| Whereas: |
Company is engaged in the business of providing Emotional & Artificial Intelligence Solutions, Value Added Services [International Push/Pull SMS Services, Cloud Telephony & IVR Services] and other IT Related Services/Solutions, Cyber Security solutions etc. (“Company Service”) to its Clients;Reseller Partner would like to solicit and introduce End Customer(s) to Company for provision of Company Service for Reseller Partner Customer(s) (hereinafter referred to as “Reseller Partner Customer Accounts”);Reseller Partner has approached Company to be appointed as Company’s representative on a non-exclusive basis to solicit new Customer(s) for Company Service, and Company has agreed to such non-exclusive appointment of Reseller Partner as Company’s representative for the said purpose only. |
| Minimum Sales Level |
Means the minimal expected sales amount of INR ________ in each period of four Quarters. It is clarified that should Reseller Partner miss the Minimum Sales Level, it will NOT be requested to pay the remaining sums, However Reseller Partner will be determined according to actual sales level achieved and assessed for performance for a continued business association. |
| Price List |
Means list of recommended prices for the Products, training, support etc. as detailed and updated from time to time. (The Price List may list either absolute prices or formulas, or references to formulas, by which the relevant prices may be calculated.) |
| Responsibilities of the Parties |
At no time during the term of this Agreement will Reseller Partner in any other way bind or attempt to bind Company.Reseller Partner shall pass the details of potential Customer(s) to Company, at the time of approaching customer [before initial contact], and will start liaising with the identified Prospective Customer(s) after the confirmation received from the Company for moving ahead and help for the closure of agreement between Company and such Customer(s). |
| Scope of the License |
For the scope of the License for Emotional and Artificial Intelligence Solution, the details are as per below:The license is given to resell the services. The License specifically (but not exhaustively) excludes the following (the “Prohibited Acts”) regarding the Products or the Technology· Use by Reseller Partner itself in any way except for demonstration and training purposes;· Copy and/or reproduction of a Product; or· Use in any form of media for mass consumption, including but not limited to, sport shows, entertainment programs and television shows.· a Reseller Partner may not appoint sub-resellers of his own.· The Reseller Partner shall abide according to the marketing guidelines and market positioning of Company and Company’s OEM for the relevant Products.· No professional Product will be offered to any End Customer without training, even for a limited time. Any violation of this sub-section will constitute a fundamental breach of this Agreement.· Where Reseller Partner has introduced a potential Customer to Company, for as long as Reseller Partner is in material compliance with the terms of this Agreement, conducts his business in fairness and provide timely support and service to his Customers, Company will not directly approach such potential Customer/s, thus circumventing Reseller Partner. However, it is clarified that Company despite its efforts cannot always prevent other partners from approaching the said potential Customer. All such leads shall be registered with the OEM’s/Company CRM and protected for a period of 6 months from the date of first contact.· Unapproved, inaccurate or not registered lead’s orders will not be accepted. Reseller Partner will discontinue immediately any transaction or business discussion with any lead or potential customer not approved by Company. Any violation of this sub-section will constitute a fundamental breach of this Agreement.· Reseller Partner will not use, promote, market or resell any Competing Products throughout the term of this License. Any violation of this sub-section will constitute a fundamental breach of this agreement and License allowing Company to exercise its section· Reseller Partner shall provide the 1st level support to its Customers (“Basic Support”). For the provision of the Basic Support, Licensee will be trained and regularly updated by Company.· Company shall provide advanced technical support to Reseller Partner, if Basic Support is not enough to the Customer in the service period under extended service agreement to be signed with the Customer. |
| Renumeration: |
Company shall offer a discount on the Price List to Reseller Partner (the “Fee” or “Fees”), during the first two years or term of the contract less (i) returns and (ii) any taxes, (iii) TDS or any statutory taxes etc. relating to the sale as set forth in Schedule A, for each new customer and/or purchaser (a “Referred Customer”) of eligible Company products and services (collectively, “Service(s)”) to whom the Reseller Partner introduces to Company and/or plays a material role in obtaining pursuant to the terms of this Agreement (each, a “Referred Customer” or “Customer”), where the new Referred Customer executes a new contract for Company’s Service within Six (06) months of such engagement.Reseller Partner will be solely responsible for its own expenses, and those of its employees, including but not limited to, all expenses incurred in the promotion, demonstration, installation, and/or marketing of the said Services and participation in the Program.The Reseller Partner’s role shall be deemed “material” if the Reseller Partner provides direct liason & support. An example of “direct support” is where the Reseller Partner successfully advocates on behalf of Company with the Referred Customer and helps in the complete life pre/post management of the sales cycle.An account is deemed to be “won” at the time Company is paid by the Customer, pursuant to a new, valid, executed contract entered into by the Customer with Company directly.For the purposes of clarity, Company shall be obligated to pay the Fee to the Reseller Partner for a specific Referred Customer if, and only if, the Service or Services ordered by such Referred Customer have been installed, activated, accepted and paid for by the Referred Customer. In addition, Company will not owe Reseller Partner any Reseller Fees whatsoever under this Agreement in connection with any prospective Customers who have previously entered into agreements with Company and/or who are already active prospect(s) at the time of the Reseller by Reseller Partner.For any customized commercials offered for any Solution to Reseller Partner’s Customer(s), the remuneration shall be decided on a case to case basis. All email communications between the Reseller Partner and the Company shall prevail and supersede the remuneration mentioned in this agreement. |
| Dispute Resolution: |
Attribution determinations shall be made by Company in good faith in its sole discretion within fifteen (15) days of winning an account. Company and Reseller Partner will exercise reasonably good faith efforts to resolve any dispute amicably.
If a dispute cannot be resolved in the aforesaid manner, then in such an event, such disputes shall be submitted to final and binding arbitration at the request of either Party upon written notice to that effect to the other Party. In the event of such arbitration:
Such arbitration shall be in accordance with the rules of the Arbitration and Reconciliation Act, 1996 and any amendments thereof (which is deemed to be incorporated in this Agreement by reference). All proceedings of such arbitration shall be in the English language. The venue of arbitration shall be New Delhi.Arbitration awards rendered shall be final and binding and. The losing Party, as determined by arbitrators, shall pay all reasonable out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees) incurred by the prevailing Party, as determined by the arbitrators, in connection with any dispute unless the arbitrators direct otherwise. |
| Restrictions: |
The relationship between the parties shall at all times be that of independent contractors. No employment, partnership or joint venture relationship is formed by this Reseller agreement and at no time may the Reseller Party position itself as affiliated to Company, except as an independent referrer. In view of this independent relationship, the Reseller Partner shall not enter into any agreements on behalf of Company, shall make no warranty either expressed or implied on behalf of Company, and shall not incur any expenses on behalf of Company without pre-approval in writing from Company.This is a non-exclusive Agreement. This Reseller agreement does not grant exclusive rights to the Reseller Partner to act as a referrer on behalf of Company and the Reseller Partner shall have no rights under any other agreements entered into by Company with other Reseller Partners. |
| Termination: |
Either party may terminate this Reseller Partner Agreement at any time by giving the other party ten (60) days prior written notice. After the termination of the agreement, Company will continue to pay “Fees” earned prior to termination in accordance with the terms of Schedule A. |
| Liability: |
Company’s liability under the Agreement shall be limited to Fees payable based on earned commissions, and Company will not be responsible in any manner whatsoever for any indirect or consequential damages, including but not limited to, any lost profits or revenues on the part of the Reseller Partner. This clause shall survive the termination or expiration of the Agreement. |
| Confidentiality: |
The Reseller Partner agrees not to disclose any confidential information pertaining to Company’s goods or services nor that of prospective or existing customers to any third party. The Reseller Partner may do follow-up enquiries with its referred customers to confirm their purchase and to gather feedback about their experience with Company’s goods or services as supplied.1. Both parties shall maintain strict confidentiality of the Confidential Information.2. Confidential Information may be disclosed only where the disclosing party can prove that such Confidential Information:a. is required to be disclosed in the fulfillment of its obligations under this Agreement; orb. has come into the public domain otherwise than through an act or omission of the disclosing party; orc. was already known to the disclosing party at the time of disclosure otherwise by an unauthorized disclosure by a third party; ord. is required to be disclosed by law, order of court, the requirements of any regulatory authority or taxation authority or the rules of any stock exchange; ore. is disclosed by the disclosing party pursuant to the prior written consent of the other party to do so. |
| Miscellaneous: |
This Agreement (including the Schedule attached below) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of India. |
| Indemnification |
Reseller Partner shall fully indemnify Company for any loss and/or damage, of any type whatsoever, including claims and/or demands by third parties including Customers, resulting from and/or related to Reseller Partner’s breach of any of its undertakings under this Agreement, as well as for any loss and/or damage, of any type whatsoever, including claims and/or demands by third parties, resulting from and/or related to Reseller Partner’s acts and/or omissions in connection to this Agreement.It is hereby acknowledged by Reseller Partner that the Products and the Technology are provided “AS IS”, without warranty of any kind, either express or implied, including but without limitation, any implied warranties of merchantability or suitability for a particular purpose. It is further acknowledged by Reseller Partner that voice analysis, by its nature, is sensitive to circumstantial events and hardware limitations, and the analysis results cannot be guaranteed in any particular case.Company, its directors, shareholders and employees, shall not be liable for any loss of profits, goodwill, damage to reputation or any type of indirect or consequential loss or damages in respect of any claim resulting from and/or related to the Products and/or Technology, including without limitation claims regarding breach of contractual obligations under this Agreement, claims resulting from negligence, misrepresentation or any other tort, or for loss or damages suffered by Reseller Partner as a result of an action brought by a third party, or for legal fees in connection with such claims.Company shall, at its own expense, defend, or at its option settle, any action instituted against Reseller Partner, and pay any award or damages assessed against Reseller Partner or agreed by Company to be paid in settlement resulting from such action, insofar as the same is based upon a claim that the Technology or a Product infringes any third party’s intellectual property rights provided that Reseller Partner gives Company: (i) prompt notice in writing of such action, (ii) the right to control and direct the investigation, preparation, defense and settlement of the action; and (iii) reasonable assistance and information. If such an action is made Company shall have the option to (i) obtain the right for Reseller Partner to continue use of the relevant Technology or a Product; or (ii) replace or modify the relevant Technology or a Product, so that it is no longer infringing but materially equivalent. If Company determines that neither of these alternatives is reasonably available, Company shall have the option to cease licensing the Technology or Product to Reseller Partner. Notwithstanding the foregoing, Company shall have no liability if the alleged infringement arises (i) from use of the relevant Technology or Product in an abnormal way or otherwise than as instructed by Company, or(ii) from the combination of the relevant Technology or Product with other material, if such infringement would have been avoided but for such combination |
| Entire Agreement |
This Agreement sets forth the entire agreement and understanding between the parties and incorporates all prior discussion between them. |
| Partial Invalidity |
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. Company Partner and Company agree to renegotiate in good faith any term held invalid and to be bound by mutually agreed similar substitute provision. |
| Waiver |
The failure of either party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect until modified by both parties in writing. |
| Force Majeure |
Neither party will be responsible for any delay, interruption or other failure to perform this Agreement due to acts beyond the control of the party in default. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; explosion and fires; embargoes, strikes, and labour disputes; governmental decrees; and any other cause beyond the reasonable control of a party. |
