Reseller Agreement
| Updated at | March 2010 |
This Agreement is made in________________on this ______day of __________________,20
Between
_______________________, a company incorporated under the Companies Act, 1956, having its registered office at _________________________, (hereinafter referred to as the "Manufacturer")
and
________________________, a company incorporated under the Companies Act, 1956, having its registered office at _________________________, (hereinafter referred to as the "Reseller")
WHEREAS, Manufacturer appoints Reseller as its exclusive Representative in the Territory to sell, license, market and distribute Manufacturer''s Products,
AND WHEREAS, Reseller accepts the appointment and agrees to sell and distribute Manufacturer''s Products within theTerritory.
NOW, THEREFORE, in consideration of the mutual covenants and premises hereinabove and hereinafter set forth, the Parties hereby agree as follows:
Section 1. Definitions
The following terms shall have the meanings indicated:
Agreement (also referred to herein as the "Contract Documents", "Contract", "Agreement") means this Reseller Agreement, Exhibits, Addendums, Schedules and Amendments attached hereto.
"Manufacturer" means a party duly authorized to source the products or services from its parent, who in this case means, ________________
"Reseller" means a party duly authorized to sell products or services to the public or to an end user.
"Equipment" means hardware, materials, and accessories.
"Software" means executable Software object code or binary code and firmware be embedded in Equipment.
"Work" means any ongoing or one-time Services furnished by Manufacturer or Reseller.
"Documentation" means and specifications, manuals, drawings or other technical data in electronic format or other media provided for Equipment, Software or Work.
"Products" means all current and future Software, Equipment, Documentation and Work provided by Manufacturer.
"Territory" means any location within the borders of __________________.
"System" means the combination of Products from various Manufacturers.
"End User" or "Customer" means a person or entity to whom Reseller distributes a copy of the Software, Equipment and Documentation for private use, who has agreed to be bound by all the terms of the Software License Agreement, or any other Agreement applicable to the distribution of Manufacturer''s Products by Reseller.
"Sub-Distributor" means third parties which, pursuant to a sub-distribution agreement entered into with Reseller ("Sub-Distribution Agreement"), may purchase Products from Reseller for distribution solely to End Users.
"Acceptance" (also referred to as "Sign-Off") means the point in time when consistent with industry standards the Work has been completed and the Products have been delivered without exceptions.
"List Price" means, with respect to a Product, Manufacturer''s standard and published list price for the Product in the Territory.
"Customer Price" means the price for products a Customer agrees to pay.
"Reseller Discount" means the applicable percentage discount from the Customer Price of Manufacturer''s products.
"Software License Agreement" means a license agreement governing the use of the Software.
"Update" means any change to the Products or Documentation provided by Manufacturer to Reseller following prior delivery of the particular Product or Documentation.
"Customization" means changes to the Software required for a specific Customer.
Section 2. Exclusivity
Subject to Reseller''s compliance with terms and conditions set forth in this Agreement, Manufacturer agrees to not appoint any other indirect sales organization for distribution of its products within Reseller''s Territory, and agrees that any sale to any end-user within Reseller''s territory will be effected by Reseller, with the following exceptions:
OEM deals. In the event the manufacturer enters into an OEM deal through a direct sale effort, the reseller would not be a party to such a deal and any related compensations. OEM Deals brokered through the reseller would be eligible for overriding discounts/commissions to the reseller, discussed and agreed on a case to case basis
Direct sales. In the event the manufacturer, through its direct sales efforts obtains revenue orders from within the resellers territory, these would not be considered as sales made by the reseller.
In the event the reseller is involved for the purposes of local support requirements for the above exceptions, the reseller would be eligible for overriding discounts, discussed and agreed on a case to case basis
The parties acknowledge and agree that legal damages may not be an adequate remedy for any breach or attempted breach of the provisions of this Section 2 and agree that equitable relief, including injunctive relief, may be required in appropriate circumstances. The parties hereby waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive relief.
The Reseller shall use commercially reasonable efforts to ensure that it does not make sales outside the Territory. Without limiting the foregoing, the Reseller shall require its end user customers to affirm in writing or over the Internet by click-wrap, under penalty of perjury, that they are resident within the Territory. If, now or in the future, the reseller can through reasonable commercial efforts and at minimal costs determine the location of a prospective customer, then the Reseller shall from that time utilize such measures and/or technology and shall not sell the Software to anyone with a location so indicated to be outside the Territory.
Section 3. License and Distribution
Subject to Reseller''s compliance with terms and conditions set forth in this Agreement, Manufacturer grants Reseller, and Reseller accepts, during the term of this Agreement, a transferable, exclusive license and right (i) to store one or more copies of its Software, Products and Documentation in Reseller''s facility for the purpose of distribution to Customers or for demonstration to Customers; (ii) to distribute the Products and Documentation to Customers in the Territory; and (iii) to demonstrate, market and promote the Software to Customers subject to the software license agreement, to be provided by the manufacturer.
Reseller''s Purchase Orders shall contain the following information: (1) name and address of Customer; (2) detailed description of the Products to be purchased; and (3) confirmation of Purchase Price to be paid to Manufacturer by Reseller for each Product.
Reseller shall submit a Software License Agreement covering the applicable Products duly executed by the End User.
Any Sub-Distribution Agreement(s) entered into by Reseller must have terms and conditions which shall be substantially similar to, and in no event less restrictive than, those set forth in this Agreement. All such redistribution agreements would be entered into after the express approval of the manufacturer
The Reseller shall not make any representations or warranties other than those contained in the Documentation and shall not make any representations or warranties on the Manufacturer's behalf.
Section 4. Sales, Marketing, and Minimum Sales Quota
The Parties agree to use commercially reasonable efforts to promote the sale of Manufacturer''s Products in the Territory according to the plan outlined in Exhibit C.
Reseller agrees to provide Manufacturer with quarterly sales forecasts outlining the quantities of Products anticipated to be purchased and sold by Reseller during the next subsequent quarter,
The Parties agree to inform each other immediately of any changes in its organization or method of doing business, which might affect the performance of the Party''s duties hereunder.
The Parties agree to jointly review all promotional and advertising materials for the Products prior to use
Reseller may not make any contracts or commitments on behalf of Manufacturer nor make any warranties or other representations regarding the Products other than those authorized by Manufacturer in writing.
Reseller agrees to a minimum sales quota beginning from the signature date herein, based on Product List Prices:
The Parties agree to negotiate in good faith sales quotas for each subsequent year 3 months prior to the renewal date of this agreement.
Manufacturer acknowledges that its own performance is of the essence to allow Reseller to achieve its quota. Manufacturer''s performance includes, but is not limited to, delivering products and services of acceptable quality within specifications, and timely delivery of accepted Reseller purchase orders. Manufacturer therefore acknowledges that its failure to perform shall give Reseller the right to reasonably reduce its sales quota without being considered to be in violation of this Section 4 of this Agreement.
Reseller acknowledges that failure to achieve sales quotas due to reasons within its reasonable control shall give Manufacturer the right to appoint other Resellers at its discretion in Reseller''s territory.
Fulfillment of Reseller's Obligations. The Reseller covenants that it will fulfill all of its contractual and legal obligations to its customers. The Reseller covenants that it will (a) provide its customers with first quality sales and technical support with respect to any Software sold by the Reseller,(b) promptly, courteously and appropriately respond to its customers questions, concerns and complaints, and (c) generally deal with its customers in a professional manner that shall add to the good reputation of the Reseller and the Manufacturer. To the extent that the Reseller fails to fulfill its contractual and legal obligations to its customers, Reseller agrees that the Manufacturer may elect to fulfill those obligations, or any portion of them, and the Reseller shall reimburse the Manufacturer any costs and expenses so incurred by the Manufacturer.
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