Terms and Conditions

 

Definitions and Interpretation

These definitions will apply unless the context requires a different interpretation:

 

“Agreement “ means this Reseller Agreement between the Company and the Reseller. It includes all its schedules and valid amendments.

“Clients” means clients who subscribe to IMS Stratus as a result of being introduced to the service by the Reseller.

 “Company”  means Urban Perspectives Environmental Solutions Pty Ltd (ABN 13 095 904 224) as owner of IMS Stratus.

 “Commission” means the amount payable by the Company to the Reseller as set out in clause 6 of this Agreement

 "Confidential Information" means all business, financial or Intellectual Property and related information about either Party which comes to be known to the other Party during the term of this Agreement which are not in the public domain. It will include among other things information about staff, their personal contact information, businesses, methods, future plans, policies, and details of suppliers and customers. 

“IMS Stratus” means the web based integrated management system owned by the Company and sold by way of different packages.

“Intellectual Property” means intellectual property of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after the date of this agreement; and including, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, so far onlyas they are applicable to the Services.

“Packages” means Packages as advertised on IMS Stratus’ website.

“Party” means the Company and the Reseller

“Reseller” means the person entering into this Agreement with the Company

“Services” means the services provided by IMS Stratus in relation to the “Packages"

The provisions of the Interpretation Act 1987 (NSW) apply to and in respect of this Agreement in the same manner as those provisions would so apply if this Agreement were an instrument made under the Act

1  Summary of the Agreement

1.1 The Company is engaged in the provision of a web-based integrated management system to other businesses, known as IMS Stratus.

1.2  The Reseller is an independent contractor who is able and willing to solicit and introduce Clients to the Company.

1.3  In this Agreement the Parties wish to set out the terms and conditions of the Reseller service to be provided by the Reseller to the Company.

 

2   Relationship of the Parties         

 2.1  The Reseller will act as a reseller only for the purpose of finding Clients to subscribe to IMS Stratus’ Packages. The Reseller may assist Clients with the setup of the Client’s IMS Stratus account and charge the Client directly for its service.  The Company will be responsible for providing technical support to the Client as detailed in the information on the IMS Stratus website.

 2.2  The Reseller may describe itself as a “Reseller” of the Company for the purpose of this Agreement but will not hold him or herself out as a party to any other relationship with the Company.

 2.3   Nothing in this Agreement will be deemed to create a partnership, joint venture, or employment relationship between the Parties.

 

3  General Terms and Conditions

 3.1 The Agreement is entered between the Company and the Reseller in respect of provision of Services in their individual capacity.

 3.2 This Agreement constitutes the entire Agreement between the Parties and will supersede and replace all prior arrangements, whether written or oral, between the Parties.

 3.3 Each Party acknowledges that, in entering into this Agreement, they do not rely on any representation, warranty or other term not forming part of this Agreement.

 3.4 All conditions, warranties and other terms implied by the law of any country are excluded as far as the law of such country permits.

 3.5 The Company may assign or transfer the benefit of this Agreement to a third party without obtaining prior written consent of the Reseller.

 3.6 The Reseller will not describe him or herself as agent of the Company and will not hold him or herself out or act, or authorise or permit any person to hold it out or act, as an authorised or permitted person to bind  the Company to a third party in any way.

 

 4  Terms of Appointment

 

4.1 The Company appoints the Reseller as a reseller of the Services on a non exclusive basis subject to terms and conditions of this Agreement. 

4.2 The Reseller will use only the advertising or marketing material supplied or approved by the Company to solicit and introduce prospective Clients to the Services.

4.3 The Reseller will not provide false information or misrepresent the Company, its policies or its Services in any manner for the purpose of soliciting and introducing Clients to the Company.

4.4 The Company may at its sole discretion provide Services directly to any customer of IMS Stratus who has not been introduced by the Reseller.

4.5 The Company will use reasonable endeavours to maintain a reasonable standard of Services throughout the terms of this Agreement.

 

5  Reseller’s Obligations

5.1 The Reseller will identify, solicit and refer prospective Clients for the sale of Services being provided by the Company.

5.2 The Reseller will ensure that he or she does not sell, assign, novate or enter into any contract of sale with any third party to undertake some or all of its obligations under this Agreement unless expressly authorised by Company.

5.3 If subscribing to IMS Stratus on behalf of the Client, the Reseller will obtain the consent of Clients to transfer their contact information to the Company in accordance with the Telecommunications Act 1997 (C'th) and the Telecommunications (Interception) Act 1979 (C'th) and all other Australian privacy and data protection Acts.

5.4 The Reseller will take such other reasonable steps to enable the Company to lawfully use and process the contact information in accordance with the relevant legislation.

 

6  Payment Terms

6.1 The Company will pay a commission to the Reseller of 20% of the relevant Package fees  for each new Client introduced to that Package by the Reseller, within 28 days of the Client subscribing.  Payment will be transferred each month in Australian Dollars to the Reseller’s bank account. The Reseller is liable for any bank fees or transfer fees that may be incurred.

6.2 Duration of Commission payment will be 2 years from the date the new Client first subscribes to the Package.  If the Client’s subscription to the Package ceases, payment of the Commission will also cease from that date.

6.3 The reseller is not entitled to the commission after the 2 years if the same client renews its subscription with IMS Stratus.  

6.4 The Reseller is not entitled to the Commission if the Client does not enter the Reseller’s code when setting up a Package account, unless otherwise agreed in writing by the Company.

6.5 The Reseller agrees that he or she will be responsible for his or her own income and other tax liability in respect of his or her fees.

6.6 The Reseller agrees to indemnify the Company in respect of any claim that may be made by any tax authority against the Company in respect of income or other tax relating to the Reseller’s services under this Agreement.

6.7  If the Client defaults in payment of the Package fees, the Company is not liable to pay the Commission until the default by the Client has been rectified.

6.8  The Company is not liable to pay interest on any overdue amounts from the date of default by the Client till the date on which the Commission is actually paid to the Reseller.

 

7  Confidentiality

 7.1 The Reseller agrees that it shall maintain all Confidential Information received from the Company relating to the Services in strict confidence and not disclose the Confidential Information to a third party so as to give them any undue advantage over the Company, provided that:

• 7.1.1  the Reseller may disclose any Confidential Information to its affiliates, employees, consultants and advisors who are required to know such information for purpose of this agreement, and who shall maintain the confidentiality; and

 

• 7.1.2  in the event that the Reseller is forced to disclose such Confidential Information to any one other than those mentioned in clause 7.1.1 or to the general public for reasons beyond its control, the Reseller shall immediately notify the Company about such disclosure.

7.2  Any information will cease to be Confidential Information if it becomes public by any source other than the Parties or their members and / or employees.

7.3  The Parties agree that the provisions of this clause will survive the termination of this Agreement.

 

8  Term

8.1  This Agreement will come into force from the date the Reseller agrees these terms (being the date of this Agreement) and will remain in force unless terminated in accordance with clause 9 below.

 

 9  Termination

 9.1  Either Party may terminate this Agreement by giving one month’s written notice in advance to the other Party.

 9.2  The Company may terminate this Agreement in the following events;

•  9.2.1  immediately if the Reseller commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or

 

• 9.2.2  if the representations made by the Reseller under this Agreement are found to be false, incorrect or inaccurate; or

 

• 9.2.1 if the Reseller ceases, or threatens to cease, to carry on business or threatens to sell any part of his business which is likely to hamper or restrain him or her from performing its obligations under this Agreement; or

 

• 9.2.4 the Reseller is found to be misrepresenting the company; or

 

• 9.2.5 the Reseller fails to abide by reasonable instructions of the Company; or

 

• 9.2.6 if the Reseller is not acting as a genuine Reseller but using the account for their own purposes; or

 

• 9.2.7  if Australian Resellers registered for GST fail to comply with clause 25.4 of this Agreement; or

 

• 9.2.8  if this Agreement is superseded by a later version of this Agreement. In such as cases, the Reseller will be notified electronically and asked to agree to the revised version of this Agreement.

 

9.3 The Reseller may terminate this Agreement in the following events;

• 9.3.1  immediately if the Company commits any material breach of any term of this Agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it; or

 

• 9.3.2  on giving 15 days notice to the Company if the Company fails to pay any sum due to the Reseller within 28 days of the due date (subject to clause 6.6); or

 

• 9.3.3 if the Company ceases, or threatens to cease, to carry on business

 

9.4  Rights accrued in favour of either Party or the liabilities incurred by either Party shall not be affected by the termination of this Agreement.

9.5  Notwithstanding termination of this Agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue in full force and effect.

 

10   Effect of Termination

 

10.1 The Company will not have any obligation to pay further fees to the Reseller upon termination of this Agreement except for the Commission  payable for existing Clients at the date of termination.

10.2  Save for the payment of Commission for existing Clients, all rights granted to the Reseller under this Agreement will immediately stand terminated.

10.3  All the outstanding dues payable by the Company will be due and payable to the Reseller.

10.4  The Reseller will cease to use, either directly or indirectly, any Confidential Information of the Company and shall immediately return/destroy and permanently erase all tangible information including but not limited to business programs, business topics, summaries, copies and excerpts held with the Reseller or its agents, employees, legal or professional advisors or any other person to whom such information is disclosed in any form or manner.

10.5  All Intellectual Property rights and licenses granted to the Reseller under this Agreement shall immediately terminate.

10.6  All claims or actions that one Party has against the other shall remain intact despite termination.

 

11  Exclusion of Liability

11.1  The Company will not be liable to the Reseller for any failure in the provision of any Services to the Clients.

11.2  The Company will not be liable for any obligation arising under any term, express or implied, under statute or common law.

 

12  Indemnity

12.1  The Reseller agrees to hold and keep the Company indemnified against all actions, suits, claims, demands, settlements, recovery, costs and expenses which the Company may incur and which may have arisen directly or indirectly from the Reseller’s act, omission, misrepresentation or negligence, failure to cooperate with the Company’s request or out of the breach of this Agreement.

12.2  Each Party will indemnify and keep the other Party indemnified from and against all claims:

 

• 12.2.1  to which the other Party becomes liable as a result of the indemnifying Party’s failure or neglect to do or abstain from doing any act required under this Agreement; or

 

• 12.2.2  which arise from or are contributed to by the negligence or wilful act or omission on the part of the employees or authorised representatives of the indemnifying Party.

 

13          Warranties

 13.1  The Reseller warrants to the Company that:

 

• 13.1.1  he or she will use reasonable skill and care to promote the Services in terms of this agreement;

 

• 13.1.2  he or she shall not at any time act against the provisions of applicable law;

 

• 13.1.3  he or she shall not misrepresent, deceive or act with dishonesty while promoting the Services;

 

• 13.1.4   he or she shall not disclose any Confidential Information received from the Company to any third person.

 

13.2  The Company warrants that it is the sole owner of IMS Stratus and it is legally entitled to appoint the Reseller to introduce Clients to IMS Stratus.

 

14  Dispute Resolution

14.1  The Parties must attempt to resolve any dispute arising out of this Agreement in good faith and acting reasonably.

14.2  In the event a dispute arising out of, or in connection with this Agreement can not be resolved under clause 14.1 the Parties will try to settle the same by mediation before commencing arbitration or litigation.

 

15  Notice

15.1  Any notice or other information required or authorised by this Agreement to be given by either Party to the other may be given by hand or sent by pre-paid post, or electronic means to the other party at the address last provided for that type of communication.

15.2  Any notice or other information given by post shall be deemed to have been given on the seventh day after it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, or that it has not been so returned to the sender, shall be sufficient evidence that it has been duly given.

15.3  Any notice or other information sent by electronic means shall be deemed to have duly sent on the date of transmission.

15.4  Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered to the Party to be served at his or her main place of business or his or her registered office, or to such other address as may from time to time be notified in writing by the party concerned.

 

16  Severability

16.1  If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction.

16.2  To prevent it from being void it shall then be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.

  

17   Force Majeure

17.1  Neither party shall be liable for any breach of his or her obligations resulting from causes beyond his or her reasonable control including fire, natural disaster, war or military hostilities and strikes of employees. The date of delivery of the goods / payment shall be extended to the extent of any delay resulting from such force majeure event.

17.2  Each of the Parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure, such notice to contain details of the circumstances giving rise to it. 

17.3  If default due to force majeure continues for more than 2 weeks then the Party not in default shall be entitled to terminate this Agreement.

17.4  Neither Party shall have any liability to the other in respect of the termination of this Agreement as a result of force majeure.

 

18   Entire Agreement

18.1  This Agreement contains the entire understanding between the Parties and supersedes all previous Agreements and understandings either written or verbal between them.

18.2  Each Party acknowledges that, in entering into this Agreement, he or she does not rely on any representation, warranty or other term not forming part of this Agreement.

 

19   Assignment

19.1 The Reseller will not assign any rights or obligations under this Agreement to a third party without the prior written consent of the Company.

                     

20  Modification, supplement, amendment and waiver

 20.1  No modifications, supplements or amendment to this Agreement shall be binding except made in writing and agreed by both Parties

 20.2  The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

 

21   Successors to the Agreement

21.1  The benefits and obligations as set out under this Agreement shall be binding on any successors in title.

 

22   Rights of third parties

22.1 Nothing in this Agreement shall confer on any third party any benefit or obligation.

       

23  Headings   

23.1  The headings in this Agreement are for reference only and are not to be construed as part of the understanding between the Parties.

 

24   Jurisdiction

 24.1  The validity, construction and performance of this Agreement shall be governed by the laws of the State of New South Wales, Australia. Any dispute arising in connection with this agreement shall be subject to the exclusive jurisdiction of the New South Wales’ courts.

 

25  Goods and Services Tax (GST)

25.1  Except as otherwise provided by this clause, all consideration payable under this contract in relation to any supply is exclusive of GST.

25.2  If GST is payable in respect of any supply made under this Agreement by an Australian Reseller registered for GST, the Company will pay to the Reseller an amount equal to the GST payable on the 28th day of each month.

25.3  Subject to clause 25.4, the Company will pay the GST Amount at the same time and in the same manner as the consideration for the supply is to be provided under this contract.

25.4   Australian Resellers registered for GST must provide a tax invoice to the Company at least 14 days before the Reseller will be entitled to payment of the GST Amount under clause 25.3.

25.5   If this contract requires a party to reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:

• 25.5.1 the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party is entitled; and

 

• 25.5.2 if the payment or reimbursement is subject to GST, an amount equal to that GST.

 

25.6 If an adjustment event occurs in relation to a taxable supply under this contract:

• 25.6.1 the Reseller must provide an adjustment note to the Company within 7 days of becoming aware of the adjustment; and

 

• 25.6.2 any payment necessary to give effect to the adjustment must be made within 14 days after the date of receipt of the adjustment note.

 

25.7  In this clause:             

• 25.7.1  words and expressions that are not otherwise defined but which have a defined meaning in the GST Law have the same meaning as in the GST Law; and

 

• 25.7.2  GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999.