RECITAL
WHEREAS First Distribution is an authorised distributor of various Online Products; and
WHEREAS the Reseller wishes to appoint First Distribution as its supplier of Online Products for resale by the Reseller to its Customer/s;
NOW THEREFORE in consideration of the mutual covenants contained in this Agreement, and for good and valuable consideration, First Distribution and the Reseller agree on the terms and conditions outlined in this Agreement.
In this Agreement, unless the context indicates a contrary intention, the following words and expressions shall bear the meanings assigned to them hereunder and cognate expressions shall bear corresponding meanings:
1.1. “Accounts” means an account enabling Customer’s Users to access and use the Online Products;
1.2. “Additional Terms” means (where applicable) the additional terms and conditions applicable to the Online Products as identified and contained in each applicable Annexure to this Agreement, which may be changed, modified and amended from time to time, with or without notice;
1.3. “Agreement” means this cloud solutions reseller agreement and all terms and conditions outlined herein, including all annexures thereto;
1.4. “Business Day“ means any day other than a Saturday, Sunday or proclaimed public holiday in the Republic of South Africa;
1.5. “Confidential Information” means all information, including where applicable intellectual property, whether written (including information in an electronic format) or oral and whether whole or in part, and shall for the purpose of this Agreement include, without limitation, any technical, commercial or scientific information, know-how, trade secrets, processes, methodologies, machinery, designs, drawings, technical specifications, and data in whatever form, disclosed to or assessed by either Party during the course of its relationship with the other Party. For the purposes of this Agreement the Party who discloses Confidential Information shall be referred to as “the Disclosing Party” and the Party who receives the Confidential Information shall be referred to as “the Receiving Party”.
1.6. “Consumption Based Products” means cloud based products for which Reseller is billed based on actual usage of the product by the Customer;
1.7. “Customer” means any individual/s or entity that purchases or subscribes to the Online Products in the regular course of its business or for personal use, and not for resale or sublicensing by such individual or entity.
1.8. “Data” means all data, including personal information, collected by First Distribution for the purpose of business communications, administration and transacting with the Reseller and/or Customer in order to fulfil First Distribution`s obligations in terms of this Agreement. This shall include Resellers and/or Customers and/or Users name, company details, address, contact details, emails and account details, which will enable First Distribution to respond to queries or requests submitted by the Reseller and/or Customer, process orders placed by the Reseller or applications submitted.
1.9. “Effective Date” means the earlier date of subscription and/or consumption of Online Products by a User or the date of signature of this Agreement;
1.10 “Fees” means the fees payable by the Reseller to First Distribution for any Online Products that are accessed and/or used and/or consumed by the Customer.
1.11 “First Distribution” 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.
1.12. “Online Products” means any of the Software Vendor’s online services and/or cloud based products subscribed to and/or purchased by Reseller from First Distribution for resale to Customers as outlined in this agreement, including but not limited to Subscription Based Products and Consumption Based Products.
1.13. “Product Terms” means in relation to the Online Products, the documentation and/or terms of the Software Vendor governing the Online Products, including but not limited to, acceptably use policies, terms of use, operating manuals, user instructions, technical literature and all other related materials in any form or medium, which relate to the Online Products. This will include any applicable warranties and/or guarantees in respect to the Online Products provided to the Customer by the Software Vendor and detail the applicable refund and/or return policy of the Software Vendor. Product Terms may be changed, modified and amended, with or without notice in the sole discretion of the Software Vendor;
1.14. “Parties” means collectively First Distribution and Reseller and “Party” means any one of them as the context may require;
1.15. “Perpetual Based Products” means a type of software license that authorizes the Customer to use the Software Vendor’s online services and/or cloud-based products indefinitely.
1.16. “Reseller” means the person and/or entity who purchases the Online Products First Distribution, for purposes of reselling the Online Products to Customers.
1.17. “Subscription Based Products” means a specific quantity of cloud offerings, to which Reseller commits in advance to purchase for use during a pre-defined Subscription Term and for which Reseller pays upfront or on a periodic basis.
1.18. “Subscription Term” means the duration of a Subscription Based Product (e.g. 30 days, 12 months, etc.);
1.19. “Software Vendor/s” means a vendor company that creates, develops, provides and operates Online Products.
1.20. “Users” means one or more of the Customer’s officers, employees or personnel appointed as an authorised user of the Online Products and/or one or more of the Reseller’s officers, employees or personnel who is granted authorisation to purchase Online Products from First Distribution on behalf of the Customer.
2.1. The headings to the paragraphs to this Agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
2.2. If any provision in a definition in this Agreement is a substantive provision conferring rights or imposing obligations on any parties, then notwithstanding that it is only in the definition (interpretation) clause of this Agreement, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
2.3. Any number of days prescribed in this Agreement excludes the first day and includes the last day.
2.4. This Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, successors-in-title, assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s estate, heirs, executors, administrators, trustees, successors-in-title, assigns or liquidators, as the case may be.
2.5. Each paragraph, clause, term, and provision of this Agreement and any portion thereof shall be considered severable and if, for any reason any part of this Agreement is held to be invalid, contrary to, or in conflict with any applicable present or future law or regulation or in terms of a final, binding judgment issued by any arbitrator or court, it shall not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, which shall continue to be given full force and effect and bind the parties hereto.
2.6. The expiration or termination of this Agreement shall not affect the provisions of this Agreement that expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.7. In this Agreement, the rule of construction that an agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement shall not apply.
3.1. Each Party hereby represents and warrants to the other Party the following:
3.1.1. Each Party has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder without any further ratification or approval. This Agreement constitutes the legal, valid and binding obligations of each Party.
3.1.2. No Conflicts. Neither the execution and delivery of this Agreement by the Party nor the consummation of the transactions contemplated hereby will violate or conflict with any obligation, contract or license of such Party which could reasonably be expected to interfere with the consummation of the transactions contemplated hereby.
4.1. All access to, licensing of and use of the Online Products are granted to the Customer and its Users by the Software Vendor in accordance with the Product Terms and Additional Terms, on a non-exclusive, non-transferable basis, for the internal business purposes of the Customer. Reseller shall ensure that Customer and its Users, shall not use the Online Products for resale, distribution, leasing, rental, loaning, sales, sublicensing, the provision of services and/or otherwise.
4.2. The Reseller is solely responsible for provisioning the Online Products to the Customer and its Users and for any linking of the Customer and its Users as necessary to enable the Customer and/or User to consume and/or subscribe to the Online Products.
4.3. All rights granted to the Reseller under this Agreement are limited to such rights that are provided by the Software Vendors, subject to the following limitations:
4.3.1. It is the Reseller’s sole responsibility to ensure that the Customer and/or its Users understand and expressly agree that access to the Online Products is granted subject to the Customer complying with the Product Terms and Additional Terms;
4.3.2. It is Reseller’s sole responsibility to ensure that only authorised employees and personnel of the Customer make use of the Online Products. It is the Reseller’s sole responsibility to provide the Customer and its Users with such security measures and authorisation as may be required to use and secure access to the Online Products. All Fees incurred by any access or use will be for the Reseller’s account, howsoever arising, including where such access or use is unauthorised;
4.3.3. The Reseller may not allow Users to use the Online Products for more than the number of permitted users as prescribed by the Product Terms and Additional Terms of the applicable Online Product;
4.3.4 The Reseller must ensure that the Customer does not assign its right to access and/or use the Online Products to third parties without first obtaining First Distribution’s and/or the Software Vendor’s prior written consent;
4.3.5. Reseller is responsible for its Customers’ and/or Users’ use of and access to the Online Products in accordance with Software Vendor’s Product Terms and/or Additional Terms.
4.3.6. Reseller is responsible for ensuring the confidentiality of any authentication credentials associated with Customer’s and/or its Users use of the Online Products. Reseller shall implement, and cause the Customer to implement, reasonable security measures (which must be no less than the minimum security measures specified by the Software Vendor from time to time), to ensure that no unauthorized employees, personnel or third parties gain access to the Online Products.
4.3.7. Reseller must promptly notify First Distribution about any possible misuse of Accounts or authentication credentials or any security incident related to the Online Products. Notwithstanding the aforesaid, Reseller takes full responsibility and liability for unauthorized access to and/or usage of the Online Products including, without limitation, access and usage of Online Products by unauthorized employees, personnel or third parties, through Customer’s Accounts or by any other means, including fraud;
4.3.8. Reseller may not, and shall ensure that its Customer and/or the Users shall not, copy, reverse engineer, disassemble, decompile, translate, or try to modify the Online Products or the source code of the Online Products;
4.3.9. Reseller must ensure that its Customer and/or Users will not access and/or use the Online Products:
4.3.9.1. In any way that causes or may cause damage to the Online Products; or
4.3.9.2. In any way that is unlawful, illegal, fraudulent or harmful.
5.1. Reseller acknowledges and agrees that any Online Products purchased from First Distribution pursuant to this Agreement are provided to the Reseller and/or Customer by the Software Vendors and these transactions are managed by First Distribution.
5.2. This Agreement contains the terms and conditions agreed to between Reseller and First Distribution and/or the Software Vendor, for Customers access and/or use of the Online Products. Reseller acknowledges that it has read, understood, and agrees to be bound by the Agreement, and any additional policies and future modifications, if any, and shall ensure that the Customer agrees to be bound to the Software Vendor’s Product Terms and Additional Terms.
5.3. The Product Terms and Additional Terms are prescribed by the Software Vendor, are binding on the Reseller and its Customer, and may be amended in the Software Vendor’s sole and absolute discretion. Any amendments, modifications and/or variations to Product Terms and Additional Terms by the Software Vendor are incorporated herein by reference.
6.1. All Fees in respect to the Online Products are determined by First Distribution in its sole discretion, and are based on pricing provided by the Software Vendor. The Fees are therefore subject to change, with or without notice, from time to time based on price changes effected by the Software Vendors.
6.2. All Fees are at all times subject to change based on rate of exchange fluctuations.
6.3. Where required, the Reseller will provide First Distribution with a purchase order in respect to the Online Products Reseller wishes to purchase through First Distribution, provided that a failure to provide a purchase order shall not detract from the Reseller’s obligation to make payment of the Fees.
6.4. First Distribution shall submit invoices to Reseller setting out the Fees in respect to its Customer’s access and/or usage of Online Products. Payments made by Reseller to First Distribution will be made in the currency stated on the invoice and shall be free of any exchange, deduction, or set-off. Reseller shall be liable for timely payment of all Fees irrespective of whether it has received any corresponding payment from the Customer.
6.5. In respect of Subscription Based Products. Reseller will make payment of all Subscription Based Products in advance by either paying the applicable Fees upfront or on a periodic basis. First Distribution will provide Reseller with a tax invoice at the time Reseller Customer subscribes for any Subscription Based Products, or when Reseller’s Customer renews its subscription for such Subscription Based Products, and Reseller will make payment of such invoice within the payment terms agreed to between the Parties. If no payment terms have been agreed then on a cash on order basis.
6.6. In respect of Consumption Based Products. First Distribution will provide Reseller with a valid tax invoice, on a monthly basis, based on Reseller’s Customer access and/or use of any Consumption Based Products in the immediately preceding month. Reseller will make payment of such invoices within the payment terms agreed to between the Parties. If no payment terms have been agreed then payment will be made immediately on presentation of the invoice.
6.7. In respect to Perpetual Based Products: Reseller will make payment for all Perpetual Based Products in advance by paying the applicable Fees upfront. CSP will provide Reseller with a tax invoice at the time of purchase of any Perpetual Based Products, or when Reseller purchases any updates and/or upgrades for any Perpetual Based Products, Reseller will make payment of such invoice within the payment terms agreed to between the Parties. If no payment terms have been agreed then on a cash on order basis.
6.8. If Reseller fails to make full payment to First Distribution as outlined in this clause 6, the Reseller shall pay interest to First Distribution on the outstanding amount at the prime lending rate as published by First Distribution’s bankers, plus 3% (three percent) per annum calculated from the date on which payment falls due until the date on which payment is made by Reseller in full.
6.9. In addition to clause 8 above and any other legal rights or remedies First Distribution may have in this agreement or in law, should the Reseller fail to make payment as outlined in this clause 6, First Distribution shall be entitled in its sole and absolute discretion to: (i) cancel this Agreement and/or suspend Reseller’s and/or Customer’s access and/or usage of the Online Products with immediate effect; and/or (ii) contact the Customer directly to advise them of the non-payment and at First Distribution’s discretion, make arrangements with the Customer to avoid the suspension or termination of the Customer’s access and/or usage of the Online Products.
6.10. Should First Distribution take the action outlined in clause 9, the Reseller indemnifies First Distribution against any and all loss and/or damage incurred or to be incurred by the Customer and/or Reseller as a result thereof.
6.11. Should Reseller dispute any amount appearing on an invoice submitted by First Distribution pursuant to this Agreement, Reseller shall, within 10 (ten) calendar days of receipt of the affected invoice, notify First Distribution, in writing, of such dispute, specifying the –
6.11.1. disputed invoice;
6.11.2. specific amount in dispute; and
6.11.3. alleged reasons or grounds for dispute.
6.12. Any amount disputed in terms of clause 11 shall not be regarded as payable in terms of this clause 6 and if the Parties are unable to resolve such dispute within 5 (five) Business Days from the date on which the dispute arose, it shall be referred to the financial managers of the Parties, or their representatives, for determination. If these representatives are unable to resolve the dispute within 7 (seven) Business Days from the date of referral, such dispute shall be referred for resolution in accordance with clause 16 of this Agreement.
7.1. Each Party acknowledges and agrees that each Party is liable for its own taxes that each Party is legally obliged to pay and which are incurred or arise in connection with or related to the transactions contemplated under this Agreement, and all such taxes will be the financial responsibility of the Party who is obligated by operation of law to pay such tax.
7.2. To the extent that any amounts payable by the Reseller are subject to withholding tax or similar tax in the applicable jurisdiction (“Taxes”), the amount payable shall be grossed up by the Reseller when remitting payment such that the amount paid net of Taxes equals the amount invoiced by First Distribution.
7.2.1. Should the Reseller require the Taxes be incorporated and reflected on the invoice (whether as a separate line item or otherwise), then the Reseller undertakes to advise First Distribution no less than 30 days prior to invoice date, of the percentage value of the applicable Taxes to be withheld. First Distribution shall then increase the invoice value such that the net amount payable by the Reseller equals the amount that would have been payable had no Taxes been applicable.
8.1. Reseller and/or Customer will not be entitled to terminate the Customer’s subscription for Subscription Based Products prior to expiration of the Subscription Term.
8.2. Where prescribed by the applicable Software Vendor, the Customer’s subscription for Subscription Based Products will automatically renew at the end of the Subscription Term for a period equal to the previous subscription term, unless Reseller provides First Distribution with no less than 60 days prior written notice of the Customer’s intention not to renew its subscription for the Subscription Based Products.
8.3. In respect to Perpetual Based Products
8.3.1. Where the Reseller purchases any Perpetual Based Products, it acknowledges and accepts, and shall ensure the Customer acknowledges and accepts, that upgrades, updates, maintenance and support are not included.
8.3.2. Upgrades, updates, maintenance and support will need to be purchased separately by the Reseller.
9.1. Reseller expressly confirms that it has received the Customer’s written consent and hereby provides First Distribution with its express written consent to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Data and/or any personal information (as defined in the Protection of Personal Information Act, 4 of 2013; hereafter referred to as “Personal Information”) to the extent reasonably required for the performance of First Distribution’s obligations and exercise of its rights in terms of this Agreement.
9.2. Reseller expressly confirms that it has received the Customer’s written consent and provides First Distribution with its express written consent for First Distribution to sub-license these rights to any Software Vendor to the extent reasonably necessary for the performance of First Distribution’s and/or the Software Vendor’s obligations and the exercise of its rights in terms of this Agreement.
9.3. Reseller warrants that the use of Data and/or Personal Information by First Distribution in accordance with this Agreement will not breach the provisions of any law, statute or regulation, infringe intellectual property rights or other legal rights of any person or entity, or give rise to any cause of action against First Distribution.
9.4. Customer warrants that it has obtained all necessary consents in respect of any personal information it provides to First Distribution. All Data provided to First Distribution as a result of this Agreement will processed strictly in accordance with any Applicable Laws and First Distribution’s External Data Privacy and Security Policy a copy of which will be made available on written request.
10.1. Each Party undertakes to:
10.1.1. Keep the other Party’s Confidential Information confidential;
10.1.2. Not disclose the other Party’s Confidential Information to any person or third party without the other Party’s prior written consent;
10.1.3. Use the same degree of care to protect the confidentiality of the other Party’s Confidential Information as each Party uses to protects its own Confidential Information of a similar nature, being at least a reasonable degree of care;
10.1.4. Not use any of the other Party’s Confidential Information for any purpose other than for the purpose to perform its obligations in terms of the Agreement.
10.2. First Distribution may disclose Customer’s Confidential Information to its officers and employees who have a need to access the Customer’s Confidential Information for the performance of their work with respect to providing Customer with access and/or use of the Online Products, which officers and employees are obligated to protect the confidentiality of Customer’s Confidential Information.
10.3. Information shall not be deemed Confidential Information where it:
10.3.1. is known to, or in the possession of the Receiving Party prior to disclosure thereof by the Disclosing Party;
10.3.2. is or becomes publicly known, otherwise than as a result of a breach of this Agreement by the Receiving Party;
10.3.3. is developed independently of the Disclosing Party and/or the Confidential Information, by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement;
10.3.4. is disclosed by the Receiving Party to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Receiving Party shall (to the extent legally permissible) advise the Disclosing Party of such requirement to disclose, to enable the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard;
10.3.5. is disclosed to a third party pursuant to the prior written authorization of the Disclosing Party; or
10.3.6. is received from a third party in circumstances that do not constitute a breach of the provisions of this Agreement.
11.1. The Online Products purchased under this Agreement are made available by Software Vendors that are not affiliated with First Distribution and, as such, Reseller expressly agrees that First Distribution is not responsible for such Online Products and access and/or use thereof by the Reseller and/or Customer is at such parties’ sole risk. First Distribution will have no direct or indirect responsibility for or in relation to the performance or delivery, in any manner whatsoever, of the Online Reseller’s and/or its Customer’s purchase of, access to, performance of and use of the Online Products are regulated directly between the Customer and the applicable Software Vendor, and is subject to that Software Vendor’s Product Terms and Additional Terms.
11.2. the Reseller indemnifies First Distribution from any liability to the Software Vendor for any failure whatsoever by the Customer and/or Reseller to make payment for the subscription to and/or consumption of the Online Products.
11.3. Reseller expressly agrees, and shall ensure the Customer agrees, that the access and/or use of the Online Products is at its and/or its Customers sole risk. Any Online Products, data, information, third party software, user submissions, or services made available in conjunction with or through the Online Products are provided by First Distribution on an “as is” and “as available” and “with all faults” basis and without warranties or representations of any kind either express or implied. Reseller and/or Customer may, however, have additional warranty rights directly from the applicable Software Vendor. To the fullest extent permissible pursuant to applicable laws, First Distribution and its affiliates disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. First Distribution and its affiliates do not warrant that the Online Products, data, user submissions, features, functions, or any other information offered on or through the Online Products or any reference materials will be uninterrupted, accurate, useful, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing, if encountered, will be corrected. First Distribution and its affiliates do not warrant or make any representations about the Software Vendors or the Software Vendor’s Online Products. Any warranty made regarding any of the Software Vendor’s Online Products is made directly by such Software Vendor. The exclusions of warranties contained in this agreement apply to the Customer and/or the Reseller to the fullest extent such limitations or exclusions are permitted under the laws of the Republic of South Africa.
Under no circumstances, will First Distribution or its affiliates, contractors, employees, agents, or Software Vendors, partners, licensors, or suppliers be liable for, including but not limited to, any special, indirect, incidental, consequential, punitive, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues or loss of anticipated profits) arising out of or relating to this agreement or that result from Customer’s and/or Resellers use or Customer’s and/or Reseller’s inability to use and/or access the Online Products, or from any other interactions with First Distribution, even if First Distribution has been advised of the possibility of such damages. applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to Customer and/or Reseller. In such cases, First Distribution’s liability will be limited to the fullest extent permitted by applicable laws.
FIRST DISTRIBUTION HAS CONCLUDED THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN RESELLER AND FIRST DISTRIBUTION, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THIS AGREEMENT BETWEEN RESELLER AND FIRST DISTRIBUTION. FIRST DISTRIBUTION WOULD NOT BE ABLE TO PROVIDE RESELLER AND/OR CUSTOMER WITH THE ONLINE PRODUCTS ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14.1. Reseller’s and/or Customer’s access and/or use of the Online Products does not confer to Customer and/or Reseller any right, title, and/or interest (of whatsoever nature and howsoever arising) worldwide, in any intellectual property rights vesting in the Online Products.
14.2. First Distribution and/or Software Vendors expressly reserves all of its intellectual property rights, and no licences are granted by implication, estoppel or otherwise to Customer and/or Reseller except as expressly set forth in this Agreement.
15.1. All Fees and payments relating to Reseller’s and/or Customer’s access and/or usage of the Online Products are final, non-cancellable and non-refundable.
15.2. The applicable Software Vendor may have its own policies regarding refunds and/or returns which are available to Customer and/or Reseller, which are set forth in the applicable Software Vendor’s Product Terms.
15.3. If Reseller has paid for access to Online Products that are later disabled, non-functioning, modified, or otherwise interfered with before the end of the period for which Reseller purchased access, Reseller and/or Customer may rely on the applicable Software Vendors Product Terms for any remedies available to Reseller. In these circumstances, the Reseller and/or the Customer has no remedy against First Distribution in this regard.
16.1. A dispute in the widest sense in connection with this Agreement or which relates in any way to any matter affecting the interests of the Parties, in regard to the Agreement (“Dispute”), shall be deemed to have arisen when either Party notifies the other Party in writing to that effect.
16.2. Should any Dispute (other than a Dispute in respect of which urgent or interim relief may be obtained from a court of competent jurisdiction) arise, the Parties shall first use reasonable endeavours to resolve such Dispute through good faith negotiations. This entails one of the Parties inviting the other in writing to meet, either in person or by means of telephone or video conferencing facilities, and to attempt to resolve the Dispute within 10 Business Days from date of written invitation. In the event that such negotiations do not result in a mutually acceptable resolution within 10 Business Days of the commencement thereof, the Dispute shall be handled in accordance with the below.
16.3. Any Dispute shall be referred to arbitration on notice by one Party to the other, and be finally resolved in accordance with the rules of the Arbitration Foundation of the Republic of South Africa. Such arbitration shall be held in Johannesburg, and conducted in the English language before one arbitrator appointed in accordance with the said rules.
16.4. Any arbitration award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable, and any award may made a judgment of any court of any country having appropriate jurisdiction.
16.5. These provisions shall not prevent either Party from approaching any court or other judicial forum in any country having appropriate jurisdiction to obtain interim or other relief in cases of urgency.
16.6. The provisions of this clause shall constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.
17.1. The terms and conditions contained in this Agreement will commence on the Effective Date and will continue to be in force and effect until the Agreement is terminated:
17.1.1. by First Distribution immediately due to Reseller’s breach of the terms of this Agreement;
17.1.2. by either Party by giving 30 days’ written notice to the other Party of its intention to terminate the Agreement.
17.2. The termination of this Agreement will only terminate Reseller’s right to place new orders for additional Online Products or to renew a Subscription Term of Online Products under this Agreement. Consumption Based Products billed periodically based on usage will terminate immediately. Termination will not affect the Customer`s access to perpetual Online Products paid for. For the sake of clarity the Reseller will be liable for payment of all Fees (including Fees for unpaid usage) as at the termination date of the Agreement and for remaining term of any Subscription Based Product.
18.1. The Parties choose as their domicilium citandi et executandi for all purposes under this Agreement, whether in respect to court process, notices or other documents or communications of whatsoever nature, at the following addresses:
FOR FIRST DISTRIBUTION
Physical Address: 26 Augrabies Road,
Waterfall Office Park,
Midrand, 1685,
Gauteng
Attention: Arnold Sharp & Richard Hammond
Email: legal.enquiries@firstdistribution.com
FOR RESELLER
The business and email address of the Reseller as submitted by the Reseller to First Distribution, and in the event that no such addresses have been submitted, the Reseller’s registered office address.
18.2. Any notice required or permitted to be given under this Agreement shall be deemed given when delivered:
18.2.1. By hand on the day of delivery;
18.2.2. When a party receives the notice, notwithstanding the method or address of delivery;
18.2.3. By overnight courier, on the date of delivery;
18.2.4. By email at the time that same is transmitted and delivered.
19.1. Entire Agreement. This document contains the entire agreement between the Parties with regard to the matters dealt with herein and supersedes any previous agreements between the Parties. No representations, terms, conditions or warranties not contained in this Agreement shall be binding on any of the Parties, unless agreed to in writing by the Parties;
19.2. Sub-Contracting. Notwithstanding anything to the contrary contained in this Agreement, First Distribution shall be entitled to sub-contract, delegate, assign or cede any or all of First Distribution’s rights and/or obligations under this Agreement to any entity forming part of its group of companies (as defined in the South African Companies Act, 2008) without notice or the Resellers or the Customer’s prior consent.
19.3. Severability. In the event of any one or more of the provisions of this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision was not a part of this Agreement, and the Agreement shall be carried out as nearly as possible in accordance with its original terms and intent.
19.4. Waiver and Variation
19.4.1. Any failure of First Distribution to exercise or enforce any right or provision contained in the Agreement will not constitute a waiver of such right or provision. Any waiver or amendment of any of the provisions contained in the Agreement will be effective only if reduced to writing and signed by First Distribution.
19.4.2. No latitude, relaxation, indulgence or extension of time which may be allowed on a Party or any of its employees by the other Party in respect of any performance or breach or any other matter in terms of this contract shall in any circumstances be deemed as a waiver by the other Party of any rights it may have.
19.5. Force Majeure. Except for the Reseller’s obligation to pay First Distribution, 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.
19.6. Governing Law. This Agreement shall be governed by the laws of the Republic of South Africa. Any action instituted in respect to the terms hereof, shall be instituted in Johannesburg, Gauteng, South Africa.
19.7. Legal Costs. The Reseller shall be liable for all costs incurred by First Distribution in the recovery of any amounts or the enforcement of any rights which it has in terms of this Agreement, including collection charges, legal costs on an attorney and own client scale, and costs of counsel
19.8. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same Agreement. Documents scanned and transmitted electronically as well as documents signed by electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. Each Party hereto hereby waives any right which it may have to dispute the validity or enforceability of this Agreement by virtue of its failure to either initial each page of this Agreement and/or have its signatory’s signature verified by a witness.
19.9. Variation. This Agreement may be updated at any time at the sole and absolute discretion of First Distribution. Any and all changes hereto shall be effective and binding immediately upon publication on the First Distribution website.
19.10. Acceptance of electronic agreement. This Agreement in its electronic form and any annexes hereto, as published on the First Distribution website or otherwise, will be deemed to have been accepted expressly, tacitly and/or impliedly, on acceptance and/or signature of any of First Distribution’s documents and/or agreements in which this Agreement is referenced and/or incorporated. In such instances, the failure by any Party to physically sign this Agreement shall not affect the binding nature of this Agreement on the Reseller nor the applicability of this Agreement to the Reseller.
RECITAL
The following terms and conditions apply to the Cloud Solutions Reseller Agreement (“Agreement”) to which this Annexure “A” is attached. Any terms and definitions outlined in the Agreement apply mutatis mutandis to this Annexure “A”, provided that in the event of any conflict the terms of this Annexure “A” shall prevail.
Where applicable, this Annexure “A” supersedes and replaces any previous Microsoft specific Additional Terms and Agreement Annexure “A” agreed to by the Reseller.
Microsoft makes various products available through its CSP program, which products (as may be updated by Microsoft from time to time) include but are not limited to the following:
Additional information regarding the available Microsoft product sets can be found at www.microsoft.com
1.1. The Reseller must at the time of purchase select (which selection must be based on the First Distribution’s quotation):
1.1.1. the relevant SKU for the applicable Microsoft Subscription Based Products that are License Based Services (“Licenses”);
1.1.2. the quantity of Licenses required; and
1.1.3. the committed Subscription Term for such Licenses.
1.2. Unless otherwise permitted by Microsoft, the Reseller and/or the Customer may not cancel, downgrade or decrease any Licenses during the Subscription Term or any renewal Subscription Term, and shall not be entitled to change their Microsoft partner during the Subscription Term or any renewal Subscription Term.
1.3. Should the Reseller be provided with trial Licenses for the Customer, then Reseller is obligated to notify First Distribution of its intention to cancel the trial Licenses prior to expiration of the trial period, failing which the applicable trial Licenses will automatically be converted into paid Licenses which will be for the Subscription Term indicated in the initial trial License subscription.
1.4. The Subscription Term for Licenses will automatically renew for further periods equal to the preceding Subscription Term unless, prior to expiration of the Subscription Term, the Reseller (on behalf of the Customer) explicitly elects otherwise in accordance with the standard operating procedure applicable at the time of renewal.
1.5. The Reseller will become liable for the new Subscription Term on renewal and each renewal will be subject to the pricing and other terms applicable at the date of the renewal.
1.6. If the Reseller does not explicitly communicate their intention not to renew then the Reseller accepts liability for the cost of that renewal and will be bound for the full Subscription Term of such renewal.
1.7. The Reseller’s shall ensure that every Customer accepts and agrees that their access to and use of the Licenses will at all times be subject to the Microsoft rules relating to License-Based Services which can be found at https://docs.microsoft.com/en-us/partner-center/new-commerce-license-based and https://docs.microsoft.com/, as well as any applicable Microsoft Customer Agreement as may be updated and amended from time to time, a recent copy of which is available at https://www.microsoft.com/licensing/docs/customeragreement, and which is incorporated herein by reference. Where necessary, the Reseller shall obtain the Customer’s formal acceptance of the Microsoft Customer Agreement.
1.8. The Reseller will be liable for payment for the full Subscription Term of any Licenses (both for the initial Subscription Term and any renewal), which shall be invoiced and paid for in accordance with the payment terms and at the payment frequency agreed to between the Parties.
1.9. Microsoft defines the rules in terms of which a License subscription’s start and end date are calculated.
1.10. Where the Reseller and/or its Customer has Licenses across more than one Microsoft tenant, the Reseller acknowledges that neither it nor its Customers are permitted to reallocate Licenses across different Microsoft tenants and every License is strictly allocated to a specified Microsoft tenant.
1.11. Where applicable, the Reseller authorizes, and shall obtain the Customer’s authorization, for First Distribution to have delegated administration rights on its tenant.
1.12. In circumstances where the Reseller or Customer is the administrator of its License portal, the Reseller will be required to notify First Distribution of any Licenses it purchases on the portal, and shall be liable for any purchases it makes on the portal.
2.1. The Parties record that billing for the use of Microsoft Azure is based on the quantity of consumed Online Products and is subject the terms and conditions prescribed by Microsoft;
2.2. The Reseller acknowledges, and shall ensure its Customers acknowledge, that due to the nature of Microsoft Azure, the Fees payable by the Reseller cannot be established in advance as they are based on the quantity of Azure consumed and utilised by the Customer in the preceding month, and as such can only be established and confirmed in arrears.
2.3. The Reseller and its Customer/s shall be solely responsible for all access control (i.e. authorizing any necessary access), setting and managing the Azure spend budget and all other Azure requirements, guidance for which can be obtained by the Reseller from https://learn.microsoft.com/en-us/azure/?product=popular
2.4. DEFINITIONS
“Azure Consumption” means the usage of products and/or services sourced and/or consumed through Microsoft Azure and as measured and determined by Microsoft;
“Azure Overage” means Azure Consumption usage charges that exceed any credit balance in place (if any);
“Fees” means the amounts payable by the Reseller to First Distribution for all Azure Consumption and Azure Overage incurred by the Reseller and its Customer/s in the applicable billing cycle;
2.5. First Distribution shall invoice the Reseller for the Fees incurred by the Reseller and/or its Customer/s, and the Reseller shall be obliged, upon request, to provide any additional purchase orders as required by First Distribution, failing which First Distribution shall nevertheless be entitled to invoice the Reseller accordingly;
2.6. The Parties agree that the following process shall be followed in respect to First Distribution’s billing of Azure Overage:
2.6.1. Where the Reseller’s and/or it’s Customer’s Azure Consumption exceeds the Reseller’s available credit balance in place, then it accepts that it shall be liable for all Fees incurred as a result of the Azure Overage, whether or not approved by the Reseller and/or its Customer/s;
2.6.2. First Distribution shall provide the Reseller, monthly or quarterly (as applicable) in arrears, with an Azure Consumption invoice recording the Reseller and its Customer’s Azure Consumption and Azure Overage;
2.6.2.1. Any consumption report provided by First Distribution to the Reseller will be based on the corresponding consumption report received from Microsoft, and shall be deemed prima facie proof of such consumption. Should the Reseller dispute the consumption report it shall be required to pay such amounts pending feedback from Microsoft and credits will only be provided if correspondingly credited by Microsoft.
2.6.3. the Reseller shall make payment to First Distribution within the agreed payment terms from receipt of First Distribution’s invoice, free of exchange, deduction or set-off, and together with any applicable Value Added Tax (or similar tax, where applicable);
2.7. Any payments due and owing to First Distribution must be paid on or before the due date for payment thereof, notwithstanding any corresponding payments the Reseller is entitled to from its Customer and/or any third party.
2.8. If the Reseller fails to make full payment to First Distribution as outlined in clause 2.7 above, the Reseller shall pay interest to First Distribution on the outstanding amount at the prevailing South African prime interest rate, plus 3% (three percent) per annum calculated from the date on which payment falls due until the date on which payment is made.
2.9. In addition to any other rights or remedies available to First Distribution, should the Reseller fail to make payment to First Distribution as outlined in clause 2.6.3 above, First Distribution reserves the right to pursue all remedies available to it, including but not limited to, suspending and/or terminating the Reseller’s access to Microsoft Azure. The Reseller shall have no claim, and First Distribution shall have no liability, for any loss or damages arising as a result of First Distribution’s suspension and/or termination of the Reseller’s and/or its Customer’s access to Azure, including but not limited to loss of data or business interruption. The Reseller undertakes to indemnify and hold First Distribution harmless against any claims, losses or damages that may arise as a result of First Distribution’s suspension and/or termination as provided for in this clause, including any claims made by its Customers.
3.1. The Reseller shall ensure that it and its Customer/s at all times have adequate and suitable security, systems, processes and measures in place to secure its use of the Online Products.
3.2. The Reseller shall ensure that it and its Customer/s have Multi-Factor Authentication (MFA), default security standards, and other security controls recommended by the Software Vendor, enabled at all times, and accept that they shall solely bear any risks and associated liability that may arise as a result of their failure to have MFA and other recommended security controls enabled across all Users.
3.3. The recommended security controls include but are not limited to, those controls outlined by Microsoft and available at https://learn.microsoft.com/en-us, https://learn.microsoft.com/en-us/security/compass/compass, and https://learn.microsoft.com/en-us/azure/security/fundamentals/best-practices-and-patterns
