1.1 These Software Products and Services Reseller Terms apply between:
(a) North Atlantic Holdings Pty Ltd ACN 072 306 533, ABN 29 072 306 533, trading as DHRP, of Suite 1, Level 1, 530 Little Collins Street, Melbourne, Victoria 3000 (Supplier); and
(b) each person approved by the Supplier to market, promote, resell, renew, support, facilitate access to, or otherwise deal with Products or Services as a reseller (Reseller).
1.2 A person becomes bound as a Reseller in accordance with clause 29. The Supplier and the Reseller are each a Party and together the Parties.
1.3 A person must not act as a Reseller, represent any connection with the Supplier, market or resell Products or Services, access Supplier Systems, or use Supplier Materials unless approved by the Supplier.
1.4 Reseller approval is non-exclusive, limited, and subject to this Agreement. It does not create authority, agency, franchise, protected territory, customer ownership, margin, commission, goodwill, renewal rights, or compensation rights, except as expressly stated in this Agreement or required by law.
1.5 Any reseller-specific, transaction-specific, or product-specific term applies only to the extent stated in a Quote, Accepted Order, reseller approval, onboarding document, Special Conditions, or other written approval issued or approved by the Supplier, and only in accordance with clause 27.
2.1 The Supplier supplies or facilitates access to software products and software-related services, including software licences, SaaS products, hosted access, Subscriptions, maintenance, support, implementation, configuration, training, managed services, and professional services.
2.2 Products and Services may be owned, developed, licensed, hosted, supported, maintained, or controlled by the Supplier, Vendors, or their licensors.
2.3 The Reseller may deal with Products and Services only for approved End Users, in the Territory, and in accordance with this Agreement, the Applicable Transaction Documents, Vendor Terms, End User Terms, Supplier Policies, and applicable law.
2.4 The Reseller’s appointment and each transaction are subject to Supplier approval, Vendor requirements, End User Terms, availability, compliance checks, and the Applicable Transaction Documents.
3.1 In this Agreement, unless the context requires otherwise:
Accepted Order means an Order accepted by the Supplier under this Agreement.
Agreement means these Software Products and Services Reseller Terms and the documents forming part of them under clause 27.
Applicable Transaction Documents means, for a transaction, the documents and terms validly applying to that transaction under clause 27, including any applicable Quote, Accepted Order, Special Conditions, Vendor Terms, End User Terms, Supplier Policies, written approvals, portal rules, reseller requirements, or notices.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means a day other than a Saturday, Sunday, public holiday, or bank holiday in Victoria, Australia.
Confidential Information means information disclosed by or on behalf of a Party in connection with this Agreement that is confidential by nature or designation, including commercial, technical, pricing, customer, product, software, security, financial, legal, operational, Vendor, End User, support, licence, and system information.
Corporations Act means the Corporations Act 2001 (Cth).
Delivery means electronic delivery, licence-key delivery, download-link delivery, account provisioning, SaaS activation, Subscription activation, hosted-access enablement, or another electronic or access-based method by which Products or Services are made available.
Documentation means user guides, manuals, specifications, release notes, support materials, training materials, online materials, and other documents supplied or made available in connection with Products or Services.
Effective Date means the earliest date on which the Reseller accepts, signs, is approved under, places an Order under, receives access under, or begins reseller activities under this Agreement, unless another date is stated in an Applicable Transaction Document.
End User means any person to whom the Reseller markets, offers, resells, provides access to, supports, renews, or otherwise makes available Products or Services.
End User Terms means terms applying to an End User’s access to or use of Products or Services, including licence terms, SaaS terms, subscription terms, acceptable use policies, privacy terms, support terms, click-wrap terms, product terms, service terms, and other End User-facing terms notified by the Supplier or a Vendor.
Fees means all amounts payable by the Reseller to the Supplier under this Agreement, including Product fees, Service fees, Subscription fees, support fees, renewal fees, activation fees, provisioning fees, taxes, charges, and amounts stated in an Applicable Transaction Document.
Force Majeure Event has the meaning given in clause 23.2.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means any event where a Party becomes insolvent, enters liquidation, administration, receivership, bankruptcy, restructuring, compromise with creditors, or a similar process, or is unable to pay its debts as and when they fall due.
Intellectual Property Rights means all present and future rights in copyright, trademarks, business names, domain names, designs, patents, inventions, confidential information, trade secrets, know-how, software, databases, Source Code, object code, Documentation, moral rights, and similar proprietary rights, whether registered or unregistered, anywhere in the world.
Non-Public Technical Materials means non-public architecture, algorithms, data structures, models, workflows, databases, technical methods, development materials, build materials, deployment materials, security controls, non-public interfaces, technical specifications, configuration
materials, and other non-public technical materials relating to Products, Services, Software, Supplier Systems, Vendor Systems, or related technology.
Order means any request submitted by the Reseller to purchase, resell, renew, activate, access, or obtain Products or Services, including by purchase order, online order, written order, email, portal order, Quote acceptance, order form, or other approved ordering method.
Personal Information has the meaning given in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Products means software, licences, subscriptions, SaaS products, hosted software access, maintenance products, support products, and other software-related products approved by the Supplier in writing, listed in a Quote, stated in an Accepted Order, made available through an approved Supplier ordering process, or otherwise approved for resale by the Supplier.
Protected Materials means Supplier Materials, Vendor Materials, Documentation, Source Code, Non-Public Technical Materials, licence keys, activation codes, credentials, tokens, access details, technical information, security information, Confidential Information, and other non-public or proprietary materials made available under or in connection with this Agreement. Personal Information is dealt with under clause 15.
Quote means a written quotation, proposal, pricing document, order form, or other written statement issued by the Supplier setting out Products, Services, Fees, validity period, or other commercial terms for a proposed Order.
Reseller means a person approved by the Supplier to deal with Products or Services as a reseller under this Agreement.
Services means support, maintenance, implementation, configuration, consulting, professional services, managed services, training, or other software-related services supplied or made available under this Agreement or an Applicable Transaction Document.
Software means any software, application, platform, hosted software, SaaS product, object code, module, integration, Subscription, update, patch, release, related Documentation, and associated licence key supplied or made available under this Agreement.
Source Code means human-readable software code and scripts from which Software may be compiled, interpreted, modified, or developed, including related developer comments and source-level documentation.
Special Conditions means any reseller-specific, transaction-specific, or product-specific conditions approved or issued by the Supplier in writing.
Subscription means any fixed-term, recurring, renewable, SaaS, hosted-access, licence-term, support, maintenance, or usage-based entitlement supplied or made available under this Agreement.
Supplier means North Atlantic Holdings Pty Ltd ACN 072 306 533, ABN 29 072 306 533, trading as DHRP.
Supplier Materials means Documentation, marketing materials, technical materials, training materials, pricing materials, product information, proposals, templates, specifications, screenshots, diagrams, reports, data, Confidential Information, trademarks, logos, business names, product names, branding, and other materials supplied, created, owned, licensed, approved, or made available by or on behalf of the Supplier.
Supplier Policies means any one or more Supplier policies, procedures, portal rules, security requirements, ordering requirements, support processes, compliance requirements, reseller requirements, product requirements, or operational requirements that are reasonably accessible to the Reseller and validly notified, incorporated, or updated under this Agreement, subject to clauses 27 and 28.
Supplier Systems means any Supplier website, portal, platform, account, ordering system, support system, licence process, reseller system, integration, API, database, hosted environment, communication system, or other system made available by or through the Supplier.
Territory means the territory stated in a Quote, Accepted Order, reseller approval, onboarding document, written approval, portal rule, or other written notice issued or approved by the Supplier. If no Territory is stated, the Territory is Australia.
Vendor means any third-party software owner, licensor, SaaS provider, publisher, distributor, service provider, hosting provider, platform provider, or other third party whose products, services, licences, platforms, or terms are supplied, resold, accessed, or used under this Agreement.
Vendor Materials means Documentation, marketing materials, technical materials, training materials, product information, proposals, templates, specifications, screenshots, diagrams, reports, trademarks, logos, business names, product names, branding, and other materials supplied, created, owned, licensed, approved, or made available by or on behalf of a Vendor.
Vendor Systems means any Vendor website, portal, platform, account, ordering system, support system, licence process, integration, API, database, hosted environment, communication system, or other system made available by or through a Vendor.
Vendor Terms means any terms, licence agreements, SaaS terms, acceptable use policies, support terms, service terms, subscription terms, privacy terms, security terms, policies, or restrictions issued by a Vendor in relation to Products or Services, as updated by the Vendor or validly applied under this Agreement.
3.2 In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural, and the plural includes the singular;
(b) a reference to a person includes an individual, company, corporation, partnership, trust, association, government body, or other legal entity;
(c) a reference to a Party includes that Party’s successors and permitted assigns;
(d) a reference to legislation includes that legislation as amended, replaced, re-enacted, or consolidated;
(e) a reference to a document includes that document as amended, replaced, supplemented, or novated in accordance with this Agreement;
(f) including, includes, and for example do not limit the words that follow;
(g) headings do not affect interpretation;
(h) if documents forming this Agreement are inconsistent, clause 27 applies;
(i) an obligation not to do something includes an obligation not to permit, authorise, assist, procure, enable, or allow that thing to be done;
(j) written notice includes notice by email, portal notice, electronic notice, or another written communication method, where permitted under this Agreement;
(k) monetary amounts are in Australian dollars unless stated otherwise;
(l) this Agreement must not be interpreted against a Party merely because that Party, or its adviser, prepared or proposed it; and
(m) access to Software, Products, Services, Documentation, Supplier Materials, Supplier Systems, Vendor Materials, Vendor Systems, or Protected Materials does not imply ownership, transfer, assignment, title, unrestricted use, Source Code access, or any right beyond the rights expressly granted under this Agreement.
4.1 Subject to this Agreement, the Supplier appoints the Reseller as a non-exclusive reseller of approved Products and Services in the Territory.
4.2 The Reseller may market, promote, offer, resell, facilitate activation of, renew, and support Products and Services only:
(a) in the Territory;
(b) for Products and Services approved by the Supplier in writing, listed in a Quote, stated in an Accepted Order, or made available through an approved Supplier ordering process;
(c) in accordance with this Agreement and the Applicable Transaction Documents; and
(d) subject to any applicable Vendor approval, certification, training, customer, product, licence, channel, security, support, and compliance requirements.
4.3 The Reseller must not deal with any Product, Service, Vendor offering, Supplier Materials, Supplier Systems, Vendor Materials, Vendor Systems, or related item unless approved by the Supplier for the relevant resale, access, support, or use.
4.4 The Supplier may, acting reasonably, add, remove, suspend, withdraw, discontinue, substitute, modify, or restrict any Product or Service available for resale where reasonably necessary due to availability, Vendor requirements, supply rights, applicable law, security, sanctions, export control, privacy, cybersecurity, technical, operational, support, licensing, or compliance risk.
4.5 Where practicable, the Supplier must give reasonable notice of a material change under clause 4.4 and limit the change to the affected Product, Service, Vendor arrangement, End User segment, sales channel, support arrangement, licence type, Subscription, or Territory. The Supplier may act without prior notice where delay may create legal, regulatory, security, compliance, Vendor, operational, customer, licensing, or material commercial risk.
4.6 The Reseller must not, without the Supplier’s prior written approval:
(a) market, promote, offer, resell, licence, activate, renew, support, or make available Products or Services outside the Territory;
(b) accept Orders from End Users located outside the Territory;
(c) supply Products or Services where the Reseller knows, or ought reasonably to know, they will be used, resold, exported, transferred, accessed, or made available outside the Territory;
(d) use any third party to avoid Territory restrictions; or
(e) represent that it has rights in any territory not approved by the Supplier.
4.7 The Supplier may approve sales outside the Territory in writing, subject to Vendor approval, compliance checks, local-law requirements, taxes, pricing changes, support limits, licence restrictions, separate terms, or other reasonable conditions.
4.8 The Reseller is responsible for all legal and regulatory requirements applying to its reseller activities in the Territory, including the compliance obligations in clause 16.
4.9 No exclusivity, protected account, protected territory, preferred-reseller status, commission, margin, customer allocation, lead right, deal-registration right, renewal right, goodwill right, or similar right arises unless expressly approved by the Supplier in writing. No such right arises by conduct, sales history, customer introduction, marketing activity, negotiation, repeated acceptance of Orders, or continued reseller approval.
4.10 Unless expressly approved by the Supplier in writing, the Supplier may appoint other resellers or channel partners, sell directly or through other channels, deal with any customer or prospective customer, including customers introduced by the Reseller, and change its sales, distribution, pricing, product, service, support, reseller, or channel strategy.
4.11 The Reseller may supply, promote, or resell products and services of other suppliers, provided it does not breach this Agreement, misuse Protected Materials, make misleading or unauthorised comparisons, create confusion about source or approval, or create a conflict that materially affects proper performance of this Agreement.
4.12 The Reseller acts as an independent contractor. Nothing in this Agreement creates agency, partnership, franchise, employment, joint venture, fiduciary duties, protected territory, customer ownership, guaranteed revenue, renewal rights, commission rights, goodwill rights, or compensation rights on expiry or termination, except as expressly stated in this Agreement or required by law. The Reseller must not represent that it operates a franchise, branch, office, authorised outlet, agency, representative office, support centre, or official business location of the Supplier.
5.1 The Reseller’s authority is limited to marketing, promoting, offering, and reselling approved Products and Services in the Territory in accordance with this Agreement and the Applicable Transaction Documents.
5.2 The Reseller must not, without the Supplier’s prior written approval:
(a) bind the Supplier to any contract, representation, warranty, commitment, liability, discount, refund, credit, service level, support commitment, activation date, provisioning date, implementation commitment, renewal commitment, cancellation right, or other promise;
(b) amend, waive, vary, negotiate, accept, reject, replace, or supplement any Supplier term, Vendor Terms, End User Terms, Quote, Accepted Order, Supplier Policy, or other applicable term;
(c) represent that it has any authority, status, approval, certification, appointment, or relationship beyond the rights expressly granted under this Agreement; or
(d) cause any End User or third party to believe that the Reseller may bind the Supplier.
5.3 The Reseller must not make any warranty, guarantee, promise, representation, claim, forecast, recommendation, or advice about Products or Services unless it is:
(a) authorised by the Supplier in writing;
(b) contained in Supplier-approved materials used for the authorised purpose;
(c) contained in applicable Vendor Materials used in accordance with Vendor Terms and Supplier instructions; or
(d) required by law.
5.4 The Reseller must use Protected Materials only for authorised reseller purposes under this Agreement and must not use, modify, copy, distribute, publish, disclose, or make them available in any misleading, unauthorised, unlawful, or inconsistent manner.
5.5 The Reseller is responsible for its own End User contracts and must ensure they comply with clause 9 and do not bind the Supplier or any Vendor unless expressly approved in writing.
5.6 The Reseller is solely responsible for, and the Supplier is not bound by or liable for, any unauthorised act, omission, statement, promise, warranty, representation, refund commitment, service level, support commitment, implementation commitment, activation commitment, renewal promise, cancellation right, End User term, proposal, quote, or other dealing by the Reseller.
5.7 The Reseller must promptly comply with any reasonable Supplier direction to correct, withdraw, stop, or remedy inaccurate or misleading statements, unauthorised sales activity, unauthorised use of Protected Materials, breach of Vendor Terms or End User Terms, misuse of Intellectual Property Rights, confidentiality or privacy risk, compliance issue, or conduct that may materially affect the Supplier, a Vendor, an End User, or the Products and Services.
6.1 The Reseller may submit Orders by email, online portal, Quote acceptance, purchase order, order form, or another method approved by the Supplier.
6.2 Each Order must include all information reasonably required by the Supplier or Vendor for the relevant transaction, including Product or Service details, quantity, licence type, Subscription term, End User details, billing, tax, activation, provisioning, support, compliance, export-control, Territory, and Quote information.
6.3 No Order binds the Supplier unless the Supplier accepts it in writing or begins supplying, activating, provisioning, or making available the relevant Products or Services.
6.4 The Supplier may, acting reasonably, reject, delay, cancel, or take action under clause 20 for all or part of an Order where reasonably necessary due to:
(a) Product or Service unavailability, delay, withdrawal, restriction, suspension, discontinuance, or Vendor action;
(b) incomplete, inaccurate, expired, inconsistent, or erroneous Order, pricing, tax, licence, billing, administrative, End User, or compliance information;
(c) non-payment, exceeded credit limits, increased credit risk, withdrawn credit terms, breach of this Agreement, or missing approval, acceptance, clearance, or required evidence;
(d) actual or potential breach of this Agreement, the Applicable Transaction Documents, Vendor Terms, End User Terms, applicable law, or clause 16;
(e) a prohibited, restricted, sanctioned, unsupported, or unapproved End User, territory, use, channel, licence type, Product, Service, or transaction; or
(f) legal, Vendor, licence, payment, security, privacy, operational, tax, sanctions, export-control, or compliance risk.
6.5 Where practicable, the Supplier must notify the Reseller of the reason for action under clause 6.4. The Supplier is not required to disclose information where disclosure may create legal, regulatory, security, fraud, sanctions, export-control, privacy, Vendor, investigative, operational, customer, or compliance risk.
6.6 A Reseller purchase order is for administrative purposes only. Its terms do not apply unless expressly accepted in writing by the Supplier.
6.7 A Quote is valid only for the period stated in it. If no period is stated, it is valid for 14 days from issue unless withdrawn earlier. A Quote is not acceptance of an Order and does not reserve licences, pricing, discounts, support capacity, implementation capacity, or Vendor approval unless expressly stated.
6.8 The Reseller may not change, cancel, reduce, defer, suspend, or amend an Accepted Order unless the Supplier agrees in writing. Any approved change or cancellation may be subject to additional Fees, Vendor charges, committed Subscription Fees, early termination charges, administrative charges, and reasonable costs.
6.9 The Supplier may accept or fulfil an Order in part. Each accepted part may be treated as a separate Accepted Order for invoicing, payment, activation, provisioning, Delivery, access, support, renewal, and acceptance.
6.10 Where the Supplier gives the Reseller access to an online portal, ordering platform, Vendor marketplace, Supplier System, or electronic ordering system, the Reseller must use it only for authorised reseller purposes, protect credentials and access details, restrict access to authorised personnel, ensure submitted Orders are authorised and accurate, prevent misuse, and comply with applicable portal terms, Vendor rules, Supplier Policies, and Supplier instructions.
6.11 The Reseller is responsible for all Orders submitted through its account, by its personnel, or using its credentials, unless the Supplier received prior written notice that the relevant authority or credential had been revoked.
6.12 The Reseller must not promise activation, provisioning, access, Subscription commencement, support commencement, pricing, discount, availability, renewal, cancellation, migration, or implementation timing to any End User unless the Supplier has accepted the relevant Order and confirmed the relevant details in writing.
6.13 The prices payable by the Reseller are the prices stated in the applicable Quote, Supplier ordering portal, Supplier price list, Accepted Order, invoice, written pricing notice, or other written pricing approval issued by the Supplier.
6.14 The Supplier may change prices, discounts, Fees, charges, or commercial terms by written notice. Unless clause 6.15 applies, the change applies only to Orders accepted after the effective date of the notice.
6.15 A price, Fee, charge, discount, or commercial change may apply to an Accepted Order only to the extent it results from Vendor pricing, Vendor licensing changes, Vendor Terms, applicable law, tax changes, exchange-rate changes, third-party charges outside the Supplier’s reasonable control, renewal, upgrade, variation, a Reseller-requested change, or the Reseller’s written agreement. Where practicable, the Supplier must give reasonable notice and limit the change to the affected Product, Service, Subscription, renewal, Order, End User, licence, or charge.
6.16 The Reseller is free to determine its resale prices. Any recommended resale price, list price, pricing guidance, discount, or promotion issued by the Supplier or a Vendor is non-binding. The Reseller must not represent that the Supplier or any Vendor fixes, controls, requires, or enforces a minimum resale price.
6.17 Any discount, rebate, promotion, special price, deal-registration benefit, Vendor-funded pricing, incentive, credit, or commercial benefit applies only if approved by the Supplier in writing. The Supplier may, acting reasonably, withdraw, reverse, reduce, offset, or recover it to the extent reasonably attributable to error, inaccurate information, unmet eligibility requirements, cancellation, Vendor rejection or clawback, misuse, non-compliance, or the Reseller’s breach.
6.18 The Supplier may invoice the Reseller when an Order is accepted, a Product or Service is made available, a licence key, Subscription, account, or hosted access is activated or provisioned, Services are performed, on renewal, on achievement of a milestone, or at another time stated in the Applicable Transaction Documents.
6.19 The Reseller must pay invoices by the due date stated in the invoice, Quote, Accepted Order, approved credit terms, or other written payment terms approved by the Supplier. If no due date is stated, payment is due within 14 days from the invoice date.
6.20 The Reseller must pay all amounts due in full, without set off, withholding, counterclaim, deduction, or reduction, except to the extent required by law or agreed in writing by the Supplier. Payment to the Supplier is not conditional on payment by any End User, customer, Vendor, third party, or other person, and is not affected by termination, expiry, suspension, non-use, non-payment, dispute, cancellation, or non-renewal by an End User.
6.21 The Supplier may grant credit terms by written approval. The Supplier may, acting reasonably, approve, refuse, reduce, suspend, withdraw, or vary credit terms or credit limits where reasonably necessary to manage credit, payment, financial, Vendor, legal, security, regulatory, privacy, sanctions, export-control, tax, or compliance risk.
6.22 If the Reseller fails to pay any amount when due, the Supplier may:
(a) charge interest from the due date until payment at the rate stated in the applicable Quote, Accepted Order, invoice, approved credit terms, or other written approval, or if no rate is stated, at 2 percent per annum above the base lending rate published by Westpac Banking Corporation from time to time or any equivalent successor rate;
(b) recover reasonable debt collection, legal, enforcement, dishonour, bank, administrative, suspension, and reinstatement costs; and
(c) take action under clause 20 or notify a relevant Vendor where reasonably necessary to manage licence, Subscription, compliance, support, access, renewal, or payment risk.
6.23 Unless expressly stated otherwise, all prices, Fees, charges, and amounts payable under this Agreement are exclusive of GST.
6.24 If GST is payable on a taxable supply made under or in connection with this Agreement, the recipient must pay an additional amount equal to the GST payable, provided the supplier gives the recipient a valid tax invoice where required by law.
6.25 The Reseller is responsible for all taxes, duties, levies, imposts, withholding taxes, government charges, bank charges, transfer charges, currency-conversion charges, foreign-exchange charges, payment-processing charges, and similar amounts arising from this Agreement, any Order, payment, cross-border supply, withholding, deduction, or dealing with End Users, except for taxes imposed on the Supplier’s net income unless recoverable under law or the Applicable Transaction Documents.
6.26 If the Reseller must deduct or withhold any amount from a payment to the Supplier, the Reseller must notify the Supplier before doing so, pay the amount to the relevant authority on time, provide evidence of payment, and pay any additional amount necessary to ensure the Supplier receives the full net amount it would have received if no deduction or withholding had been required, except to the extent prohibited by law.
6.27 All amounts are payable in Australian dollars unless the Quote, invoice, Accepted Order, written approval, or other Applicable Transaction Document states otherwise.
6.28 If the Reseller disputes an invoice in good faith, it must notify the Supplier in writing within the billing dispute period stated in the applicable Quote, Accepted Order, invoice, approved credit terms, or other written approval. If no period is stated, notice must be given within 10 Business Days after receiving the invoice. The notice must identify the disputed amount, give reasonable details, and be accompanied by payment of any undisputed amount by the due date.
6.29 The Supplier must consider any invoice dispute in good faith. Failure to give notice within the period stated in clause 6.28 does not validate an incorrect charge or prevent correction of a manifest error or an issue the Reseller could not reasonably have identified within that period. Any delay in giving notice reduces the Supplier’s liability only to the extent the delay prejudices the Supplier’s ability to investigate, verify, correct, recover, or mitigate the issue. A billing dispute does not suspend payment of undisputed amounts or prevent the Supplier from exercising rights in relation to unpaid undisputed amounts.
7.1 The Supplier may deliver or make available Products and Services by any reasonable electronic or access-based method, including licence key, download link, account provisioning, SaaS activation, Subscription activation, hosted access, Supplier System access, Vendor System access, or any method stated in the Applicable Transaction Documents.
7.2 The Reseller must provide complete, accurate, current, and not misleading information reasonably required by the Supplier or Vendor for Delivery, activation, provisioning, billing, support, licensing, tax, Territory, security, privacy, sanctions, export-control, credit, identity, compliance, and End User administration.
7.3 Any activation, provisioning, implementation, access, Delivery, migration, or support commencement date is an estimate only unless the Supplier expressly confirms in writing that the date is binding.
7.4 Delivery occurs when the Supplier or Vendor sends, provisions, activates, enables, issues, or otherwise makes available the relevant licence key, download link, activation code, credentials, hosted access, SaaS account, Subscription, Supplier System access, Vendor System access, or online access.
7.5 If the Supplier provisions Products or Services directly for an End User, the Reseller remains responsible for the Order, payment, End User acceptance of Vendor Terms and End User Terms, End User communications, and all activation or provisioning information. Direct provisioning does not create a contract between the Supplier and the End User unless expressly agreed in writing.
7.6 The Supplier may deliver, activate, provision, or make available an Order in parts. Each part may be invoiced separately and treated as a separate supply for Delivery, acceptance, payment, access, support, renewal, suspension, and termination.
7.7 The Reseller must promptly verify Products and Services after Delivery. Unless the Reseller notifies the Supplier in writing within 10 Business Days after Delivery that the Product or Service is materially different from the Accepted Order, it is treated as accepted for that Order.
7.8 Clause 7.7 does not limit any right that cannot be excluded by law and does not prevent the Reseller from raising an issue that could not reasonably have been identified during the verification period, provided the Reseller notifies the Supplier promptly after becoming aware of it.
7.9 The Reseller may not reject Delivery for any minor, technical, administrative, cosmetic, naming, account, formatting, timing, or immaterial difference that does not materially affect the supplied Product or Service, unless required by law or applicable Vendor Terms.
7.10 The Supplier may require information, approvals, technical readiness, End User acceptance, Vendor approval, payment, credit approval, identity verification, security checks, sanctions checks, export-control checks, privacy checks, or other compliance checks before delivering, activating, provisioning, renewing, or enabling access to any Product or Service.
7.11 Subject to clause 19.2, the Supplier is not liable for delay, failed activation, incorrect provisioning, failed Delivery, loss, additional cost, or End User claim to the extent caused or contributed to by:
(a) inaccurate, incomplete, outdated, or misleading information provided by the Reseller or End User;
(b) Vendor delay, refusal, suspension, unavailability, platform failure, access restriction, support failure, security issue, third-party system delay, payment delay, credit hold, compliance checks, identity checks, Force Majeure Event, or any matter outside the Supplier’s reasonable control; or
(c) the Reseller’s breach of this Agreement, Vendor Terms, End User Terms, Supplier Policies, or Supplier instructions.
7.12 Where Delivery, activation, provisioning, hosting, operation, support, or access is controlled by a Vendor, the Supplier is responsible only to the extent the issue is caused by the Supplier’s own breach of this Agreement.
7.13 The Reseller must keep licence keys, activation codes, credentials, tokens, access details, portal access, Supplier System access, Vendor System access, and technical access information secure, use them only for the approved purpose, disclose them only to authorised personnel or End Users who need access, and promptly notify the Supplier of any actual or suspected unauthorised access, misuse, loss, disclosure, compromise, theft, or security incident.
7.14 The Reseller must pay all activation, provisioning, Vendor, transaction, access, reinstatement, migration, support, and related charges stated in the Quote, invoice, Accepted Order, written approval, Supplier ordering process, or other Applicable Transaction Document.
7.15 If Delivery, activation, provisioning, renewal, migration, support, or access enablement fails or is delayed due to the Reseller’s act, omission, delay, incorrect information, non-payment, lack of approval, lack of technical readiness, lack of End User acceptance, compliance issue, security issue, or breach of this Agreement, the Supplier may charge the Reseller for reasonable additional costs and may take action under clause 20.
8.1 Software is licensed, not sold.
8.2 No title, ownership, proprietary interest, Intellectual Property Rights, or other ownership rights in Software, Source Code, Non-Public Technical Materials, Documentation, Supplier Materials, Supplier Systems, Vendor Materials, Vendor Systems, licence keys, activation details, accounts, platforms, hosted services, SaaS environments, APIs, integrations, databases, workflows, configurations, or related materials pass to the Reseller or any End User.
8.3 The Reseller and End Users receive only the limited licence, access, Subscription, or use rights expressly granted under this Agreement and the Applicable Transaction Documents.
8.4 The Reseller must not represent that any Software, SaaS access, hosted access, Subscription, licence key, account, platform, Documentation, Supplier Materials, Vendor Materials, or related Intellectual Property Right is sold, transferred, assigned, or owned by the Reseller or any End User.
8.5 Neither the Reseller nor any End User has any right to access, receive, hold, copy, escrow, deposit, disclose, inspect, reverse engineer, decompile, disassemble, reconstruct, derive, or attempt to derive Source Code or Non-Public Technical Materials, except to the limited extent expressly required by applicable law and not lawfully excluded.
8.6 No licence, permission, ownership right, transfer, assignment, title, interest, covenant, immunity, or other right is granted by implication, estoppel, course of dealing, performance, access, Delivery, support, disclosure, or use. All rights not expressly granted are reserved by the Supplier, the relevant Vendor, and their licensors.
9.1 The Reseller must comply with all applicable Vendor Terms and End User Terms and must ensure that each End User is made aware of, accepts, and is bound by them before any Product or Service is supplied, activated, renewed, provisioned, accessed, or used. The Reseller must keep reasonable evidence of acceptance and provide it to the Supplier on request where reasonably required for licensing, audit, compliance, support, renewal, dispute, Vendor, or legal purposes.
9.2 The Reseller must ensure that its contract with each End User gives effect to this Agreement, Vendor Terms, and End User Terms. The Reseller must not agree to any End User term that conflicts with those documents, expands End User rights, reduces Supplier or Vendor rights, imposes obligations on the Supplier or any Vendor without written approval, or misrepresents any Product or Service.
9.3 Subject to clause 27, Vendor Terms and End User Terms govern the use, access, licensing, hosting, support, security, maintenance, renewal, suspension, cancellation, and termination of the relevant Product or Service, except to the extent this Agreement imposes stricter obligations on the Reseller.
9.4 The Reseller must not, and must take reasonable steps to ensure that its End Users and any person acting through or for the Reseller do not:
(a) use any Product, Service, Software, licence, Subscription, trial, demonstration, proof-of-concept, sandbox, pilot, Supplier System, Vendor System, or Protected Materials outside the approved licence scope, user count, Territory, Subscription period, environment, account, permitted purpose, or authorised use;
(b) copy, modify, adapt, distribute, publish, disclose, sublicence, transfer, assign, frame, mirror, commercialise, or otherwise exploit Protected Materials except as expressly permitted under this Agreement;
(c) reverse engineer, decompile, disassemble, reconstruct, derive, or attempt to derive Source Code, object code, Non-Public Technical Materials, algorithms, architecture, workflows, non-public interfaces, security controls, or underlying ideas, except to the limited extent permitted by law and not lawfully excluded;
(d) bypass, disable, interfere with, remove, weaken, or avoid any licence key, activation mechanism, usage control, security measure, access control, audit function, entitlement control, proprietary notice, usage restriction, or technical protection measure;
(e) provide unauthorised access, share credentials, introduce malware, disrupt systems, overload systems, or gain unauthorised access to any Product, Service, Supplier System, Vendor System, account, data, licence, Subscription, or related environment;
(f) use any Product, Service, Software, access right, technical information, or non-public Protected Materials for competitive development, scraping, data extraction, benchmarking, security testing, public repository disclosure, artificial intelligence or machine-learning use, automated analysis, third-party platform use, or any other purpose not expressly approved in writing by the Supplier.
9.5 The Reseller must provide accurate, complete, current, and not misleading information required for licensing, activation, provisioning, renewal, support, audit, and compliance, including End User identity, location, user count, licence type, Subscription term, usage details, billing details, and Territory details.
9.6 If the Reseller becomes aware of any actual or suspected End User breach of Vendor Terms, End User Terms, licence restrictions, security requirements, access restrictions, acceptable use requirements, or applicable law, the Reseller must promptly notify the Supplier and take reasonable steps requested by the Supplier to stop, remedy, or mitigate the breach.
9.7 A Vendor may change, suspend, withdraw, replace, discontinue, restrict, or vary its Software, Vendor Terms, End User Terms, pricing, licensing model, support terms, renewal terms, security requirements, compliance requirements, features, availability, or platform access. Where practicable, the Supplier must notify the Reseller of material Vendor changes received by the Supplier that materially affect resale activities. The Supplier is not liable for Vendor action except to the extent caused by the Supplier’s own breach of this Agreement.
9.8 The Supplier may take action under clause 20 in relation to any Software licence, Subscription, hosted access, activation, renewal, support, maintenance, Supplier System access, Vendor System access, or related Service where permitted under this Agreement, the Applicable Transaction Documents, Vendor Terms, or End User Terms.
9.9 Any trial, evaluation, demonstration, proof-of-concept, sandbox, pilot, or not-for-resale licence may be used only for the approved purpose, period, users, Territory, environment, and conditions. The Reseller must not sell, transfer, extend, sublicence, publish, disclose, use in production, or commercially exploit any such licence without written approval.
9.10 Where Software includes open-source components, those components are governed by the applicable open-source licence terms. The Reseller must not use, combine, distribute, modify, or make available Software in a way that creates any unauthorised open-source disclosure, distribution, licensing, copyleft, attribution, patent, or Source Code obligation affecting the Supplier, any Vendor, or proprietary Software.
9.11 Each Subscription begins and ends on the dates stated in the Applicable Transaction Documents. Unless otherwise stated, a Subscription commences when the relevant licence, account, hosted access, SaaS access, support entitlement, maintenance entitlement, or subscription access is activated, provisioned, issued, or made available by the Supplier or Vendor. Commencement, invoicing, and payment are not delayed or avoided because the Reseller or End User has not used, accessed, deployed, configured, implemented, integrated, migrated to, or consumed the relevant Product or Service.
9.12 The Reseller is responsible for monitoring Subscription expiry dates, obtaining End User renewal instructions where required, submitting renewal Orders on time, ensuring renewal information is accurate and complete, ensuring continued End User acceptance of Vendor Terms and End User Terms, and paying all renewal Fees. A Subscription auto-renews only where expressly stated in the Applicable Transaction Documents. Renewal is not guaranteed unless the Supplier accepts the renewal Order.
9.13 Renewal pricing, terms, availability, support, licensing, features, platform access, discounts, Vendor program status, and renewal options may differ from the original transaction. Any upgrade, downgrade, additional user, licence, seat, Subscription, storage, module, feature, usage capacity, support coverage, usage-based charge, consumption-based charge, true-up, migration, reinstatement, or other entitlement is subject to Supplier approval, Vendor approval where required, availability, payment of applicable Fees, the Applicable Transaction Documents, and applicable technical, eligibility, compliance, security, licence, and account requirements.
9.14 The Reseller may cancel an Order, Subscription, renewal, upgrade, downgrade, migration, reinstatement, or related Service only in accordance with applicable Vendor Terms or End User Terms, before any applicable cancellation deadline, with the Supplier’s written approval, and subject to all applicable cancellation charges, Vendor charges, committed Subscription Fees, early termination fees, administrative charges, and reasonable costs.
9.15 Except to the extent required by law or expressly agreed by the Supplier in writing, the Reseller is not entitled to any refund, credit, set-off, rebate, or reduction for unused Subscriptions, unused licences, unused support or maintenance, early cancellation, End User non-use, End User cancellation, End User non-payment, downgrade requests, delayed implementation, delayed migration, or cancellation not accepted by the Supplier or Vendor. The Reseller remains liable to pay all amounts due in accordance with clause 6.20.
9.16 If a Subscription expires, is not renewed, is cancelled, suspended, restricted, or migrated, access, support, maintenance, updates, hosting, data access, account access, Supplier System access, Vendor System access, and platform access may cease or be restricted. Reinstatement or migration may be subject to Vendor approval, additional Fees, back-payment, updated terms, technical requirements, compliance checks, or security checks.
9.17 The Supplier or Vendor may require migration to a new product, Subscription model, licensing model, platform, support arrangement, security requirement, End User Terms, Vendor Terms, pricing structure, or access method. The Reseller must cooperate with any reasonable migration process and is responsible for notifying End Users of any Subscription-related matter affecting them.
10.1 The Reseller must perform its obligations honestly, professionally, competently, and with reasonable skill, care, and diligence, and must comply with this Agreement, the Applicable Transaction Documents, Supplier Policies, Vendor Terms, End User Terms, Supplier instructions, and applicable law.
10.2 Unless the Supplier expressly agrees otherwise in writing, the Reseller is responsible for its own relationship with each End User, including sales, customer communications, pricing, invoicing, collection, first-level customer contact, End User contracts, notices, support responsibilities, and customer obligations.
10.3 The Reseller must maintain valid and enforceable End User contracts that comply with clause 9. The Reseller must not make any End User communication, contract, promise, or statement that conflicts with this Agreement, Vendor Terms, End User Terms, Supplier Policies, or Supplier instructions.
10.4 The Reseller must provide accurate, complete, current, lawful, and not misleading information required for Orders, Delivery, activation, provisioning, licensing, renewals, support, tax, compliance, audit, verification, security, privacy, and account administration. The Reseller warrants that it has all rights, notices, consents, permissions, and lawful authority required to disclose End User information and Personal Information to the Supplier and any relevant Vendor.
10.5 The Reseller must ensure that its personnel and approved third parties involved in Products and Services understand and comply with applicable licence, Territory, ordering, renewal, support, security, Vendor, End User, training, certification, and compliance requirements. The Reseller is responsible for their acts and omissions.
10.6 The Supplier may contact an End User directly where reasonably required for activation, provisioning, account setup, Subscription administration, renewal, migration, support escalation, Vendor requirements, compliance, audit, security, privacy, misuse investigation, payment-risk management, transition, or protection of Supplier or Vendor rights. Direct contact does not create a contract between the Supplier and the End User unless expressly agreed in writing and does not release the Reseller from its obligations.
10.7 The Reseller must not interfere with lawful contact between the Supplier, a Vendor, and an End User where that contact is permitted under this Agreement, Vendor Terms, End User Terms, applicable law, or is reasonably required to protect Products, Services, licences, Subscriptions, systems, data, security, compliance, Intellectual Property Rights, or End User continuity.
10.8 The Reseller must maintain, retain, and provide records in accordance with clause 22 and must protect credentials, access details, account information, Supplier Systems, Vendor Systems, Confidential Information, and Personal Information in accordance with clauses 9 and 15.
10.9 The Reseller must promptly notify the Supplier of any material complaint, dispute, claim, regulatory inquiry, security issue, privacy issue, data issue, threatened legal action, End User issue, licence issue, suspected misuse, suspected breach, unauthorised access, credential compromise, or inability to comply where the matter may affect the Supplier, a Vendor, an End User, Products, Services, Supplier Systems, Vendor Systems, or Intellectual Property Rights.
10.10 The Reseller must reasonably cooperate with the Supplier and any relevant Vendor in relation to order processing, activation, renewals, support escalation, licence verification, audits, compliance checks, security or privacy incidents, customer complaints, product withdrawals, migrations, disputes, investigations, and protection of Supplier or Vendor rights.
10.11 The Reseller must obtain and maintain all licences, registrations, permits, approvals, insurance, and authorisations required to conduct its business and perform this Agreement. If reasonably required by the Supplier, the Reseller must maintain insurance connected with its reseller activities and provide certificates of currency on request.
10.12 The Reseller must not engage in conduct connected with this Agreement that is misleading, deceptive, unlawful, damaging to Supplier or Vendor goodwill, misuses Supplier or Vendor Intellectual Property Rights, compromises security, prejudices supply rights, or materially prejudices the Supplier’s legal, commercial, security, customer, compliance, or operational interests.
11.1 The Supplier must perform its obligations under this Agreement with reasonable skill, care, and diligence.
11.2 Subject to this Agreement, payment, availability, Vendor approval, compliance checks, security checks, Vendor Terms, End User Terms, and applicable Supplier Policies, the Supplier must use reasonable efforts to process Accepted Orders and supply, activate, provision, or make available the Products and Services stated in those Accepted Orders.
11.3 The Supplier may provide or arrange access to licence details, Subscription details, support information, activation details, account details, hosted access, SaaS access, or other access information reasonably required for the relevant Product or Service.
11.4 The Supplier must take reasonable care in preparing Supplier Materials it creates and provides for authorised resale purposes. The Supplier is not responsible for Vendor Materials, third-party materials, outdated information, Reseller modifications, or use outside the approved scope. The Reseller must verify current Product, Service, pricing, licensing, support, availability, and technical information before making any customer-facing statement or submitting any Order.
11.5 The Supplier must provide support only to the extent stated in clause 12, an Accepted Order, a Quote, Vendor Terms, End User Terms, Supplier Policies, or another written support arrangement approved by the Supplier.
11.6 Where a Vendor provides warranties, service commitments, maintenance rights, support rights, service credits, defect remedies, availability commitments, or other remedies, the Supplier must use reasonable efforts to pass through those benefits to the Reseller or End User to the extent legally and contractually permitted.
11.7 The Supplier must use reasonable efforts to notify the Reseller of material changes to Products, Services, Vendor Terms, End User Terms, pricing, Subscription models, renewal processes, support arrangements, security requirements, licence terms, or availability where the Supplier receives notice, the change materially affects resale activities, and notice is reasonably practicable.
11.8 Nothing in this Agreement requires the Supplier to accept any Order or continue offering, supplying, supporting, maintaining, renewing, activating, provisioning, or making available any Product or Service that is changed, suspended, withdrawn, discontinued, restricted, unavailable, end-of-life, unsupported, or no longer available to the Supplier.
11.9 The Supplier is not responsible for the Reseller’s End User contracts, customer pricing, warranties, refunds, service levels, implementation promises, support commitments, legal compliance, tax obligations, privacy obligations, procurement obligations, marketing activities, customer communications, or other obligations owed by the Reseller to an End User or third party.
11.10 The Supplier is not responsible for any Vendor act, omission, delay, suspension, refusal, withdrawal, discontinuance, outage, security incident, licence restriction, support failure, pricing change, renewal change, product change, platform change, or change to Vendor Terms, except to the extent caused by the Supplier’s own breach of this Agreement.
11.11 Unless expressly agreed in writing, the Supplier does not provide legal, tax, financial, regulatory, cybersecurity, accounting, procurement, technical-design, suitability, risk-management, or compliance advice to the Reseller or any End User and is not responsible for determining whether any Product or Service is suitable for their requirements.
12.1 The Supplier must provide support, maintenance, updates, patches, upgrades, service levels, technical assistance, troubleshooting, or escalation only to the extent expressly stated in an Accepted Order, Quote, Vendor Terms, End User Terms, Supplier Policies, or another written support arrangement approved by the Supplier.
12.2 Unless the Supplier expressly agrees otherwise in writing, the Reseller is responsible for first-level End User support, including initial customer contact, issue collection, basic troubleshooting, user guidance, renewal and licence questions, and communication of Vendor Terms and End User Terms.
12.3 Where support is provided or controlled by a Vendor, Vendor Terms apply. The Supplier may assist with Vendor escalation where available, but is not liable for Vendor delay, refusal, outage, unresolved issue, support failure, service-level failure, security issue, or support-process change except to the extent caused by the Supplier’s own breach of this Agreement.
12.4 Service levels, response times, resolution targets, uptime commitments, support hours, service credits, remedies, escalation rights, or other support commitments apply only if expressly stated in the Applicable Transaction Documents or another written agreement approved by the Supplier.
12.5 Unless expressly agreed in writing, support excludes issues caused by misuse, unauthorised use, unsupported systems, expired or unpaid Subscriptions, End User systems, third-party services, integrations, customisations, incorrect configuration, failure to apply updates, breach of
this Agreement, breach of Vendor Terms or End User Terms, lack of required information or access, or matters outside the Supplier’s reasonable control.
12.6 The Supplier is not required to support any product, service, software, platform, integration, configuration, environment, version, device, system, network, or data not supplied, approved, or supported by the Supplier or the relevant Vendor.
12.7 The Supplier or Vendor may make updates, patches, fixes, upgrades, migrations, platform changes, security changes, end-of-life notices, or end-of-support notices available or mandatory for Products and Services. The Supplier is not liable for any loss, interruption, vulnerability, incompatibility, reduced functionality, outage, data issue, support limitation, or increased cost arising from the Reseller’s or End User’s failure to apply, install, accept, enable, or permit them.
12.8 The Reseller must promptly provide information, access, records, logs, personnel, End User contacts, error details, licence details, account details, configuration details, and other materials reasonably required for support, maintenance, troubleshooting, escalation, investigation, licence verification, or issue resolution.
12.9 The Reseller must promptly notify the Supplier of any actual or suspected security vulnerability, unauthorised access, data breach, malware issue, credential compromise, misuse, licence breach, technical incident, service issue, or support issue relating to Products, Services, Supplier Systems, Vendor Systems, credentials, licences, Subscriptions, or End User access.
12.10 The Supplier may suspend support, maintenance, updates, escalation, or access where permitted under clause 20, Vendor Terms, End User Terms, Supplier Policies, or applicable law.
12.11 Nothing in this Agreement requires the Supplier to provide Source Code, Non-Public Technical Materials, object code, development tools, build materials, deployment materials, administrative credentials, security architecture, internal system access, or other non-public technical access as part of support, maintenance, troubleshooting, escalation, or issue resolution.
13.1 The Reseller may market and promote Products and Services only in accordance with this Agreement, Supplier instructions, Vendor Terms, End User Terms, approved materials, applicable brand guidelines, and applicable law.
13.2 The Reseller must use only current descriptions, Documentation, screenshots, trademarks, logos, product names, claims, case studies, marketing materials, technical materials, pricing materials, and other materials approved or supplied by the Supplier or the relevant Vendor for the authorised purpose.
13.3 The Reseller must not modify, rebrand, translate, distort, remove notices from, create derivative works from, or combine other materials with Supplier Materials or Vendor Materials without the Supplier’s prior written consent and, where applicable, Vendor consent.
13.4 The Reseller may refer to Supplier and Vendor names, trademarks, logos, product names, and branding only as necessary to market and resell approved Products and Services, and only in a way that accurately describes the Reseller’s limited role.
13.5 The Reseller must not use any Supplier or Vendor name, trade mark, logo, branding, domain name, product name, marketing material, screenshot, public reference, or customer-facing material in a way that is false, misleading, outdated, unauthorised, unlawful, inconsistent with this Agreement, or likely to create confusion about ownership, endorsement, exclusivity, agency, partnership, franchise, certification, sponsorship, approval, or authority.
13.6 The Reseller is responsible for the accuracy and lawfulness of all customer-facing statements about Products, Services, the Supplier, Vendors, pricing, taxes, warranties, support, service levels, licensing, security, compliance, suitability, refunds, renewals, cancellations, and relationship status. The Reseller must not state that any such matter is approved, guaranteed, fixed, available, or supported by the Supplier or any Vendor unless confirmed in writing by the Supplier or the relevant Vendor.
13.7 The Reseller must comply with applicable spam, privacy, electronic communications, and direct marketing laws. Each commercial electronic communication must have legally valid consent, identify the sender, include correct sender contact details, contain a functional unsubscribe facility, honour unsubscribe requests within the required period, and not use harvested-address lists or address-harvesting software.
13.8 The Reseller must not issue or publish any press release, public announcement, case study, testimonial, customer reference, advertising campaign, award submission, partner listing, comparison, benchmark, review, technical assessment, performance result, security assessment, product ranking, suitability statement, or competitive claim relating to the Supplier, any Vendor, any End User, Products, Services, Supplier Systems, Vendor Systems, this Agreement, or the Parties’ relationship without the Supplier’s prior written approval and any required Vendor or End User approval.
13.9 The Reseller must not register, use, purchase, bid on, control, or maintain any domain name, social media account, marketplace account, business name, trade mark, keyword advertisement, sponsored-search term, app-store listing, online identifier, or similar item that uses or is confusingly similar to any Supplier or Vendor name, trade mark, product name, domain name, or branding without prior written consent.
13.10 The Supplier may require the Reseller to remove, correct, withdraw, suspend, or stop using any material or communication that the Supplier reasonably considers inaccurate, misleading, unauthorised, unlawful, inconsistent with this Agreement, or damaging to the Supplier or any Vendor.
13.11 Unless expressly agreed in writing, the Reseller is responsible for its own marketing, advertising, promotional, tender, proposal, sales, event, website, travel, customer-acquisition, and lead-generation costs.
13.12 If the Reseller participates in any Vendor marketing, partner, rebate, incentive, deal-registration, referral, lead, or promotional program, the Reseller must comply with all applicable program rules and provide accurate, complete, current, and not misleading information. The Supplier is not liable for any Vendor refusal, withdrawal, delay, reduction, rejection, clawback, cancellation, or change of any benefit except to the extent caused by the Supplier’s own breach of this Agreement.
14.1 All Intellectual Property Rights in or relating to Products, Services, Software, Source Code, Non-Public Technical Materials, Documentation, Supplier Materials, Supplier Systems, Vendor Materials, Vendor Systems, trademarks, logos, product names, platforms, systems, tools, methods, processes, configurations, integrations, APIs, databases, workflows, technical information, security information, and related materials remain owned by the Supplier, the relevant Vendor, or their licensors.
14.2 Nothing in this Agreement transfers, assigns, sells, or grants any Intellectual Property Rights to the Reseller or any End User, except to the limited extent expressly permitted under this Agreement, applicable Vendor Terms, applicable End User Terms, or written approval issued by the Supplier.
14.3 Subject to this Agreement, the Supplier grants the Reseller a limited, revocable, non-exclusive, non-transferable right during the term of this Agreement to use approved Supplier Materials solely to market, promote, offer, and resell approved Products and Services in the Territory.
14.4 Any use of Vendor Materials is subject to applicable Vendor Terms, Vendor brand guidelines, and instructions notified by the Supplier or Vendor.
14.5 The Reseller must not, without the prior written consent of the Supplier and, where applicable, the relevant Vendor:
(a) use Supplier or Vendor Intellectual Property Rights except as expressly permitted under this Agreement;
(b) copy, modify, adapt, translate, distribute, publish, disclose, sublicence, transfer, assign, frame, mirror, commercialise, or create derivative works from Supplier Materials, Vendor Materials, Software, Documentation, Source Code, Non-Public Technical Materials, Supplier Systems, or Vendor Systems, except as expressly permitted under this Agreement;
(c) engage in any prohibited use described in clause 9.4;
(d) remove, alter, obscure, delete, interfere with, or bypass any copyright notice, trademark notice, proprietary notice, confidentiality notice, licence notice, security notice, serial number, product identifier, usage restriction, access control, audit function, or technical protection measure;
(e) use Supplier or Vendor Intellectual Property Rights, Products, Services, Software, Documentation, technical information, credentials, licence keys, APIs, integrations, Supplier Systems, Vendor Systems, or non-public Protected Materials for any unauthorised, competitive, misleading, unlawful, or inconsistent purpose; or
(f) permit any End User, affiliate, contractor, agent, sub-reseller, customer, or third party to do anything prohibited by this clause.
14.6 The Reseller retains ownership of its pre-existing Intellectual Property Rights in independently developed materials, provided those materials do not include, incorporate, modify, copy, derive from, or misuse Supplier Materials, Vendor Materials, Software, Source Code, Non-Public Technical Materials, Documentation, Confidential Information, Supplier Systems, Vendor Systems, or third-party Intellectual Property Rights.
14.7 The Supplier may use any feedback, suggestion, comment, improvement request, test result, product idea, configuration suggestion, or similar input provided by the Reseller without restriction, payment, attribution, consent, or obligation, provided the Supplier does not disclose the Reseller’s Confidential Information in breach of this Agreement.
14.8 The Reseller must not challenge, dispute, oppose, impair, register, attempt to register, or assist any person to challenge, dispute, oppose, impair, register, or attempt to register any Intellectual Property Rights of the Supplier, any Vendor, or their licensors.
14.9 The Reseller must promptly notify the Supplier of any actual or suspected infringement, misuse, unauthorised use, copying, reverse engineering, disclosure, claim, demand, complaint, proceeding, or threat relating to Intellectual Property Rights connected with Products, Services, Software, Supplier Materials, Supplier Systems, Vendor Materials, or Vendor Systems, and must provide reasonable assistance requested by the Supplier.
14.10 If the Supplier reasonably considers that any material, conduct, statement, product, service, website, advertisement, proposal, customer communication, integration, system, or other item used or controlled by the Reseller infringes or misuses Intellectual Property Rights, the Supplier may require the Reseller to stop using, remove, amend, destroy, return, disable, replace, or correct that item.
14.11 On expiry or termination, the Reseller must immediately stop using Supplier and Vendor Intellectual Property Rights, including trademarks, logos, product names, Documentation, Supplier Materials, Vendor Materials, Software access, licence keys, Supplier Systems, Vendor Systems, portals, branding, reseller status references, and copies or extracts, except to the extent required for an approved transition or permitted by the Supplier in writing.
14.12 On request by the Supplier, or on expiry or termination, the Reseller must return, delete, destroy, disable access to, or permanently remove Supplier Materials, Vendor Materials, and other materials containing Supplier or Vendor Intellectual Property Rights that are capable of return, deletion, destruction, access disablement, or removal, except to the extent retention is required by law, audit obligations, insurance obligations, accounting requirements, dispute management, or legitimate recordkeeping purposes.
15.1 Each Party must keep the other Party’s Confidential Information confidential, protect it using reasonable administrative, technical, organisational, and security safeguards, and use it only to perform obligations or exercise rights under this Agreement.
15.2 Confidential Information does not include information the receiving Party can prove:
(a) is publicly available other than through breach of this Agreement;
(b) was lawfully known to the receiving Party before disclosure;
(c) was lawfully received from a third party without breach of confidentiality;
(d) was independently developed without use of or reference to the disclosing Party’s Confidential Information; or
(e) is approved for release in writing by the disclosing Party.
15.3 A Party may disclose Confidential Information:
(a) to its officers, employees, contractors, professional advisers, insurers, auditors, related bodies corporate, Vendors, service providers, financiers, or representatives who need to know it for a permitted purpose and are subject to confidentiality obligations;
(b) where required by law, court order, regulator, government authority, stock exchange requirement, lawful compulsory process, or applicable Vendor requirement; or
(c) where reasonably required to perform this Agreement, process Orders, provide support, manage compliance, manage disputes, protect rights, investigate misuse, manage security, recover payment, or enforce this Agreement.
15.4 Where disclosure is required under clause 15.3(b), the receiving Party must, to the extent legally permitted, give prompt notice to the disclosing Party, disclose only what is reasonably required, and take reasonable steps to preserve confidentiality.
15.5 The Reseller must not disclose, upload, submit, transfer, or make available any non-public Quote, pricing, discount, rebate, Special Conditions, Vendor arrangement, Supplier instruction, reseller approval, onboarding information, roadmap, licence information, End User information, Supplier Confidential Information, Vendor Confidential Information, Source Code, Non-Public Technical Materials, or other non-public Protected Materials except as permitted under this Agreement or approved in writing by the Supplier. This restriction includes disclosure
to any public repository, artificial intelligence system, machine-learning system, external analytics system, third-party platform, or automated processing tool.
15.6 Disclosure of Confidential Information does not transfer ownership or grant any licence, assignment, interest, title, permission, or right except as expressly stated in this Agreement.
15.7 In this clause, sensitive information has the meaning given in the Privacy Act.
15.8 Each Party must comply with all applicable privacy, data protection, spam, electronic communications, data breach notification, confidentiality, and information-security laws in connection with this Agreement, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles to the extent they apply.
15.9 Each Party remains responsible for Personal Information it collects, uses, discloses, stores, handles, or controls in connection with this Agreement.
15.10 A Party may use Personal Information received under or in connection with this Agreement only to perform this Agreement, process Orders, administer Products and Services, manage accounts, communicate with authorised contacts, conduct verification, security, fraud, sanctions, export-control, credit, audit, identity, licence, or compliance checks, manage disputes and claims, comply with lawful requirements, or for another authorised purpose.
15.11 The Supplier may disclose relevant Confidential Information and Personal Information to Vendors, hosting providers, support providers, payment providers, professional advisers, insurers, auditors, contractors, related bodies corporate, and other service providers where reasonably required for order processing, licensing, activation, provisioning, support, renewals, migration, compliance, audit, security, dispute resolution, payment management, enforcement, or performance of this Agreement.
15.12 Where Personal Information may be disclosed, stored, accessed, or processed outside Australia, each Party must comply with applicable privacy-law requirements, including Australian Privacy Principle 8 to the extent it applies.
15.13 The Reseller must ensure it has all rights, notices, consents, permissions, and lawful authority required to collect, use, disclose, transfer, store, and provide Personal Information to the Supplier, Vendors, service providers, and other third parties involved in the activation, support, renewal, administration, migration, or compliance management of Products and Services.
15.14 The Reseller must ensure that each End User receives all privacy notices required by law before the Reseller provides the End User’s Personal Information to the Supplier or any Vendor.
15.15 The Reseller must ensure that all Personal Information it provides to the Supplier or any Vendor is accurate, complete, current, relevant, not misleading, and limited to what is reasonably required for the relevant Order, Product, Service, licence, Subscription, activation, support, renewal, migration, compliance check, or other lawful purpose.
15.16 The Reseller must not provide sensitive information to the Supplier unless the Supplier has expressly requested it, it is strictly necessary for the relevant Product or Service, the required consent has been obtained, and disclosure is permitted by law.
15.17 The Reseller must not use Personal Information received from or through the Supplier, Vendors, or End Users for direct marketing, telemarketing, profiling, analytics, model training, data enrichment, data sale, data sharing, or unrelated commercial purposes unless permitted by law and expressly authorised under this Agreement or in writing by the Supplier.
15.18 Each Party must maintain reasonable administrative, technical, organisational, and security safeguards to protect Confidential Information and Personal Information against unauthorised access, use, disclosure, alteration, loss, destruction, misuse, interference, compromise, or unlawful processing.
15.19 A Party must notify the other Party promptly, and where reasonably practicable within 24 hours after becoming aware, of any actual or suspected unauthorised access, disclosure, loss, misuse, interference, compromise, security incident, data breach, or privacy breach involving the other Party’s Confidential Information or Personal Information connected with this Agreement.
15.20 A notice under clause 15.19 must, to the extent known and legally permitted, include reasonable details of the incident, affected information, affected systems, likely cause, containment steps, remediation steps, known or likely impact, and any assistance reasonably required.
15.21 Where an incident may constitute an eligible data breach under the Notifiable Data Breaches scheme, or may require notification under any other applicable law, the Parties must cooperate reasonably to assess the incident, contain the risk, preserve evidence, notify affected persons or regulators where required, and mitigate harm.
15.22 The Reseller must not make any public, customer, regulator, media, or third-party communication about a security incident, data breach, privacy incident, or compromise affecting the Supplier, a Vendor, Products, Services, Supplier Systems, Vendor Systems, or Supplier Confidential Information without the Supplier’s prior written approval, except to the extent required by law. Where legally permitted, the Reseller must consult the Supplier before making any required communication.
15.23 The Supplier is not responsible for any privacy breach, data breach, unauthorised access, loss, misuse, disclosure, compromise, or unlawful processing arising from the Reseller’s systems, personnel, contractors, End User communications, customer contracts, marketing activities, unauthorised use, or failure to comply with privacy laws, except to the extent caused by the Supplier’s own breach of this Agreement.
15.24 On request by the disclosing Party, or on expiry or termination of this Agreement, the receiving Party must promptly return, delete, destroy, permanently remove, or permanently de-identify the disclosing Party’s Confidential Information in its possession or control, to the extent the information is capable of return, deletion, destruction, removal, or de-identification.
15.25 Clause 15.24 does not require deletion or destruction where retention is required or permitted by law, audit obligations, insurance requirements, dispute management, accounting requirements, backup systems, this Agreement, or legitimate enforcement, compliance, or recordkeeping purposes.
15.26 Personal Information must be handled, retained, deleted, de-identified, or returned in accordance with applicable privacy laws, this Agreement, and any lawful retention requirement.
15.27 Any retained Confidential Information or Personal Information remains subject to this clause and must not be actively used except for the permitted retention purpose.
15.28 Each Party acknowledges that unauthorised use or disclosure of Confidential Information or Personal Information may cause serious harm. The affected Party may seek urgent injunctive, equitable, protective, or other relief for any actual or threatened breach of this clause without first completing the dispute-resolution process in clause 26.
16.1 Each Party must comply with all laws, regulations, mandatory codes, licences, permits, approvals, and regulatory requirements that apply to its business and performance under this Agreement.
16.2 The Reseller must comply with all laws and mandatory requirements applying to its reseller activities, End User dealings, Products and Services, and related transactions, including consumer protection, competition and fair trading, privacy, spam, cybersecurity, sanctions, export control, anti-bribery, anti-corruption, financial crime, tax, procurement, modern slavery where applicable, Vendor requirements, and customer-specific requirements.
16.3 The Reseller must not engage in misleading, deceptive, unconscionable, anti-competitive, fraudulent, dishonest, or otherwise unlawful conduct connected with Products, Services, the Supplier, Vendors, End Users, or this Agreement.
16.4 The Reseller must not request, pressure, induce, assist, or encourage the Supplier, any Vendor, or any reseller to fix, maintain, increase, control, or enforce a minimum resale price or restrict another reseller’s lawful pricing.
16.5 The Reseller must comply with all applicable sanctions, export-control, import-control, customs, trade-control, technology-transfer, restricted-end-use, and restricted-end-user laws. The Reseller must not directly or indirectly market, sell, licence, provide access to, support, export, re-export, transfer, disclose, or make available any Product, Service, Software, technology, Source Code, Non-Public Technical Materials, hosted access, Supplier System access, Vendor System access, or support:
(a) to or for the benefit of any sanctioned, restricted, prohibited, denied, debarred, or ineligible person, entity, vessel, jurisdiction, territory, or end user;
(b) for any prohibited or restricted end use, including military, nuclear, chemical, biological, missile, surveillance, cyber-offensive, human-rights abuse, unlawful intelligence, weapons-related, or similar restricted purpose, where prohibited or restricted by law, Vendor Terms, End User Terms, or Supplier Policies; or
(c) in a way that may breach sanctions, export-control, trade-control, technology-transfer, Vendor, or legal requirements, or expose the Supplier or any Vendor to material legal, regulatory, commercial, security, operational, or reputational risk.
16.6 The Reseller must conduct reasonable screening and due diligence of End Users, transactions, territories, beneficial owners, intermediaries, and intended use where required by law, Vendor Terms, End User Terms, Supplier Policies, or the nature of the relevant Product or Service.
16.7 The Reseller must promptly provide information reasonably requested by the Supplier or any Vendor for sanctions, export-control, anti-bribery, anti-corruption, fraud, tax, privacy, cybersecurity, credit, audit, identity, beneficial-ownership, licence, procurement, or other compliance purposes.
16.8 The Reseller must not offer, request, give, receive, or accept any bribe, kickback, secret commission, facilitation payment, improper gift, improper hospitality, improper rebate, or other improper advantage, or engage in fraud, corruption, money laundering, tax evasion, financial crime, dishonest conduct, or conduct that may cause the Supplier or any Vendor to breach applicable anti-bribery, anti-corruption, procurement, sanctions, financial-crime, or trade-control laws.
16.9 Where the Reseller deals with a government, public-sector, state-owned, education, health, defence, critical infrastructure, financial services, regulated, or sensitive-sector customer, the Reseller must comply with all applicable procurement, probity, conflict-of-interest, anti-bribery, security, customer-specific, and Vendor requirements.
16.10 The Reseller must promptly notify the Supplier of any actual, potential, or perceived conflict of interest, compliance breach, failed compliance check, inaccurate compliance information, suspected unlawful conduct, or other compliance issue that may affect this Agreement, any Order, Product or Service, the Supplier, a Vendor, or an End User.
16.11 The Reseller must comply with any applicable Vendor partner program, compliance program, certification requirement, training requirement, deal-registration rule, customer eligibility rule, government-customer rule, supply-chain requirement, security requirement, or audit requirement notified by the Supplier or Vendor.
16.12 The Reseller must maintain records sufficient to demonstrate compliance with this clause in accordance with clause 22 and cooperate with any reasonable investigation, audit, review, screening, or information request by the Supplier, Vendor, regulator, law enforcement authority, government authority, auditor, insurer, or professional adviser.
16.13 The Reseller must not:
(a) use any affiliate, contractor, agent, distributor, sub-reseller, marketplace, customer, intermediary, consultant, broker, nominee, related entity, or third party to do anything the Reseller is prohibited from doing under this Agreement; or
(b) conceal, misstate, omit, or falsify any End User identity, beneficial ownership, transaction purpose, intended use, destination, location, Territory, licence requirement, export-control status, sanctions status, tax status, government-customer status, or compliance information.
16.14 Where the Supplier reasonably considers that a breach, suspected breach, failed check, missing or inaccurate information, refused certification, unresolved inquiry, or compliance risk affects any Order, Product, Service, licence, Subscription, support, renewal, access, End User, transaction, Supplier System, Vendor arrangement, or Vendor System, the Supplier may take action under clause 20 and, where the matter is serious, repeated, or unremedied, terminate under clause 21.
16.15 The Supplier is not required to give advance notice or disclose reasons where doing so may create legal, regulatory, sanctions, export-control, fraud, cybersecurity, privacy, Vendor, investigative, enforcement, operational, customer, or compliance risk.
17.1 Each Party warrants that:
(a) if it is an entity, it is validly incorporated, registered, or established under the laws applicable to it;
(b) if it is an individual, it has legal capacity to enter into and perform this Agreement;
(c) it has authority to enter into and perform this Agreement;
(d) this Agreement constitutes legal, valid, and binding obligations on it; and
(e) it will comply with all laws applicable to its performance of this Agreement.
17.2 Subject to this Agreement, the Supplier warrants that it will use reasonable skill, care, and diligence in performing its obligations and that it has the right to supply or arrange the supply of Products and Services.
17.3 The Reseller warrants that it will:
(a) deal with Products and Services only in accordance with this Agreement, the Applicable Transaction Documents, Vendor Terms, End User Terms, Supplier Policies, Supplier instructions, and applicable law;
(b) ensure that End Users are made aware of, accept, and comply with applicable Vendor Terms and End User Terms, and maintain reasonable evidence of that acceptance;
(c) not grant End Users broader rights than those authorised under this Agreement, Vendor Terms, End User Terms, or written approval issued by the Supplier;
(d) not make any unauthorised, false, misleading, deceptive, incomplete, exaggerated, or unlawful statement, warranty, guarantee, refund promise, service level, support commitment, implementation commitment, renewal commitment, cancellation right, suitability statement, compatibility statement, or other commitment about Products, Services, the Supplier, Vendors, or End User arrangements;
(e) ensure that all information it provides to the Supplier or any Vendor is accurate, complete, current, lawful, and not misleading;
(f) hold all rights, notices, consents, permissions, and lawful authority required to provide End User information and Personal Information to the Supplier and any Vendor;
(g) not misuse Protected Materials or Intellectual Property Rights; and
(h) maintain all licences, approvals, registrations, permits, insurance, and authorisations required to conduct its business and perform this Agreement.
17.4 Many Products and Services are supplied, licensed, hosted, supported, warranted, maintained, updated, secured, or controlled by Vendors. Any Product-specific warranty, support commitment, uptime commitment, defect remedy, availability commitment, security commitment, service credit, maintenance right, update right, or other remedy is governed by the applicable Vendor Terms or End User Terms.
17.5 To the extent permitted by law, the Supplier’s responsibility for any Vendor warranty, service commitment, support right, maintenance right, service credit, defect remedy, availability commitment, or other Vendor remedy is limited to using reasonable efforts to pass through the benefit of that right where legally and contractually permitted.
17.6 The Supplier does not independently warrant any Product, Service, Software, SaaS product, hosted service, platform, licence, Subscription, update, patch, support service, maintenance service, security feature, integration, or environment supplied, owned, hosted, controlled, or supported by a Vendor, except to the extent expressly stated in this Agreement or required by law.
17.7 To the extent permitted by law, the Supplier does not warrant that any Product, Service, Software, SaaS product, hosted service, platform, licence, Subscription, integration, support service, maintenance service, Supplier System, Vendor System, or related Service will be uninterrupted, error-free, secure, vulnerability-free, continuously available, compatible with any particular system, suitable for any particular purpose, or continue with the same features, functionality, pricing, support, availability, licensing model, or Vendor program status.
17.8 The Reseller is responsible for assessing whether Products and Services are suitable for its own and its End Users’ requirements. The Supplier is not responsible for any selection, recommendation, configuration, implementation, deployment, integration, migration, suitability, compliance, or use decision made by the Reseller or an End User unless expressly agreed in writing.
17.9 The Reseller must not represent to any End User that any statement, demonstration, proposal, recommendation, forecast, description, roadmap item, technical statement, security statement, pricing statement, availability statement, or advice binds the Supplier unless it is expressly included in this Agreement, a Quote, Vendor Terms, End User Terms, or written material approved by the Supplier.
17.10 Nothing in this Agreement excludes, restricts, or modifies any guarantee, warranty, condition, right, remedy, or liability that cannot lawfully be excluded, restricted, or modified under the Australian Consumer Law or any other applicable law.
17.11 Where the Supplier is permitted by law to limit its liability for breach of any guarantee, condition, warranty, or obligation, including under section 64A of the Australian Consumer Law or any equivalent provision, and where it is fair and reasonable to do so, the Supplier’s liability is limited, at the Supplier’s option:
(a) for goods, if any Product is treated as goods under applicable law, to replacement, equivalent supply, repair, or payment of the cost of replacement, equivalent supply, or repair; and
(b) for services, to supplying the services again or payment of the cost of having the services supplied again.
17.12 The Reseller acknowledges that it acquires Products and Services for resale, business use, commercial supply, or use as inventory in its business, and not wholly or predominantly for personal, domestic, or household use or consumption.
17.13 Subject to clauses 17.10 to 17.12, and to the extent permitted by law, all conditions, warranties, guarantees, representations, terms, and obligations that would otherwise be implied by law, statute, custom, trade, course of dealing, or otherwise are excluded.
17.14 The Reseller is responsible for all warranties, guarantees, representations, refunds, remedies, service commitments, support commitments, implementation commitments, renewal commitments, cancellation rights, suitability statements, and other obligations it provides or owes to End Users, except to the extent expressly assumed by the Supplier in writing or unable to be excluded by law.
17.15 The Reseller must promptly notify the Supplier of, and cooperate with the Supplier and any Vendor in relation to, any warranty claim, consumer-law claim, service claim, support claim, complaint, regulatory inquiry, defect allegation, security allegation, privacy allegation, misleading-conduct allegation, product withdrawal, or threatened claim relating to Products or Services where the matter may affect the Supplier, any Vendor, any Product, any Service, any Supplier System, any Vendor System, or any Intellectual Property Rights.
18.1 The Reseller indemnifies the Supplier, its related bodies corporate, officers, employees, contractors, agents, Vendors, licensors, and representatives against any claim, loss, liability, damage, cost, expense, proceeding, penalty, fine, settlement amount, investigation cost, enforcement cost, or reasonable legal costs, to the extent permitted by law and to the extent caused or contributed to by:
(a) the Reseller’s breach of this Agreement, Vendor Terms, End User Terms, Supplier Policies, Supplier instructions, or applicable law;
(b) any unauthorised, false, misleading, deceptive, incomplete, inaccurate, or unlawful statement, warranty, guarantee, commitment, customer term, refund promise, service level, support commitment, implementation commitment, renewal promise, cancellation right, suitability statement, compatibility statement, security statement, or compliance statement made by the Reseller;
(c) any End User claim arising from the Reseller’s contract, conduct, communication, pricing, invoicing, collection activity, support, implementation, resale activity, customer relationship, or failure to obtain or maintain End User acceptance of Vendor Terms or End User Terms;
(d) inaccurate, incomplete, outdated, misleading, unauthorised, or unlawful information provided by the Reseller;
(e) misuse, unauthorised access, unauthorised disclosure, unauthorised use, copying, modification, reverse engineering, scraping, benchmarking, security testing, competitive development, artificial intelligence use, or other unauthorised exploitation of Products, Services, Protected Materials, or Intellectual Property Rights;
(f) any Intellectual Property Rights claim, confidentiality breach, privacy breach, data breach, security incident, credential compromise, unlawful disclosure, or misuse of Personal Information caused or contributed to by the Reseller;
(g) any breach by the Reseller of sanctions, export-control, anti-bribery, anti-corruption, consumer, competition, tax, privacy, cybersecurity, procurement, spam, electronic communications, financial-crime, modern-slavery, or trade-control laws;
(h) any failure by the Reseller to pay taxes, duties, charges, withholding amounts, bank charges, currency-conversion charges, transfer charges, payment-processing charges, or other amounts for which the Reseller is responsible; or
(i) any act or omission of the Reseller’s personnel, approved sub-resellers, approved channel partners, or any person acting on behalf of or through the Reseller.
18.2 The Supplier may recover under clause 18.1 on its own behalf and on behalf of each indemnified person listed in that clause.
18.3 Subject to clause 19, the Supplier indemnifies the Reseller against direct loss, liability, cost, or expense finally awarded by a court of competent jurisdiction, or agreed in a settlement approved by the Supplier in writing, to the extent caused directly by:
(a) the Supplier’s fraud or wilful misconduct;
(b) the Supplier’s material breach of clause 15 involving the Reseller’s Confidential Information or Personal Information; or
(c) a third-party claim that Supplier-owned materials supplied by the Supplier to the Reseller under this Agreement, when used strictly in accordance with this Agreement, infringe that third party’s Intellectual Property Rights.
18.4 The Supplier is not required to indemnify the Reseller to the extent the relevant claim, loss, liability, cost, or expense arises from or is contributed to by:
(a) the Reseller’s breach of this Agreement, Vendor Terms, End User Terms, Supplier Policies, or Supplier instructions;
(b) Vendor Materials, Vendor products, Vendor software, Vendor Systems, Vendor data, third-party materials, third-party systems, or any Vendor or third-party act, omission, defect, outage, restriction, suspension, withdrawal, discontinuance, support failure, pricing change, or terms change;
(c) the Reseller’s unauthorised modification, combination, use, access, supply, disclosure, distribution, or exploitation of Products, Services, Supplier-owned materials, or Protected Materials;
(d) any End User act, omission, misuse, non-payment, breach, refusal to accept terms, system issue, or security incident;
(e) any unauthorised representation, warranty, commitment, customer term, proposal, quote, support statement, suitability statement, compatibility statement, or public statement given by the Reseller;
(f) continued use after the Supplier has required use to stop; or
(g) use of an older version where the claim would have been avoided by using an update, patch, replacement, or modified material made available by the Supplier or Vendor.
18.5 A Party seeking indemnity must promptly notify the indemnifying Party of the claim, provide reasonable details, mitigate loss, not admit liability or settle without the indemnifying Party’s prior written consent, and provide reasonable cooperation in defending, settling, or managing the claim.
18.6 A failure to give prompt notice under clause 18.5 reduces the indemnifying Party’s liability only to the extent the failure prejudices its ability to defend, settle, or manage the claim.
18.7 The indemnifying Party may control the defence and settlement of a third-party claim, provided it acts reasonably, keeps the indemnified Party informed, and does not settle in a way that imposes an admission of liability, ongoing obligation, payment obligation, restriction, loss of rights, or reputational harm on the indemnified Party without its written consent.
18.8 The Reseller must not settle, compromise, admit liability, make any payment, provide any undertaking, or make any public statement in relation to any claim that affects or may affect the Supplier, a Vendor, Products, Services, Supplier Systems, Vendor Systems, Intellectual Property Rights, licences, Subscriptions, Confidential Information, Personal Information, or End User relationships without the Supplier’s prior written consent.
18.9 The Reseller’s liability under an indemnity is reduced to the extent the relevant loss, liability, cost, or expense is caused by the Supplier’s fraud, wilful misconduct, or material breach of this Agreement.
18.10 A Party must not recover the same loss more than once under this Agreement.
19.1 This clause applies to all liability arising under or in connection with this Agreement, whether in contract, tort including negligence, statute, equity, indemnity, restitution, misrepresentation, breach of duty, or otherwise.
19.2 Nothing in this Agreement excludes, restricts, or modifies any right, guarantee, remedy, or liability that cannot lawfully be excluded, restricted, or modified under the Australian Consumer Law or any other applicable law.
19.3 Subject to clauses 19.2 and 19.8, the Supplier is not liable to the Reseller for:
(a) loss of profit, revenue, anticipated savings, business opportunity, goodwill, reputation, contract, customer, production, use, or business interruption, whether direct, indirect, consequential, special, exemplary, punitive, incidental, or otherwise;
(b) loss, corruption, deletion, compromise, unavailability, or restoration of data, except to the extent directly caused by the Supplier’s material breach of clause 15;
(c) any End User claim, except to the extent expressly covered by the Supplier’s indemnity under clause 18.3;
(d) loss arising from any Vendor or third-party act, omission, outage, withdrawal, suspension, refusal, discontinuance, security issue, licence restriction, support failure, pricing change, renewal change, product change, platform change, or terms change;
(e) loss arising from the Reseller’s End User contracts, pricing, warranties, statements, support, implementation, marketing, invoicing, collection activity, systems, security controls, privacy practices, or customer relationship; or
(f) loss arising from delay, non-availability, suspension, cancellation, discontinuance, withdrawal, activation failure, provisioning failure, migration issue, access restriction, support restriction, renewal restriction, unauthorised access, credential misuse, licence misuse, security incident, privacy incident, or system compromise, except to the extent caused by the Supplier’s material breach of this Agreement.
19.4 Subject to clause 19.2, the Supplier is not liable to the extent any claim, loss, liability, cost, expense, damage, delay, outage, defect, interruption, access issue, data issue, security issue, support failure, price change, licensing change, suspension, cancellation, withdrawal, or discontinuance is caused or contributed to by:
(a) any Vendor, hosting provider, cloud provider, platform provider, payment provider, carrier, internet provider, support provider, End User, or other third party;
(b) the Reseller’s acts or omissions, systems, personnel, contractors, contracts, communications, cybersecurity controls, privacy practices, data handling, pricing, invoicing, support, implementation, marketing, or customer relationship;
(c) misuse, unauthorised use, breach of this Agreement, breach of Vendor Terms or End User Terms, or failure to follow instructions, apply updates, provide information, obtain acceptance, obtain approvals, make payment, or maintain technical readiness; or
(d) any matter outside the Supplier’s reasonable control.
19.5 Subject to clauses 19.2 and 19.8, the Supplier’s total aggregate liability to the Reseller arising under or in connection with this Agreement, including under any indemnity, is limited to the Fees paid by the Reseller to the Supplier for the affected Products or Services during the 12 months before the claim arose.
19.6 If no Fees were paid for the affected Products or Services during the period stated in clause 19.5, the Supplier’s total aggregate liability is limited to AUD 1,000.
19.7 If a Quote, Accepted Order, reseller approval, onboarding document, Special Condition, or other written document approved by the Supplier states a different liability cap for a specific Product, Service, Order, Subscription, support arrangement, or transaction, that cap applies only to that specific Product, Service, Order, Subscription, support arrangement, or transaction.
19.8 Clauses 19.3 to 19.7 do not apply to liability arising from:
(a) fraud;
(b) wilful misconduct;
(c) personal injury or death caused by negligence;
(d) intentional misuse or unauthorised disclosure of Confidential Information;
(e) a privacy breach or data breach caused by the Supplier’s fraud, wilful misconduct, or material breach of clause 15; or
(f) liability that cannot lawfully be excluded or limited.
19.9 Nothing in this clause limits the Reseller’s liability for:
(a) Fees, Orders, taxes, duties, withholding amounts, payment-processing charges, bank charges, transfer charges, currency-conversion charges, and other payment obligations;
(b) fraud, wilful misconduct, intentional unlawful conduct, or dishonest conduct;
(c) unauthorised warranties, representations, commitments, promises, refund statements, service levels, support commitments, implementation commitments, or customer terms;
(d) breach of Vendor Terms, End User Terms, confidentiality, privacy, sanctions, export-control, anti-bribery, anti-corruption, competition, spam, cybersecurity, or Intellectual Property Rights obligations;
(e) misuse, copying, reverse engineering, decompilation, disassembly, disclosure, unauthorised access, unauthorised use, or unauthorised distribution of Protected Materials;
(f) liability arising from the Reseller’s End User contracts, End User claims, customer communications, pricing, invoicing, marketing, support, implementation, or collection activity; or
(g) indemnity obligations under clause 18 to the extent arising from the matters listed in this clause 19.9.
19.10 Each Party must take reasonable steps to mitigate loss and must not recover the same loss more than once.
19.11 Subject to clause 19.2, the Reseller must notify the Supplier of any claim arising under or in connection with this Agreement within 12 months after the Reseller became aware, or ought reasonably to have become aware, of the event giving rise to the claim. A failure to notify within that period reduces the Supplier’s liability only to the extent the failure prejudices the Supplier’s ability to investigate, defend, mitigate, or resolve the claim.
19.12 Clause 19.11 does not apply where its application would be prohibited by law.
19.13 Where the same claim arises under this Agreement, a Quote, Accepted Order, Vendor Terms, End User Terms, support arrangement, Supplier Policy, or related document, the Reseller may recover only once for the same loss, and this clause applies to the Supplier’s total combined liability.
20.1 The Supplier may, acting reasonably and to the extent permitted by law, suspend, restrict, withhold, delay, disable, or limit any affected Order, activation, provisioning, Delivery, licence, Subscription, renewal, support, maintenance, credit term, Supplier System access, Vendor System access, portal access, or other access to Products or Services where reasonably necessary to protect the Supplier, a Vendor, an End User, systems, data, licences, security, payment recovery, or compliance.
20.2 The Supplier may exercise its rights under clause 20.1 where it reasonably considers that action is necessary because of:
(a) non-payment, overdue invoices, exceeded credit limits, withdrawn credit terms, increased credit risk, or an actual or likely Insolvency Event affecting the Reseller;
(b) breach or suspected breach of this Agreement, Vendor Terms, End User Terms, Supplier Policies, or Supplier instructions by the Reseller or an End User;
(c) missing, incomplete, inaccurate, or delayed information, approval, End User acceptance, compliance clearance, security clearance, identity information, tax information, sanctions information, export-control information, Vendor approval, or other evidence reasonably required by the Supplier;
(d) suspected fraud, misuse, unauthorised access, licence abuse, credential compromise, security compromise, privacy breach, data breach, unlawful conduct, unauthorised resale activity, or misuse of Protected Materials;
(e) Vendor suspension, restriction, withdrawal, delay, refusal, Product unavailability, end-of-life status, end-of-support status, support discontinuance, licence restriction, platform change, or Vendor requirement; or
(f) legal, regulatory, Vendor, licence, payment, security, privacy, tax, sanctions, export-control, anti-bribery, competition, consumer-law, operational, Intellectual Property Rights, or compliance risk.
20.3 Where reasonably practicable, the Supplier must notify the Reseller of a suspension and the reason for it. The Supplier may act without prior notice, or withhold reasons, where notice or disclosure may create legal, regulatory, security, fraud, payment, privacy, sanctions, export-control, Vendor, investigative, enforcement, customer, operational, data, system, Intellectual Property Rights, or compliance risk.
20.4 Where practicable, the Supplier must limit suspension to the affected Order, Product, Service, licence, Subscription, support matter, account, End User, Territory, system access, access right, or issue.
20.5 During any suspension:
(a) the Supplier is not required to accept or process Orders, activate, provision, deliver, renew, support, maintain, migrate, or make available the affected Product or Service;
(b) the Reseller must not market, sell, licence, activate, renew, support, make available, or otherwise deal with the affected Product or Service except as permitted by the Supplier in writing;
(c) affected access, support, maintenance, updates, renewals, Supplier Systems, Vendor Systems, and portal access may be restricted, delayed, suspended, disabled, withheld, or limited; and
(d) the Reseller remains responsible for all payment obligations and accrued liabilities.
20.6 During any suspension, the Reseller must comply with reasonable Supplier instructions, stop unauthorised activity, preserve relevant records, protect Protected Materials, cooperate with investigation or remediation, and notify affected End Users where required by the Supplier, Vendor Terms, End User Terms, or applicable law.
20.7 The Supplier may reinstate suspended Orders, Products, Services, licences, Subscriptions, support, credit terms, system access, portal access, or other access once satisfied that the issue has been remedied and reinstatement is permitted. Reinstatement may be subject to reasonable conditions, including payment of overdue amounts, payment in advance, revised credit terms, Vendor charges, reinstatement costs, updated information, compliance checks, security checks, written undertakings, or remediation evidence.
20.8 Subject to clause 19.2, the Supplier is not liable for any loss, cost, liability, claim, interruption, delay, loss of access, loss of revenue, loss of profit, customer claim, End User dispute, data issue, support issue, renewal issue, or other consequence arising from a suspension exercised in accordance with this Agreement.
20.9 Suspension does not terminate this Agreement unless the Supplier gives written notice of termination and does not limit any other right or remedy of the Supplier.
21.1 This Agreement starts on the Effective Date and continues until terminated under this Agreement.
21.2 Either Party may terminate this Agreement for convenience by giving at least 30 days’ written notice, unless a different notice period is expressly agreed in a Special Condition or other reseller-specific written approval accepted by both Parties.
21.3 Termination for convenience does not cancel any Accepted Order, active Subscription, payment obligation, accrued obligation, renewal obligation, Vendor requirement, End User obligation, or continuing obligation unless cancellation is confirmed by the Supplier in writing or required by this Agreement, Vendor Terms, End User Terms, or law.
21.4 Either Party may terminate this Agreement by written notice if the other Party commits a material breach and:
(a) the breach cannot be remedied;
(b) the breach can be remedied but is not remedied within 14 days after written notice requiring remedy; or
(c) the breach is repeated, persistent, or serious enough to justify termination, having regard to its nature and consequences.
21.5 The Supplier may terminate this Agreement by written notice if the Reseller fails to pay any amount when due and does not remedy that failure within 7 days after written notice requiring payment.
21.6 The Supplier may terminate this Agreement immediately by written notice if the Reseller commits a serious, repeated, or irremediable breach involving:
(a) reseller authority, unauthorised channels, unauthorised commitments, misleading conduct, fraud, dishonesty, or unlawful conduct;
(b) Software licensing, Vendor Terms, End User Terms, End User acceptance, Protected Materials, Intellectual Property Rights, credentials, access rights, or Supplier Systems;
(c) confidentiality, privacy, security, data protection, sanctions, export control, anti-bribery, compliance, or applicable law; or
(d) conduct reasonably likely to materially prejudice the Supplier or any Vendor.
21.7 To the extent permitted by law, either Party may terminate this Agreement immediately by written notice if the other Party suffers an Insolvency Event.
21.8 The Supplier may terminate this Agreement, or terminate, suspend, or restrict the Reseller’s right to resell an affected Product or Service, where reasonably necessary because:
(a) a Vendor terminates, suspends, restricts, withdraws, or materially changes the Supplier’s right to supply, resell, support, maintain, activate, provision, renew, or make available the relevant Product or Service;
(b) a Vendor requires termination, suspension, restriction, or a change to the Reseller’s appointment, access, support rights, or resale rights;
(c) the relevant Product or Service is withdrawn, discontinued, suspended, restricted, end-of-life, end-of-support, unavailable, or subject to materially changed Vendor Terms;
(d) the Reseller fails to satisfy any applicable Vendor approval, certification, training, eligibility, security, support, audit, or compliance requirement; or
(e) continued resale may place the Supplier in breach of Vendor Terms, Vendor requirements, applicable law, or compliance requirements, or may create a material legal, regulatory, security, privacy, Vendor, customer, operational, commercial, licence, or compliance risk.
21.9 Where practicable, the Supplier must limit any termination, suspension, or restriction under clause 21.8 to the affected Product, Service, Accepted Order, Subscription, Territory, End User, Vendor arrangement, support arrangement, access right, licence, or resale right.
21.10 After a termination notice is given, the Supplier may refuse new Orders, renewals, upgrades, downgrades, migrations, support requests, or other new requests from the Reseller. During any notice period, the Supplier may also take action under clause 20.
21.11 Subject to applicable law, the Reseller is not entitled to compensation, damages, reimbursement, goodwill payment, lost profit, lost opportunity, customer value, pipeline value, renewal value, termination payment, or similar amount merely because this Agreement expires or is lawfully terminated.
21.12 On expiry or termination, all rights granted to the Reseller cease. Unless the Supplier gives prior written approval, the Reseller must stop all reseller activity, stop representing any connection with the Supplier or any Vendor, stop using Protected Materials, stop accessing Supplier Systems and Vendor Systems, and stop creating new End User commitments relating to Products or Services.
21.13 After expiry or termination, the Supplier may, acting reasonably, complete, cancel, suspend, transfer, transition, migrate, administer, or manage any Accepted Order or active Subscription where required to protect the Supplier, a Vendor, an End User, continuity of access, security, compliance, payment recovery, licence administration, or lawful operation of Products or Services.
21.14 For any active Subscription that continues after expiry or termination, the Reseller remains responsible for all payment obligations and must comply with applicable Vendor Terms, End User Terms, Supplier Policies, and laws. The Supplier may require the Reseller to assist with administration or transition of existing Subscriptions and may prevent new or expanded End User commitments unless approved in writing.
21.15 On expiry or termination, the Reseller must immediately pay all amounts due or accrued under this Agreement, including amounts payable for Accepted Orders, active Subscriptions, Vendor charges, cancellation charges, taxes, duties, interest, recovery costs, and any other amount payable.
21.16 On expiry or termination, the Reseller must comply with its stop-use, return, deletion, destruction, removal, access-disablement, retention, and continuing protection obligations under clauses 14 and 15.
21.17 The Reseller must provide reasonable assistance requested by the Supplier to transition affected End Users, Accepted Orders, Subscriptions, licences, support matters, renewals, records, customer information, access details, licence information, and account administration to the Supplier, a Vendor, or another authorised reseller. The Reseller must not interfere with, obstruct, delay, restrict, or prevent any lawful transition, renewal, migration, support, licence administration, compliance check, audit activity, payment recovery, or dealing between the Supplier, a Vendor, and End Users.
21.18 Expiry or termination does not affect any accrued right, remedy, claim, liability, payment obligation, indemnity, confidentiality obligation, privacy obligation, audit right, compliance obligation, Intellectual Property Rights obligation, restriction, or other obligation that arose before expiry or termination or is intended to continue after expiry or termination.
22.1 The Reseller must maintain complete, accurate, current, and auditable records reasonably required to verify compliance with this Agreement, including records relating to Orders, Accepted Orders, Fees, payments, End Users, Territories, licence quantities, Subscriptions, renewals, cancellations, support matters, End User acceptance of Vendor Terms and End User Terms, compliance with clauses 9, 15 and 16, and approved third-party arrangements.
22.2 The Reseller must retain records required under this Agreement for at least 7 years after the relevant Order, renewal, cancellation, expiry, termination, or transaction, unless a longer period is required by law, Vendor Terms, End User Terms, an Accepted Order, Special Conditions, or another written requirement approved by the Supplier.
22.3 The Reseller must provide reports, confirmations, certifications, declarations, records, and information reasonably requested by the Supplier or a Vendor to verify sales activity, licence use, Subscription status, End User acceptance, payment obligations, support matters, compliance, security, privacy, audit, or any other matter reasonably connected with this Agreement.
22.4 The Reseller warrants that all reports, records, declarations, confirmations, certifications, and information provided to the Supplier or any Vendor are accurate, complete, current, lawful, and not misleading.
22.5 The Supplier may audit the Reseller’s relevant records and, where reasonably necessary, relevant systems, processes, and controls to verify compliance with this Agreement, including payment, licence, Subscription, Territory, End User acceptance, Protected Materials, privacy, security, Vendor, legal, and regulatory compliance.
22.6 Where a Vendor has audit, reporting, verification, licence-review, compliance-review, information-request, or inspection rights under Vendor Terms, the Reseller must cooperate with the Supplier and the Vendor to satisfy those requirements.
22.7 Except in cases of suspected fraud, unlawful conduct, security risk, privacy breach, licence misuse, credential misuse, unauthorised access, breach of Vendor Terms or End User Terms, Intellectual Property Rights misuse, or urgent compliance concern, the Supplier must give the Reseller reasonable notice before conducting an audit.
22.8 Any audit must be reasonable in scope, conducted during normal business hours where practicable, and limited to information relevant to this Agreement, unless broader access is required by law, Vendor Terms, court order, regulator, government authority, or urgent security or compliance circumstances.
22.9 The Reseller must cooperate with any audit and must not obstruct, delay, mislead, conceal, delete, alter, falsify, or withhold relevant records, reports, evidence, system information, licence information, End User information, or compliance information.
22.10 The Supplier must conduct audits in a manner that reasonably protects the Reseller’s Confidential Information, Personal Information, and commercially sensitive information, except where disclosure is required to a Vendor, auditor, regulator, court, government authority, professional adviser, insurer, law enforcement authority, or otherwise permitted under this Agreement.
22.11 Nothing in this clause requires a Party to disclose legally privileged material, Source Code, internal security architecture, internal systems, non-public technical information, commercially sensitive Vendor arrangements, or information unrelated to the Reseller’s compliance with this Agreement, except to the extent required by law or where privilege has been waived.
22.12 Each Party bears its own audit costs unless the audit identifies a material breach, underpayment, licence misuse, unauthorised sale, unauthorised access, false report, material inaccuracy, or material non-compliance by the Reseller. In that case, the Reseller must reimburse the Supplier for reasonable audit costs.
22.13 If an audit identifies underpayment, licence overuse, unauthorised use, misuse of Protected Materials, breach of Vendor Terms or End User Terms, or other material non-compliance, the Reseller must promptly pay all applicable additional Fees, correct the non-compliance, provide remediation evidence, and cooperate with any further investigation.
22.14 If the Reseller fails to provide required records, reports, certifications, confirmations, or audit cooperation, or provides information that is false, incomplete, inaccurate, outdated, misleading, or unsupported, the Supplier may require correction and supporting evidence. Where reasonably necessary and proportionate to the issue, the Supplier may also take action under clause 20, withhold affected rebates, discounts, credits, incentives, or special pricing, notify the relevant Vendor, require payment in advance, require remediation evidence, or treat the failure as a material breach if the failure is serious, repeated, or unremedied. Before taking action, the Supplier must give the Reseller a reasonable opportunity to comply unless delay may create legal, regulatory, Vendor, security, fraud, privacy, licence-compliance, payment, customer, or commercial risk.
23.1 A Party is not liable for delay or failure to perform an obligation under this Agreement to the extent performance is prevented or materially delayed by a Force Majeure Event.
23.2 A Force Majeure Event means an event beyond the affected Party’s reasonable control that prevents or materially delays performance, including:
(a) natural disaster, fire, flood, storm, earthquake, explosion, epidemic, pandemic, or public health emergency;
(b) war, terrorism, civil unrest, riot, sabotage, armed conflict, hostile action, or serious public disorder;
(c) industrial action, strike, lockout, labour shortage, or supply-chain disruption, except where limited to the affected Party’s own workforce and reasonably preventable;
(d) failure, delay, outage, or disruption of telecommunications, internet, cloud infrastructure, hosting services, data centres, electricity, utilities, payment systems, banking systems, or other technology infrastructure;
(e) cyberattack, denial-of-service attack, malware event, ransomware event, security incident, unauthorised system compromise, or vulnerability exploitation, provided the event was not caused by the affected Party’s failure to take reasonable security measures;
(f) Vendor delay, outage, suspension, system failure, licence restriction, supply-chain disruption, security incident, support failure, or inability to provide access, to the extent beyond the Supplier’s reasonable control and not caused merely by ordinary Vendor commercial withdrawal, discontinuance, end-of-life decision, product change, or support change; or
(g) government action, change in law, sanctions, export-control restriction, import restriction, regulatory direction, court order, law-enforcement action, or lawful authority requirement.
23.3 A Force Majeure Event does not include lack of funds, inability to pay, End User non-payment, reduced demand, loss of profit, market changes, failure to obtain internal approvals, failure to plan, failure to maintain reasonable business continuity measures, ordinary Supplier or Vendor commercial changes, or delay caused by the affected Party’s negligence, wilful misconduct, breach of this Agreement, or failure to take reasonable preventive steps.
23.4 A Force Majeure Event does not excuse, suspend, or delay the Reseller’s payment obligations, except where it prevents the operation of banking or payment systems generally.
23.5 The affected Party must notify the other Party as soon as reasonably practicable after becoming aware of the Force Majeure Event and must take reasonable steps to minimise its effect.
23.6 The affected obligations are suspended only for the period and to the extent performance is prevented or materially delayed by the Force Majeure Event.
23.7 During a Force Majeure Event, the Supplier may delay, suspend, allocate, restrict, substitute, cancel, or reschedule affected Orders, activation, provisioning, Delivery, renewal, support, maintenance, migration, system access, or other affected obligations where reasonably necessary. Where practicable, the Supplier must limit the action to the affected Order, Product, Service, Subscription, End User, system, Vendor arrangement, or affected part of this Agreement.
23.8 Where a Force Majeure Event affects a Vendor, hosting provider, cloud provider, platform provider, payment provider, carrier, internet provider, support provider, data centre, or other third party involved in providing the Products or Services, the Supplier’s obligations are suspended to the extent the Supplier’s performance depends on that third party. The Supplier is not required to procure alternatives or workarounds at unreasonable cost or on commercially unreasonable terms.
23.9 If a Force Majeure Event continues for more than 60 consecutive days and materially prevents performance, either Party may terminate the affected Order, Product, Service, Subscription, or affected part of this Agreement by written notice. A Party may terminate the whole Agreement only where the Force Majeure Event materially prevents performance of substantially all of the affected Party’s obligations.
24.1 Any formal notice under this Agreement must be in writing.
24.2 A formal notice may be given by hand delivery, prepaid post, courier, or email. Portal notice, account notice, or another electronic method may be used for a formal notice only where this Agreement permits it or the Parties have agreed that method in writing.
24.3 A notice to the Supplier must be sent to:
(a) Suite 1, Level 3, 430 Collins Street, Melbourne, Victoria 3000;
(b) Suport@dhrp.com.au or
(c) any updated notice details notified by the Supplier in writing.
24.4 A notice to the Reseller may be sent to any address, email address, registered office, principal place of business, billing contact, administrative contact, technical contact, portal account, account contact, or other contact detail provided by the Reseller to the Supplier or used by the Reseller in connection with this Agreement.
24.5 Each Party must keep its notice details current. A notice sent to the last notified details is effective if the receiving Party has not notified updated details. A change of notice details takes effect 2 Business Days after receipt, unless a later date is stated.
24.6 A notice is deemed received:
(a) if delivered by hand, when delivered to the recipient’s address;
(b) if sent by prepaid post within Australia, 5 Business Days after posting;
(c) if sent by prepaid international post, 10 Business Days after posting;
(d) if sent by courier, when the courier records delivery;
(e) if sent by email, when the email becomes capable of being retrieved at the recipient’s nominated email address, unless the sender receives a delivery failure notice; and
(f) if validly sent by portal notice, account notification, or electronic notification, when the notice becomes available in the relevant portal, account, or electronic system.
24.7 If deemed receipt occurs after 5:00 pm Melbourne time or on a non-Business Day, the notice is deemed received at 9:00 am Melbourne time on the next Business Day.
24.8 Routine operational communications may be sent by email, portal notice, Vendor system notification, account notification, or another ordinary business communication method used by the Supplier.
24.9 Each Party must take reasonable steps to monitor its nominated contact points, including email accounts, portal accounts, spam filters, junk folders, and account notifications.
24.10 This clause does not apply to service of court documents or legal proceedings unless permitted by applicable court rules or law.
25.1 Except as permitted under clause 25.7 or approved under clause 25.8, the Reseller must not assign, novate, transfer, charge, encumber, subcontract, delegate, appoint any sub-reseller, or otherwise deal with any right, benefit, obligation, or liability under this Agreement without the Supplier’s prior written consent.
25.2 The Supplier may withhold or condition consent where the proposed dealing is reasonably likely to create material legal, commercial, credit, operational, security, privacy, Vendor, sanctions, export-control, customer, licence, Intellectual Property Rights, or compliance risk that cannot be adequately managed by reasonable conditions.
25.3 The Supplier may assign, novate, transfer, subcontract, delegate, or otherwise deal with any right, benefit, obligation, or liability under this Agreement to:
(a) a related body corporate within the meaning of the Corporations Act 2001 (Cth);
(b) a purchaser of all or part of the Supplier’s business or assets;
(c) a successor entity following merger, restructure, sale, transfer, or corporate reorganisation;
(d) a financier, insurer, professional adviser, debt collector, or enforcement agent for financing, insurance, enforcement, payment recovery, or risk-management purposes; or
(e) another third party in connection with a bona fide business, financing, restructuring, outsourcing, corporate, operational, or commercial transaction,
provided the dealing does not materially reduce the Reseller’s express rights, materially increase the Reseller’s express obligations, or materially increase confidentiality, privacy, security, operational, Vendor, sanctions, export-control, or compliance risk for the Reseller.
25.4 Where practicable, the Supplier must notify the Reseller of any dealing under clause 25.3 that materially affects the Reseller’s rights or obligations.
25.5 The Reseller must sign documents and do all things reasonably required to give effect to any dealing permitted under clause 25.3, provided this does not materially increase the Reseller’s obligations without its consent.
25.6 The Supplier may subcontract or delegate any part of its obligations to Vendors, service providers, hosting providers, support providers, payment providers, professional advisers, contractors, related bodies corporate, or other third parties. The Supplier remains responsible for its obligations where it uses subcontractors, except to the extent this Agreement limits responsibility for Vendors or other third-party providers.
25.7 The Reseller may use employees, contractors, and professional advisers for ordinary internal business, administration, sales support, accounting, legal, tax, and technical support purposes, provided the Reseller remains responsible for their acts and omissions and ensures they comply with this Agreement. The Reseller must not allow them to act as sub-resellers, distributors, agents, marketplaces, brokers, channel partners, referral partners, or independent resellers unless approved by the Supplier in writing.
25.8 The Reseller must not appoint, engage, authorise, permit, or hold out any third party to market, promote, resell, licence, activate, renew, support, or make available Products or Services without the Supplier’s prior written consent.
25.9 If the Supplier approves a third party under clause 25.8, the Reseller remains responsible for that person’s acts and omissions and must ensure that person complies with this Agreement, Vendor Terms, End User Terms, Supplier Policies, Supplier instructions, and applicable law. The Supplier may impose reasonable approval conditions and may withdraw approval where reasonably necessary to manage a material risk.
25.10 Approval of a third party under this clause does not create any contract between the Supplier and that third party unless the Supplier expressly agrees in writing.
25.11 The Reseller must notify the Supplier in writing before any material change of control or, if prior notice is not legally or practically possible, as soon as practicable after becoming aware of the change.
25.12 If the Reseller undergoes a change of control, the Supplier may require updated credit, compliance, ownership, beneficial-ownership, security, tax, sanctions, export-control, privacy, and business information. Where reasonably necessary to manage a material risk, the Supplier may suspend credit terms, require payment in advance, require Vendor approval, review continuing eligibility, restrict affected Orders, renewals, activations, support, Supplier System access, or Vendor System access, or terminate this Agreement if the risk cannot be adequately managed by a less restrictive measure.
25.13 Change of control means a material change in the direct or indirect ownership, control, voting power, management control, beneficial ownership, or effective control of the Reseller.
25.14 Any assignment, novation, transfer, subcontracting, delegation, third-party approval, or change of control does not release the Reseller from any accrued liability or obligation unless the Supplier expressly agrees in writing.
25.15 Any assignment, novation, transfer, subcontracting, delegation, sub-reseller appointment, or other dealing by the Reseller in breach of this clause has no effect against the Supplier unless the Supplier expressly agrees otherwise in writing.
26.1 This clause applies to any dispute, controversy, claim, or disagreement arising out of or connected with this Agreement, including its formation, interpretation, performance, breach, termination, validity, enforceability, or subject matter.
26.2 A Party claiming that a dispute has arisen must give written notice to the other Party stating the dispute, relevant facts, outcome sought, urgent issues, and contact details of the authorised person dealing with it.
26.3 The Parties must use reasonable efforts to resolve the dispute through good-faith negotiations between nominated representatives.
26.4 If the dispute is not resolved within 10 Business Days after the dispute notice is received, either Party may refer it to senior representatives with authority to resolve it.
26.5 The senior representatives must meet within 10 Business Days after referral, unless the Parties agree another timeframe.
26.6 If the dispute is not resolved within 20 Business Days after referral to senior representatives, either Party may refer it to mediation.
26.7 The mediator must be agreed by the Parties or, if not agreed within 5 Business Days after referral to mediation, appointed by Resolution Institute.
26.8 The mediation must be conducted in Melbourne, Victoria, in English and confidentially, unless the Parties agree otherwise. If no mediation rules are agreed, the mediator may direct the procedure.
26.9 Each Party must bear its own mediation costs and share the mediator’s fees equally, unless agreed otherwise. Each Party must ensure that its representative has authority to settle the dispute or direct access to a person with that authority.
26.10 Subject to clauses 26.11 and 26.12, a Party must not commence court or tribunal proceedings for a dispute unless it has first complied with clauses 26.2 to 26.9.
26.11 Nothing in this clause prevents a Party from commencing proceedings or taking action where reasonably necessary to:
(a) seek urgent injunctive, declaratory, equitable, protective, or interim relief;
(b) protect systems, data, licence keys, credentials, access rights, Confidential Information, Personal Information, Protected Materials, or Intellectual Property Rights;
(c) recover unpaid undisputed amounts, interest, debt recovery costs, enforcement costs, or other payment obligations.
(d) preserve evidence or a limitation period;
(e) comply with legal, regulatory, court, law-enforcement, Vendor, sanctions, export-control, privacy, or cybersecurity obligations;
(f) prevent or respond to unauthorised access, misuse, copying, reverse engineering, disclosure, security compromise, data compromise, or Intellectual Property Rights misuse.
26.12 Nothing in clauses 26.2 to 26.10 prevents the Supplier from exercising any suspension, restriction, termination, cancellation, withholding, or protective right in accordance with this Agreement and applicable law.
26.13 Unless performance has been lawfully suspended, performance is unlawful, this Agreement has been terminated, or the relevant obligation is genuinely affected by the dispute, each Party must continue performing its obligations while the dispute is being resolved.
26.14 The Reseller must continue to pay all undisputed amounts when due. A dispute does not entitle the Reseller to withhold, delay, set off, counterclaim, deduct, or reduce payment of any undisputed amount.
26.15 Dispute-resolution negotiations, documents, offers, admissions, settlement proposals, mediation communications, and related information are confidential and must not be disclosed except:
(a) with the other Party’s consent;
(b) to advisers, insurers, auditors, representatives, or personnel who need to know;
(c) as required by law, court order, regulator, government authority, stock exchange requirement, or lawful compulsory process.
(d) to enforce a settlement or legal right;
(e) in court proceedings after the dispute-resolution process has ended.
26.16 Any settlement must be recorded in writing and signed or expressly accepted by authorised representatives of both Parties before it is binding.
26.17 Participation in dispute resolution does not waive any right, remedy, claim, defence, privilege, confidentiality obligation, legal position, suspension right, termination right, payment right, or enforcement right.
26.18 This Agreement is governed by the laws of Victoria, Australia.
26.19 Each Party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia, and any courts entitled to hear appeals from those courts.
26.20 Each Party waives any objection to proceedings being brought in those courts, including any objection based on inconvenience, forum, venue, residence, place of business, or place of performance.
26.21 A Party may enforce a judgment, order, injunction, settlement, or other enforceable right in any jurisdiction where the other Party has assets, carries on business, is incorporated, is resident, or may otherwise be subject to enforcement.
26.22 Nothing in this clause limits any mandatory law that cannot be excluded, restricted, or modified by agreement.
27.1 For each relevant transaction, this Agreement consists of:
(a) the main body of this Agreement;
(b) any Quote accepted by the Reseller and approved by the Supplier;
(c) any Accepted Order;
(d) any reseller approval, onboarding document, portal registration, reseller requirement, Special Conditions, or written approval issued or approved by the Supplier;
(e) applicable Vendor Terms;
(f) applicable End User Terms;
(g) any Supplier Policies or other requirements validly incorporated, notified, published, made available through a Supplier System, or updated under clause 28.
27.2 If documents forming this Agreement are inconsistent, the following order of priority applies to the extent of the inconsistency, unless written Special Conditions expressly state a different priority for the relevant transaction:
(a) written Special Conditions, written variations, or reseller-specific written approvals expressly approved by the Supplier;
(b) transaction-specific commercial terms of the applicable Accepted Order;
(c) transaction-specific commercial terms of the applicable Quote accepted by the Reseller and approved by the Supplier;
(d) Vendor Terms and End User Terms, but only for use, access, licensing, hosting, support, maintenance, security, acceptable use, technical operation, renewal, suspension, cancellation, or termination of the relevant Product or Service;
(e) the main body of this Agreement;
(f) Supplier Policies;
(g) any other document expressly incorporated by reference in accordance with this Agreement.
27.3 The priority given to an Accepted Order or Quote applies only to transaction-specific commercial terms, including Products, Services, quantities, licence type, Subscription period, End User details, pricing, activation, provisioning, Delivery, support scope, and renewal details.
27.4 No Accepted Order, Quote, purchase order, portal submission, email instruction, order form, procurement document, invoice reference, payment instruction, End User document, or similar document amends this Agreement unless the Supplier expressly states in writing that it varies a specific clause.
27.5 Vendor Terms and End User Terms do not override the Reseller’s payment obligations, indemnities, confidentiality obligations, privacy obligations, audit obligations, compliance obligations, Intellectual Property Rights obligations, Source Code restrictions, Protected Materials restrictions, unauthorised-commitment restrictions, or other Reseller obligations unless the Supplier expressly agrees in writing.
27.6 Any terms included in, attached to, referenced by, linked to, or incorporated into a purchase order, procurement document, portal submission, email instruction, invoice instruction, End User document, or other Reseller document are rejected and do not apply unless expressly accepted in writing by the Supplier.
27.7 Any terms between the Reseller and an End User do not bind the Supplier or any Vendor unless the Supplier or Vendor expressly agrees in writing. The Reseller must ensure its End User terms do not conflict with this Agreement, Vendor Terms, End User Terms, Supplier Policies, or Supplier instructions.
27.8 No course of dealing, repeated acceptance of Orders, processing of purchase orders, failure to object to inconsistent terms, supply of Products or Services, provision of support, or acceptance of payment amends this Agreement or gives priority to any inconsistent term.
28.1 This Agreement contains the entire agreement between the Parties for its subject matter and supersedes all prior negotiations, representations, proposals, arrangements, and agreements, whether oral or written.
28.2 Subject to clause 28.3 and any applicable law that cannot be excluded, each Party acknowledges that it has not relied on any statement, representation, warranty, promise, forecast, estimate, assurance, proposal, marketing material, or communication except those expressly set out in this Agreement.
28.3 Nothing in this Agreement excludes or limits liability for fraud, fraudulent misrepresentation, wilful misconduct, or any right, guarantee, remedy, or liability that cannot lawfully be excluded, restricted, or modified.
28.4 This Agreement may be varied only by written agreement signed or expressly accepted by authorised representatives of both Parties, except where this Agreement expressly permits an update by notice.
28.5 Supplier Policies, Vendor Terms, End User Terms, reseller requirements, product requirements, licence requirements, access requirements, support processes, security requirements, compliance requirements, ordering requirements, and operational or technical requirements may be updated where permitted by this Agreement, Vendor Terms, End User Terms, or applicable law.
28.6 An update under clause 28.5 applies from the date notified by the Supplier or Vendor, published by the Supplier, made available through a Supplier System, portal, account, website, ordering process, or any later date stated in the update.
28.7 Where practicable, the Supplier must give reasonable notice of a material update under clause 28.5. Notice is not required where the update is required by Vendor Terms, End User Terms, applicable law, security, compliance, urgent operational need, product change, support change, or Vendor requirement.
28.8 An update under clause 28.5 must not retrospectively amend an Accepted Order or impose a new material payment obligation for an Accepted Order, except to the extent reasonably required by Vendor Terms, End User Terms, applicable law, tax changes, Vendor charges, third-party charges outside the Supplier’s reasonable control, security requirements, compliance requirements, or the Reseller’s written agreement. Any such update must be limited, where practicable, to the affected Product, Service, Order, Subscription, End User, access right, or requirement.
28.9 An update under clause 28.5 must not amend the main body of this Agreement, liability cap, indemnities, termination rights, dispute-resolution clause, governing law, payment terms, exclusivity status, Territory, or any reseller-specific written approval unless made by written agreement signed or expressly accepted by authorised representatives of both Parties, or required by applicable law.
28.10 No act, omission, delay, course of dealing, acceptance of an Order, provision of support, supply of Products or Services, or acceptance of payment by the Supplier waives clause 27, accepts inconsistent terms, varies this Agreement, or creates any continuing right, approval, variation, exclusivity, protected account, protected Territory, price protection, support commitment, or obligation unless the Supplier expressly agrees in writing.
28.11 A waiver is effective only if in writing and signed or expressly accepted by the Party giving it. A failure, delay, single exercise, or partial exercise of a right, power, or remedy is not a waiver.
28.12 The rights, powers, and remedies under this Agreement are cumulative and do not exclude any rights, powers, or remedies provided by law, equity, statute, Vendor Terms, End User Terms, or other Applicable Transaction Documents, except to the extent expressly stated in this Agreement.
28.13 If any provision is invalid, illegal, void, or unenforceable in any jurisdiction, it must be read down to the minimum extent necessary to make it valid and enforceable. If it cannot be read down, it must be severed in that jurisdiction only. The remaining provisions continue in force.
28.14 Each Party must, at its own cost unless otherwise stated, do all things and sign all documents reasonably required to give effect to this Agreement and perform its obligations.
28.15 Each Party must pay its own costs of negotiating, preparing, reviewing, accepting, signing, implementing, and performing this Agreement. The Reseller must pay any stamp duty, registration fee, filing fee, tax, charge, levy, impost, or similar amount payable in connection with this Agreement or any transaction under it, except to the extent the law requires otherwise.
28.16 Except where this Agreement expressly states otherwise, a person who is not a Party has no right to enforce this Agreement. Nothing in this Agreement limits any right, remedy, restriction, or protection available to a Vendor under Vendor Terms, End User Terms, applicable law, or any arrangement between the Supplier and the Vendor.
28.17 Time is of the essence for the Reseller’s payment obligations and any obligation stated to be time critical. For all other obligations, time is not of the essence unless expressly stated. If an act must be done on a day that is not a Business Day, it must be done on the next Business Day.
28.18 Where this Agreement requires the Supplier’s approval or consent, the Supplier may give, withhold, or condition it acting reasonably, except where this Agreement gives the Supplier an absolute discretion. Any absolute discretion must not be exercised arbitrarily, capriciously, or for an improper purpose.
28.19 The Supplier may keep records of Orders, Quotes, acceptances, portal activity, notices, support requests, licence activity, Subscription activity, payment activity, and other dealings under this Agreement for legal, audit, tax, compliance, payment, enforcement, security, support, version-control, and business-record purposes.
28.20 Expiry or termination does not affect any accrued right, liability, claim, payment obligation, indemnity, confidentiality obligation, privacy obligation, audit right, compliance obligation, Intellectual Property Rights obligation, access restriction, recordkeeping obligation, dispute-resolution obligation, governing-law provision, or other obligation intended to continue.
29.1 The Reseller agrees to this Agreement when the Reseller, after receiving notice of or reasonable access to this Agreement:
(a) signs or electronically accepts it.
(b) clicks, ticks, submits, confirms, proceeds, logs in, registers, or accepts through a website, portal, order process, onboarding process, reseller application, electronic form, or other electronic process.
(c) submits, accepts, or proceeds with a Quote, Order, reseller application, onboarding document, portal registration, reseller approval, renewal, support request, or other process that refers to this Agreement.
(d) accesses or uses any Supplier reseller portal, Supplier System, Vendor System, ordering process, licence process, support process, renewal process, or reseller program made available by or through the Supplier.
(e) markets, promotes, offers, resells, renews, supports, facilitates access to, or otherwise deals with Products or Services with the Supplier’s approval.
(f) otherwise accepts this Agreement in writing or by conduct.
29.2 Each person accepting this Agreement on behalf of a Reseller warrants that they are authorised to bind the Reseller. If a person accepts this Agreement without authority, that person is responsible to the Supplier, to the extent permitted by law, for any loss, liability, cost, expense, or damage caused by the unauthorised acceptance, without limiting any rights the Supplier may have against the Reseller.
29.3 This Agreement may be signed, accepted, communicated, stored, and evidenced electronically to the extent permitted by law.
29.4 The Supplier may publish this Agreement on its website, portal, ordering platform, reseller platform, or another electronic location and may keep reliable records of acceptance, version control, and Reseller conduct, including version number, effective date, last updated date, publication date, accepted version, acceptance date, acceptance timestamp, relevant Quote or Accepted Order, account or user identifier, IP address where available, system logs, portal records, email records, payment records, licence records, Subscription records, support records, and a copy or reliable record of the terms accepted.
29.5 The version that applies to a Reseller is the version accepted by the Reseller, incorporated into the relevant Quote or Accepted Order, made available through the relevant portal or ordering process, or otherwise notified by the Supplier at the time of the relevant Order, renewal, activation, Subscription, reseller approval, access, or acceptance, subject to any valid update under clause 28.
29.6 A later website version does not automatically amend an Accepted Order unless it applies under clause 28, is incorporated into a renewal or later transaction, is expressly accepted by the Reseller, or is otherwise validly applied under this Agreement.
29.7 The Supplier may rely on records described in clause 29.4, and on Reseller conduct, as evidence of acceptance, authority, the applicable version, and the terms applying to any Order, Subscription, renewal, support request, access, or reseller activity.
29.8 The Reseller must ensure that any person who accesses Supplier Systems, submits Orders, accepts Quotes, manages Subscriptions, requests support, or otherwise deals with the Supplier on behalf of the Reseller is authorised to do so.
29.9 Any Order, Quote acceptance, renewal, support request, portal activity, licence activity, or other action submitted through the Reseller’s account, email address, credentials, authorised personnel, or usual business process may be treated by the Supplier as authorised unless the Supplier has received prior written notice that the relevant authority has been revoked.
29.10 The Reseller must promptly notify the Supplier if any authority, user access, account access, credential, contact person, billing contact, technical contact, portal user, or authorised representative changes or is revoked.
29.11 The Reseller must not dispute the validity or enforceability of this Agreement merely because it was accepted electronically, published online, incorporated by reference, accepted through a portal, accepted by conduct, or evidenced by electronic records.
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