Partner Terms of Use

Last revised and effective as of: May 16, 2016

Agreement between

THE FULL SUITE LIMITED ("Us" and “We”) is a company incorporated in New Zealand and carrying on the business of producing and selling certain software including the SuiteFiles™, SuiteBackups™, SuiteGenerator™ and SuiteMoves™ products.

and

"You", being a reseller of the SuiteFiles™, SuiteBackups™, SuiteGenerator™ and SuiteMoves™ software.

Interpretation

  1. The following words have the meaning ascribed to them below;

    Confidential Information means any information relating to pricing, marketing partners, leads, customers, customer information and future marketing materials not already publicly available.

    Customer/s means any entity who purchases the Product and/or Support either from You or directly from Us.

    Date Due is the date, as notified on any invoice issued to You, by which You must pay the sum contained in that invoice to Us, or if there is no date notified on the invoice, it is the date 14 days after the invoice is dated.

    EULA is the relevant End User License Agreement for the Product, and under which any Support for that Product will be provided.

    IP means;
    1. patents, trademarks, services marks, design rights (whether registered or unregistered and including any applications for these rights):
    2. copyright (including future copyright) throughout the world in all literary works, artistic works, computer software, and any other works or subject matter in which copyright subsists and may in the future subsist;
    3. trade or business names; and
    4. know-how, Confidential Information and trade secrets.

    Insolvency Event means having an application for liquidation made against You, or an order for liquidation made in respect of You, being declared bankrupt, or having a receiver or administrator appointed in respect of You.

    Marketing Materials are the materials provided by Us in relation to the Product and Support for use in promoting and marketing the Product and Support

    Order means the order made by You for Product and/or Support from Us - made in the way stipulated in Schedule 1 which is subject to change by written notice by Us to You.

    Overdue Sum this is any sum owing by You after the Due Date upon any invoice issued by Us, and includes any interest or costs payable in relation to that invoice.

    Prices are the Prices for any Product or Support as advised by Us to You from time to time, or as quoted to You for any Customer Quote.

    Product is the SuiteFiles™ branded software and SuiteMoves™ branded software as developed by Us and any further products agreed between the parties in writing from time to time in addition to, or replacement of, this named software.

    Support means the services provided (either by You or Us) to the Customers to assist the Customers with Use of the Product.

    Territory means the geographical locations set out in Schedule 1.

    The Full Suite Limited's IP means:
    1. all Confidential Information provided by Us to You; and
    2. all IP in the Marketing Materials, the Products and Support.
  2. Appointment as Reseller

  3. You are appointed by Us as a non-exclusive reseller of the Product.

  4. You acknowledge and agree that:
    1. We have appointed and/or may appoint other resellers, distributors and dealers in relation to the Products and Support;
    2. We reserve the right to market, sell and distribute the Products and Support in the Territory Ourselves using our own staff; and
    3. Other representatives may have the right to market, sell and distribute the Products and Support in the Territory and elsewhere.
  5. Term and Termination

  6. This agreement will commence the date it is signed by both parties and will continue in force until it is terminated in accordance with this part of this Agreement.

  7. Either party may terminate this Agreement at any time:
    1. Without cause, by giving the other party 14 days written notice;
    2. By giving the other party written notice if:
      1. The other party breaches any provision of this Agreement and fails to remedy that breach within 10 days after receiving notice from the first party requiring it to do so.
      2. The other party is subject to an Insolvency Event.
  8. On termination of this Agreement:
    1. You will immediately:
      1. Stop marketing, reselling and distributing the Products; and
      2. Return or destroy all materials which contain The Full Suite Limited’s IP.
    2. Each party must return or destroy any Confidential Information of the other party; and
    3. All outstanding amounts due from You to Us become immediately due and payable.
  9. The following clauses in this agreement will remain in force upon termination of this agreement:

    All of clauses 6, 18-22, 23-26 and 27.

  10. Order Placement and Payment

  11. You will place all Orders in the way stipulated in Schedule 1, and all Orders are subject to Our acceptance.

  12. You may request a Quote for an anticipated Order. A Quote will specify:
    1. The Customer/s;
    2. The SKU, price and quantity of the Products and Support to be ordered;
    3. The period in which an associated Order will be accepted; and
    4. Any special terms or conditions to be applied to the Order.
  13. You may only provide the Quote provided by Us to the Customer with the conditions set out in a.- d. above as part of the Quote.

  14. You will ensure that Customer/s will not be able to receive or activate any Product or Support without having accepted the relevant EULA.

  15. You will pay Us the Prices for the Products and the Support. We may change the Prices by giving You 15 days written notice, and any changes will apply to any Quotes issued and new Orders received on or after the effective date of the price change. For the avoidance of doubt, all Orders accepted with an associated Quote will be priced according to the Quote.

  16. You are responsible for all duties, taxes and similar charges which, if paid by Us, will appear as additional items on our invoice to You.

  17. We will issue You with monthly invoices for the Prices and other amounts payable under this Agreement.

  18. You will pay all sums on within 14 days of the date of the invoice (“Date Due”). In the event any money remains owing on any invoice after the Date Due then all of the following will apply:
    1. You will be liable for interest on the Overdue Sum at the rate of 10% per annum;
    2. We may terminate this Agreement upon any Overdue Sum remaining unpaid for more than 14 days after we have advised You that we may terminate the Agreement for non-payment of the Overdue Sum.
    3. You will be liable to pay all costs associated with any action taken by Us to recover the Overdue Sum, including any the costs of any debt collectors, and legal costs on an indemnity basis as between lawyer and client.
  19. Your Obligations

  20. You will:
    1. Use Your best efforts to market, sell and distribute the Products and Support;
    2. Perform Your obligations under this Agreement with a high level of skill, care and professional competence;
    3. Utilise the Marketing Materials in the marketing, resale and distribution of the Products and Support;
    4. Make Payment within the time required in this Agreement;
    5. Not copy, modify, enhance or reproduce the Products, in whole or in part;
    6. Not reverse-engineer, reverse-translate, disassemble, de-compile, or otherwise attempt to derive source code to the Products;
    7. Not remove or alter the EULA or any notice or documentation incorporated in or included with the Products or Support;
    8. Conduct business in accordance with all applicable laws and regulations and in a manner that reflects favourably on the Products, Support and Our reputation;
    9. Not make any representations in respect of the Products or Support apart from those given by Us in writing from time to time;
    10. Not distribute the Products or Support via any third party (including any application service provider or reseller or OEM);
    11. Only resell the Products and Support on the terms of the EULA;
    12. Not (without Our written agreement) incorporate, embed, combine, merge and/or bundle the Products with any other hardware or software (except to the extent strictly necessary to Use the Products in accordance with their intended purpose and this Agreement);
    13. Ensure that at least one of Your staff completes training in relation to the Products and Support with our nominated training provider as scheduled by Us (and pay the relevant fees charged by that provider); and
    14. Give Us written notice of any claim or proceeding involving the Products or Support or otherwise potentially involving Us as soon as You become aware of any such claim or proceeding.
  21. Our Obligations

  22. We will:
    1. Provide our support and assistance in relation to Your marketing, sales and distribution of the Products and Support;
    2. Perform our obligations under this Agreement with all due skill, care and professional competence;
    3. Provide You with access to training in relation to the Products and Support with our nominated training provider; and
    4. Provide You with the Marketing Materials.
  23. IP and Confidentiality

  24. The parties acknowledge that The Full Suite Limited’s IP is, and remains, Our property.

  25. We grant to You a non-transferable, non-exclusive, royalty free license to use The Full Suite Limited’s IP solely for the purpose of performing Your obligations under this Agreement. This license automatically terminates on termination of this Agreement.

  26. A party receiving Confidential Information will ensure that:
    1. The Confidential Information is
      1. Maintained as confidential; not disclosed to or used by any third party;
      2. Maintained so as to prevent disclosure or unauthorised use with at least the standard of care that the receiving party maintains to protect its own confidential information;
      3. Only used for the purpose of this Agreement; and
      4. Not reproduced in any form except as required for the purpose of this Agreement; and advisers of it that require access for the purpose of this Agreement;
    2. Access to Confidential Information is only given to those officers, employees, contractors; and
    3. Those officers, employees, contractors and advisers are informed of the confidential nature of the Confidential Information and agree to maintain its confidentiality.
  27. Unless otherwise provided in this Agreement:
    1. All Confidential Information remains the exclusive property of the party disclosing the Confidential Information;
    2. No rights in respect of Confidential Information are granted or conveyed to the party receiving the Confidential Information.
  28. In the event that a party is legally required to disclose any Confidential Information that party will immediately notify the other party of that fact.

  29. No Liability

  30. We do not promise that the Product and Support will be accurate, reliable, timely, secure, error-free or uninterrupted or that any defects will be corrected. The Service is provided on an "as-is" and "as-available" basis and is subject to change without notice.

  31. We do not provide any warranties, express or implied, in relation to the Product and Support including any warranties of accuracy, non-infringement, merchantability or fitness for a particular purpose.

  32. To the extent permitted by law, We shall not be liable under any circumstances to You in relation to the Product or Service for special, indirect, incidental, or consequential damages, including without limitation damages resulting from delay of delivery or from loss of profits, data, business or goodwill, whether or not We have been advised or are aware of the possibility of such damages.

  33. If, notwithstanding any other provisions of this Agreement, We are found to be liable to You for any damage or loss that arises out of or is in any way connected to Your activities related to this Agreement Our entire liability for direct damages under this agreement shall be limited to the value of the last invoice paid by You, or NZ$5,000 - whichever is the lower sum.

  34. Indemnity

  35. You indemnify Us in respect of all loss, damages and expenses and all claims and demands made by any third party (including any end user) arising out of any negligent, willful or fraudulent conduct by You, Your employees, contractors or agents.

  36. Notices

  37. Each party will be deemed to be notified when a party has attempted to email the party on the contact email address provided in Schedule 1 to this Agreement. It is the responsibility of each party to notify the other of any changes in contact details.

  38. Jurisdiction

  39. This Agreement is subject to the laws of New Zealand. You are subject to the exclusive jurisdiction of the High Court of New Zealand for any matters arising directly or indirectly from this Agreement.

  40. Disputes and Dispute Resolution

  41. We will meet and discuss in good faith any dispute between Us and You arising out of this Agreement.

  42. If the discussions referred to in Clause 30 fail to resolve the relevant dispute each party must promptly escalate the matter to an appropriate named representative, who will have overall authority in each case to settle the dispute, and who must use their best endeavours to resolve the dispute with 10 Business Days of having the dispute referred to them.

  43. If the named representatives referred to in Clause 31 cannot resolve the dispute within 10 Business Days, the matter must be submitted for mediation by a single mediator nominated by a recognized law society in the local jurisdiction, namely the New Zealand Law Society in the case of New Zealand. In the event of any submission to mediation:
    1. The mediator will not be acting as an expert or as an arbitrator;
    2. The mediator will determine the procedure and timetable for the mediation; and
    3. The parties will share equally the cost of the mediation (unless the mediator directs otherwise).
  44. Neither Us or You may issue any legal proceedings (other than for urgent interlocutory relief) relating to any dispute, unless that party has first taken all reasonable steps to comply with clauses 30 and 31.