Draft Format of Reseller Agreement

 Draft-Format-Reseller-Agreement

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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Agreement For Appointment of Sole Selling Agent

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