BIZEBOX RESELLER AGREEMENT
This Agreement is made on the Agreement Date.
BETWEEN: BIZEBOX PTY LTD (ACN 119 525 576)
"bizEbox"
AND: The party so described in the Reference Schedule
"Reseller"
RECITALS:
A. bizEbox is authorised to promote, sell and support the Product.
B. bizEbox has agreed to grant the Reseller the Right, on a non-exclusive basis, to promote and market the Product with a view to introducing new Customers to bizEbox in accordance with the terms and conditions set out in this Agreement.
C. This Agreement records the arrangements between the parties.
OPERATIVE:
1. DEFINITIONS & INTERPRETATION
1.1 Definitions
Unless the context otherwise requires, in this Agreement:
"Agreement Date" means the date so specified in the Reference Schedule and if not specified, the date of execution of this Agreement by the last party to sign;
"bizEbox" means bizEbox Pty Ltd (ACN 119 525 576) and its successors, administrators and assigns;
"Commissions" means the amounts payable by bizEbox to the Reseller in accordance with this Agreement as specified in the Commission Schedule and "Commission" means any one of them;
"Commission Schedule" means Schedule 2 to this Agreement;
"Confidential Information" means all information and know-how including all technical information in any eye or machine readable format, disclosed or given to the Reseller from any source in respect of:
(a) the Product;
(b) the structure of bizEbox, its business plans, financial estimate, business dealings or clientele of bizEbox; and
(c) the terms of this Agreement;
"Claim" means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, Right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
"Customer" means an end-user who purchases and subscribes for the Product;
"Customer Fee" means the fees payable by the Customers in respect of the Product as specified in the Customer Terms;
"Customer Services" means the services offered to the Customer as outlined in the Customer Terms;
"Customer Terms" means the end-user terms governing the purchase and subscription of the Product by a Customer as may be proscribed from time to time by bizEbox;
"Event of Force Majeure" means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it including (without limitation):
(a) a war (declared or undeclared), insurrection, civil commotion, military action, or an act of sabotage;
(b) a strike, lockout or industrial action, dispute or disturbance of any kind;
(c) an act of a government or a Government Authority;
(d) an act of God; or
(e) a storm, tempest, fire, flood, earthquake or other natural calamity;
"Future Rights" means jointly and severally all of those Rights (statutory and otherwise) comprised in the Intellectual Property Rights which may arise, be created, be granted or acquired in any way whatsoever in relation to the Improvements;
"Improvements" means any improvement, modification, enhancement, derivative, application or use of the Product conceived, created or arising during the Reseller's access and use of the Product;
"Intellectual Property Rights" means:
(a) jointly and severally any Rights as they relate to Confidential Information, copyright, design Rights, patent Rights, eligible layout Rights, the Improvements, and the Future Rights;
(b) all other Rights resulting from intellectual activity in the industrial, scientific, literary or artistic field; and
(c) any application or Right to apply for registration of any of the Rights referred to in the subclauses (a) and (b)
"Price List" means the price list in relation to the Product as prescribed by bizEbox from time to time;
"Product" means the bizEbox hardware, software and services package which includes on-site and off-site automated backup solutions, archiving and disaster recovery solutions;
"Reference Schedule" means Schedule 1 to this Agreement;
"Right" includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;
"Term" means the period from the Agreement Date until the termination of this Agreement; and
"Trade Marks" mean all marks, service marks, signs, logo's, designs, corporate identity, graphics used by bizEbox in relation to the Product whether under statute or at common law.
1.2 Interpretation
In the interpretation of this Agreement, unless the context or subject matter otherwise require:
(a) singular includes plural and vice versa;
(b) any gender includes every gender;
(c) a reference to a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;
(d) references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(e) references to signature and signing include due execution of a document by a corporation or other relevant entity;
(f) references to months mean calendar months;
(g) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(h) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
(i) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(j) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;
(k) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
(l) a reference to an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
(m) a reference to a party includes that party's executors, administrators, substitutes, successors and permitted assigns.
2. GRANT OF RESELLER LICENCE
2.1 Grant
bizEbox grants the Reseller a non-exclusive, non transferable licence to offer, promote and resell the Product to Customers for the Term in accordance with the provisions of this Agreement.
2.2 Customer Terms
The Reseller must only offer and resell the Product to Customers on the Customer Terms.
2.3 Pricing
The Reseller must only offer and resell the Product to Customers at the prices specified in the Price List.
2.4 No Sub-License
The Reseller must not and can not sub-license any of the Rights granted under this Agreement.
3. COMMISSION
3.1 Calculation Method
bizEbox will pay the Reseller a Commission for Customers who purchase and subscribe to the Product in accordance with the provisions set out in the Commission Schedule. The Commission in respect of a Customer's continuing subscription to the Product (if applicable) shall only continue to be paid while both:
(a) the Customer’s agreement with bizEbox; and
(b) this Agreement,
remain in force.
3.2 Payment Timing
Commissions will be paid by bizEbox in accordance with the provisions of the Commission Schedule.
3.3 Pre-Conditions
A Commission is only due and payable in respect of a Customer if that Customer:
(a) has signed or accepted the Customer Terms;
(b) was introduced to bizEbox by the Reseller and can be so identified by the Reseller;
(c) was and remained a Customer for the full period of any calendar month (in relation to monthly Commissions); and
(d) has paid all the fees and charges due to bizEbox.
3.4 Commission Rates
bizEbox reserves the to change the commission rates but will not implement such changes without 30 days notice to all Resellers.
4. BIZEBOX OBLIGATIONS
4.1 Provision
bizEbox shall use its reasonable endeavours to:
(a) perform maintenance, upgrade and provide technical support of the Product and will use reasonable commercial efforts to ensure that the Product is functioning and available, except during times of scheduled or unscheduled maintenance; and
(b) provide training to the Reseller in the manner and frequency bizEbox shall determine to allow the Reseller to fulfil its obligations under this Agreement (all training costs will be the responsibility of the Reseller).
4.2 Customer Services
bizEbox or its contractors will offer Customer Services for the Product to all Customers in accordance with the Customer Terms.
5. RESELLER OBLIGATIONS
5.1 Promotion
The Reseller must, for the Term of this Agreement:
(a) actively advertise and promote the Product to potential Customers;
(b) offer, promote and resell the Product in accordance with the reasonable policies or directions of bizEbox;
(c) distribute the Product strictly in accordance with the terms and conditions as set out in this Agreement;
(d) where applicable, instruct all Customers regarding the proper use and care of the Product;
(e) maintain high quality business facilities adequate for the display and demonstration of the Product;
(f) conduct all business diligently and devote reasonable time and effort to the promotion and marketing of the Product;
(g) inform bizEbox of any matters which may affect or assist in the provision of the Product and which may improve the performance or features of the Product; and
(h) act in good faith at all times towards bizEbox and give bizEbox such assistance and co-operation as bizEbox reasonably requires; and
(i) maintain such records of transactions, inquiries and complaints required by bizEbox from time to time.
5.2 Restrictions
The Reseller must, for the Term of this Agreement:
(a) only use the Intellectual Property in relation to the Product for the purposes of this Agreement; and
(b) not solicit, engage, employ or contract any individual currently or previously employed or contracted by bizEbox during, or for a period of one (1) year following the termination of this Agreement.
5.3 Acknowledgements
The Reseller acknowledges and agrees that:
(a) bizEbox makes no guarantee that the Product will be available 24 hours a day, 7 days a week;
(b) bizEbox is not liable for any loss or damage that may result from errors in the Product which include, but are not limited to, site interruption, server downtime, errors in coding, internet disruption, and software malfunction;
(c) bizEbox reserves the Right to perform scheduled and unscheduled Product maintenance at any time on any servers hosting the Product;
(d) bizEbox has not made any representations as to the suitability, saleability, merchantability, fitness for a particular purpose or otherwise of the Product;
(e) bizEbox may modify the Product as a result of ideas, concepts or discussions with the Reseller and any such modifications, improvements and enhancements will automatically be assigned to become part of the Intellectual Property of bizEbox; and
(f) the Price List shall be determined by bizEbox in its absolute discretion and may amended from time to time.
5.4 Indemnity
The Reseller indemnifies bizEbox against all expenses, losses, damages and legal costs (on an indemnity basis) whether incurred by or awarded against bizEbox, that bizEbox may sustain or incur as a consequence, whether directly or indirectly, of:
(a) any breach of this Agreement; or
(b) any claim or demand levied on bizEbox by a third party as a result of any conduct on behalf of the Reseller.
6. AUTHORITY OF RESELLER
6.1 Relationship
This Agreement establishes a relationship which is solely that of supplier and marketer of the Product. Nothing in this Agreement shall be construed to mean the Reseller is the agent or legal representative of bizEbox for any purpose whatsoever. The Reseller is not granted any Right or authority to endorse bizEbox's name on any contract or instrument, nor to assume or create any obligation or responsibility on behalf of, or in the name of bizEbox, nor to otherwise affect the Rights or obligations of bizEbox except as expressly provided for in this Agreement or as may otherwise be agreed to by the parties in writing.
6.2 Trade Marks
The Reseller shall have the Right to represent itself as a reseller of the Product and subject to the limitations of this Agreement, will have a limited Right to use the Trade Marks which bizEbox applies to the Products in conducting itself as a bizEbox reseller. Such license is expressly limited to uses by the Reseller as are necessary or appropriate in connection with the performance of this Agreement. The Reseller shall not remove, alter, deface, vary or attempt to strip out the Trade Marks as they appear on the Product, bizEbox's other products or any bizEbox documentation.
6.3 Authorised Representations
The Reseller shall not make any representation regarding the Products which is not described in bizEbox's published specifications and material with respect to the Products.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Key Terms
(a) This Agreement shall not be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Product or any related software or property to the Reseller or any third party.
(b) The Reseller agrees not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Product or create derivative works of the same for any purpose (including error correction or any other type of maintenance) without bizEbox's prior written consent.
(c) The Reseller agrees that:
(i) the Product is valuable property and shall be treated as confidential in accordance with clause 10;
(ii) it will not sell, license, lease, rent, loan, lend, transmit, network or otherwise distribute or transfer access to the Product in any manner to third parties save as is expressly permitted otherwise in this Agreement;
(d) The Reseller undertakes:
(i) not to cause or permit anything which may damage or endanger bizEbox's Intellectual Property Rights or bizEbox's title to them or assist or allow others to do so;
(ii) to notify bizEbox of any actual, threatened or suspected infringement of bizEbox's Intellectual Property Rights;
(iii) to notify bizEbox of any Claim by any third party that the Products infringe any Intellectual Property Rights of any third party;
(iv) to take such reasonable action as bizEbox may direct at the expense of bizEbox in relation to such infringement;
(v) to compensate bizEbox for any use by the Reseller of bizEbox's Intellectual Property Rights by the Reseller otherwise than in accordance with this Agreement;
(vi) to indemnify bizEbox for any liability incurred to third parties for any use of bizEbox's Intellectual Property Rights otherwise than in accordance with this Agreement;
(vii) on the expiry or termination of this Agreement forthwith not to use the Intellectual Property Rights;
(viii) not to use any name or mark similar to or capable of being confused with the Trade Marks nor modify any of the Trade Marks in any way nor use the Trade Marks or any derivation of them otherwise than is permitted by this Agreement at any time, including following the termination of this Agreement;
(ix) to permit bizEbox to review any and all marketing materials prepared by the Reseller.
7.2 Reseller to comply with bizEbox directions
If bizEbox so directs, the Reseller shall modify or discontinue use of any of the Trade Marks and use one or more additional substitute names or marks (which shall, upon notification, be included in the Trade Marks).
7.3 Goodwill to vest in bizEbox
The Reseller acknowledges and agrees that usage of the Trade Marks and any goodwill established thereby shall enure to the exclusive benefit of bizEbox.
7.4 Assignment
The Reseller hereby assigns all Right, title and interest absolutely both now and in the future to any Improvements and Future Rights created and conceived of or which come into existence during the Term of this Agreement regarding the Product. In doing so the Reseller agrees to execute all documents and do all things necessary including making full disclosure to assure this assignment.
8. LIMITATION OF LIABILITY
(a) To the maximum extent permitted by law, bizEbox will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits, loss of data and loss of personnel) arising out of this Agreement or the use of the Product even if appraised of the likelihood of such loss or damage occurring.
(b) To the maximum extent permitted by law, the parties acknowledge and agree that all representations, warranties and conditions that may be implied by law or otherwise, are hereby excluded. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of all exercise of all liability under such condition of warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of bizEbox for any breach of such condition or warranty shall be limited, at the option of bizEbox to one or more of the following:
(i) if the breach relates to goods:
A. the replacement of the goods or a refund on a pro rata basis;
B. the repair of such goods;
C. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
D. the payment of the cost of having the goods repaired; and
(ii) if the breach relates to services:
A. the supplying of the services again; or
B. the payment of the cost of having the services supplied again.
For the purposes of this clause "bizEbox" includes its employees, sub-contractors and suppliers.
(c) Both parties acknowledge and agree that the limitations and exclusions of liability set out in this clause are reasonable and have been agreed taking into account the commercial value of this Agreement to each party and the commercial standing of each party.
9. TERMINATION
9.1 bizEbox Rights
bizEbox may terminate this Agreement immediately by notice in writing:
(a) if in bizEbox's opinion, the Product or the relationship between bizEbox and the Reseller is no longer commercially viable;
(b) if the Reseller becomes or threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
(c) if the Reseller being a natural person becomes bankrupt or dies;
or in any event, upon thirty (30) days notice to the Reseller.
9.2 Upon Termination
Upon termination of this Agreement:
(a) the Reseller will cease all use, access and any Right to use the Intellectual Property;
(b) the Reseller will lose all Right to access to the Product for resale and distribution;
(c) the Reseller will return (or if requested by bizEbox, destroy) any Intellectual Property including Confidential Information it has obtained during, or prior to, this Agreement;
(d) all outstanding monies owed to either party under this Agreement become immediately due and payable; and
(e) the Reseller has no Right or Claim to Commission beyond the effective date of Termination irrespective of whether the Customer remains an Customer subject to the Customer Terms. The Reseller hereby specifically releases bizEbox from all or any such Claims in this regard.
9.3 Reseller Rights
The Reseller may terminate this Agreement upon thirty (30) days notice in writing to bizEbox.
10. CONFIDENTIALITY
10.1 Consent
A party shall not, without the prior written approval of the other party, disclose the other party's Confidential Information.
10.2 Legal Obligations
A party shall not be in breach of clause 10.1 in circumstances where it is legally compelled to disclose the other party's Confidential Information.
10.3 No Disclosure
Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
10.4 Advice
Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants.
10.5 Survives Termination
This clause shall survive the termination of this agreement.
11. FORCE MAJEURE
11.1 Excuse from performance of Obligation
If a party is prevented, hindered or delayed from performing its obligations under this Agreement by an Event of Force Majeure, then as long as that situation continues, that party shall be excused from performance of the Obligation to the extent it is so prevented, hindered or delayed, and that time for performance of the Obligation shall be extended accordingly, but if time is of the essence of this Agreement, time shall continue to remain of the essence.
11.2 Notification
A party affected by an Event of Force Majeure shall take all reasonable endeavours to immediately notify the other parties of its occurrence and its effect or likely effect, and (subject to the provisions of the next clause) use all reasonable endeavours to minimise the effect of the Event of Force Majeure and to bring it to an end.
12. PROPER LAW, JURISDICTION
12.1 Choice of law
This Agreement is governed by and construed in accordance with the laws of Queensland, Australia.
12.2 Jurisdiction
Actions, suits or proceedings relating in any way to this Agreement or documents or dealings contemplated by it, may be instituted, heard and determined in a court of competent jurisdiction in Queensland, Australia.
12.3 Submission to jurisdiction
Each party irrevocably submits to the non-exclusive jurisdiction of such court for the purpose of any such action, suit or proceeding.
13. GENERAL PROVISIONS
13.1 Variations
No variation of this Agreement nor consent to a departure by a party from a provision, shall be of effect unless it is in writing, signed by the parties or (in the case of a waiver) by the party giving it. Any such variation or consent shall be effective only to the extent to or for which it may be made or given.
13.2 Waiver
The non-exercise of or delay in exercising a Right of a party shall not operate as a waiver of that Right, nor does a single exercise of a Right preclude another exercise of it or the exercise of other Rights. A Right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver.
13.3 Costs
Each Party must pay its own costs and expenses incurred in drafting, negotiating and executing this Agreement.
13.4 Entire Agreement
This Agreement contains the entire agreement between the parties and any previous understanding, agreement, representation or warranty is replaced by the Agreement and is of no further effect.
13.5 Further assurances
Each party to this Agreement shall do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by notice from another party to carry out and give effect to the terms and intentions of this Agreement and to perfect, protect and preserve the Rights of the other parties to this Agreement.
13.6 Assignment
(a) bizEbox may, upon notice in writing to the Reseller, assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.
(b) The benefit of this Agreement shall not be assigned by the Reseller without the bizEbox’s signed consent in writing.
(c) bizEbox may consent to the assignment or novation of this Agreement by the Reseller subject to such conditions as it, in its sole discretion chooses to impose.
13.7 Liability of parties
If a party consists of more than one person:
(a) an obligation of those parties is a joint obligation of all of them and a several Obligation of each of them;
(b) a Right given to those parties is a Right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
(c) a representation, warranty or undertaking made by those parties is made by each of them.
13.8 Counterparts
This Agreement may be signed or executed in a number of counterparts, with the same effect as if the signatures to or executions of each counterpart were on the same instrument.
13.9 Warranty of authority
Each person signing this Agreement:
(a) as attorney, by so doing, warrants to the other parties that, as at the date of signing, the signatory has not received notice or information of the revocation of the power of attorney appointing that person; and
(b) as an authorised representative, agent or trustee of a party, warrants to the other parties that, as at the date of signing, the signatory has full authority to execute this Agreement on behalf of that party.
13.10 Severability
This Agreement shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
(a) that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
(b) if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.
13.11 Delivery as a deed
Subject to express provisions in this Agreement to the contrary, each party by signing or executing this Agreement is deemed to unconditionally sign, seal and deliver this Agreement as a deed, with the intention of being immediately legally bound by this Agreement.
13.12 Time
Time shall be of the essence of this Agreement.
SCHEDULE 1
REFERENCE SCHEDULE
ITEM 1: Agreement Date
ITEM 2: bizEbox
bizEbox Pty Ltd (ACN 119 525 576)
Unit 2/20 Meadow Ave
Coopers Plains QLD 4108
PO Box 966
Archerfield QLD 4109
Principal Contact: Mick Atherinos
ITEM 3: Reseller
Name of Reseller:
ACN/ABN:
Address:
Address for Notices:
Principal Contact:
ITEM 4: Special Conditions
SCHEDULE 2
COMMISSION SCHEDULE
ITEM 1: Upfront Sale Commission
If a Customer purchases the Product upfront:
18% of the purchase price.
ITEM 2: Rental Commission
If a Customer rents the Product:
15% of the monthly rental price.
ITEM 3: Installation Commission
If the Reseller performs an installation for a Customer:
60% of the installation fee.
ITEM 4: Service Commission
Reseller Option 1
No Trailing Commissions apply for fewer than 5 clients.
Where clients exceed 5 and are totally serviced by bizEbox, the Trailing Commissions are a flat 10% of all monthly service fees in respect of those Customers who remain Customers of bizEbox.
Reseller Options 2 & 3
No Trailing Commissions apply for fewer than 5 clients
For 5 to 10 clients
10% of all monthly service fees in respect of those Customers who remain Customers of bizEbox.
For 10 to 50 clients
15% of all monthly service fees in respect of those Customers who remain Customers of bizEbox.
For more than 50 clients
20% of all monthly service fees in respect of those Customers who remain Customers of bizEbox.
ITEM 5: Payment of Commissions
In respect of the Upfront Sale Commission and the Installation Commission, bizEbox shall pay to the Reseller the Commission within 14 days of receipt of the respective payment from the Customer.
In respect of all other Commissions, bizEbox shall pay the relevant Commission(s) to the Reseller in arrears within 30 days of the end of each calendar month in which such a Commission is payable, provided that each Customer in respect of which a Commission is payable has paid all relevant fees to bizEbox.
ITEM 6: Commission Special Conditions