Cherub’s Software-License Distributor Agreement:

NOTICE: This distributor agreement forms a legally binding contract between you (“Distributor”, “you”, “your”) and Cherub Software Pvt. Ltd. company (“Cherub”), with registered office at #5797, Sector 38-West, Chandigarh, India, in relation to your license distribution for Cherub’s software products/solutions/services (“software” ,”SOFTWARE”, “Software”, “product”, “products”, ”technology” ). If you are agreeing to this Agreement not as an individual but on behalf of your company/firm/organization, then “Distributor”, “you”, ”your” etc means your company/firm/organization, and you are binding your company/firm/organization to the Agreement.

In order to distribute licenses for software under Cherub distributor program, you must first agree to be bound by all the terms and conditions of the Agreement by giving consent in email and also get Cherub’s acceptance of your application.

You will neither distribute software licenses, nor pursue any business leads for Cherub’s solutions if you do not accept the agreement or Cherub’s acceptance to your application has not been sent.

1. Definitions:

a) “Distributor” means the person/firm/company/corporation authorized by Cherub Software Pvt Ltd to distribute licenses for Cherub’s software as per the terms of this distributor agreement.

b) “authorization”, “authorized” etc terms indicate only limited authorization to distribute limited licenses and does not indicate any authorization to bind Cherub for any condition or to get into any agreement on behalf of Cherub.

c) “end user” means an entity that enters in to a license to use Cherub’s software for purposes other than distributing it.

d) “End User License Agreement” or “EULA” means Cherub’s current end user license agreement for the applicable Software which is included with the Software generally in electronic form as part of a product installer or as an executable document or as an attached document or otherwise made available, and is an agreement between Cherub and the End User.

e) “Extended Trial for Demonstration Use Software” or “Extended Trial Software” means Software that is not for distribution and may be used by Distributor solely for demonstration purposes. Cherub does not provide maintenance or support for Extended Trial Software.

f) “Gray Market” or “Unauthorised Products” means software products that have been diverted from an authorised channel into an unauthorised channel, and/or that may have been made to appear as full commercial versions and/or to obscure or disguise the fact that they were initially produced and licensed by Cherub. Also any product/ software not accompanied by Cherub’s EULA is considered to be unauthorized.

g) “Software” or “product” or “Cherub’s software” irrespective of use of upper or lower case or singular or plural and similar derived terms, means all the software/services/solutions created by Cherub Software Pvt Ltd (“Cherub”). Cherub’s Software shall be deemed to include the Extended Trial Software. It also includes product and other information which may include associated software components, design, packaging, data, media, printed materials, information related to the software, and "online" or electronic documentation (collectively referred to as "SOFTWARE PRODUCT" or "SOFTWARE").

h) "Confidential Information" means the confidential and/or proprietary information of Cherub (whether such information is or is not marked or identified as confidential or proprietary), including software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, marketing and financial plans and data.

i) "Proprietary Rights" means any and all present and future rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, algorithms, schematics, research, development, trade secrets, moral rights, contract or licensing rights, branding features, and confidential and proprietary information, and other similar rights or interests in intellectual or industrial property.

2. APPOINTMENT

(a) Cherub can appoint persons, firms, companies, corporations etc as distributors.

(b) The distributor shall provide Cherub documentation from the appropriate regulatory agency verifying the name of the legal entity entering into an agreement.

(c) Provided Cherub accepts Distributor’s application to be a distributor of the Software, and provided that Distributor complies with the terms of the Agreement, Cherub appoints Distributor as an authorized license distributor in the Cherub’s Software License Distributor Program on a non-exclusive basis during the term of the agreement.

(d) Limited right to distribute end-user license: Subject to this agreement, Cherub grants Distributor a one-time, non-transferable, non-exclusive, non-assignable right to only distribute license(s) for Cherub’s Software directly to End User specified in your Distributor order during the term of the Agreement. Such license would be solely for the use by the end-user mentioned in the above said Distributor order in accordance with EULA. This right to distribute does not apply to any other end-user or product/Software including without limitation any distribution to any related party, organization, affiliate or to any subsequent, additional or renewal distribution to the same party.

(e) Records and Reports: Each distributor will send a monthly & annual report mentioning reports of the license fee charged by him, the complete address of the End User, the taxes charged and taxes deposited with the relevant authority. Monthly reports should reach Cherub before the 10^th of the every month. Monthly reports must be sent even if zero licenses have been distributed and should include information about the efforts made by the distributor for increasing the business including the details of prospective end users contacted by the Distributor and other activities performed during the preceeding month.

Distributor agrees to maintain complete and accurate records (in accordance with generally accepted accounting principles) relating to its activities under the Agreement and to retain such records for two years after termination of the Agreement. Cherub shall have the right during the term of the Agreement and for two years thereafter, at any time upon ten (10) days notice, to cause an audit and/or inspection to be made of Distributor’s records and premises in order to verify reports submitted by Distributor and/or Distributor’s compliance with the terms of the Agreement. Any such audit shall be conducted by Cherub’s internal auditor or an independent auditor selected by Cherub. Any such audit shall be at the expense of Cherub unless Distributor is found to be non-compliant with the Agreement, in which case the audit shall be at the expense of Distributor.

(f) No Use Rights; Cherub Reserved Rights:

Only the end user of the Software (its Authorized Users) shall use the Products/Software. You are not permitted to use any Products/software licensed under this Agreement for your own benefit. To the extent that you nevertheless gain any access to the Software, all license restrictions in the Cherub End User License Agreement apply to you. Notwithstanding anything to the contrary contained in this Distributor Agreement, except for the limited distribution right mentioned above, Cherub has and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights and confidential information) in and to all Software, service descriptions, documentation, and underlying technology, processes, and all copies, modifications and derivative works thereof, including without limitation as may incorporate Feedback. You acknowledge that you are obtaining only a limited right to distribute the software and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Distributor Agreement or otherwise.

(g) Relationship: You agree that this relationship does not make you an employee, representative or agent of Cherub, and you will not represent yourself as an employee, representative or agent of Cherub. Vice versa, you should not make any impression or representation that Cherub is a subsidiary, sister-concern (or similar association) or that any of Cherub’s personnel work for the Distributor. You have limited right to Distribute licenses for Cherub’s software as per this agreement.

The distributor shall include in its Documentation that the Software is owned by and licensed through Cherub. At any point during the transaction the Distributor should not make any impression or representation to the end-user/client that the Distributor owns or has created the technology/software. The relationship is strictly as per this agreement and any expansion or extrapolation of the scope is not allowed. Distributor agrees that Cherub is the sole owner and creator of the technology/software. Furthermore, distributor undertakes not to declare or give the impression that the Software in any way endorses distributor’s own work, and not to use any titles, trademarks, labels, or logos found in the Software in distributor’s own titles, products names, service names, or domain names.

Cherub reserves all rights not expressly granted to distributor in this Agreement. Without limiting the generality of the foregoing, distributor acknowledges and agrees that: (i) except as specifically set forth in this Agreement, Cherub retains all rights, title and interest in and to the Software and the distributor does not acquire any right, title, or interest to the Software; (ii) any configuration or deployment of the Software shall not affect or diminish Cherub’s rights, title, and interest in and to the Software. Nothing in this Agreement shall limit in any way Cherub’s right to develop, use, license, create derivative works of, or otherwise exploit the Software, or to permit Third Parties to do so.

(h) Anti-Piracy/Gray Market Restrictions: Distributor agrees that it will not deal in Gray Market Products. Cherub reserves the right to terminate this Agreement with immediate effect if Distributor is found to be dealing in Gray Market Products of Software or knowingly supplying, or having reason to know that it is supplying any person who is engaged in distribution of Gray Market Products. Such termination would be without prejudice to Cherub’s other remedies if any Cherub’s products were involved.

3. LICENSES:

(a) Limited right to distribute end-user licenses

Subject to the terms and conditions of this agreement, Cherub grants Distributor a one-time, non-transferable, non-exclusive, non-assignable right to only distribute license(s) for Cherub’s Software directly to End User specified in your Distributor order during the term of the Agreement. Such license would be solely for the end-user mentioned in the above said Distributor order in accordance with EULA. This right to distribute does not apply to any other end-user or product/Software including without limitation any distribution to any related party, organization or affiliate or to any subsequent, additional or renewal distribution to the same party.

b) No Sale; Only license to distribute:

Cherub’s software is licensed, not sold. The Agreement is not to be interpreted or construed as an agreement between Cherub and Distributor for the sale of Cherub’s Software. Distributor shall advise its End Users that Distributor has a limited license to distribute Cherub’s Software licenses and that the Cherub’s Software has not been sold and the source code will not be revealed. Irrespective of the use of words like “sale”, ”purchase”, “selling”, “sold” or similar terms in the document there is no transfer of ownership of any sort to you or the end user. All titles, including but not limited to copyrights, in and to the software and copies thereof are solely and exclusively owned by Cherub Software Pvt. Ltd. Cherub Software Pvt. Ltd. reserves all rights not expressly granted. The end-user will get only the license to use the software according the terms of EULA.

(c) Enforcement of Cherub’s EULA:

All use of the Products by end users is subject to the End User License Agreement (EULA), and you shall not purport to impose any other terms pertaining to end-user’s use of the Products. You are responsible for ensuring that each end user enters into the Cherub’s End User License Agreement/EULA (which includes all limitations on Authorized Users and other quantity restrictions applicable to the end user’s order) in a manner that is legally binding upon the end user. This will require you to (a) notify each end user that Cherub’s products are subject to the EULA and that by placing an order with Distributor the end user agrees to Cherub’s EULA, (b) include either a copy of or link to the EULA in each quotation and order form you issue to the end user, and (c) obtain from each end user written confirmation of acceptance of the EULA prior to the acceptance of the order by Distributor. You must provide evidence of such acceptance by the end user to Cherub upon request.

(d) No sale of software and no source code; Only license to use the software

It is the duty of the Distributor to ensure that the end user is aware that there is Cherub’s confidential and proprietary technology involved and no one will get source code. The end user/distributor will get only the relevant binary files, where applicable, and those too would be subject to the EULA and license to use would be a one-time activation on one server. Distributor shall not utilize the Cherub’s Software for its own internal business use except pursuant to a separate licensing agreement for that purpose. Cherub’s Software licensed under the Agreement shall only be distributed to Distributor’s End Users.

You agree to immediately notify us of any known or suspected breach of the Cherub’s EULA or the unauthorized use of the software and to assist Cherub in the enforcement of the terms of the EULA.

(e) The distributor shall include in its Documentation that the Software is owned by and licensed through Cherub. At any point during the transaction the Distributor should not make any impression or representation to the end-user/client that the Distributor owns or has created the technology/software. . The Distributor should not make any impression or representation that Cherub is a subsidiary, sister-concern or that any of Cherub’s personnel work for you. The relationship is strictly as per this agreement and any expansion or extrapolation of the scope is not allowed. Distributor agrees that Cherub is the sole owner and creator of the technology/software. Furthermore, distributor undertakes not to declare or give the impression that the Software in any way endorses distributor’s own work, and not to use any titles, trademarks, labels, or logos found in the Software in distributor’s own titles, products names, service names, or domain names.

4. ORDERS:

a) Order Process:

Before pitching to a customer with Cherub’s solution, the Distributor must discuss and get approval from Cherub regarding all issues including but not limited to the minimum required license fee, terms and conditions, feasibility other concerns etc. He will also update Cherub about the proposed license fee and agreed upon license fee with the end-user. In any case the proposed or agreed license fee cannot be less than the minimum license fee agreed with Cherub. The Distributor shall place all orders for Software with Cherub. Distributor shall provide documentation to Cherub that Distributor has received valid purchase orders from its End Users. It is the duty of the Distributor to ensure before placing the order that the end user is aware that there is Cherub’s confidential and proprietary technology involved and no one will get any source code. The end user will get only the relevant binary files, where applicable, and those too would be subject to the EULA and license to use would be a one-time activation on one server. The Distributor must provide all the information to Cherub about the order, requirement specifications, deliverables, license fees, taxes, duty, levy and like, the advance payment received, payment plan, identity of the end user with proof, the business name, address, email, phone number etc and custom/special requirements if any. All such information must be accurate and complete and must reflect bona fide orders the distributor has received from end users. . If there is any doubt or hint that Cherub’s interests about proprietary information, confidentiality, know-how etc in any transaction might have to be shared or otherwise be at risk, the Distributor should not proceed with that order.

At no point during the transaction should the Distributor make any impression or representation to the end-user/client that the Distributor owns or has created the technology/software. Distributor agrees that Cherub is the sole owner and creator of the technology/software.

b) Returns; Refunds: Neither Cherub nor its Distributors are obligated to accept any returns. There are no refunds. Distributor agrees and acknowledges that in no event shall Distributor receive a credit or refund from Cherub of any sums paid by Distributor to Cherub for any reason whatsoever. Also, for avoidance of doubt, Distributor agrees and acknowledges that in no event shall distributor receive a refund or credit from Cherub of any sum paid by Distributor as a result of expiration or termination of the agreement for any or no reason.

c) Fees: The license fee charged by Cherub is customized and specified in a quote issued on request.  Distributor’s non-refundable, non-cancelable payment to Cherub is due when you submit your distributor order. Each valid purchase order must be accompanied by a minimum deposit amount which is 40% of the total license fee to be charged from end-user. If not accompanied by the deposit, the order will not be a valid purchase order even if all other information has been sent. If the deposit comes in at a later date, the date of the order shall be deemed to be the date when deposit is received by Cherub and will be prioritized accordingly.

All overdue payments payable by Distributor to Cherub will be subject to a late payment fee of 2% per month. In the event that a payment remains overdue for more than 20 calendar days, Cherub shall have the right to suspend access to the services and stop work on that order if such work is in progress.

The minimum product licensing fee structure is outlined as in Annexure B. This is liable to change. Please confirm before finalizing the order.

d) Delivery: Upon receipt of full payment due, Cherub will deliver the applicable software license key, and other information if any, in accordance with the relevant Cherub’s delivery procedures for end users to use or access the applicable software. Such information will be given directly to the delivery contact specified in the Distributor’s order. If we deliver the license or logins to you, you agree that you will, in turn deliver them directly to the end user specified in the distributor order, and not to use or access the software, hosted services or other products or information in any way. You must either delete all license keys promptly thereafter or maintain them in confidence. Such license key for the end-user is a one-time, non-exclusive, non-transferable, non-assignable license governed by the end user license agreement (EULA). Each such license key will enable the end-user to use it on one server machine only and only once on that server machine. Subsequent activations of the license key will carry a financial charge. The technology will be hosted either on Cherub’s servers or on the end-user’s servers but never with the Distributor or any party leased or delegated by the Distributor. Delivery is made online and no physical shipping, physical media is given out by Cherub. All services, work etc shall be performed by Cherub at Cherub’s facilities.

e) Taxes: The fees paid by you to Cherub under this agreement exclude any taxes, fees, levies or duties payable with respect to the software in the jurisdiction where the payment is either made or received. The responsibility of collecting and depositing relevant taxes (including penalties, interest etc) in the jurisdiction of the territory of the Distributor is that of the Distributor. The Distributor will submit the explicit report to Cherub about the amount at which the license has been distributed, the amount of tax collected on that distribution and the documentary proof that all taxes have been deposited with the relevant authorities. To the extent that any such taxes are payable by Cherub, you must pay to Cherub the amount of such taxes or duties in addition to any fees owed under this agreement. For avoidance of doubt, the distributor will be responsible for, and will promptly pay, all applicable taxes, government fees, duties, excises, tariffs, and other similar amounts of any kind imposed on either party associated with this Agreement or Distributor’s receipts, use, export or import of the licensed software, or the associated services, except for Cherub’s normal operating income tax.

Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Cherub any such exemption information.

f) End user license fees, payments: Distributor bears the risk of non-payment by end users, and is solely responsible for all of distributor’s costs and expenses. Distributor cannot terminate an order or receive any refunds due to non-payment by an end user.

g) Pre-enduser acquistion support for distributor: Cherub may provide upon request by distributor, pre-end user acquisition support of different types. All such support is available on payment as per the plan given in Annexure A.

5. INTELLECTUAL PROPERTY

(a) Software:

The Software being supplied to Distributor is confidential and proprietary to Cherub, and is the intellectual property of Cherub. Distributor shall neither create nor permit anyone to create any derivative works or make translations, clones, replicas of the Software. Distributor shall take all reasonable measures to protect the intellectual property rights of Cherub in the Software and the trademarks including providing such assistance and taking such measures as are reasonably requested by Cherub from time to time. You must not reverse engineer, decompile, reverse assemble, reverse compile, translate or disassemble the SOFTWARE. You must not make any attempts whatsoever to determine the source code, algorithms, processes, internals of Software or permit others to do so. Further, you will not attempt to bypass the registration or licensing process of the SOFTWARE. You will prevent your employees, contractors from attempting to reverse engineer, decompile, reverse assemble, reverse compile, translate or disassemble the SOFTWARE. Distributor is not granted any rights to any intellectual property or any other rights, franchises or licenses with respect to Cherub’s Software or the Trademarks or other confidential information. Cherub Software Pvt. Ltd. reserves all rights not expressly granted. The software is licensed, not sold.

More over, the software is derived from other confidential and proprietary work that Cherub has done over many years at private expense. This confidential work includes without limitation, algorithms, data structures, data, designs, schematics, plans, processes etc. All rights on the background confidential information, whether or not distributed with the software are also reserved by Cherub. The distributor agrees and acknowledges that at present the distributor does not have the capability and expertise to create similar technology solutions/software.

Even if custom software development is done, the software thus created and delivered will still be sole and exclusive property of Cherub.

Even if a separate development cost is charged, it will not be considered work for hire. All new work whatsoever, whether or not created for specific niches and specific clients will also be sole and exclusive property of Cherub. NO source code, logistics, procedures etc are delivered or revealed in any case whatsoever.

(b) Media:

Distributor acknowledges that title to the media upon which the Cherub’s Software is supplied remains with Cherub. Distributor shall fully reproduce any copyright or other notices marked on any part of the Software on any and all copies thereof. Distributor shall not alter or remove any of Cherub’s copyright notices or other designations that appear or may appear in or on the Software, Extended Trial Software or any related documentation, software, advertising, displays, media or designations.

(c) No Modifications:

Distributor shall not, either directly or indirectly alter, revise, enhance, customize or otherwise change or modify the Software or any part thereof without Cherub’s prior written consent, which consent may be withheld in the sole and absolute discretion of Cherub. If such consent is given, and unless the parties agree otherwise, Distributor shall deliver to Cherub all such alterations, revisions, enhancements, customizations, changes or modifications and an assignment of all copyright or other intellectual property interest and waiver of any moral rights that the Distributor or any other person may have in same.

(d) Feedback:

If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback”), then you grant us a worldwide, royalty-free, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this agreement limits Cherub's right to independently use, develop, evaluate, or market products/Software, whether incorporating Feedback or otherwise. If the end users provide any feedback, comments etc to you, those must be promptly passed on to Cherub without any editing as a part of your feedback.

(e) Confidentiality: Distributor shall protect the Confidential Information from unauthorized dissemination and shall use the same degree of care that Distributor uses to protect its own like information, but in no event less than a reasonable degree of care. Distributor shall not disclose to third parties the Confidential Information without the prior written consent of Cherub. Distributor shall use the Confidential Information only for purposes of performing its obligations or exercising its rights under this Agreement. Notwithstanding anything to the contrary in this section, Distributor may use or disclose the Confidential Information to the extent Distributor is legally compelled to do so, provided, however, prior to any such compelled disclosure, Distributor notifies Cherub and fully cooperates with Cherub in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. Distributor agrees that any breach of this section would cause irreparable harm to Cherub for which monetary damages would not be adequate and, therefore, Distributor agrees that, in the event of a breach of this Section, Cherub shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.

(f) Data protection and privacy: In collecting, processing, recording, storing, registering, disclosing, transferring and using (collectively, “Using”) data (including Personal Data) and in maintaining records, Distributor shall comply fully with any applicable privacy protection regulations, data protection regulations and other applicable laws, and shall only do so, directly or indirectly, if required to perform its obligations under the Agreement, and in accordance with applicable local, federal, state and international privacy and data protection laws, rules and regulations. Distributor acknowledges and agrees that, as between Distributor and Cherub, Personal Data that Distributor collects, processes, records, stores, transfers or receives from or on behalf of Cherub, or directly from End Users or other persons in relation to Cherub or its products or services (“Customer Personal Data”), shall be considered Confidential Information. Distributor shall comply with any information security requirements promulgated by Cherub, and will cause its personnel, consultants, service providers, dealers and agents to comply with the provisions of this Section. Nothing in this Section shall in any way be interpreted to limit or diminish any other obligation Distributor may have elsewhere under the Agreement.

6. NO WARRANTY

a) Cherub expressly disclaims any warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness for a particular purpose. Cherub does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE PRODUCT. Cherub does not warrant that the Software/Services shall meet any end-user requirements or that the operation of the Software shall be uninterrupted or error-free. The distributor and end-user will independently evaluate the impact of adoption of Cherub’s software for specific cases. The performance of the software may vary. For avoidance of doubt, we make no warranties, express or implied, statutory or otherwise to you as a distributor, including but not limited to implied warranties of merchantability, fitness for a particular purpose or title and non-infringement.

b) Except for the express limited warranties set forth in the agreement, if any, and to the maximum extent permitted by law, neither party makes, any warranties, representations or conditions of any kind, express, implied, statutory, or otherwise by any country or jurisdiction, related to or arising in any way out of the agreement or the provision of benefits, products or services related to the agreement. Cherub specifically disclaims any implied warranty, term, representation or condition of merchantability, satisfactory quality, fitness for a particular purpose, integration, and non-infringement.

c) Non infringement: Distributor represents and warrants to cherub that it shall not make, and cherub shall not be bound by, any offer, acceptance, representation, warranty, condition, promise, or affirmation of fact whatsoever to any third party respecting cherub or the cherub’s software, including the performance thereof. Distributor agrees to indemnify and hold cherub harmless against any and all proceedings, causes of action, suits, damages, losses, liability, costs and expenses (including reasonable legal fees) whatsoever that may arise, either directly or indirectly, in any connection with any breach of the foregoing representation and warranty.

Distributor agrees that it has no expectation that it shall obtain any anticipated amount of revenue or other compensation as a result of entering into the agreement. Upon termination or expiration of the agreement or any addendum, cherub shall not be liable for any compensation, reimbursement, damages, lost profits or other payments arising from anticipated fees, expenditures, investments, leases or other commitments.

7. LIMITATION of LIABILITY:

(a) Waiver of damages:

To the maximum extent applicable by law, in no event shall Cherub be liable for any damages whatsoever arising out of 'Authorized Users' use of or inability to use the SOFTWARE PRODUCT, even if informed of the possibility of such damages in advance. Above said damages would be including but not limited to any loss of use, lost profits, business interruption, lost information, failure of security mechanism, loss of goodwill or loss of anticipated savings or any indirect, special, punitive, incidental, or consequential damages of any kind (including lost profit), or other damages of any kind whatsoever regardless of the form of action whether in contract, tort (including negligence), strict liability or otherwise even if Cherub has been advised of the possibility of such damages in advance. In any event Cherub shall have no liability with respect to the content of the SOFTWARE PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information.

(b) Liability cap:

To the fullest extent allowed by law, Cherub’s entire liability under this agreement shall not exceed 10% of the amount actually paid by distributor to Cherub in respect of the order in dispute that is the subject of this agreement.

8. INDEMNIFICATION

You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your distribution of licenses. Distributor shall indemnify and hold harmless Cherub, including its affiliates, subsidiaries, employees, officers and directors etc from and against all claims, damages, liability, costs (including attorney’s fees), and other expenses whatsoever that may arise, either directly or indirectly, from: (i) issuance of any warranties or representation regarding Cherub or its software or services that were not specified in the EULA (end user license agreement), (ii) the improper integration of the Software by Distributor into the computer systems of End Users, or (iii) the performance of, or infringement by, software, equipment, or materials not supplied by Cherub. (iv) Any of your other acts or omissions in connection with the marketing or distribution of licenses. (v) Any breach or alleged by you of any term of this Distributor agreement.

9. TERM & TERMINATION

(a) Term:

The initial term of the Agreement shall be one (1) year from the date of Cherub’s acceptance of Distributor’s application. Distributors will receive email confirmation if their application has been accepted.

(b) Termination:

The Agreement will terminate in the event of one of the following.

(i) Expiry of term: Upon expiry of the term above, the termination of the agreement is automatic. There is no automatic renewal. If the distributor intends to continue being an authorized distributor then he should enter into a new agreement for the new term and this should be initiated 30 days prior to the expiry of the agreement.

(ii) Termination for cause: Cherub may terminate this agreement if you materially breach any provision of this agreement. Cherub may also terminate this agreement immediately upon notice to you if (A) it ceases to offer the current distribution program or (B) it reasonably believes that continuing hereunder could result in business or legal liability for Cherub or otherwise harm Cherub or its end users. (C) If there is any breach of Cherub’s intellectual property interests or perceived threat to such interests.

Any party may terminate the Agreement upon written notice: (A) for any or no cause upon thirty (30) days prior written notice to the other party; or (B) if the other party is declared bankrupt, files for a moratorium on payment of its debts or seeks any other relief, or if a party goes into liquidation or have a receiver appointed over any of its property and assets or undergo any proceeding analogous to any of the foregoing events. A party shall use its best efforts to notify the other party promptly if one of the foregoing event occurs.

The Agreement will automatically terminate (A) upon an amalgamation, acquisition or merger of Distributor with any person or entity who is not a party to the Agreement or (B) if there is a change in the controlling ownership of Distributor. The Distributor will notify Cherub promptly well in advance if any such Development is on the cards.

(iii) Termination for convenience: In addition, either party may terminate this agreement for any reason or no reason whatsoever and do a termination for convenience without specifying any reason upon thirty (30) days written notice/email to the other party.

(c) Effect of termination:

(i) Cherub will honor the orders for which it has accepted the full payment prior to termination or expiration of the agreement. Distributor will not take up new orders from end-users during the notice period of termination sent by either party. Both parties will cooperate to fulfil the pending orders. Any dues from any party must be cleared. Distributor will pay Cherub all pending amount so that the fulfilment of the order can be done.

(ii) The Distributor shall refer all inquiries (pending or new) regarding Cherub’s software and give Cherub notice thereof. The distributor will immediately cease use of Cherub’s trademark, name, promotional content, services, copyright etc and discontinue all representations that he is Cherub’s authorized distributor.

(iii) The distributor expressly agrees that Cherub will have no obligation or liability to him resulting from termination or expiration of this agreement. Distributor acknowledges and agrees that it has no expectation that distributor shall obtain any anticipated amount of profits by virtue of the agreement. Cherub shall not be liable, by reason of any termination of agreement or otherwise, for compensation, reimbursement or damages on account of loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or commitments whatsoever in connection with the business or goodwill of the distributor.

(d) Survival: Even after termination and/or expiration of this agreement your obligations with respect to Government, Cherub, taxes, Cherub’s Intellectual property, feedback, indemnification, limitation of liability, business conduct, compliance with laws & rules & regulations & guidelines, EULA, general and other provisions of this agreement will survive and continue. Clauses 1, 2e, 2f, 2g, 2h, 3b, 3c, 3d, 3e, 4b, 4c, 4d, 4e, 4f, 5, 6, 7, 8, 9b, 9c, 9d, 10, 11 will survive. The only aspects that get terminated are your distribution right for the software and other benefits derived from being an appointed distributor.

10. BUSINESS CONDUCT:

(a) Compliance with Laws:

Distributor shall comply with all applicable laws, rules, regulations, guidelines in all countries in which Distributor conducts business. The fact that in some countries certain laws prohibiting particular conduct are not enforced in practice, or that violation is not subject to public criticism or censure, will not excuse noncompliance with those laws.

The Distributor acknowledges that Software/products/services may be subject to export control regulations in countries/territories in which they operate and the Distributor hereby agrees that it will not directly or indirectly export, import, transmit or use these Software Products contrary to the laws or regulations of any governmental entity that has jurisdiction over such export, import, transmission or use. If Cherub has knowledge that a violation has occurred, Cherub may be prohibited from providing maintenance and support for the Software Products, if applicable. Distributor acknowledges it is Distributor’s ultimate responsibility to comply with any and all export and import laws.

(b) Compliance with Laws applicable to Government Transactions:

(i) Distributor agrees and certifies that it will comply with all laws, regulations, rules, and other requirements applicable to transaction(s) with any government(s) occurring pursuant to the Agreement and all related matters (“Government Transaction(s)”). Distributor shall defend, indemnify and hold harmless Cherub, its subsidiaries, directors, officers, employees and agents from and against all actions, causes of action, liabilities, claims, suits, judgments, liens, awards and damages, of any kind and nature whatsoever, arising from or related to Distributor’s failure to comply with its obligations under this Section and for any expenses, costs of litigation and attorney's fees related thereto or incident to establishing the right of indemnification.

(ii) Distributor will take all reasonable steps in making proposals and agreements with governments which involve Cherub’s Software to ensure that Cherub’s proprietary rights in such Software and related documentation and all other interests receive the maximum protection available from such governments for commercial computer software and related documentation developed at private expense. The provisions of this section shall not be construed to expand the scope of rights set earlier. If there is any doubt or hint that Cherub’s interests about proprietary information, confidentiality, know-how etc in any transaction might have to be shared or otherwise be at risk, the Distributor should not proceed with that transaction.

(c) Anti- Corruption:

Distributor shall comply with all applicable laws or regulations in all countries in which Distributor conducts business including but not limited to prohibitions on providing anything of value to any government employee or other person to corruptly influence any decision or determination. The fact that in some countries certain laws prohibiting particular conduct are not enforced in practice, or that violation is not subject to public criticism or censure, will not excuse noncompliance with those laws. Furthermore, Distributor has knowledge and understanding of the Foreign Corrupt Practices Act of the USA(“FCPA”) and similar and equivalent laws as applicable to the transactions and territory of the Distributor. If some relevant certification or undertaking is required regarding compliance, Distributor will promptly provide us the same.

(d) Fair Dealing. No False Representations:

Distributor will not make any false representations to Cherub with respect to any transaction. False representations would include, but not be limited to, the promotion or utilization of false documentation such as invalid purchase orders, fake or forged contracts, forged letters of destruction and/or inaccurate reporting to facilitate any Distributor transactions.

You further agree not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Cherub or its products/Software and agree to comply with all applicable laws, regulations, guidelines etc while operating under this Distributor agreement.

(e) Publicity; Press Releases:

Distributor shall make commercially reasonable efforts to market, promote and distribute the licenses for the Software. Distributor shall not issue any press releases, publicity, marketing or sales materials, or other materials developed by or on behalf of Cherub that refer to the agreement or the relationship between the parties or otherwise use the name, trademark etc of Cherub without prior review and written approval by Cherub.

(f) Distributor represents and warrants to Cherub that: (a) no relevant agency has suspended, revoked or denied Distributor’s export and/or import privileges; (b) Distributor is not located in or under the control of a national or resident of a jurisdiction where this transaction is prohibited; and (c) Distributor shall not, in any manner whatsoever, either remove, convey, export, import or transmit the Cherub’s Software from or to Distributor’s jurisdiction in violation of the applicable laws and regulations. Distributor shall defend, indemnify and hold Cherub harmless from and against any and all claims, losses and liabilities attributable to any breach by Distributor or any of its agents, officers, directors, or employees, of its obligations under this Section.

11. GENERAL PROVISIONS:

(a) Governing law and jurisdiction:

Each party irrevocably submits that the agreement shall be governed by and interpreted in all respects by the laws of India, as applicable to Union Territory of Chandigarh (India), without reference to conflict of laws’ principles, as such laws are applied to agreements entered into and to be performed entirely within India between residents of India.

Each party irrevocably agrees that any legal action, suit or proceeding must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the District or High court in Chandigarh, India, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Chandigarh, India, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. 

Notwithstanding the foregoing, Cherub may bring a claim for equitable relief in any court with proper jurisdiction.

In any event, the agreement will not be governed by the United Nations Convention on Contracts for the international sale of goods and/or its implementing and/or its successor legislation and/or regulations, the application of which is expressly excluded. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

(a1) Injunctive relief; enforcement:

Notwithstanding the provisions of this Section 11(a), nothing in this Agreement shall prevent Cherub from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

(b) No Agency or Partnership:

Nothing contained in the Agreement, including without limitation the title of the Agreement, shall be construed as creating any agency, partnership, sales agreement, joint venture or other form of joint enterprise or other similar relationship between the parties, and neither party has the authority to bind or incur any obligation on behalf of the other.

(c) Complete Agreement:

This document constitutes the entire agreement between Cherub and Distributor and supersedes and terminates any and all prior agreements, representations, guarantees, written or oral, relating to the subject matter hereof.

(d) Assignment; Name Change or change of control:

Except as expressly set forth below in this section, neither the Agreement nor any of the rights or obligations of the Distributor may be assigned, in whole or in part. Should Distributor undergo a change of control, the agreement will automatically terminate immediately. For the purposes of this Section, a change in the persons or entities who control fifty percent (50%) or more of the equity securities of Distributor shall be considered a change of control. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors. Either party will have the right to terminate the Agreement in case of any attempted assignment or transfer by the other party in contravention of this provision, and any such attempt will be null and void. Any developments on plans related to change or control, equity raising etc should be brought to the notice of Cherub immediately.

(e) Force Majeure:

Neither party shall be liable for any failure or delay in fulfilling the terms of the Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, acts of nature or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure, provided that such party uses reasonable efforts, under the circumstances, to notify the other party, of the circumstances causing the delay and to resume performance as soon as possible. This provision shall not be construed as relieving either party from its obligation to pay any sum due to the other party.

(f) Non-Assertion: During and after the term of the Agreement, with respect to any of Cherub’s software or Cherub, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third parties on websites operated by or on behalf of us), licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.

(g) Independent Investigation:

Each party aknowledges and agrees that in interpreting the agreement, no weight shall be placed upon the fact that the agreement, or a particular portion thereof, has been drafted by a party.

(h) Severability:

If any provision of this agreement is held to be invalid or unenforceable, then such unenforceability shall not render the agreement unenforceable as a whole. Then this agreement, including all of the remaining terms will remain in force and effect as if such invalid or unenforceable term had never been included. In such event, the unenforceable provision shall be changed and interpreted so as to best accomplish the objectives of the unenforceable provision within the limits of the applicable law.

(i) No Guaranty:

Each party hereby disclaims any representation, warranty or guarantee regarding the success of any activities under to the Agreement, or the amount of revenues, if any, that will be generated as a result of the Agreement.

(j) Non-Exclusivity:

Nothing in the Agreement shall be construed as creating any type of blanket exclusive relationship among the parties. It is expressly understood that the parties may have or create relationships with other end-users, OEMs, software or hardware suppliers, distributors, systems integrators and distributors. Each party shall at all times remain free to decline a specific opportunity at its sole discretion and may work with other product or services providers or distributors.

(k) Entire Agreement; Precedence:

The Agreement completely and exclusively states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter.

(l) Non-Waiver:

The failure of Cherub to enforce a provision of this Agreement shall not be construed as a waiver or limitation of Cherub’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

(m) Modifications to Agreement:

Cherub, in its sole discretion, has the right to add, delete, modify and otherwise make changes to the Licensed Software offered under this Agreement, to change the license fee, and to make other changes to this Agreement (collectively, "Changes") effective immediately upon posting of such change on Cherub’s website at the relevant URL or any successor website thereto. For avoidance of doubt, any such Changes shall be effective for all orders submitted by distributor after the date of posting of such Changes at the relevant URL. Upon posting of any such Change, distributor may, in its sole discretion, elect to terminate this Agreement by providing at least ten (10) days prior written notice to Cherub (provided that such notice is received by Cherub within thirty (30) days after such Change is posted), provided that distributor has not placed an order after the posting of such Change and provided further that any such termination shall not affect any orders placed by distributor prior to the effective date of such termination. Distributor’s placement of any order after the posting of any Change or distributor’s failure to terminate this Agreement within thirty(30) days after such Change is posted shall constitute and be deemed Distributor’s acceptance of such Change. Distributor IS ADVISDED TO REVIEW Cherub’s distributor WEBSITE AT http://www.cherubsoft.com/distributor.html AT LEAST EVERY THIRTY (30) DAYS AND PRIOR TO PLACING ANY ORDERS TO DETERMINE WHETHER ANY CHANGES HAVE BEEN POSTED.

(n) Nothing in this agreement will extend, waive or vary the terms of any end user license agreement (EULA).

(o) Either party can give notice to the other party through the official email registered at the time of the agreement.

(p) Third party beneficiaries: Distributor acknowledges and agrees that Cherub’s licensors are third party beneficiaries of the Agreement, with the right to enforce the obligations set forth in the Agreement.

(q) Variations: Cherub reserves the right to have variations in the Distributor program, product specifications, performance, other policies, Fees, Software, discounts, packaging etc for different regions, end-users, distributors etc. Such variations will be specific to that particular case and Cherub has no obligation to extend any variations to others.

(r) The distributor shall provide Cherub will complete and accurate contact information of the distributor and shall ensure that such information is updated and kept current at all times.

The Distributor should send his acceptance via email in the following format.

Acceptance by Distributor:

[I have read, understood, and agreed to comply with the terms and conditions indicated in the cherub’s software-license distributor agreement.

To become an authorized distributor. I am sending the acceptance of the agreement via email.]

Name of the Distributor: (Person/Company/Organisation):

Address: City: Country: PostalCode:

Email: Phone:

I certify that all information above is complete and accurate. I have full power, authority and capacity to enter into this agreement.

Authorized Signatory: Date:

Signature of Authorized Signatory:

Name of Authorized Signatory:

Designation:

Address: City: Country: PostalCode:

Email: Phone:

[ The following self-attested copies of documents from the appropriate regulatory agency verifying name and address of the legal entity entering into the agreement are attached ]

Annexure A:

Consultancy fee:

Monthly retainer plan:

4 hours of dedicated time

Includes offline and online effort - Getting on phone calls - Analyzing feasibility - Understanding requirements - Communication - Estimating cost and time

USD 200 per month

The Following services will be charged extra:

	Services Available	ONE TIME FEE	MONTHLY FEE
1.	Web based Proof of concept (without Voice) with Cherub’s branding.	Fee will be as per scope. Minimum will be USD 400.	USD 50
2	Existing Demo on a webpage with Co-branding of the Distributor along with Cherub.	USD 100	USD 200
3.	Existing Demo on webpage with NO branding of either party	USD 100	USD 500
4.	App based proof of concept (without voice)	Fee will be as per scope. Minimum will be USD 800.	USD 150

Annexure-B:

Licensing Fees:

1	License Fee for Custom products	Starts from USD 10,000
2	License Fee for Packaged products	Starts from USD 6,000

Note: This fee structures are liable to change without notice. Please confirm before finalizing the order. Actual charges will depend upon the custom needs of the end user. Taxes as applicable are extra. All Fees to be paid in advance. If payment is delayed, the service will be discontinued and charges of USD 50 will be charged in addition to the pending payment to restart the service again.