge that the Wasabi Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government (“Sanctioned Countries”); or (b) anyone identified on any U.S. Government restricted party lists (collectively, “Restricted Party Lists”). By purchasing the Wasabi Service, you represent and warrant that you are not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the Wasabi Service may not be available in all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the manner in which you choose to use the Wasabi Service, including your transfer and processing of content and the region in which any of the foregoing occur.

12.16 Electronic Communications. By using Wasabi Service, you consent to receive electronic communications to the email address associated with your account. It is your responsibility to keep your email address current for notice purposes. You agree that any communications that Wasabi provides to you electronically satisfies any legal requirement that such communications be in writing.

12.17 Survival. The provisions of this Agreement that are clearly intended by their nature to survive termination, shall survive the expiration or termination of this Agreement, including but not limited your payment obligations and each party’s indemnity obligations.

12.18. Compliance with Anti-Corruption Laws.  Partner shall comply with all applicable anti-corruption laws and shall not take any action that would cause Wasabi to violate any anti-corruption law, including but not limited to the United States Foreign Corrupt Practices Act, the United Kingdom Bribery Act, and local anti-corruption laws in the jurisdictions in which Partner operates.  Partner represents and warrants that it, and its employees, resellers, and representatives, have not and will not, directly or indirectly, offer, pay, give promise, or authorize the payment of any money, gift or anything of value to: (i) any Government Official, or (ii) any person while Partner knows or has reason to know that all or a portion of such money, gift or thing of value will be offered, paid or given, directly or indirectly, to any Government Official, for the purpose of (w) influencing an act or decision of the Government Official in his or her official capacity, (x) inducing the Government Official to do or omit to do any act in violation of the lawful duty of such official, (y) securing an improper advantage, or (z) inducing the Government Official to use his or her influence to affect or influence any act or decision of a government or instrumentality, in order to assist Wasabi or any of its affiliates in obtaining or retaining business.  Partner agrees that should it learn or have reason to know of any payment or transfer (or any offer or promise to pay or transfer) that would violate applicable anti-corruption laws, it shall immediately disclose it to Wasabi.  Partner represents and warrants that, (i) it has not been convicted of, pleaded guilty to, or been charged with, any offense involving fraud, corruption or bribery in any jurisdiction or country, and (ii) unless disclosed to Wasabi in a separate written statement, none of its employees, directors, officers or principals is a Government Official. If at any time during the Term any employee, director, officer, or principal is named, appointed, or otherwise becomes a Government Official, Partner will notify Wasabi in writing within five (5) business days.  For purposes of this Section, “Government Official” shall mean any officer, employee or person acting in an official capacity for any government department, agency or instrumentality, including state-owned or state-controlled companies, and public international organizations, as well as a political party or official thereof or candidate for political office.  Partner’s breach of any of the above provisions will allow Wasabi to immediately terminate this Agreement.  Once per year, or upon Wasabi’s reasonable belief that Partner has breached this Section 12.18, Wasabi may request records from Partner sufficient to audit Partner’s compliance with the terms of this Section.

12.19 Headings. The headings of the sections in this Agreement are for convenience only and do not form part of the Agreement for any purposes of construction or interpretation.

EXHIBIT A
WASABI TECHNICAL SUPPORT LEVEL DEFINITIONS

The definitions below govern the support of the Service provided by Partner and Wasabi, as applicable. 

Technical Support Level 1.  Problem Verification.  This is the end user's first contact with a support resource.  Technical support staff responds to technical inquiries regarding the service, installations, and configurations.  Provides problem diagnostic services for identifying problems and generic application faults, analysis, and where possible, problem resolution.

Technical Support Level 2.  Problem Determination; Specialist-level Technical Support.  Level 2 is the problem escalation resource for Level 1.  Technical support staff performs problem isolation and replication, lab simulations and interoperability testing, provides remote diagnostics services, and implements resolutions for a problem that is not the result of an error.

Technical Support Level 3.  Problem Resolution; Senior-level Technical Support.  Level 3 is the problem escalation resource for Level 2.  Senior technical support staff, if required, perform troubleshooting, isolates a problem/error and implements a resolution, including development of a workaround, which restores operations. In the case of an error, the Level 3 staff identifies the source of the error, creates a reproducible test, and documents the details of the error for escalation, if required.

Technical Support Level 4.  Backup Engineering and Technical Support.  Technical support Level 4 is the problem escalation resource for Level 3.  The Level 4 staff isolates a problem/error and implements a resolution, including, but not limited to, a product change (error correction).

Version: February 6, 2025