Cloud Reseller Webstore Agreement - Multiple

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Cloud Reseller Webstore Agreement - Multiple

WHEREAS:
First For Cloud shall provide the Reseller with use of Webstores in order to sell and provision Additional Services, Cloud Services and Non-Cloud Services to End Users, using the functionality provided by the First For Cloud Platform. The terms and conditions contained herein regulate the aforementioned relationship. For the sake of clarity, the Reseller will be granted use of multiple Webstores, in order to provision Additional Services Cloud Services and Non-Cloud Services to each of its selected End Users, and each End User will be granted access to the applicable Webstore. The Webstores outlined in this Agreement shall not be public facing Webstores but will be used internally by the Reseller to sell and provision Cloud Services and Non-Cloud Services to each applicable End User.

NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS

1.1. “Additional Services” means any of the Resellers own migration, implementation, consultancy services, products and/or services which are on offer from the Reseller to the End User for Services Consumption,

1.2. “Agreement” means this reseller webstore agreement and all annexures, schedules and exhibits hereto as may be amended from time to time,

1.3. “Branded” means the use of the Reseller’s designating Marks in the design of its Webstore,

1.4. “Cloud Services” means any Software as a Service (SaaS), Platform as a Service (PaaS), Infrastructure as a Service (IaaS) and/or internal applications exposed as a service, residing on the First For Cloud Services Catalogue,

1.5. “Confidential Information” shall have the meaning ascribed thereto in clause 13,

1.6. “Effective Date” means the earlier date of: Services Consumption by an End User or the date of signature of this Agreement,

1.7. “End User” means any entity as outlined in Annexure “A” or individuals on behalf of the entities listed in Annexure “A”, that purchases Cloud Services, Additional Services and/or Non-Cloud Services through the Reseller’s Webstore/s for Service Consumption;

1.8. “End User Agreement” means the agreement between the Reseller and the End User, governing the terms and conditions of Services Consumption and use of the Webstore,

1.9. “Fee/s” means:

1.9.1. “Revenue Fee”: calculated as 0% of the gross monthly revenue (excluding VAT) earned by the Reseller for all Cloud Services and Non-Cloud Services (excluding all Additional Services which is calculated at 2% of the gross monthly revenue (excluding VAT)) that are purchased by End Users through the Webstore, and;

1.9.2. “SSL Fee”: payable annually in advance for SSL certificate supply and administration, and;

1.9.3. “Cloud Service Fee”: which is the monthly amount due by the Reseller to First For Cloud and represents the list price of the Cloud Services, which are sold to End Users for Services Consumption, and;

1.9.4. “Non-Cloud Service Fee”: which is the monthly amount due by the Reseller to First For Cloud and represents the list price of the Non-Cloud Services, which are sold to End Users for Services Consumption, and;

1.9.5. “Deposit Fee”: which is a security amount that must be paid on demand, where a Reseller has a COD account with First For Cloud or exceeds the credit limit on its Credit Account with First For Cloud. The value of the security amount required will be communicated in writing to the Reseller by First For Cloud from time to time,

1.10. “First For Cloud” means Epsidon Technology Distribution (Pty) Ltd t/a First Distribution, registration number: 1995/010958/07, a private company duly incorporated in terms of the laws of the Republic of South Africa with its registered address being 26 Augrabies Road, Waterfall Office Park, Midrand, Gauteng, 1685.

1.11. “First For Cloud Services Catalogue” means the multiple offerings of Cloud Services and Non-Cloud Services provided by Third Party Service Providers, for resale to End Users through the Webstore for Services Consumption,

1.12. “First For Cloud Platform” means the electronic online platform which enables Additional Services, Cloud Services and Non-Cloud Services to be sold, provisioned and managed through the Webstore,

1.13. “Intellectual Property Rights” means all patents, rights to inventions, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world,

1.14. “Marks” means, with respect to each Party, all worldwide proprietary indicia, trademarks, trade names, service marks, symbols, logos and/or brand names,

1.15. “Non-Cloud Services” means any offering supplied through a Webstore that is not a Cloud Service (eg: Consulting, Implementation, Training, Airtime, Software downloads, etc.), and which resides on the First For Cloud Services Catalogue,

1.16. “Parties” means First For Cloud and the Reseller collectively, and “Party” means each of First For Cloud and the Reseller as the context provides,

1.17. “Payment Gateway” means an e-commerce application service provider service that authorizes credit card payments for e-businesses, online retailers, bricks and clicks, or traditional brick and mortar. It will protect credit card details by encrypting sensitive information, such as credit card numbers, to ensure that information is passed securely between the End User and the Reseller,

1.18. “Reseller” means the person, company or entity which resells Additional Services, Cloud Services and Non-Cloud Services through the Webstore to End Users,

1.19. “Services Consumption” means the authorised use of the Additional Services, Cloud Services and Non-Cloud Services in the regular course of an End User’s business or for personal use, and not for resale or sublicensing by such End User,

1.20. “Signature Date” means the date of signature of this Agreement by the last signing Party,

1.21. “Support Services” means those services as are set out in clause 7 below,

1.22. “Term” means the duration of the Agreement as contained in clause 9 below,

1.23. “Territory” means the geographical location where Services Consumption by the End User may occur as dictated by the Third Party Service Provider,

1.24. “Third Party Service Provider” means a vendor company that creates, develops and/or operates the Cloud Services and/or Non-Cloud Services, which reside on the First For Cloud Services Catalogue,

1.25. “Webstore” means the online Branded Reseller portal/s which resides on the First For Cloud Platform and enables the Reseller to sell, provision and manage Additional Services, Cloud Services and Non-Cloud Services for each End User via the End User’s webstore.

2. INTERPRETATION

2.1. The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.

2.2. The expiry or termination of this Agreement will not affect those clauses within this Agreement that (a) expressly provide that they will continue after such expiry or termination or (b) of necessity must continue to have effect after such expiry or termination.

2.3. Any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.

2.4. Words importing the singular shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders and vice versa.

2.5. References to a “Person” include any natural person, firm, company, corporation, legal entity, government, state or agency of a state or any association, trust or partnership (whether or not having a separate legal personality) or two (2) or more of the foregoing.

2.6. The word “including” and its other grammatical forms shall not limit the general effect of the words which precede and shall be construed without any limitation.

2.7. Any notice required to be given under this Agreement shall be deemed to be a notice in writing

2.8. Any reference to “month”, “monthly”, “year” and “yearly” and any other references in time shall be construed by reference to the Gregorian calendar.

2.9. Any reference to “day” or “daily” shall be construed as a reference to a calendar day.

2.10. When any number of days is prescribed in this Agreement, the same shall be reckoned exclusively of the first and inclusively of the last day.

2.11. No provision herein shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision.

3. PURPOSE OF AGREEMENT

3.1. The Reseller is hereby granted a license to use a Webstore through the First For Cloud Platform. The Reseller will be granted access to the First For Cloud Services Catalogue, in order to resell the Cloud Services and Non-Cloud Services, which reside thereon, to their End Users in accordance with the terms and conditions contained herein.

3.2. The Reseller’s End Users will have the ability to access the Reseller’s Webstore in order to purchase Additional Services, Cloud Services and Non-Cloud Services for Services Consumption. The End User will also have the ability to view and query usage reports and assign access to the purchased Additional Services, Cloud Services and Non-Cloud Services for Services Consumption.

3.3. The Reseller through its Webstore is responsible for:

3.3.1. reselling Additional Services, Cloud Services and Non-Cloud Services to its End Users, and;

3.3.2. providing information on the Additional Services, Cloud Services and Non-Cloud Services to its End Users. In this regard, the Reseller shall not make any statements and/or any representations in respect to the Cloud Services and/or Non-Cloud Services that are in conflict with the information provided by the Third Party Service Providers and/or is not approved for dissemination by the Third Party Service Providers, and;

3.3.3. setting the sale price for the resale of Cloud Services and Non-Cloud Services to its End Users, which will be done by the Reseller adding a margin and/or mark up to the Cloud Service and/or Non-Cloud Service Fee, and;

3.3.4. ensuring access is granted to applicable End Users to the relevant Webstore;

3.3.5. managing the bundling of Cloud Services and Non-Cloud Services for resale to its End Users.

3.4. The Reseller is responsible for its own End User billing and collections, in respect of purchases through its Webstore. Notwithstanding such collections from the End User, the Reseller is solely responsible to First For Cloud for the Revenue Fee, SSL Fee, Cloud Services Fee, Non-Cloud Services Fee and Deposit Fee.

3.5. Without prejudice to any further provisions set out in this agreement, First For Cloud reserves the right to:

3.5.1. make changes to the appearance, functionality or content of the First For Cloud Platform from time to time, and;

3.5.2. to make changes to, remove and/or add, Cloud Services and/or Non-Cloud Services to the First For Cloud Services Catalogue, and;

3.5.3. to change the arrangement and/or availability of the Cloud Services and Non-Cloud Services available on the First For Cloud Services Catalogue from time to time, and;

3.5.4. to decline listing of any Additional Services on the Webstore in its sole discretion, and;

3.5.5. Any such changes as outlined above will be advised to the Reseller by First For Cloud within 30 (thirty) days prior to such change being affected.

4. LICENSE

4.1. Subject to the terms and conditions of this Agreement, First For Cloud hereby grants the Reseller a non-exclusive, non-transferable, non-sublicenseable and revocable license during the Term of this Agreement to use a Reseller Webstore in order to resell Additional Services and/or Cloud Services and/or Non-Cloud Services to the Reseller’s End Users. In addition, First For Cloud grants the Reseller access to the First For Cloud Services Catalogue and Support Services through its Webstore.

4.2. The Reseller agrees and acknowledges that, in terms of the above license; it is bound by, and agrees to, the terms and conditions of this Agreement in relation to Services Consumption.

5. FEES

5.1. In consideration for the rights and the licence granted in terms of clause 4 above, the Reseller agrees to pay to First For Cloud the Fees as defined in this Agreement. Payment Terms are dealt with in clause 11.

5.2. For the avoidance of doubt there are five types of Fees payable by the Reseller to First For Cloud:

5.2.1. “Revenue Fee”: calculated as 0% of the gross monthly revenue (excluding VAT) generated by the Reseller for all Cloud Services and Non-Cloud Services (excluding all Additional Services which is calculated at 2% of the gross monthly revenue (excluding VAT)) that are purchased by Reseller provided that Reseller will exclusively purchase such Additional Services, Cloud Services and Non-cloud services required by the End Users from First for Cloud for resale to End Users, and;

5.2.2. “SSL Fee”: an annual fee payable for SSL certificate supply and administration. This fee will be confirmed annually by First For Cloud and is subject to amendment from time to time in the sole discretion of First For Cloud. The SSL Fee does not include domain registration, which will be for the sole account of the Reseller, and;

5.2.3. “Cloud Service Fee”: represents the list price of the Cloud Services purchased by End Users for Services Consumption. These fees are billed monthly in arrears, and;

5.2.4. “Non-Cloud Service Fee”: represents the list price of the Non-Cloud Services purchased by End Users for Services Consumption. These fees are billed monthly in arrears, and;.

5.2.5. “Deposit Fee”: which is a security amount that must be paid on demand, where a Reseller has a COD account with First For Cloud or exceeds the credit limit on its Credit Account with First For Cloud. The amount of the deposit required will be communicated in writing to the Reseller by First For Cloud from time to time and will be subject to change in the sole discretion of First For Cloud. The Deposit Fee will be held by First For Cloud as security for the Reseller’s obligations as contained in this Agreement.

6. RESELLERS RIGHTS AND OBLIGATIONS

6.1. The rights and obligations which flow from the license granted by First For Cloud in terms of this Agreement to the Reseller, and the Reseller’s obligations thereunder, are explained as follows:

6.2. Reseller is required to confirm that the End User Territory listed on the Webstore by the End User is accurate. In addition, the Reseller is required to ensure that Services Consumption by its End Users occur within the Territories dictated by the Third Party Service Provider.

6.3. The Reseller acknowledges and agrees that while First For Cloud will offer and maintain the First For Cloud Services Catalogue and the First For Cloud Platform, the Cloud Services and Non-Cloud Services will not in fact be provided by First For Cloud but rather will be provided by the Third Party Service Provider, who own and/or licence such Cloud Services and Non-Cloud Services. Accordingly, the Third Party Service Provider will have direct responsibility for or in relation to the performance or delivery, in any manner whatsoever, of the Cloud Services and Non-Cloud Services.

6.4. The Reseller will appoint a Webstore administrator who will be responsible on their behalf for the administration, setup and maintenance of the Resellers Webstore.

6.5. The administrator’s duties include but are not limited to:

6.5.1. Selection – selection of Cloud Services and Non-Cloud Services from the First For Cloud Services Catalogue for resale to the Resellers End Users.

6.5.2. End User pricing –setting the purchase price charged to each End User for the Cloud Services and Non-Cloud Services. The First For Cloud Platform will charge a Fee to the Reseller for the Cloud Services and Non-Cloud Services. The Webstore Administrator will add the Reseller’s margin/mark-up onto this Fee, resulting in the End User selling price.

6.5.3. Additional services – any of the Resellers own migration, implementation or consultancy services which are required or are on offer from the Reseller to each End User in connection with its provision of the Cloud Services and Non-Cloud Services must also be added by the administrator, and the administrator must set the prices for same.

6.5.4. User management – the administrator is responsible for all End User account access. Account access will be granted but not limited to the End User administrator, the End User billing/accounts user and the End Users for Services Consumption.

6.5.5. Unauthorised User – The Reseller will remain liable for any Services Consumption by an unauthorised End User.

6.5.6. Sale Price – setting the sale price for the resale of Cloud Services and Non-Cloud Services to its End Users, which will be done by the Reseller adding a margin and/or mark up to the Cloud Service and/or Non-Cloud Service Fee.

6.5.7. Domain Registration – The Reseller is required to register a domain and attach the SSL certificate to its domain. The details of the domain and the naming conventions applied is the responsibility of the Reseller. The Reseller must provide domain details, including the details of the naming convention of the domain to First For Cloud.

7. ON-BOARDING AND SUPPORT

7.1. End User On-boarding

7.1.1. First For Cloud will provide End User on-boarding training to the Reseller’s Webstore administrator.

7.1.2. The Reseller is responsible for all requirements that will allow its End Users to transact/interact through the First For Cloud Platform and/or the Webstore.

7.1.3. The Reseller agrees and acknowledges that it has sole responsibility for setting up its End Users environment and for training its End Users.

7.2. Support – End User Support will be provided to an End User query in 3 (three) levels. The End User must exhaust the support provided on each level before progressing to the next level.

7.2.1. Level 1

7.2.1.1. The End User will contact the Reseller to submit a Support query. The Reseller’s Support contact details will be available to the End User on the Webstore. The Reseller will exhaust all possible avenues to resolve the End Users support query.

7.2.2. Level 2

7.2.2.1. In the event that a query by an End User cannot be resolved through the Level 1 Support, the Reseller will contact the First For Cloud support team telephonically or via email to resolve such query through contact details which are made available on www.firstforcloud.com. The First For Cloud support team will be available to assist a Reseller during week days (i.e. Monday to Friday) only, between the hours of 08:00am and 17:00pm SAST. The Reseller will be responsible for resolving the End User’s query once it has received feedback from the First For Cloud support team.

7.2.2.2. The Reseller’s End Users will have no direct contact with First For Cloud and the First For Cloud support team for Support.

7.2.3. Level 3

7.2.3.1. In the event that a query by an End User cannot be resolved through the Level 2 Support, the First For Cloud support team will contact the Third Party Service Providers directly for assistance. The First For Cloud Support Team will relay such assistance to the Reseller who will resolve the End User’s query.

7.2.3.2. The Reseller’s End Users will have no direct contact with First For Cloud, the First For Cloud support team or the Third Party Service Providers for Support, except where the same is specifically provided as part of the Cloud Services and/or Non-Cloud Services.

7.3. Support Chat capability – chat functionality may be made available on the Webstore to provide Support to End Users. The extent and functionality of such support chat capability may be agreed to between the Parties on an ongoing basis for the Term of the Agreement.

8. FIRST FOR CLOUD RIGHTS AND OBLIGATIONS

8.1. The rights and obligations of First For Cloud in terms of this Agreement and the license provided thereunder to the Reseller are set out below:

8.1.1. First For Cloud will provide and maintain the First For Cloud Platform and infrastructure which will make available the First For Cloud Services Catalogue.

8.1.2. First For Cloud will provide and maintain the First For Cloud Platform and infrastructure which will make available the Reseller’s Webstore.

8.1.3. First For Cloud will consistently look to on-board new Cloud Services and Non-Cloud Services to the First For Cloud Services Catalogue.

8.2. End User Agreement – Reseller must ensure that each End User accepts a valid End User Agreement with the Reseller, prior to Services Consumption.

8.3. End User Agreement and Services Consumption –

8.3.1. The End User Agreement will stipulate the terms and conditions of Services Consumption and will be governed by substantially the same terms and conditions as contained in this Agreement and/or any terms and conditions dictated by the Third Party Service Provider.

8.3.2. The End User Agreement will, where applicable, incorporate those terms and conditions as supplied by the Third Party Service Provider, the Reseller and First For Cloud.

8.3.3. The End User must understand and agree that all access to, licensing of and use of the Cloud Services and Non-Cloud Services are granted to the End Users by the Third Party Service Provider, in accordance with such Third Party Service Providers terms and acceptable use policy.

8.3.4. It is the Reseller’s sole responsibility to ensure that the End User understands and expressly agrees that access to the Cloud Services and/or Non-Cloud Services is granted subject to the End User complying with the applicable Third Party Service Providers terms, conditions and acceptable use policy.

8.4. First For Cloud will provide the reporting functionality that will enable the Reseller to create Services Consumption reports for each End User.

8.5. Should the Reseller require integration of invoicing functionality into its ERP system, such integration will be provided at an additional fee to be agreed to between the Parties.

8.6. Should the Reseller require a Payment Gateway, the Reseller will be required to register and make payment of all applicable fees directly with the Payment Gateway service provider. The Reseller is under an obligation to provide First For Cloud with the Payment Gateway account credentials so that First For Cloud may link the Payment Gateway to the Reseller’s Webstore.

8.7. First For Cloud will bill the Reseller for the Fees as set out in clause 11, Payment Terms.

9. TERM AND TERMINATION

9.1. Term

9.1.1. This Agreement will commence on the Effective Date and will continue for a period of 12 (twelve) months, and shall auto renew for further 12 (twelve) month periods unless terminated earlier as provided for in this clause (the “Term”).

9.1.2. Each Cloud Service and/or Non-Cloud Service purchased by the Reseller will have its own activation date on or after the Effective Date. The Cloud Services and Non-Cloud Services are provided by the Third Party Service Providers:

9.1.2.1. on demand, or;

9.1.2.2. on a month-to-month basis, or;

9.1.2.3. yearly basis, or;

9.1.2.4. a defined fixed period.
The above however is finally determined in each case by the Third Party Service Provider’s own terms and conditions.

9.1.3. Cancellation of the Cloud Services and/or Non-Cloud Services following purchase by the Reseller is subject to the Third Party Service Providers terms and conditions. If a Cloud Service and/or Non-Cloud Service has a minimum term or Services Consumption is still occurring, the Reseller is liable to pay First For Cloud the Fees for the same until the minimum term has expired or the Services Consumption has ceased.

9.2. Termination for Cause

9.2.1. Either Party shall be entitled to give notice to terminate this Agreement with immediate effect, such termination to be effective upon deemed receipt of such notice, if the other Party:

9.2.1.1. commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 (thirty) days of that Party being notified in writing of the breach;

9.2.1.2. takes steps to place itself, or is placed in liquidation, whether voluntary or compulsory and whether provisionally or finally;

9.2.1.3. takes steps to deregister itself or is deregistered;

9.2.1.4. ceases or threatens to cease to carry on business;

9.2.1.5. commits an act which would be an act of insolvency as defined by the Insolvency Act of 1936 as amended from time to time if committed by a natural person;

9.2.1.6. fails to satisfy a judgement in excess of R100 000.00 (one hundred thousand rand) entered against itself within 21 (twenty one) days after it becomes aware of the judgement, except if it provides evidence on an ongoing basis to the reasonable satisfaction of the other Party that steps have been initiated within the 21 (twenty one) days to appeal, review or rescind a judgement and to procure suspension of execution of the judgement and that such steps are being expeditiously pursued; the period of 21 (twenty one) days shall run from the date on which the judgement becomes final, or the date on which the attempt to procure the suspension of the execution fails.

9.3. Effect of Termination

9.3.1. Except as otherwise required, upon termination of this Agreement, the Reseller must immediately discontinue:

9.3.1.1. all access to and use of the First For Cloud Platform and the Webstore, and;

9.3.1.2. all Services Consumption and provisioning and resale of the Additional Services, Cloud Services and Non-Cloud Services through the Webstore and/or the First For Cloud Platform to End Users.
Neither Party shall incur any liability to the other solely because of a termination of this Agreement according to its terms.

9.3.2. The exercise of any termination right set out in clauses 9.1 and 9.2 by a Party shall be without prejudice to the Party’s other rights and remedies under this Agreement.

9.3.3. Each Party shall within thirty (30) days upon termination of this Agreement promptly return and permanently delete and/or destroy all Confidential Information (including all copies thereof) belonging to the other Party and shall provide to the other Party a certificate signed by the such Party’s authorised representative confirming that such Party has not retained any Confidential Information belonging to the other Party;

9.3.4. First For Cloud is entitled, at its own discretion and with consent the of the End User, to transition the Reseller’s End Users to another Webstore to ensure End User Cloud Services and Non-Cloud Services resale and Services Consumption continuity.

9.4. Survival

9.4.1. Any obligations to pay Fees by the Reseller and any rights of the Parties that arose or accrued prior to termination of this Agreement shall survive and continue in full force and effect, in addition to the provisions of clauses 13, 14, 15, 16 and 17 which shall continue indefinitely but all other rights and obligations of the Parties shall cease immediately.

9.4.2. Termination of this Agreement shall not relieve a Party of obligations imposed upon such Party by statute or regulation or by this Agreement prior to its termination.

10. DESCRIPTION OF A WEBSTORE

10.1. A “Webstore” means the online Branded Reseller portal which resides on the First For Cloud Platform and enables the Reseller to sell, provision and manage Additional Services, Cloud Services and Non-Cloud Services to End Users.

10.2. The First For Cloud Platform allows the Reseller to brand its Webstore within its corporate brand guidelines. The First For Cloud Platform allows the Reseller to select one of two levels of branding, namely:

10.2.1.1. “Included Branding” – the ability to upload the Resellers logo and choose a predefined selection of colours. There is no fee attached to this option.

10.2.1.2. “Webstore Custom Design” – the First For Cloud design team works with the Reseller to implement a customised brand interface, the costs of which will be agreed to between the Parties.

11. PAYMENT TERMS

11.1. The Reseller is responsible for the monthly billing of its End Users based on their consumption reports.

11.2. For clarity, First For Cloud is not responsible or liable for the billing process or billing engine, and accepts no responsibility or liability for any issues or miscalculations. It is the Reseller’s obligation to audit the consumption reports and billing.

11.3. Collection of End User payments is the sole responsibility of the Reseller. The Reseller’s obligation is to pay First For Cloud for all applicable Fees, irrespective of whether it has collected any corresponding payment from its End Users.

11.4. Should the Reseller have an account with First For Cloud, payment of the Revenue Fee, Cloud Service Fees and Non-Cloud Service shall be made within 30 (thirty) days from receipt of invoice. Should the Reseller trade with First For Cloud on a cash upfront basis i.e. no account with First For Cloud, payment will take place within 24 (twenty four) hours of receipt of the invoice. Deposit Fees and SSL Fees are payable in advance on the date indicated by First For Cloud.

11.5. First For Cloud reserves the right to request that payment of all Fees due to it is made through direct debit order. In this regard, should First For Cloud require payment of all Fees to be made by direct debit order, it shall require the Reseller to complete all such necessary documentation in order to give effect to the direct debit order, which the Reseller shall complete and submit to First For Cloud without delay.

11.6. The Resellers credit limit, where applicable, will be subject to credit limit approval in the sole discretion of First For Cloud.

11.7. The Reseller acknowledges that First For Cloud is in no way responsible or liable for the suspension or discontinuation of any Cloud Services and/or Non-Cloud Services to the Reseller’s End Users due to lack of payment and/or any other reason whatsoever, determined in the sole discretion of First For Cloud.

11.8. Currency of payments: ZAR South African Rand or USD – United States Dollar.

11.9. General

11.9.1. All Fees are subject to review by First For Cloud in its sole discretion, with or without prior written notice to the Reseller.

11.9.2. Late payments will bear interest at the lower of 1.5% per month or the maximum rate allowed by law.

11.10. Taxation

11.10.1. The Parties acknowledge and agree that the Reseller is solely responsible for payment of all applicable sales, use, consumption, VAT, GST, withholding and other taxes and all applicable export and import fees, customs duties and similar charges arising from the payment of Fees under this Agreement.

11.10.2. The Reseller will make all payments to First For Cloud without deduction and/or set off, and any Fees payable shall be grossed up to include any applicable taxes, so that First For Cloud receives the full value of all Fees due to it.

11.11. Suspension and/or Access Termination

11.11.1. Should the Reseller fail to make payment as outlined in this clause 11, First For Cloud shall be entitled to cancel this Agreement and/or suspend Reseller’s and/or End User’s access and/or usage of the Cloud Services and/or Non-Cloud Services with immediate effect.

11.11.2. Should First For Cloud take the action outlined in clause 11.10.1., the Reseller indemnifies First For Cloud against any and all loss and/or damage incurred or to be incurred by the End User and/or Reseller as a result thereof.

12. INTELLECTUAL PROPERTY

12.1. Marks

12.1.1. Neither Party grants the other Party any rights in its Marks hereunder.

12.2. Ownership

12.2.1. All right, title, and interest (of whatsoever nature and howsoever arising) worldwide, in any Intellectual Property Rights which are lawfully owned by the Parties as at the Effective Date shall continue to be owned by, and vest exclusively in, the respective Party during the Term.

12.2.2. Each Party expressly reserves all Intellectual Property Rights not expressly granted herein, and no licences are granted by implication, estoppel or otherwise to either Party to any of the foregoing except as expressly set forth in this Agreement.

13. CONFIDENTIALITY

13.1. “Confidential Information” means, with respect to each Party, information, in tangible or intangible form, concerning the other Party’s business, personnel, financial condition, trade secrets, Intellectual Property Rights; other information held in confidence by such Party; and information that is designated as “confidential” or “proprietary” or similar words, or that, by its nature a reasonable person would consider confidential, including the terms of this Agreement.

13.2. Each Party agrees that it will not use for its own account or the account of any third party, or disclose to any third party, any of the other Party’s Confidential Information, except:

13.2.1. to authorised persons who need access to such Confidential Information solely for the purpose of fulfilling that Party’s obligations or exercising that Party’s rights under this Agreement;

13.2.2. pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to contest such order or requirement; or

13.2.3. on a confidential basis, to either Party’s attorneys, accountants and other advisors, as reasonably necessary.

13.3. Each Party further agrees that it will take all reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information, but in no circumstances less than a commercially reasonable standard of care.

13.4. Confidential Information does not include information that is known to either Party or the public prior to disclosure by the other Party; or becomes known to the other Party or the public other than through a breach of confidentiality, including this Agreement; or is independently developed by either Party without reliance or use of any Confidential Information disclosed hereunder.

14. WARRANTIES

14.1. Mutual Warranties

14.1.1. Each Party represents and warrants to the other that, as of the Effective Date:

14.1.1.1. its execution of this Agreement has been duly and fully authorised;

14.1.1.2. this Agreement constitutes obligations that are legal, valid, binding and enforceable against it in accordance with its terms; and

14.1.1.3. to the best of its knowledge and belief, the provisions of this Agreement are not in conflict with,and will not constitute a breach of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.

14.2. No Other Warranties

14.2.1. Except as expressly provided to the contrary herein and to the fullest extent allowed by law, the warranties and remedies provided in this clause 14 are exclusive and in lieu of all other warranties, terms and conditions, express or implied either in fact or by operation of law, statutory or otherwise, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, accuracy of information generated, satisfactory quality, title and non-infringement, arising from a course of dealing, usage, or trade practice, all of which are expressly disclaimed. Furthermore, the Parties acknowledge and agree that these disclaimers of warranty constitute an essential part of this Agreement.

14.2.2. In particular, the Reseller acknowledges and agrees that First For Cloud does not offer or provide any warranties, representations or undertakings in or to the First For Cloud Platform, the Cloud Services and the Non-Cloud Services or any portions or components thereof, and that First For Cloud expressly disclaims any such warranties, representations or undertakings in or to the First For Cloud Platform, the Cloud Services and the Non-Cloud Services or any portions or components thereof.

14.2.3. Except for the express warranties set forth in this clause 14, the Reseller acknowledges and agrees that access to and use of the First For Cloud Platform, the Cloud Services and the Non-Cloud Services are provided on an “as is” basis, and that access to and the use of the First For Cloud Platform and the Services are at the Reseller’s sole risk.

15. INDEMNIFICATION

15.1. Reseller Indemnification

15.1.1. The Reseller will, at its sole expense, indemnify, defend – or at its sole option, settle – and hold First For Cloud harmless from and against any and all costs, damages and fees (including attorney’s fees) for any and all demands, claims or actions brought against First For Cloud or its Third Party Service Providers by any third party, including (without limitation) any End User, arising from the Reseller’s access to or use of the First For Cloud Platform and/or the resale of Cloud Services and/or Non-Cloud Services in terms of this Agreement.

15.1.2. Furthermore, the Reseller will, at its sole expense, indemnify, defend – or at its sole option, settle – and hold First For Cloud harmless from and against all claims that may be brought by any third party arising from the Reseller’s resale of any of the Cloud Services and/or Non-Cloud Services, the intention of the Parties being that First For Cloud should not have any liability whatsoever to any such third party. The foregoing indemnity includes (without limitation) any claim that may be brought by an End User against First For Cloud.

15.2. First For Cloud Indemnification

15.2.1. First For Cloud will, at its sole expense, indemnify, defend – or at its sole option, settle – and hold the Reseller harmless from and against any and all costs, damages and fees for any and all demands, claims or actions brought against the Reseller, by a third party arising from infringement or misappropriation of any patent, trademark, copyright or trade secret of a third party relating to the Intellectual Property Rights of First For Cloud vested in the First For Cloud Platform.

15.3. Limitations

15.3.1. The foregoing obligation of First For Cloud does not apply with respect to the First For Cloud Platform or portions or components thereof:

15.3.1.1. not made available or supplied by First For Cloud;

15.3.1.2. used in a manner not expressly authorised by this Agreement;

15.3.1.3. made available or supplied in accordance with the Reseller’s specifications;

15.3.1.4. modified by any party other than First For Cloud or a First For Cloud subcontractor acting on First For Cloud’s behalf, if the alleged infringement relates to such modification;

15.3.1.5. combined with other products (hardware or software), processes or materials where the alleged infringement would not exist but for such combination; or

15.3.1.6. where the allegedly infringing activity continues after the Reseller has been notified thereof and provided modifications that would have avoided the alleged infringement.

15.4. Infringement Remedy

15.4.1. In the event that the First For Cloud Platform is held by a court of competent jurisdiction to infringe a third party’s Intellectual Property Rights, First For Cloud shall, at its sole option, do one of the following:

15.4.1.1. procure for the Reseller the right to continue to access and use the First For Cloud Platform;

15.4.1.2. provide a modification to the First For Cloud Platform so that its use becomes non-infringing; or

15.4.1.3. if none of the foregoing alternatives is commercially feasible, First For Cloud shall refund the residual value of the fees paid by the Reseller for access to the First For Cloud Platform, depreciated using a straight line method of depreciation over a three (3) year period from the date of first access to the First For Cloud Platform by the Licensee Reseller.

15.4.2. This clause 15.4 states First For Cloud’s sole liability and the Reseller’s exclusive remedy for all infringement claims.

15.5. Notice of Infringement

15.5.1. Each Party’s indemnification obligations hereunder shall be conditioned upon:

15.5.1.1. receiving prompt written notice of the existence of any action, provided that a Party is excused from their obligations only to the extent such Party has suffered actual material prejudice by any delay;

15.5.1.2. having the right to control the defence of such action; and

15.5.1.3. receiving full co-operation of the indemnified Party in the defence thereof. The indemnified Party may participate in the defence of any action at its own expense.

16. LIMITATION OF LIABILITY

16.1. To the maximum extent permitted by applicable law, neither Party nor its affiliates will be liable to the other Party or to any third party for any indirect, special, incidental, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of business information, or any other pecuniary loss) whether arising in delict / tort (including negligence), contract or any other legal theory, even if such Party has been advised of the possibility of such damages.

16.2. In particular, the Reseller acknowledges and agrees that neither First For Cloud nor its affiliates will have any liability whatsoever, and howsoever caused, to the Reseller or its affiliates for or in relation to the Reseller’s access to and/or resale of the Cloud Services and/or Non-Cloud Services, including in relation to any failure, non-delivery or non-performance of the Cloud Services and/or Non-Cloud Services.

16.3. Except for liability arising out of:

16.3.1.1. either Party’s indemnification obligations;

16.3.1.2. any breach by either Party of the confidentiality / non-disclosure obligations hereunder;

16.3.1.3. the Reseller’s breach of the grant of licence and restrictions; or

16.3.1.4. personal injury, death, fraudulent misrepresentation, and/or any other claim for which liability cannot by law be excluded or limited,

16.4. Under no circumstances shall either Party’s maximum liability hereunder for damages (except payment obligations), however caused and under any theory of liability, whether in contract, delict / tort (including negligence), or otherwise) exceed the amounts paid by the Reseller to First For Cloud in the twelve (12) months immediately preceding any claim, notwithstanding any failure of essential purpose of any limited remedy.

16.5. The Parties acknowledge it has entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that these terms form an essential basis of the arrangements between the Parties.

16.6. The Reseller acknowledges and agrees that the Reseller and any third party contractors accessing or using the First For Cloud on behalf of the Reseller shall be jointly and severally liable to First For Cloud in the event such third party contractors and/or suppliers breach a material provision of this Agreement.

17. GENERAL

17.1. Governing Law

17.1.1. This Agreement is solely for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

17.1.2. This Agreement is made under and will be governed by and construed in accordance with the laws of the Republic of South Africa (except that body of law controlling conflicts of law).

17.1.3. Any legal action or proceeding arising under this Agreement will be brought exclusively in the South African courts and the Parties hereby consent to the personal jurisdiction and venue therein.

17.2. Remedies

17.2.1. The prevailing Party in any litigation between the Parties shall recover its reasonable attorneys’ fees and costs from the non-prevailing Party.

17.2.2. The Parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of the Agreement. The Parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, either Party shall have the right to seek injunctive relief or similar equitable remedies to enforce such Party’s rights under the pertinent provisions of the Agreement, without limiting its right to pursue any other legal remedies available to it.

17.2.3. Except as provided herein, the rights and remedies of each Party set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

17.3. Severability; Waiver

17.3.1. In the event any provision of this Agreement is held by a court or tribunal of competent jurisdiction to be contrary to the law, that provision shall be amended to achieve as nearly as possible the same effect as the original provision and the remaining provisions of this Agreement will remain in full force and effect. The Parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.

17.4. Assignment

17.4.1. Neither Party may assign this Agreement, in whole or in part, either voluntarily or by operation of law, without the prior written consent of the other Party, and any attempt to do so shall be a material default of this Agreement and shall be void.

17.4.2. Notwithstanding the foregoing, First For Cloud may assign its rights and benefits and delegate its duties and obligations under this Agreement without the consent of the Reseller to a third party acquiring First For Cloud or with which First For Cloud is merging or to which First For Cloud sells all or substantially all relevant assets; in each case provided that such successor assumes First For Cloud’s obligations under this Agreement.

17.5. Notice

17.5.1. The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the following addresses:

17.5.1.1. First For Cloud:

Physical: 26 Augrabies Road
Waterfall Office Park
Off Bekker Road
Midrand
1686

Telephone: +27 540 2640
E-mail: legal.enquires@firstdistribution.com

17.5.2. Any notice required or permitted to be given under this Agreement shall be deemed given when delivered:

17.5.2.1. by hand during business hours, on the day of delivery;

17.5.2.2. by courier on the date that the courier confirms that delivery has occurred and proof of delivery provided; or

17.5.2.3. by email the receipt of which is confirmed, by delivery receipt.

17.6. Relationship of the Parties

17.6.1. First For Cloud and the Reseller are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither First For Cloud nor the Reseller will have the right, power or authority to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. There shall be no third party beneficiaries to this Agreement.

17.7. Export Restrictions

17.7.1. To the extent that any Intellectual Property Rights of First For Cloud and related technical data may be subject to export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries, the Reseller agrees to at all times comply with all such regulations.

17.8. Force Majeure

17.8.1. Except for the Reseller’s obligation to pay First For Cloud, neither Party shall be liable for any failure to perform due to unforeseen circumstances or to causes beyond the Party’s reasonable control, including, but not limited to, acts of God, war, riot, acts of civil or military authorities, fire, flood, earthquake, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labour, or materials.

17.9. Entire Agreement; Counterparts; Originals

17.9.1. This Agreement, including all documents attached hereto and incorporated herein by reference, constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, between the Parties regarding such subject matter. No additional or conflicting term in a Reseller purchase order or other document shall have any effect.

17.9.2. This Agreement may be executed in counterparts (including by email, PDF or similar electronic format), each of which will be deemed an original, but all of which together shall constitute one and the same instrument.

17.9.3. In the event of a conflict between or among the terms in this Agreement, any exhibit and any other document made a part hereof, the documents shall control in the following order: this Agreement and then any other exhibits or documents.

17.9.4. This Agreement may be amended only by a written document signed by authorised representatives of First For Cloud and the Reseller.

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