SUBJECT TO SINEFA NOTIFYING YOU OF ITS ACCEPTANCE OF YOUR RESELLER APPLICATION, THIS RESELLER AGREEMENT (AGREEMENT) FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND SINEFA PTY LTD (SINEFA) AND ACCEPTANCE BY YOU OF THE TERMS OF THIS AGREEMENT IS A CONDITION TO ACCEPTANCE OF YOUR RESELLER 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 RESELLER APPLICATION) REPRESENT TO US THAT YOU REVIEWED THE TERMS OF THIS AGREEMENT, HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE RESELLER, AND THAT THE RESELLER 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 RESELLER UPON SINEFA NOTIFYING YOU OF ITS ACCEPTANCE OF YOUR RESELLER APPLICATION.
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.
‘Confidential Information’ means all 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 Reseller in the course of its performance of this Agreement.
‘Effective Date’ means the date on which Sinefa provides written notice of its acceptance of your Reseller 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 Products’ means those Products which are hardware products and physical devices, such as the Sinefa Probe.
‘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 Reseller Price List.
‘Purchase Order’ means a purchase order for Products in a form specified by Sinefa duly completed and submitted by you to Sinefa through Sinefa’s website.
‘Purchase Price’ means the aggregate price of any purchase order submitted to us taking into account the pricing specified in clause 2.2.
‘Reseller, ‘you’, ‘your’ and ‘yours’ means the company, person or other entity submitting the Reseller Application.
‘Reseller Application’ means the application to become a Sinefa reseller on the terms of this Agreement submitted by you online through Sinefa’s website.
‘Reseller Price List’ means the list of products, SKU’s, and corresponding pricing available through Sinefa’s website or requested via firstname.lastname@example.org.
‘Sinefa’ ‘we’, ‘us’ and ‘our’ means Sinefa Pty Ltd, a company incorporated in Victoria, Australia with offices at Unit 9, 79 Manningham Rd, Bulleen, VIC, 3105, Australia.
‘Sinefa EULA’ means the Sinefa End User Licence Agreement available at www.sinefa.com/eula.
‘Term’ means the term of this agreement as set out in clause 6.1.
‘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 reseller of the Products, and you accept such appointment. Nothing in this Agreement prevents us from: (i) appointing other resellers or distributors within the territory or territories in which you typically operate; (ii) marketing, selling, or distributing Products directly to End Customers; or (iii) maintaining direct sales channels for the marketing, selling and distribution of the Products. Reseller will not, directly or indirectly, without the prior written consent of Sinefa: (i) market, distribute or sell Products to third party resellers, agents or sales representatives for resale; or (ii) purchase Products from third party resellers, authorised distributors of Sinefa, agents or sales representatives for resale.
As a Reseller, you will be entitled to purchase the Products at the various prices listed on the Reseller Price List. Resellers 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 Reseller Price List. Any changes to the prices on the Reseller 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. 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 End Customer 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).
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 created, Sinefa will enable access for you or the End Customer, as applicable, to the Application Software Products.
Unless otherwise agreed to in writing, you will pay the Purchase Price to us at time you submit a Purchase Order. All orders will be processed when received. Hardware Products will be shipped and access given to Application Software Products only upon receipt of full payment unless alternative payment terms have been agreed to in writing by Sinefa.
The amounts payable to Sinefa under this Agreement do not include any taxes, customs duties or tariffs. All payments made by Reseller to Sinefa are payable in full without reduction for any such taxes, customs duties or tariffs. Reseller is responsible for and will indemnify Sinefa against any such taxes, customs duties and tariffs assessed against Sinefa, based on payments to Sinefa hereunder or on the use or possession by Reseller or End Customer of Products.
2.7 End Customer Pricing and Payment
You will independently set your own pricing to each End Customer. You bear all risk of non-payment by End Customers, 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 End Customer. 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 End Customer. You agree to cooperate with Sinefa in connection with any such refund.
3. RESELLER’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; and (ii) any suspected or actual defects or safety problems with respect to the Products.
Subject to the license and the restrictions in clause 5, Reseller will market the Products only under the Trademarks. Reseller 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. Reseller must only use descriptions of the Products approved by Sinefa in any marketing material used by Reseller to promote the Products.
3.4 Training and Sinefa policies
Reseller 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 Reseller as part of the Reseller welcome pack provided after acceptance of the Reseller Application).
3.5 Independent contractor status.
Reseller is an independent reseller of the Products. Reseller 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, Reseller 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, LIMITIATION OF LIABILITY AND INDEMNITY
4.1 Warranty Disclaimer
Sinefa makes warranties directly to its End Customers pursuant to the Sinefa EULA. Reseller 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 Reseller without Sinefa’s prior written consent. To the extent permitted by law: (i) Sinefa’s entire responsibility to the Reseller with respect to warranties is to the extent required to grant the Reseller the right to pass to the 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 Reseller 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.
You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products. 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.
5. INTELLECTUAL PROPERTY
5.1. License to Trademarks
Subject to Reseller’s compliance with this Agreement, Sinefa hereby grants to Reseller 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 Reseller.
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 Reseller under the terms of this Agreement. Reseller 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 Reseller. Reseller 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 Reseller, except as expressly provided in this Agreement. The Hardware Products may only be used with Application Software Products provided by Sinefa. Reseller 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 Reseller becomes aware that any third party is infringing or misappropriating any intellectual property in or relating to any Product (including the Trademarks), then Reseller 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
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 part; 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.
Any and all non-public information provided directly or indirectly by one party (the ‘Disclosing Party’) to the other party (the ‘Receiving Party’) related to the business or technology of the Disclosing Party (collectively, ‘Confidential Information’), 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 8.1. 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 Reseller Application, constitutes the entire agreement between Sinefa and the Reseller with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings, and arrangements, oral or written, between Sinefa and Reseller. 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 Reseller which is not expressly set forth in this Agreement.
All notices required or permitted under this Agreement will be in writing, including notices sent by email, and will be deemed received by Reseller: (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 Reseller will be sent to the email address provided under clause 7.4 or for mailed notices to the Reseller’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 email@example.com.
7.4 Electronic Notice
Reseller hereby consents to receiving any notice(s) required under this Agreement by electronic mail (email). Reseller 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. Reseller will provide an email address of a person authorised by Reseller 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 firstname.lastname@example.org. Notices from Sinefa to Reseller will be deemed effective when sent to Reseller’s email address(es) provided to Sinefa under this Section 8.4.
7.5 Force Majeure
Neither Reseller 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.
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.
No failure or delay by you or by us to exercise any right under this Agreement will constitute a waiver of that right.
Sinefa may assign, in whole or in part, any of its rights under this Agreement upon written notice to the Reseller. The Reseller 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.