Draft
Format of Reseller Agreement
THIS RESELLER
AGREEMENT is
made this _________ day of ________, 20__ BETWEEN ABC Technologies Ltd., a
Company incorporated in India and having its registered office at
_______________ (hereinafter called “ABC” which expression shall where the
context so admits include its successors-in-title and assigns) of the ONE PART;
AND XYZ & Co., a Firm registered in India and having its place of business
office at _____________ (hereinafter called “THE SELLER” which expression shall
where the context so admits include its successors in title and assigns) of the
OTHER PART.
WHEREAS ABC is a
communications company licensed inter alia as an Internet Service
Provider (“ISP”) by the _______________
AND WHEREAS the Reseller is
engaged inter alia in the sales and installations of telecommunications
services and equipment and has requested to be appointed as a reseller for
sale, installation and maintenance of ABC equipment/services subject to the
terms and conditions hereinafter appearing.
NOW THIS AGREEMENT
WITNESSES AS FOLLOWS
In this Agreement,
except otherwise stated the following terms shall have the meanings specified
hereunder.
1.1 “Restricted or
Confidential Information” means all corporate, technical, proprietary, business
practices, operational and other information of whatever kind relating to ABC’s
business whether in written or oral form or otherwise howsoever which is
directly or indirectly disclosed by ABC or its agents to the Reseller and which
is generally not available to the outside parties or in the public domain.
1.2 “Person” means
any artificial or natural person including corporation, partnership or other
entity or association.
1.3 “Standard
Operating Procedures” means ABC’s prescribed standards and specifications
regarding installation of systems including but not limited to fees, pricing,
stock distribution and inventory procedures, equipment requirements and specification.
1.4 “equipment”
include the device or hardware required to support the services provided by
ABC, which includes modems, transmitter satellite dish, transmitter cables,
receivers and related accessories.
1.5 “Product”
means the provision of Broadband, wireless and Satellite wireless and Internet
Services and equipment and any other service or device ABC may provide from
time to time.
1.6 “ABC BRAND”
means the Trade marks, patents, designs, logos, Brand names, know-how,
copyright and other intellectual property proprietary to ABC.
2.1 ABC hereby
appoints the Reseller as an independent contractor for the sales and
installation of ABC’s product subject to the terms and conditions of this Agreement.
2.2 Unless agreed
to in writing by ABC, the Reseller agrees not to offer for sale or use,
represent, be an owner of, or lend influence or assistance to any entity which
offers for sale or use in the territory, any products or service which are the same
or substantially similar to those offered by ABC.
2.3 ABC may from
time to time specify standard operating procedures to be followed by the Reseller.
3.1 ABC agrees it
will use reasonable commercial efforts to provide assistance in
products/services demonstrations along with training of the sales and
mechanical personnel of the Dealer.
3.2 ABC will
deliver the products paid for by the Reseller within a reasonable period from
the date of receipt of payment by the Reseller. The Reseller shall be solely
responsible for the cost of transportation of the ABC’s products.
3.3 ABC will
provide the Reseller with reasonable quantities of sales and promotional
material, operating manuals, report, forms, training materials to market the
products.
3.4 ABC will
inform the Reseller of any changes or review in the prices of ABC’s products,
services and technology.
4.1 The Reseller
represents that it is experienced in the use and operation of the product and
services to be purchased hereunder and will be primarily responsible for the
marketing, sales, installation and commissioning of the products and services
including collecting reactivation charges that ABC will charge a defaulting
customer.
4.2 The Reseller
shall at all times comply with the Guidelines issued by ABC and their update on
recommended sale price of the equipment, bandwidth charges, site survey,
installation, warranty and maintenance policies.
4.3 The Reseller
shall use its best efforts to meet and maintain the periodic sales target as
set by ABC.
4.4 The Reseller
shall provide ABC with its marketing plans, information, sales forecast, market
surveys, reports and any other data and information reasonably requested by ABC
from time to time which may be necessary for market development and sales
strategy.
4.5 The Reseller
shall not to incur any liability or bind ABC or otherwise make any commitments
or give any warranty, undertaking or representation, media advertisement either
by itself or on behalf of ABC with respect to ABC’s services or products except
as expressly authorized in writing by ABC.
4.6 The Reseller
shall not alter or permit alteration by its agents or any other person to the
products or the packaging thereof or otherwise determine or attempt to
determine the code etc in any manner whatsoever and hereby indemnify ABC for
any loss or damage caused to or suffered by ABC by reason of violation or non-observance
of the provision of this clause.
4.7 The Reseller
shall be required to purchase a complete demonstration unit, which will be used
for the sole purpose of marketing at the cost of `__________.
5.1 Payments for
all orders shall become due as specified in each invoice and shall be payable
by Bank drafts, Certified Cheque or cash in the name of ABC LIMITED or such
other name ABC may request in writing.
5.2 The Reseller’s
payment obligation shall be satisfied on the date funds from the Reseller are
credited in a bank account designated by ABC provided that ABC may at its
discretion charge financial and administrative charges in the event of late
payment and cancelled or dishonoured or stopped cheques etc.
5.3 ABC shall be
at liberty to accept or reject any order of its products and reserves the right
to limit the total amount of products delivered to the Reseller for which
payment to ABC by the Reseller remains outstanding at any given time.
5.4 Each party
hereto severally represents and warrant to the other party that as of the date
hereof:
5.4.1 It has all
requisite power, authority and approval required to enter into, execute and
deliver this Agreement and to perform fully its obligations hereunder.
5.4.2 It has all
the requisite power and authority to own, sell, purchase operate and carry on
its obligations under this Agreement.
5.4.3 It has
complied with all laws, regulations and other legal requirements in relation to
its performance under this Agreement and shall pay appropriate taxes to the relevant
authorities.
6.1 The Reseller
acknowledges that the ownership of and all rights in the trademarks, copyright,
patents and designs in regard to the information technology and as provided on
the internet including online information, website, data development materials,
updates, communications network, electronic commerce support services,
dedicated ports and customer base offered by ABC in terms of this Agreement
shall vest absolutely in ABC and the Dealer shall neither have nor shall assert
any claim thereon.
6.2 The use of
ABC’s name or trademark in conjunction with any Reseller sponsored activities
without the prior written consent of ABC is strictly prohibited.
6.3 The Reseller
shall not have and shall not assert any claim to any revenue generated by ABC
through the placement of advertisement and other materials at any media
including web, radio, television, newspaper the website as ABC may in its sole
discretion consider appropriate.
6.4 The Reseller
shall not copy, translate, modify, adapt, de-compile, and disassemble the
information without the prior consent in writing of ABC.
6.5 The
obligations of the parties under this Clause 7 shall subsist and survive the
expiration or termination of this Agreement.
7.1 The Reseller
shall bear the full risk of loss or damage to any of the products delivered to
it by ABC and ABC shall not in any circumstances be liable for any loss or
damage to the products where such loss or damage occurs after delivery to or
while in the custody of the Reseller
7.2 The cost of
delivery of the products to the Reseller’s premises shall be borne solely by
the Dealer. The cost shall include transportation and insurance. The Reseller
shall inform ABC in writing of any alleged goods in-transit loss or damage
within 48 hours from the date of delivery of the products to the Reseller. Failure
to comply with this provision shall be conclusive evidence that the products
were delivered in good order and condition and ABC shall not be liable for any
loss or damage.
7.3 ABC shall not
in any circumstances howsoever be liable for any fault, loss or damage of the
product after the delivery of the product except as provided in the product
warranty.
8.1 The Reseller
shall keep all restricted or confidential information, knowledge, data,
technical specification etc. provided by ABC in strict confidence and shall
disclose to its customers or its employees strictly on need to know basis and
with the objectives of promoting sales of the products. No such information
shall be disclosed by the Reseller howsoever to ABC’s competitor(s) or any
third party.
8.2 The Reseller
acknowledges and agrees that any unauthorized use or disclosure of the products
or any other items of information, data and the delivery material or any other
matter given to the Reseller may cause irreparable damage to ABC.
8.3 The Reseller
accepts full responsibility to prevent any unauthorized use or disclosure
restricted or confidential information and shall promptly notify ABC of any
unauthorized use and take at his expense all steps that are necessary to
recover the product or information and to prevent its subsequent unauthorized dissemination
including availing itself of action for seizure and injunctive relief. In the
event of the failure of the Reseller to take foregoing steps in timely and adequate
manner, ABC may take the said steps at the Reseller’s cost. The rights of ABC
and obligations of the Reseller herein are without prejudice to their other respective
rights and obligations.
8.4 In order to
protect the confidential information provided by ABC, the Reseller shall obtain
similar confidentiality undertakings from any employee, consultant or
sub-contractor to whom any confidential information is disclosed in terms of
this agreement and the disclosing party hereby irrevocably and unconditionally
indemnities the other party against any loss harm or damage which it may suffer
as a result of such disclosure.
8.5 Information
disclosed by ABC in any form, regarding business affairs, customers, markets,
finances, methods, technical concepts and documentation, pre-release products,
access numbers and passwords provided to the Reseller constitutes part of ABC
confidential information and shall not be disclosed by the Dealer save as herein
stated.
9.1 Neither party
shall be liable for failure to perform or delay in the performance of its
obligations hereunder caused by any circumstances beyond its reasonable
control, including but not limited to fire, war (whether embargoes, shortages
of motor vehicles, delays in transportation, inability to obtain supplies, any
act of federal, state or local government or any other civil or military authority,
industrial disputes, lockouts and strikes) power failures, viruses or any acts
amounting to force majeure, provided that if the period of default continues for
more than 60 days the other party shall be entitled to terminate the Agreement forthwith
by a notice in writing.
10.1 Either party
may terminate this agreement in provided 30 days prior notice in writing has
been given and the other party fails to carry out its responsibilities under
this Agreement, provided that the termination shall be without prejudice to any
right which may have accrued to either party as at the time of the termination.
10.2 In the event
of Clause 10.1 occurring, the Reseller shall within ten (10) days of the date
of termination of this Agreement return to ABC all its property including, but
not limited to inventory, merchandising materials and equipment, any and all
samples, promotional and advertising materials relating to ABC’s products and
services.
10.3 Upon
termination of this Agreement, the Reseller shall return to ABC all paper and
electronic materials and copies thereof and permanently delete from its
computer systems or media, the digital form or software or computer readable files
containing confidential information and ABC’s intellectual property received in
the performance of this Agreement.
11.1 In no event
shall ABC, its affiliates, employees, representatives or any other person
acting on behalf of ABC be liable for any consequential, indirect, special,
punitive, or incidental damages or lost profits, whether foreseeable or unforeseeable,
whatsoever, including but not limited to claims for loss of data, goodwill, use
of the services, interruption in use or availability of data, stoppage of other
work or impairment of other assets, loss or damage to property, any loss of
profit or business opportunity, whether any such damage occur during or after the
period of this Agreement.
12.1 Except as
expressly set forth in this agreement, abc does not make any representation or
warranty, express, implied or statutory, regarding any and all products, services,
content, equipment or facilities, including without limitation to warranties of
quality, performance, non-infringement, merchantability or fitness for a
particular purpose. nor are there any warranties created by a course of
dealing, course of performance or trade usage. abc does not guarantee that the operation
of internet portal(s), site(s), or server(s) or the performance of its online functions
and services will be error-free or uninterrupted or free from viruses or other
malignant data processes. abc does not guarantee that data submitted or held in
storage on or through its system associated with the internet will be secured
from unauthorised access.
13.1 It has been
mutually agreed between the parties that all differences and disputes arising during
the Agreement period regarding interpretation of contract shall be solved by
mutual discussions. In the event of differences or disputes remaining
unresolved, the same shall be referred for arbitration under the Arbitration
and Conciliation Act, 1996 or any statutory amendment thereto or any
re-enactment thereof for the time being in force and the Arbitrator decision shall
be final and binding on the parties.
13.2 It is
expressly agreed between the Parties that any legal action, suit or proceeding
arising out of or in any way relating to this Agreement shall be subject to the
exclusive jurisdiction of the courts at ____________.
14.1 All notices
requests or other communications given or required to be given under this
Agreement shall be in writing and shall be deemed to have been properly given
when delivered in person or when sent by e-mail, recorded delivery post, speed
post, postage prepaid registered air mail, or by facsimile (confirmed
subsequently by postage prepaid registered air mail) to the address set forth
hereunder. Service of any such notice shall be deemed complete on the date of
actual delivery. Either party may, by notice to the other party given in accordance
with this Section, change the contact details to which all future notices to
such party shall be mailed.
15.1 The Reseller
shall not assign or transfer its benefits and obligations under this Agreement
in part or in whole without the prior written consent of ABC.
16.1 This
Agreement together with the Annexures attached hereto and made integral part of
this Agreement constitute the entire agreement between ABC and the Dealer with
respect to the subject matter hereof and supersedes all prior agreements
between them with respect thereto. Headings to the paragraphs of this Agreement
are solely for convenience and are not intended for interpretation or construction
of this Agreement.
17.1 This
Agreement may not be altered or amended except by a written agreement duly
executed by the parties hereto.
18.1 The
provisions of this Agreement shall be binding on the parties and their
respective successors and assigns, subject, however, to the provisions regarding
assignment hereinabove set forth.
19.1 In the event
that any provision or any portion of any provision contained in this Agreement
is unenforceable, the remaining portion of such provision shall nevertheless be
carried into effect.
20.1 The failure
of either party to enforce at any time or for any period of time the provisions
of this Agreement shall not be construed as a waiver of such provision or of
the right of such party thereafter to enforce each and every such provision of
this Agreement.
21.1 This
Agreement shall be construed, interpreted and shall take effect in accordance
with the Laws of India.
IN WITNESS WHEREOF
the
parties have caused their Common Seals (now optional) to be hereunto affixed
this day and year first above written.
For and on behalf
of ABC For
and on behalf the RESELLER
Name : ____________
Name
: ____________
Position :
____________ Position
: ____________
Signature :
____________ Signature
: ____________
Date : ____________ Date
: ____________
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