THIS AGREEMENT is effective from January 1st, 2011 (the “Effective Date”) through
December 31st, 2011.
Concluded by and between:
Hereinafter referred to as “NOVASTOR”
Hereinafter referred to as “DISTRIBUTOR”, as follows:
1. Object of Contract
The object of this contract (the “Contract”) is to detail the terms under which NOVASTOR has
agreed to sell certain of its products, as identified on Appendix I hereto (the “Products”) to
DISTRIBUTOR to market such Product(s) to retail stores, mail order companies and internet
retailers (hereinafter referred to as the “Retailers”) in the territory listed on Appendix I hereto
(the “Territory”) and hereinafter referred to as the “Territory”.
NOVASTOR appoints DISTRIBUTOR as its exclusive distribution partner to Retailers [and e-
tail] in the Territory for the duration of this Contract (as more fully described in Section 5
hereof and hereinafter referred to as the “Term”).
It is NOVASTOR’s responsibility to ensure that, for the Term, NOVASTOR owns all the
utilization rights to the Products that are necessary for concluding this Contract with
3. Obligations of NOVASTOR
NOVASTOR undertakes to trade with DISTRIBUTOR in accordance with NOVASTOR’s
Trading Terms and Conditions (attached hereto as Appendix I). For the Term, NOVASTOR
undertakes to maintain a technical support service for all of Products being marketed by
4. Purchase Basis, Prices and Transport
All Physical products will be supplied to DISTRIBUTOR’s warehouse. DISTRIBUTOR will pay
any duties or taxes involved in the goods entering the country and will store products in its
warehouse, insure them and keep them in good order.
Where applicable, DISTRIBUTOR may acquire the Products via electronic download from
NOVASTOR via NOVASTOR’s online shop.
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DISTRIBUTOR shall submit purchase orders to NOVASTOR accurately reflecting with
specificity the quantity of the Products that DISTRIBUTOR is seeking.
Each purchase order for software licenses shall identify whether the Products requested are
to be delivered via electronic download or by physical delivery of a computer disc (CD)
containing the Product.
In the event of electronic delivery, DISTRIBUTOR shall provide the requisite delivery and
email information to NOVASTOR.
Where NOVASTOR withdraws and replaces a Product with a new edition or version,
DISTRIBUTOR shall be entitled to return any existing inventory of the withdrawn Product for
replacement with new Product free of charge. Any such rotation must be completed within 3
months of the date on which NOVASTOR advised DISTRIBUTOR of the Product withdrawal.
The parties shall agree to a distribution margin or price at which DISTRIBUTOR shall
purchase the Products (laid down in Appendix I). If changed market conditions during the
period of this Contract should necessitate a price adjustment, NOVASTOR is permitted to do
this. NOVASTOR must inform DISTRIBUTOR of the new prices in writing. A price increase or
decrease shall come into effect no earlier than the beginning of the next month following
delivery of the notice; in any event NOVASTOR will give a minimum 30 days notice of a price
increase. This is calculated from the time the information reached DISTRIBUTOR in writing.
In the event of such a price reduction, NOVASTOR shall give mutually agreed Retailers full
price protection on their inventory during the validity of this Contract and any inventory
DISTRIBUTOR holds. The Retailers qualifying for price protection shall be agreed in writing
by DISTRIBUTOR and NOVASTOR (and shall be referenced on Appendix I).
5. Expiry and extension of Contract
The initial period of the Term is one year from the Effective Date. The term expires after one
year, a cancellation is not needed. Notwithstanding the foregoing, this Contract may be
terminated by either party hereto upon delivery to the other party of notice of termination
hereof by registered letter at least sixty (60) days in advance of such termination.
6. Defects in the Product / Liability
NOVASTOR hereby declares and guarantees:
That all Products are dispatched to DISTRIBUTOR only after thorough technical
testing, which customarily includes testing in particular in the case of software for
freedom from viruses (including macro-viruses);
That the Products and the packaging thereof in each case (booklet, inlay card, etc.),
to the best of NOVASTOR’s knowledge, conform to the laws concerning fair trading
and do not, to the best of NOVASTOR’s knowledge, violate any legislation in the
The sale price to be paid by DISRTIBUTOR includes all rights needful for the sale of the
Products, in particular all copyrights and rights for use of film, picture, audio, text, animation
and DISTRIBUTOR elements, if multimedia elements are included.
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7. Pricing and Payment
DISTRIBUTOR will purchase the Products at the respective discounts detailed in Appendix I,
to the prevailing Manufacturer’s Suggested Retail Price (the “DISTRIBUTOR Purchase
Price”). Payments by DISTRIBUTOR for Products sold by DISTRIBUTOR are identified on
Appendix I hereto (the “Terms of Payment”).
With respect to the physical CD and printed documentation, NOVASTOR warrants the same
to be free from material defects in materials and workmanship under normal use for a period
of three hundred and sixty (360) days from date of end user purchase.
NOVASTOR’s entire liability and exclusive remedy shall be, provided that the end user has
given NOVASTOR written notification within the warranty period of the defects, replacement
of the defective CD, documentation or product. Except for the express warranty above, the
products and related media documentation are provided on an “as is” basis, without any other
warranties or conditions, express or implied, including but not limited to conformity to any
representation or description, warranties of merchantability and fitness for a particular
purpose, or those arising by law, statute, usage of trade or course of dealing. The entire risk,
as to the results and performance of the Products is assumed by the end user.
In no event shall NOVASTOR or its distributors be liable for any damage whatsoever
(including but not limited to damages for loss of business profits, business interruption, loss of
business information or other pecuniary loss) arising out of the use or inability to use the
software, the CD or the Product. (Whether such claim is based on breach of contract,
indemnity, warranty, tort (including negligence), strict liability or otherwise), even if
NOVASTOR has been advised of the possibility of such damages. In any case,
NOVASTOR’s entire liability under the its end user license agreement or otherwise with
respect to the products subject hereto (including the software, CD and documentation) shall
be limited to the amount actually paid by the end user for the products (including the
software, CD and documentation).
9. Marketing Support
NOVASTOR will furnish DISTRIBUTOR with such catalogs, datasheets, technical information
and other information (in the English language) with respect to the Products or use of the
same may be made available, in such quantities, as mutually agreed. It is understood that
any literature, brochures and materials of whatever kind of description furnished to
DISTRIBUTOR by NOVASTOR shall remain the property of NOVASTOR.
The supplier accepts and agrees to treat all documentation at all times as the confidential
information of DISTRIBUTOR IDEAS.
Each party shall treat as confidential all information obtained from the other pursuant whether
or not marked as such in addition to this agreement and shall not divulge such information to
any person (except to such party’s own employees) other than on a need to know basis
without the other party’s written consent, provided that this restriction shall not extend to
information which was rightfully in the possession of such party free of restriction prior to the
commencement of the negotiations leading to this agreement and/or which is already public
knowledge or becomes so at a future date. Each party shall use all reasonable endeavours to
ensure that its employees comply with the provisions hereof and are bound by suitable
confidentiality restrictions. The party’s undertake to disclose or make all business and
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operational matters that become known to parties within the framework of this Contract, in
particular stock or sales reports, statistics, customer lists and information etc., available to
NOVASTOR. The obligation remains in force for one year beyond the end of the contractual
This does not apply to such characteristics and details,
As have been made public without the illicit commission or omission of the other party;
As a party is obliged by legal regulations to communicate to the authorities or other
11. Ancillary agreements, legal system, place of jurisdiction
This Contract, in accordance with the intentions of the parties, shall have validity also for the
legal assigns on both sides. The Schedules, Appendices and Attachments to this Contract
(collectively, the “Attachments”) are integral components hereof. Amendments, modifications
and additions to this Contract and/or to the Attachments (except for the MSRP List, which
NOVASTOR may modify in its sole discretion subject to the notice provisions hereof) must be
executed in writing. If one of the terms of this Contract should turn out to be wholly or partially
invalid, the remaining terms shall not be affected thereby. The invalid term shall be
interpreted according to its sense and replaced by a new regulation that achieves the
commercial purpose of the invalid term as much as possible. It is agreed that it is the intent of
the parties hereto that this Contract shall be construed and enforced in accordance with the
laws of Switzerland. The place of jurisdiction for any possible disputes is agreed to be a court
that has competence of distribution contracts. Interim legal protection can only be requested
at the court named, even when claim is directed against a distribution company such as
IN WITNESS WHEREOF, the parties hereto have set their hands and seals of the date first
(Print Name) (Print Name)
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NOVASTOR Products to be sold to and marketed by DISTRIBUTOR hereunder:
NovaBACKUP Professional, Server, Business Essentials, BE Virtual, Home Protection,
Business Protection, NovaBACKUP Network
The effective pricelist will be attached to this contract.
Terms of Payment
Based on credit approval by Novastor
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