Distributor Agreement

 SUBJECT TO SINEFA NOTIFYING YOU OF ITS ACCEPTANCE OF YOUR DISTRIBUTOR APPLICATION, THIS DISTRIBUTOR AGREEMENT (AGREEMENT) FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SINEFA PTY LTD (ABN 86 141 844 911) AND ACCEPTANCE BY YOU OF THE TERMS OF THIS AGREEMENT IS A CONDITION TO ACCEPTANCE OF YOUR DISTRIBUTOR APPLICATION BY SINEFA.

BEFORE CLICKING ON THE ‘I ACCEPT AND SUBMIT MY APPLICATION’ BUTTON, PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE ‘I ACCEPT AND SUBMIT MY APPLICATION’ BUTTON, YOU (THE PERSON SUBMITTING THE DISTRIBUTOR APPLICATION) REPRESENT TO US THAT YOU REVIEWED THE TERMS OF THIS AGREEMENT, HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE DISTRIBUTOR, AND THAT THE DISTRIBUTOR AGREES TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT DOES NOT NEED TO BE SIGNED IN ORDER TO BE BINDING. YOU INDICATE YOUR ACCEPTANCE OF THE TERMS OF THE AGREEMENT BY CLICKING ON THE ‘I ACCEPT AND SUBMIT MY APPLICATION’ BUTTON.  

A LEGALLY BINDING AGREEMENT WILL ONLY BE FORMED BETWEEN SINEFA AND THE DISTRIBUTOR UPON SINEFA NOTIFYING YOU OF ITS ACCEPTANCE OF YOUR DISTRIBUTOR APPLICATION.

1. DEFINITIONS

For purposes of this Agreement, the following terms have the corresponding definitions listed below.

Application Software Products means those Products which are software as a service products pursuant to which the End Customer is given access to Sinefa’s application software.

Authorised Reseller’ means a reseller that has entered into a Sinefa Reseller Agreement.

Confidential Information’ means any and all non-public information related to the business or technology of a party to this Agreement, which may include (but is not limited to) know-how, specifications, catalogues, books, price books, maintenance, parts and service manuals, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, price lists, cost data, sales aids, such as filmstrips and recordings, and all other publications and information, whether or not reduced to writing, relating to the formulation, manufacture, use, marketing and sale of the Products, as well as any other information relating to the business of Sinefa which may be disclosed to Distributor in the course of its performance of this Agreement.

Distributor, ‘you’, ‘your’ and ‘yours’ means the company, person or other entity submitting the Distributor Application.

Distributor Price List’ means the price list for the Products made available to authorised Distributors of Sinefa and subject to amendment from time to time.

Effective Date’ means the date on which Sinefa provides written notice of its acceptance of your Distributor Application, which may take the form of an electronic mail message.

End Customer(s)’ means Sinefa’s end customers only, and explicitly excludes other resellers, distributors, or any other person or entity that purchases the Products for any reason other than to use in a directly owned and operated network.

Hardware Price’ means the amount payable by Distributor for Hardware Products.

Hardware Products’ means those Products which are hardware products and physical devices, such as the Sinefa Probe.

Invoice’ means any invoice for Products in a form specified by Sinefa (which may be an itemised excel spread sheet) and accepted by Distributor as a valid invoice for purposes of this Agreement. 

Notice’ means written notification and can be delivered by mail, facsimile or e-mail at Sinefa’s discretion pursuant to clause 7.

Products’ means only those products of Sinefa specifically listed in the Distributor Price List.

Purchase Order’ means a purchase order for Products in a form specified by Sinefa (which may be an on-line form) duly completed by the Distributor.

Purchase Price’ means the aggregate of the Subscription Price, where Subscription Products are purchased and the Hardware Price, where Hardware Products are purchased.

Sinefa’ means Sinefa Pty Ltd (ABN 86 141 844 911), located at Unit 16/71 Victoria Crescent, Abbotsford, Victoria, 3067, Australia.

EULA’ means End User Licence Agreement.

Sinefa Reseller Agreement’ means an agreement between Sinefa and an Authorised Reseller of Sinefa Products.

Subscription Price’ means the amount payable by Distributor for Subscription Products.

Subscription Products’ means those Products which are subscription services products.

‘Territory’ means the territory in which the Distributor is authorised by Sinefa to distribute the Products, as notified to you by Sinefa in response to your Distributor Application.

Trademarks’ means Sinefa’s trademarks, service marks, designs, markings, logos, or trade names as may be designated by Sinefa from time to time. 

2. APPOINTMENT, PRICING, PURCHASE AND DELIVERY

2.1 Appointment and Acceptance

Subject to your continued compliance with the terms of this Agreement, Sinefa appoints you as a non-exclusive distributor of the Products in the Territory, and you accept such appointment. You may market, distribute and sell Products solely to Authorised Resellers located within the Territory. It is your responsibility to confirm that a proposed reseller is an Authorised Reseller prior to entering into any arrangement with a proposed reseller to market, distribute or sell Sinefa Products. Nothing in this Agreement prevents us from: (i) appointing other resellers or distributors within the Territory; (ii) marketing, selling, or distributing Products directly to End Customers in the Territory; or (iii) maintaining direct sales channels for the marketing, selling and distribution of the Products in the Territory. Distributor will not without the prior written consent of Sinefa: (i) market, distribute or sell Products to End Customers located within or outside of the Territory; (ii) market, distribute or sell Productsto third party resellers, authorised distributors of Sinefa, agents or sales representatives located outside of the Territory; or (iii) knowingly export or re-export any Products outside of the Territory.

2.2 Pricing

As a Distributor, you will be entitled to purchase the Products at the various prices listed on the Distributor Price List. Distributors that have been approved by Sinefa will be issued with coupon codes to access discounts to listed prices. You will pay the Purchase Price pursuant to clause 2.5. Sinefa reserves the right at any time to change the prices listed on the Distributor Price List. Any changes to the prices on the Distributor Price List will be effective 30 days from notification of the change on Sinefa’s website. 

2.3 Purchase Orders

All purchases of Products you make under this Agreement will be subject to the terms and conditions of this Agreement and will be evidenced by a Purchase Order. Each Purchase Order is deemed to be a separate contract between the parties which is subject to the terms and conditions of this Agreement. Any terms or conditions of any Purchase Order or acknowledgements given or received that are accepted by Sinefa will form part of this Agreement. If there is inconsistency between the terms of a Purchase Order and the terms of this Agreement the terms of this Agreement will prevail. Purchase orders will, at a minimum, include terms regarding: (i) the Product name or identification; (ii) quantity of Products; (iii) time of requested delivery; and (v) all applicable addresses, including Authorised Reseller information where available. Purchase Orders will be deemed to be accepted unless Sinefa provides you written notice of rejection (which may take the form of an electronic mail message). Sinefa will not be liable for any loss incurred by a Distributor if a Purchase Order is rejected.

2.4 Delivery

2.4.1 Hardware Products

We will use commercially reasonable efforts to ship Hardware Products within two business days of receipt of the Purchase Order, inventory permitting. We will mark all Hardware Products for shipment to the address specified in the Purchase Order, and we will deliver the Hardware Products to a carrier or forwarding agent chosen by us or specified by you in the purchase order. Shipment will be FCA Sinefa’s facility, at which time title and risk of loss passes to the recipient specified on the Purchase Order. You will specify a carrier and provide us with an active account number on the Purchase Order, otherwise we will ship under our account and you will pay all related freight, insurance, and other shipping expenses. As used in this Agreement, the term FCA will be construed in accordance with the International Commercial Terms, ‘Incoterms’ (published 2012).

2.4.2 Application Software Products

Where a Purchase Order for purchase of Application Software Products is accepted, Sinefa will enable access to the Application Software Products.   

2.5 Payment

Unless otherwise agreed to in writing, Distributor must pay to Sinefa the Purchase Price in Australian dollars, comprising:

a)      the Subscription Price, within 7 days of the date of the Invoice or within such other time period set out in the Invoice;

b)     where Hardware Products are purchased, the Hardware Price, at the time Distributor submits a Purchase Order.

 The Subscription Price will be invoiced on the 1st day of each month. Hardware Products will be shipped, and access to Application Software Products will be granted, only upon receipt of full payment in accordance with this clause 2.5, unless alternative payment terms have been agreed to in writing by Sinefa. 

Sinefa may request that the Distributor provide evaluation of any Product for a free trial period.

2.6. Taxes

The amounts payable to Sinefa under this Agreement do not include any taxes, customs duties or tariffs. All payments made by Distributor to Sinefa are payable in full without reduction for any such taxes, customs duties or tariffs. Distributor is responsible for and will indemnify Sinefa against any such taxes, customs duties and tariffs assessed against Sinefa (with the exception of any income tax), based on payments to Sinefa hereunder or on the use or possession by Distributor, Authorised Reseller or End Customer of Products. 

2.7 End Customer Pricing and Payment

You will independently set your own pricing to each Authorised Reseller. You bear all risk of non-payment by Authorised Resellers, and you are solely responsible for all of your costs and expenses. You may not terminate a Purchase Order or receive any refunds due to non-payment by an Authorised Reseller. If Sinefa provides any refund to an End Customer under our standard warranty policy, Sinefa, at its option, will refund the applicable amounts either directly to the End Customer or to you for distribution to the Authorised Reseller and End Customer, as applicable. You agree to cooperate with Sinefa in connection with any such refund.

3. DISTRIBUTOR’S OBLIGATIONS AND RESTRICTION

3.1. Sinefa EULA

All use of the Products by End Customers is subject to the Sinefa EULA, and you may not purport to impose any other terms pertaining to their use of the Products.

3.2 Enforcement and defect cooperation

You agree to immediately notify us of: (i) any known or suspected breach of the Sinefa EULA or other unauthorised use of the Products and to assist us in the enforcement of the terms of the Sinefa EULA; (ii) any suspected or actual defects or safety problems with respect to the Products; and (iii) any sale or export of the Products outside of the Territory by an Authorised Reseller.

3.3 Marketing

Subject to the license and the restrictions in clause 5, Distributor will market the Products only under the Trademarks. Distributor will not publish or use or co-operate in the publication or use of, any misleading or deceptive advertising material with regard to Sinefa, its suppliers or the Products. Distributor must only use descriptions of the Products approved by Sinefa in any marketing material used by Distributor to promote the Products. Upon receiving a written request from Sinefa, Distributor must immediately withdraw, retract or publish a correction in relation to any unapproved advertising or marketing material relating to Sinefa, its suppliers or the Products.

3.4 Training and Sinefa policies

Distributor will comply: (i) as soon as practicable with any and all training requirements with respect to the Products that Sinefa may require from time to time via written notice; and (ii) with all policies and procedures of Sinefa relating to sale and marketing of the Products, as notified by Sinefa from time to time (including information provided by Sinefa to the Distributor as part of the Distributor welcome pack provided after acceptance of the Distributor Application). Distributor will use its best endeavours to have the Authorised Resellers complete training via Sinefa’s online training facility.

3.5 Independent contractor status.

Distributor is an independent Distributor of the Products. Distributor is not and will not be considered a legal representative of Sinefa for any purpose and, accordingly, will have no power or authority, expressed or implied, to make any commitment or incur any obligations on behalf of Sinefa.

3.6. Compliance with Laws, including Anti-Corruption Laws.

In connection with the resale of the Products in the Territory, Distributor will comply with all country, federal, state and local laws, ordinances, codes, regulations, rules, policies, licensing requirements, regulations and procedures, including, without limitation, such laws and regulations related to recycling or take-back programs for packaging, resale or use of Products, the use of Products under telecommunications laws/regulations, and all applicable anti-corruption laws.

4. WARRANTY, LIMITATION OF LIABILITY AND INDEMNITY

4.1 Warranty Disclaimer

Sinefa makes warranties directly to its End Customers pursuant to the Sinefa EULA. Distributor will not make any representations, warranties, or any other commitments regarding Sinefa or the Products. Sinefa will not be responsible for any representation, warranties, or other commitments made by Distributor without Sinefa’s prior written consent. To the extent permitted by law: (i) Sinefa’s entire responsibility to the Distributor with respect to warranties is to the extent required to grant the Distributor the right to pass to the Authorised Reseller and End Customer the benefit of any warranties in the Sinefa EULA; and (ii) Sinefa makes no other warranties, express or implied, regarding the Products.

4.2 Consequential loss

To the extent permitted by law, Sinefa will not be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), whether in contract, tort or otherwise.

4.3   Liability cap

To the fullest extent permitted by law, Sinefa’s entire liability to Distributor under this Agreement will be limited to the: (i) re-supply of the Product; or (ii) refund of any amounts paid to Sinefa in respect of the Product.

4.4   Indemnity

You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products, except to the extent Sinefa is liable to an End Customer under the Sinefa EULA. You will indemnify, hold harmless and (at Sinefa’s option) defend Sinefa from and against any claim, loss, cost, liability or damage, including legal fees, for which Sinefa becomes liable arising from or relating to: (i) any breach or alleged breach by you of any term of this Agreement; (ii) the issuance by you of any warranty or representation regarding Sinefa or its Products not specifically authorised by Sinefa by prior written consent; or (iii) any of your other acts or omissions in connection with the marketing or resale of the Products under this Agreement.  For the avoidance of doubt, the indemnification under this clause relates to the actions of Distributor and not the actions of third parties.

5. INTELLECTUAL PROPERTY

5.1. License to Trademarks

Subject to Distributor’s compliance with this Agreement, Sinefa hereby grants to Distributor a royalty-free license to use the Trademarks during the Term solely in connection with the marketing and promotion of the Products as contemplated in this Agreement. The license granted hereunder shall be revocable at will by Sinefa effective upon notice to Distributor.

5.2. Ownership of Trademarks

The Trademarks provided by Sinefa are and will remain the sole property of Sinefa, and Sinefa reserves all rights in trademarks, trade names and logos not expressly granted to Distributor under the terms of this Agreement. Distributor will not register any domain name, trade name, or corporate name containing or comprising any of the Trademarks or anything that would cause confusion in the marketplace, and will not remove or efface any of the Trademarks on any Products sold by Distributor. Distributor will not contest the validity of any of the Trademarks or Sinefa’s exclusive ownership of the Trademarks.

5.3. Other Intellectual Property

As between the parties, Sinefa owns all right, title, and interest in and to all intellectual property in or relating to the Products and, no rights to such intellectual property are granted to Distributor, except as expressly provided in this Agreement. The Hardware Products may only be used with Application Software Products provided by Sinefa. Distributor will not and will not permit any third party to: (i) modify, duplicate, disassemble, or attempt to reverse engineer the Products; (ii) remove or erase the software from the Products, or otherwise try to disable or alter the Application Software Products functionality; or (iii) load any other software onto the Products. Products offered for sale and are sold by Sinefa subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, modify, duplicate, or otherwise copy or reproduce any Product or component thereof.

5.4. Protection of Proprietary Rights

If Distributor becomes aware that any third party is infringing or misappropriating any intellectual property in or relating to any Product (including the Trademarks), then Distributor must promptly notify Sinefa in writing and cooperate with and assist Sinefa, at Sinefa’s expense, in the protection of such intellectual property. 

6. TERM AND TERMINATION

6.1. Term

This Agreement will commence in force on the Effective Date and will remain in force until terminated under this clause 6.

6.2 Termination for Convenience

Either party may terminate this Agreement upon 30 days’ prior written notice to the other party.

6.3 Termination for Cause

Either party may terminate this Agreement immediately if the other party breaches a term of this Agreement, and the breaching party fails to cure the breach within 15 days of receipt of written notice thereof. In addition, either party may immediately terminate this Agreement upon: (i) the insolvency of the other party; (ii) the institution of any proceeding in relation to the credit standing of the other party, such as bankruptcy, reorganisation, rehabilitation or composition, by or against the other party; or (iii) the appointment of any receiver or trustee for the other party.

6.4. Effect of Termination

Termination of this Agreement will not release any party either from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination. Upon termination of this Agreement, each party will return (or destroy) any Confidential Information of the other party in its possession. The following provisions of this Agreement will survive any termination of the Agreement: clause 1, clause 4, clause 5, clause 6.4 and clause 7.

7. MISCELLANEOUS

7.1 Confidentiality

Confidential Information provided directly or indirectly by one party (the ‘Disclosing Party’) to the other party (the ‘Receiving Party’), will be kept confidential by the Receiving Party and may not be used, except as necessary in the performance of the Receiving Party’s obligations under this Agreement or otherwise in connection with the marketing, sale, deployment, operation, or maintenance of the Products. The Receiving Party agrees to limit access to the Confidential Information to those of its employees or contractors as are reasonably required for the purpose of performing the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products and will ensure that each such employee or contractor is subject to an agreement with the Receiving Party with respect to third party confidential information substantially as protective of the Disclosing Party’s Confidential Information as the provisions of this Section 7.1. Notwithstanding the foregoing, Confidential Information does not include any information that the Receiving Party can verify based on its written records was (a) already lawfully in the Receiving Party's possession without confidentiality obligations prior to receiving it from the Disclosing Party, (b) independently received from a third party without an accompanying duty of confidentiality and without breach of such third party’s obligations of confidentiality, (c) becomes available in the public domain through no action or inaction of the Receiving Party, or (d) developed independently by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information. If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy.

7.2 Entire agreement

This Agreement, together with the terms and conditions set out in Sinefa’s acceptance of your Distributor Application, constitutes the entire agreement between Sinefa and the Distributor with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings, and arrangements, oral or written, between Sinefa and Distributor. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement have been made either by Sinefa or Distributor which is not expressly set forth in this Agreement.

7.3 Notices

All notices required or permitted under this Agreement will be in writing, including notices sent by email, and will be deemed received by Distributor: (a) for email notices, upon the time the email enters the information processing system that the recipient has designated or uses for the purposes of receiving email (as provided below); or (b) for mailed notices, one day after deposit with a commercial express courier specifying next day delivery, or two days for international courier packages specifying two-day delivery, with written verification of receipt by the courier. All notices to Distributor will be sent to the email address provided under clause 7.4 or for mailed notices to the Distributor’s address provided at the time of application. All notices to Sinefa will be sent to the address provided in the definition of ‘Sinefa’ in clause 1 of this Agreement or to sales@sinefa.com.

 7.4 Electronic Notice

Distributor hereby consents to receiving any notice(s) required under this Agreement by electronic mail (email). Distributor acknowledges that legal notices such as notices of termination or non-renewal, changes in pricing, software license terms, policies or programs may be given by email. Distributor will provide an email address of a person authorised by Distributor to accept such notices either at the time of application or after receipt of an approval notice by sending such information, including any additional or alternative email addresses to Sinefa by email to sales@sinefa.com. Notices from Sinefa to Distributor will be deemed effective when sent to Distributor’s email address(es) provided to Sinefa under this Section 7.4.

7.5 Force Majeure

Neither Distributor nor Sinefa will be liable under this Agreement by reason of any failure or delay in the performance of its obligations (except for payment obligations) on account of strikes (other than strikes of a party’s own employees), riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labour conditions (other than with respect to a party’s own employees), earthquakes, material shortages, or any other causes that are beyond the reasonable control of such party so long as the parties use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.

7.6 Governing Law

This Agreement is governed by the laws of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this Agreement.

7.7 Severability

Any provision of, or the application of any provision of this Agreement, which is prohibited, void, illegal or unenforceable in any jurisdiction: (i) is, in that jurisdiction, ineffective only to the extent to which it is void, illegal, unenforceable or prohibited; (ii) does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of this Agreement in that or any other jurisdiction; and (iii) is severable from this Agreement and will not affect the remaining provisions of this Agreement.

The application of this clause 7.7 is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.

7.8 Waiver

No failure or delay by you or by us to exercise any right under this Agreement will constitute a waiver of that right.

7.9 Assignment

Sinefa may assign, in whole or in part, any of its rights under this Agreement upon written notice to the Distributor. The Distributor cannot assign any of its rights under this Agreement, in whole or in part, without the prior written consent of Sinefa.

7.10 Amendment to terms

From time to time, we may modify this Agreement. The version of this Agreement in place at the time you submit each Purchase Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication.

7.11 Dispute Resolution Process

If a dispute arises between the parties in respect of or in connection with this Agreement (including the validity, breach or termination of it), then without prejudice to any other right or entitlement they may have pursuant to this Agreement or otherwise, the parties will explore whether the dispute can be resolved by agreement between them using informal dispute resolution techniques such as negotiation, mediation, independent expert appraisal or any other alternative dispute resolution technique. The rules governing any such technique adopted may be as agreed between the parties or, if the parties are unable to agree on a technique, such technique as is recommended by the Law Society of Victoria, Australia or as selected by the Australian Commercial Disputes Centre. If the dispute is not resolved by agreement within thirty (30) days of written notice by one party to the other of the dispute (or such further period agreed in writing between the parties), either party may refer the dispute to the courts.