Confidential and Proprietary
By registering for the Gem Reseller Program you agree to the bound by the following Reseller Agreement. Whereas Gem Accounts desires to engage Reseller to resell the products of Gem Accounts to Resellers own customers, namely the Gem Accounts Cloud Accounting Software, and Reseller desires to engage in such services, Reseller and Gem Accounts (also referred to herein as “Party” in the singular and “Parties” in the plural) desire to define the terms and conditions applicable to Reseller's performance of such services.
Gem Accounts and Reseller hereby agree as follows:
1. Length of Agreement.
The Parties agree that this Agreement will remain in effect for as long as Reseller wished to remain a reseller for Gem Accounts Products, unless otherwise terminated by either Party.
2. Appointment and Acceptance.
The Parties agree with regards to the appointment of Reseller under this Agreement as follows:
- Gem Accounts hereby appoints Reseller as one of Gem Accounts's Resellers to solicit orders for those products (collectively, “Products”) as marketed from time to time by Gem Accounts.
- Reseller shall solicit orders for Gem Accounts Products for Reseller's own customers.
- Reseller hereby accepts its appointment hereunder.
3. Responsibilities of Reseller.
Reseller shall satisfy the following responsibilities at all times during the term of this Agreement:
- Reseller shall always abide by any relevant terms of service as supplied by Gem Accounts.
- Reseller will comply with all applicable laws in performance of Reseller's duties under this Agreement.
4. Scope and Limitations of Reseller's Authority.
The Parties agree as follows with regards to the scope and limitations of Reseller's authority under this Agreement:
- Reseller has no authority to bind Gem Accounts to any agreements or sales orders.
- Gem Accounts will set all pricing for all Gem Accounts Products subject to the Pricing Schedule. Gem Accounts shall have the right, from time to time, at its sole discretion, to change the terms of the Pricing Schedule upon ninety (90) days written notice to Reseller. In any such instance, Gem Accounts shall issue a new Pricing Schedule to Reseller reflecting such change, which shall, as of the effective date stated thereon, supersede the prior Pricing Schedule. Any Gem Accounts Products ordered by Reseller prior to or during the ninety (90) day notification period will have commission paid at the then-current price.
- Reseller at no time shall engage in any unfair trade practices with respect to Gem Accounts or Products, and shall make no false or misleading representations with respect to Gem Accounts or Products. Reseller shall refrain from communicating any information with respect to guarantees or warranties regarding Products, except such as are expressly authorized by Gem Accounts or are set forth in Gem Accounts's literature or other promotional materials.
- Reseller shall not use Gem Accounts's tradenames or trademarks or any names closely resembling same as Part of Reseller's corporate or business name, or in any manner which Gem Accounts, in its sole discretion, may consider misleading or otherwise objectionable.
5. Reseller Product Sales.
The Parties agrees as follows with regards to the sales of Gem Accounts Products by Reseller under this Agreement:
- Reseller shall sell Gem Accounts Products at the standard account price.
- Gem Accounts will pay commission 14 days after the end of that month to Reseller for Gem Accounts Products sold by Reseller.
- Reseller understands and agrees that Gem Accounts is not liable to Reseller for any loss of, damage to, or inability to sell Gem Accounts Products.
- Reseller understands and agrees that Gem Accounts makes no warranty or guarantees with regard to the Gem Account Cloud Accounting Software, including, but not limited to, its availability, current or continued, for use by Reseller or Reseller's customers; it's service interruptions; and the cost of its license and usage fees.
6. Re-branding and Localization of Gem Accounts Products.
The Parties agree that at no time must the reseller engage in re-branding or localization of Gem Accounts Products.
7. Ownership of Intellectual Property.
The Parties hereto agree that all intellectual property rights to Gem Accounts Products are solely vested in Gem Accounts. Reseller shall make no claims to Gem Accounts Products nor shall Reseller make any such claims in any ideas, modifications to products, and other deliverables (“Work Product”) that result from Reseller's services pursuant to this Agreement. The Parties agree that such Work Product is considered to be a “work for hire” and shall be therefore exclusively vested in Gem Accounts and/or automatically assigned to Gem Accounts. Reseller agrees to promptly execute any documents necessary for Gem Accounts to perfect its rights in such Work Product.
8. Support of Gem Accounts Products.
The Parties agree as follows with regards to the support of Gem Accounts Products under this Agreement:
- Gem Accounts shall provide email, ticket and chat product support for Gem Accounts Products directly to End users and customers of Reseller.
- Reseller is also to be responsible and liable to provide end user support for all Gem Accounts Products where one of their clients requests such support from them directly or must ensure that such a request is forwarded in a reasonable timeframe to Gem Accounts for follow up / support by Gem Accounts staff.
9. Employees and Contractors.
Reseller agrees that it will ensure that its employees and contractors performing services under this Agreement comply with this Agreement, including, but not limited to, having such employees sign documents assigning intellectual property rights to Gem Accounts to the extent Reseller is required such rights to Gem Accounts.
Reseller hereby agrees to indemnify Gem Accounts for any liability that Gem Accounts may incur as a result of Reseller's breach of this Agreement. The terms of this Section shall survive the termination and/or expiration of this Agreement.
Reseller's obligations pursuant to this section shall survive the termination/expiration of this Agreement.
Reseller shall be responsible for payment of all sales, use, and excise taxes relating to Reseller's commissions on Gem Accounts Product sales.
12. Limitation of Liability and Exclusion of Certain Remedies.
Under no circumstance, regardless of the basis of the claim, shall Gem Accounts be liable to any customer of Reseller nor shall the total liability of Gem Accounts to Reseller exceed the last 30 days commission fee paid by Gem Accounts to Reseller. In no event shall Gem Accounts be liable to Reseller for consequential, special, incidental, or punitive damages (including, but not limited to, legal costs and fees) from any claim asserted against Gem Accounts or by any third Party through any Party to this Agreement.
The terms and provisions of this section shall survive the termination and/or expiration of this Agreement.
Reseller shall indefinitely keep secret and retain in strictest confidence, and shall not, without the prior consent of Gem Accounts, furnish, make available or disclose to any third Party or use for the benefit of itself (except as necessary to fulfill the purposes of this Agreement and/or any Exhibit(s) attached hereto) or any third Party, any Confidential Information of Gem Accounts. As used herein, “Confidential Information” shall mean any information relating to business or affairs of Gem Accounts, including but not limited to; Gem Accounts Products, Work Product, information relating to financial statements, business strategies and plans, customer identities, customer accounts, potential customers, employees, suppliers, servicing methods, equipment, programs, style and design strategies and information, analyses, profit margins, or other proprietary information used by Gem Accounts in connection with its business.
If Reseller is an entity, it will make sure that the Confidential Information is disclosed only to those of its employees whose functions require that they obtain access to the Confidential Information to carry out the purpose of this Agreement, that have been informed of the confidential nature and obligations of Reseller with respect to the Confidential Information and who are subject to a general written agreement committing such employees to conduct that would not violate Reseller's obligations listed in this Section with respect to such Confidential Information if such conduct was committed by Reseller.
Reseller's obligations pursuant to this section shall survive the termination of this Agreement.
Competitor, for purposes of this Section, shall mean any direct competitor of Gem Accounts operating in a similar manner and venue. During the term of this Agreement, Reseller agrees not to provide nor assist anyone and/or any entity(ies) in providing, the same and/or substantially similar services and Work Product to a competitor of Gem Accounts.
For a period of 2 years after the termination of this Agreement, Reseller understands and agrees that Reseller shall not induce any customers of Gem Accounts, whether directly or indirectly through use of third Parties such as employers and agents, to leave Gem Accounts's business. Any such act by Reseller shall subject Reseller and any such third Parties to civil and possible criminal liability.
Notwithstanding anything to the contrary in this Agreement or any Exhibits, Gem Accounts may terminate this Agreement and related Exhibits without any obligation, upon thirty (30) days notice via e-mail, facsimile or hand delivery.
Upon such notice of termination, Reseller shall immediately surrender all Confidential Information (“Termination Obligations”) and certify to Gem Accounts, in writing, that it has performed its Termination Obligations.
Reseller's obligations pursuant to this Section shall survive the termination/expiration of this Agreement.
During the term for this Agreement and for a period of two (2) years after termination of this Agreement, Reseller shall not hire, solicit, or induce or assist any third Party in soliciting or inducing any employee or Reseller of Gem Accounts to leave his or her employ or cease providing services to Gem Accounts, as applicable.
17. No Other Relationship or Interest.
The Parties agree that this Agreement does not create any other relationship or legal interest between the Parties, including, but not limited to, employer/employee relationship, license, title, guarantee of work, or right to use any Confidential Information, except as specified by this Agreement.
18. Disputes and Governing Law.
The laws of the State of Victoria, Australia without regard to any conflict of law principles, govern this Agreement.
No action, arising out of the transactions under this Agreement may be brought by either Party more than one year after the cause of action has accrued.
19. Limitations on Assignment.
Reseller may not assign, transfer or sell all or any of its rights under this Agreement or delegate all or any of its obligations hereunder, without the prior written consent of Gem Accounts. Gem Accounts may assign this Agreement to a parent, subsidiary or affiliated firm or to another entity in connection with the sale or other transfer of all or substantially all of its business assets. Subject to these restrictions, the provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties, their successors and permitted assigns.
This Agreement, including all Exhibit(s), constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all agreements, proposals, representations and other understandings, oral or written, of the Parties and any current or subsequent purchase order(s) provided by Reseller.
No alteration or modification of this Agreement or any Exhibits shall be valid unless made in writing and signed by an authorized representative of each Party. The waiver by either Party of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach and any waiver must be in writing and signed by an authorized representative of the Parties hereto.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect. Any notice or other communication required or permitted hereunder shall be given in writing to the other Party at the address stated above, or at such other address as shall be given by either Party to the other in writing.
Any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and rightful assignees.