Reseller Agreement

Reseller Agreement

PLEASE READ THESE TERMS CAREFULLY BEFORE APPLYING FOR THE RESELLER PROGRAM OR USING A RESELLER ACCOUNT. BY APPLYING FOR THE RESELLER PROGRAM, BY USING A ACCOUNT, OR BY CLICKING ON OR CHECKING THE BOX “I ACCEPT” ,YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT APPLY FOR OR USE AN ACCOUNT AND DO NOT CLICK ON OR CHECK THE BOX “I ACCEPT”.

This Reseller Agreement (this “Agreement”) is made and entered on the date you agree electronically to this Agreement (the “Effective Date”), by and between OnClick Technologies (“OnClick”) and you ("you", "your" or "Reseller"). If you are accepting this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, and in such case the terms “Reseller,” “you” or “your” shall refer to such entity and its affiliates. The terms “Party” and “Parties”, means, collectively and individually, as applicable, OnClick and Reseller. By agreeing to the terms of this Agreement or by reselling any Products and/or Services, Reseller expressly agrees to and consents to be bound by all of the terms of this Agreement. If Reseller does not agree to any of the terms of this Agreement, Reseller is prohibited from reselling any Products or Services.

1. Appointment

OnClick appoints the Reseller as an independent, non-exclusive Reseller of the Software products and services in the Territory and the Reseller hereby accepts such appointment as an independent, non-exclusive Reseller to purchase Software products and services from OnClick and to market, sell to End Users in the Territory on the terms and conditions of this Agreement. The Reseller may advertise, promote and resell the Software products and services solely to End Users within the Territory. The Reseller is responsible for sales, marketing and support related to the End User. OnClick and the Reseller agree that each End User granted a Software licence to use the software, will be a customer of the Reseller. All rights not specifically granted hereunder are reserved by OnClick. Without limiting the generality of the foregoing, OnClick reserves the right to advertise, promote market, sell and distribute the Software products and services, and to appoint resellers and third parties to advertise, promote market, sell and distribute the Software products in the Territory. OnClick reserve the right, in their sole discretion, at any time and from time to time, to modify any or all of the Software products and services, or to discontinue the publication, distribution, sale or licensing of any or all of the Software products and services without liability of any kind.

2. Term and Termination

2.1. Term: This Agreement shall be effective for a term of one year from the Effective Date. It shall be automatically extended for further one-year terms unless either party gives written notice to the other at least 30 days before the expiration of the initial or any renewal term of the party’s intent not to renew.

2.2. Immediate termination by OnClick: OnClick may terminate this agreement or suspend the right to sell the Products and Services with immediate effect and without prior notice if:

(a) the Reseller is in breach of this agreement;
(b) in the reasonable opinion of OnClick, the Reseller is unable or unfit to provide the Products/Services; or
(c) immediately, if Reseller is engaged in illegal or fraudulent activity or an activity that could harm OnClick’s business practices

2.3. OnClick may terminate this Agreement without cause and without liability upon 7 days' prior notice to Reseller.

2.4. Termination for Cause: Either party may terminate the Agreement with 1 month written notice if that party is reasonably satisfied that;

i. the other party has or is likely to have an insolvency event; or

ii. the other party has breached any part of this agreement and where such breach is capable of remedy, has failed to remedy the breach within 14 days after being given written notice specifying the breach and requiring the breach to be remedied. Upon termination of this Agreement, Reseller will cease all advertising, marketing and resale of the Software products and services. Termination of this Agreement will not affect either party rights or obligations with respect to the Software products/services distributed by Reseller prior to the effective date of the termination. Neither party will be liable for any damages arising out of the Termination of this Agreement. Reseller acknowledges and agrees that OnClick is not responsible for Reseller dependence on revenues hereunder, and Reseller agrees to release, hold harmless and indemnify OnClick from any and all claims and liabilities relating to Reseller's revenues, financial forecasts or economic value that may result from any termination by OnClick of this Agreement as permitted hereunder. In the event of termination, OnClick reserves the right for direct contact to the End Users of the Reseller in relation to the continuation or termination of Software licence obligations between the Reseller and the End User effected by such Termination.

3. Marketing

The Reseller shall use its best efforts to market and promote the Software products to End Users.The Reseller will at all times perform hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by OnClick as:

i. Conduct business in a manner that reflects favourably at all times on the Software products and services and the good name, goodwill and reputation of OnClick;
ii. Avoid deceptive, misleading or unethical practices that are or might be detrimental to OnClick, the Software products and services or the public, including but not limited to disparagement of OnClick or the Software products/services;
iii. Make no false or misleading representation with respect to OnClick or the Software products and services;
iv. Make no representations with respect to OnClick or the Software products and services that are inconsistent with OnClick End User License for the Software products and services, promotional materials and other literature distributed by OnClick, including all liability limitations and disclaimers contained in such materials. The Reseller consents to the listing of its business name, address, phone number and web site addresses on advertising and promotional materials as OnClick may determine in their sole discretion, including Software product literature and OnClick website. The Reseller may not use promotional materials for any purpose other than advertising and promoting the Software Products and Services to End Users in the market. Notwithstanding anything to the contrary herein, the Reseller may not distribute any Reseller created promotional materials with respect to OnClick or the Software Products and Services, without OnClick prior written approval of such materials.

4. Price and Payment

4.1. Prices to Reseller: For each Product ordered by the Reseller under the terms of this Agreement, Reseller shall pay OnClick the Company’s then-current list price for the ordered Products and Services as established by OnClick then-current Products and Pricing List. OnClick shall have the right, in its sole discretion, from time to time or at any time to change its list price and fees for the Products and Services by providing Reseller with an updated Products and Pricing List. Price changes will not apply to orders already accepted by OnClick. Reseller acknowledges that the list price set forth on the then-current Products and Pricing List is the minimum price at which Reseller can advertise or promote the Products. OnClick reserves the right without any liability, to cancel orders or refuse further orders from Reseller following OnClick determination, in its sole discretion, that Reseller has sold, advertised or promoted any of the Products at Prices which are inconsistent with the foregoing.

4.2. Resale Prices: You will independently set your own pricing to each end user. You bear all risk of non-payment by end users, and you are solely responsible for all of your costs and expenses. You may not terminate a Reseller Order or receive any refunds due to non-payment by an end user. OnClick may, however, from time to time provide the suggested retail price lists. Resale prices shall not be shared with any third party other than End Users, and shall not be advertised publicly, posted to any website other than Customer intranet sites not available to the general public, or made available via any other publicly available resource. However, Reseller may disclose pricing to End Users via a secure, password-protected website, email or online system controlled by you and made available solely to End Users. As a Reseller, you can sell and promote software products/services and can collect the payments in your accounts. However, Reseller cannot collect any payment on behalf of OnClick or by the name of OnClick.

4.3. Payment: All payments payable hereunder shall be paid in advance. Once the payment is credited in OnClick account. OnClick will issue the software products/services. Payment shall be made in via online transfer to OnClick account. Confirmed orders are non-cancelable and non-refundable.

4.4. Taxes: All payments due hereunder are exclusive of all sales taxes, use taxes, value added taxes, levies, duties and any other similar taxes imposed by any federal, state, provincial, foreign jurisdiction or local governmental entity on the transactions contemplated by this Agreement. Reseller is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. When OnClick has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by RESELLER unless RESELLER provides OnClick with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event that any withholding taxes or any other similar taxes are imposed by any federal, state, provincial, foreign jurisdiction or local governmental entity on the transactions contemplated by this Agreement RESELLER shall pay such taxes in such amounts as are necessary to ensure that OnClick receives the full amount of the fee required.

5. Reseller responsibilities

5.1. The Reseller will, at its sole cost and expense, obtain everything necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations in the performance of this Agreement. Without limiting the generality of the foregoing, the Reseller will comply with all applicable laws.

5.2. The Reseller will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any End User data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. The Reseller will act only on OnClick instructions in relation to the collection, use, disclosure and processing of any such end user data, but in all instances in accordance with all applicable laws, rules and regulations.

5.3. As between OnClick and Reseller, all rights, title and interest in and to the Software Products/Services and associated OnClick promotional materials and documentation, including without limitation all copyrights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights are and will remain the property of OnClick, and such items may only be used by Reseller as expressly permitted hereunder.

5.4. Reseller shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Software products, OnClick promotional materials and/or documentation

5.5. Reseller shall use reasonable efforts to achieve the sales targets. If Reseller does not achieve the Target during a given period, OnClick may terminate this Agreement effective immediately upon notice to Reseller.

6. OnClick responsibilities

6.1. OnClick is not liable for any loss or damage that may result from errors in the Software Products/Services which include but are not limited to site interruption, server downtime, and error in coding, internet disruption, and product malfunction. OnClick shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if OnClick has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the software or service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the software or service.

6.2. OnClick reserves the right to perform scheduled and unscheduled maintenance on the Software and Servers at any time.

6.3. OnClick has not made any representations as to the suitability, saleability, merchantability, and fitness for a particular purpose or otherwise of the Software products.

6.4. OnClick makes no other warranties except for the express warranties, if any, made to the End User in the applicable End User License agreement, relating to the Software Products/Services, express or implied. OnClick disclaims and excludes any and all implied warrantee, including but not limited to implied warranties of merchantability, fitness for a particular purpose or use and non-infringement. No one is authorised to make any other warranty or representation concerning the Software Products/Services. Reseller will make no warranty, express or implied, on behalf of OnClick.

6.5. OnClick provides software products on an “as is” and “as available” basis.

7. Indemnity

Reseller will indemnify, defend and hold harmless OnClick from and against any and all claims, damages and expenses (including reasonable attorneys' fees and costs of litigation) by any third party resulting from any acts or omissions of the Reseller relating to its activities in connection with this Agreement, a Reseller breach of this Agreement, or the Reseller misrepresentations relating to OnClick, the Software products/services or this Agreement, regardless of the form of action. The Reseller will be solely responsible for any claims, warranties or representations made by Reseller which differ from the warranties provided by OnClick in the applicable End User License agreement. OnClick liability to Reseller under this Agreement is limited to the price paid by Reseller for the Software product which gives rise to the claim. In no event will OnClick be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of this Agreement (including loss of business, revenue, profits, use, data or other economic advantage), however caused and regardless of the theory of liability, even if OnClick has been previously advised of the possibility of such damages, and even if any exclusive remedy provided for herein fails of its essential purpose.

8. Reverse Engineering

Reseller hereby agrees not to

(a) create or attempt to create by reverse engineering, disassembly, decompilation, reverse engineering or otherwise, the internal structure, the source code, design, or organization of the Product, or any part thereof, or to aid or to permit others to do so, except and only to the extent expressly permitted by applicable law;

(b) remove any Product identification or notices of any proprietary or copyright restrictions from any Product or any Product support material;

(c) copy, modify, or translate the Software or, unless otherwise agreed, develop any derivative works thereof or include any portion of the Software in any other software program; and

(d) separate the Product into component parts for distribution or transfer to a third party.

8.1. End User Information. Reseller agrees to provide the name, address and other information of End User as requested by OnClick on a necessary basis.

9. Relationship of the Parties

This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. Reseller acknowledges and agrees that its relationship with OnClick is that of an independent contractor,and Reseller will not act in a manner that expresses or implies a relationship other than that of an independent contractor.

10. Assignment

Neither this Agreement nor any rights or obligations of Reseller hereunder shall be assignable or transferable, in whole or in part, by operation of law or otherwise, without the prior written consent of OnClick. Any attempted assignment, subcontract or other transfer of this Agreement or any of Reseller rights or obligations hereunder will be void ab initio and will be considered a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

11. Confidentiality

The Resellers use and disclosure of Confidential Information disclosed hereunder are subject to the following terms and conditions:-

11.1. With respect to the Confidential Information, the Reseller agrees that: The Reseller shall treat as strictly confidential, and use all reasonable efforts, including implementing reasonable physical security measures and operating procedures, to preserve the secrecy and confidentiality of, all Confidential Information received from OnClick. The Reseller shall make no disclosures whatsoever of any Confidential Information to others, provided however, that if the Reseller is a corporation, partnership, or similar entity, disclosure is permitted to the Reseller's officers and employees who have a demonstrable need to know such Confidential Information, provided the Reseller shall advise such personnel of the confidential nature of the Confidential Information and of the procedures required to maintain the confidentiality thereof; and The Reseller shall not modify or remove any confidentiality legends and/or copyright notices appearing on any Confidential Information of OnClick.

11.2. In the event the Reseller is required by law, regulation or court order to disclose any of OnClick's Confidential Information, the Reseller will promptly notify OnClick in writing prior to making any such disclosure in order to facilitate OnClick seeking a protective order or other appropriate remedy from the proper authority, at the Reseller's expense. Reseller agrees to cooperate with OnClick in seeking such order or other remedy. Reseller further agrees that if OnClick is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required.

11.3. In the event of any termination of this Agreement, all Confidential Information, including all copies, partial copies of Confidential Information, copied portions contained in derivative works, in the Reseller's possession shall be immediately returned to OnClick or destroyed. Within 30 (Thirty) days of termination of this Agreement, the Reseller will certify in writing of the Agreement, to OnClick Reseller's compliance with this provision.

11.4. The Reseller shall provide full voluntary disclosure to OnClick of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this Appendix shall survive such termination and remain in full force and effect.

11.5. The Resellers duties under this CONFIDENTIALITY shall expire five (5) years after the information is received or earlier, upon written agreement of the parties.

11.6. The Reseller agrees that OnClick shall be entitled to seek all available legal and equitable remedies for the breach by the Reseller of all of these clauses in CONFIDENTIALITY at the cost of the Reseller.

12. Ownership

Reseller hereby agrees and acknowledges that OnClick, its suppliers, partners and licensors (if any), own and shall retain all right, title and interest in and to (a) the manufacture and/or production of Product (including all copies and derivative works thereof, by whomever produced), and associated Product Documentation, including all intellectual property rights embodied therein; (b) all of the service marks, trademarks, trade names or any other designations, and (c) all copyrights, patent rights, trade secret rights, and other proprietary rights in the Product, and Nothing in this Agreement grants Reseller any ownership right in the Software Products or the Software Services.

13. Trademark

Reseller shall not be permitted to print, post or otherwise use letterhead, calling cards, literature, signage or other representations in the name of OnClick (or any of its affiliates) or to represent itself as OnClick (or any of its affiliates) or make commitments on behalf of OnClick (or any of its affiliates) without the express, written permission of OnClick. Reseller expressly agrees that no license to use OnClick (or any of its affiliates’ trademarks, trade names, service marks or logos (collectively, the “Trademarks”) is granted by this Agreement. Reseller may, however, indicate in its advertising and marketing materials that it is a Reseller for OnClick Products and may, as necessary, incidentally use the OnClick Trademarks in its sales/marketing efforts. Upon request by OnClick, Reseller will place proper trademark, copyright and patent notices in its advertisements, promotional brochures and other marketing materials for OnClick Products. OnClick reserves the right to review Reseller’s marketing and sales materials prior to their publication or use. No rights shall inure to Reseller as a result of any such use or reference, and all such rights, including goodwill shall inure to the benefit of and be vested in OnClick. Upon termination of this Agreement for any reason, Reseller will immediately cease using the OnClick Trademarks as allowed in this Section and shall immediately take all appropriate and necessary steps to (a) remove and cancel any listings in public records, telephone books, other directories, remove any visual displays or literature at Reseller’s location, the Internet and elsewhere that would indicate or would lead the public to believe that Reseller is the representative of OnClick (or any of its affiliates) or OnClick’s (or any of its affiliates’) products or services; and (b) cancel, abandon or transfer (as requested by OnClick) any product licenses, trade name filings, trademark applications or registrations or other filings with the governments of the Territory (whether or not such filings were authorized by OnClick) that may incorporate the OnClick Trademarks or any marks or names confusingly similar to the OnClick Trademarks. Upon Reseller’s failure to comply with this paragraph, OnClick may make application for such removals, cancellations, abandonments or transfers in Reseller’s name. Reseller shall render assistance to and reimburse OnClick for expenses incurred in enforcing this paragraph.

14. Force Majeure

OnClick shall not be liable for failure or delay in performance of any of its obligations hereunder if such delay or failure to perform is caused by circumstances beyond its control.

15. Equitable Relief

The Reseller acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or OnClick intellectual property, will result in irreparable harm to OnClick, for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, OnClick will be entitled to seek injunctive or other equitable relief, as appropriate, and the Reseller hereby waives the right to require OnClick to provide security to initiate such an action. If OnClick seek injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement and/or patent belonging to OnClick by the Reseller involving an unauthorised use of Confidential Information or OnClick Intellectual Property, the Reseller agrees that it will not allege in any such proceeding that OnClick remedy at law is adequate. If OnClick seek any equitable remedies, they will not be precluded or prevented from seeking remedies at law, nor will OnClick be deemed to have made an election of remedies.

16. Compliance with Laws

In connection with its obligations under this Agreement, Reseller agrees to comply with all federal, state, local and foreign laws, constitutions, codes, statutes and ordinances of any governmental authority that may be applicable to Reseller, its activities under this Agreement or the OnClick Products, including all applicable laws and regulations. Reseller agrees to take all such further acts and execute all such further documents as OnClick reasonably may request in connection with such compliance.

17. Entire Agreement

This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes and terminates all other prior commitments, arrangements or understandings, both oral and written, between the Parties with respect thereto.

18. ACCEPTANCE

BY CLICKING OR CHECKING THE BOX “I ACCEPT” YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THAT YOU WILL BE BOUND BY AND COMPLY WITH ALL OF ITS TERMS AND CONDITIONS. DO NOT CLICK OR CHECK THE BOX “I ACCEPT” IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.