1.1. WHEREAS First Distribution is an authorised supplier of third party cloud based services and products;
1.2. WHEREAS the Reseller wishes to purchase third party cloud based services and products from First Distribution for further resale to its End-User;
1.3. 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.
Master Cloud Service Provider Agreement
1. RECITAL
2. DEFINITIONS
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:
| 2.1 | “Accounts” | means an account enabling Resellers Users to access and use the Online Products; |
| 2.2 | “Acceptable Use Policy” | means the Software Vendor’s acceptable use policy applicable to Users, purchasing, accessing and/or using its Online Products, which may be changed, modified and amended, with or without notice in the sole discretion of the Software Vendor; |
| 2.3 | “Additional Terms” | means the additional terms and conditions applicable to the Online Products as identified and contained in Annexure ‘A’ to this Agreement, which may be changed, modified and amended, with or without notice in the sole discretion of the Software Vendor; |
| 2.4 | “Agreement” | means this cloud services reseller agreement and all terms and conditions outlined herein, including all annexures thereto; |
| 2.5 | “Applicable Laws” | means, in relation to any relevant jurisdiction: (i) any law, statute, regulation, policy, by-law, directive, notice or subordinate legislation; (ii) any applicable direction, policy or order that is given by a relevant authority having the force of law; or (iv) any judgment, order, arbitration award or similar award, and includes any law insofar as it relates to the interpretation of any law; |
| 2.6 | “Business Day “ | means any day other than a Saturday, Sunday or proclaimed public holiday in the Republic of South Africa; |
3. INTERPRETATION
3.1. 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.
3.2. 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.
3.3. Any number of days prescribed in this Agreement excludes the first day and includes the last day.
3.4. Unless the context indicates otherwise if the day for payment of any amount or performance of any obligation falls on a day which is not a Business Day, that day will be the next Business Day.
3.5. 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.
3.6. 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.
3.7. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
3.8. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as 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.
3.9. In this Agreement, the rule of construction that the agreement shall be interpreted against the party responsible for the drafting or preparation of the agreement shall not apply.
4. REPRESENTATION
4.1. Each Party hereby represents and warrants to the other Party the following:
4.1.1. Authority
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.
4.1.2. No Conflicts
Neither the execution nor 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.
5. TERMS OF USE
5.1 All access to, licensing of and use of the Online Products are granted to the Users by the Software Vendor, in accordance with the Product Terms, Acceptable Use Policy and Additional Terms, on a non-exclusive, non-transferable basis, for the internal business purposes of the Reseller. Reseller and its Users shall not use the Online Products for leasing, rental, loaning, sublicensing, the provision of services and/or otherwise.
5.2 All rights granted to the Reseller and/or its Users under this Agreement is limited to such rights that are provided by the Software Vendor and are subject to the following limitations:
5.2.1 is the Reseller’s sole responsibility to ensure that the Reseller and/or its Users comply with the Product Terms, Acceptable Use Policy and Additional Terms;
5.2.2 it is Reseller’s sole responsibility to ensure that only authorized employees and personnel of the Reseller make use of the Online Products. It is the Resellers sole responsibility to provide its Users with such authorisation as may be required, to use the Online Products on behalf of the Reseller;
5.3 The Reseller may not allow Users to use the Online Products for more than the number of permitted users as prescribed by the Acceptable Use Policy, Product Terms and Additional Terms of the applicable Online Product;
5.4 The Reseller may 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;
5.5 Reseller must ensure that the Online Products are only accessed by authorized Users and Reseller must not permit unauthorized access or use of the Online Products.
5.6 Reseller is responsible for its Users use of the Online Products in accordance with Software Vendor’s Acceptable Use Policy and/or Product Terms and/or Additional Terms.
5.7 Reseller is responsible for maintaining the confidentiality of any authentication credentials associated with Reseller’s and/or its Users use of the Online Products. Reseller shall implement reasonable security measures to ensure that no unauthorized employees, personnel or third parties gain access to the Online Products;
5.8 Reseller must promptly notify First Distribution about any possible misuse of Reseller’s 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 Reseller’s Accounts;
5.9 Reseller and/or it Users may not copy, reverse engineer, disassemble, decompile, translate, or try to modify the Online Products or the source code of the Online Products;
5.10 Reseller and/or Users will not access and/or use the Online Products:
5.10.1 In any way that causes or may cause damage to the Online Products; or
5.10.2 In any way that is unlawful, illegal, fraudulent or harmful.
6. SOFTWARE VENDORS
6.1. Reseller acknowledges and agrees that any Online Products purchased from First Distribution pursuant to this Agreement is provided to Reseller by Software Vendors and these transactions are managed by First Distribution.
6.2. This Agreement contains the terms and conditions agreed to between Reseller and First Distribution and/or the Software Vendor, for Reseller’s 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.
6.3. If at any time Reseller does not agree to the terms and conditions applicable to its access and/or usage of the Online Products, Reseller must cease to access and/or use the Online Products and terminate this Agreement, subject to all applicable Fees being paid in full.
6.4. The Product Terms, Acceptable Policy and Additional Terms are prescribed by the Software Vendor and may be amended in the Software Vendor’s sole and absolute discretion. Any amendments, modifications and/or variations to Product Terms, Acceptable Policy and Additional Terms by the Software Vendor are incorporated herein by reference.
6.5. The Reseller accepts that should First Distribution be required to install any Online Product(s) and accept any associated Product Terms and/or Acceptable Use Policy terms on behalf of the Reseller, then any such installation and acceptance by First Distribution shall be deemed to have been installed and accepted by the Reseller notwithstanding that First Distribution may have installed or accepted the same on the Resellers behalf.
7. PRICING AND PAYMENT OF FEES
7.1. All Fees in respect to the Online Products are determined by First Distribution in its sole discretion, and is 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.
7.2. All Fees are subject to rate of exchange fluctuations.
7.3. Ordering Process:
7.3.1. Reseller will provide First Distribution with a purchase order in respect to the Online Products Reseller wishes to purchase through First Distribution;
7.3.2. First Distribution shall submit invoices to Reseller setting out the Fees in respect to Reseller’s access and/or usage of Online Products.
7.3.3. Payments made by Reseller to First Distribution will be made in South African Rand only (ZAR) and shall be free of any deduction or set-off.
7.4. In respect to Subscription Based Products:
7.4.1. 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 subscribes for any Subscription Based Products, or when Reseller renews its subscription for such Subscription Based Products, and Reseller will make payment of such invoice within 30 days of statement.
7.5. In respect to Consumption Based Products:
7.5.1. First Distribution will provide Reseller with a valid tax invoice, on a monthly basis, based on the Reseller’s access and/or use of any Consumption Based Products in the immediately preceding month. Reseller will make payment of such invoices within 30 days from date of (statement/invoice).
7.6. In respect to Perpetual Based Products:
7.6.1. Reseller will make payment of all Perpetual Based Products in advance by paying the applicable Fees upfront. First Distribution will provide Reseller with a tax invoice at the time Reseller purchases any Perpetual Based Products, or when Reseller purchases any updates and/or upgrades for any Perpetual Based Products, and Reseller will make payment of such invoice within 30 days of statement, alternatively as may be agreed between the Parties in writing.
7.7. If Reseller fails to make full payment to First Distribution as outlined in this clause 7, 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.
7.8. In addition to clause 7.6 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 7, First Distribution shall be entitled to cancel this Agreement and/or suspend Reseller’s access and/or usage of the Online Products with immediate effect.
7.9. Should First Distribution take the action outlined in clause 7.9, the Reseller indemnifies First Distribution against any and all loss and/or damage incurred or to be incurred by the Reseller as a result thereof.
7.10. 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 –
7.10.1. disputed invoice;
7.10.2. specific amount in dispute; and
7.10.3. alleged reasons or grounds for dispute.
7.11. Any amount disputed in terms of clause 7.10 shall not be regarded as payable in terms of this clause 7 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 manager 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 19 of this Agreement.
8. TAXES
8.1. 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.
8.2. 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.
8.3. 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 (thirty) days prior to invoice date, of the % 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.
9. PRODUCT SUBSCRIPTION TERM
9.1. Resellers will not be entitled to terminate its subscription for Subscription Based Products prior to expiration of the Subscription Term.
9.2. Reseller’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 notice of its intent not to renew its subscription for the Subscription Based Products. Reseller will provide First Distribution with no less than 30 (thirty) days’ written notice before the expiry of a Subscription Term of its intention to cancel its subscription for the Subscription Based Products, failing which such Subscription Term shall auto renew as aforementioned.
9.3. In respect to Perpetual Based Products:
9.3.1. Where the Reseller purchases any Perpetual Based Products, the Reseller acknowledges and accepts that upgrades, updates, maintenance and support are not included.
9.3.2. Upgrades, updates, maintenance and support will need to be purchased separately by the Reseller.
10. RESELLER DATA
10.1. Reseller hereby consents, and grants First Distribution a non-exclusive license, to process the Reseller Data, subject to any Applicable Laws, only to the extent reasonably required for the performance of First Distribution’s obligations and exercise of its rights in terms of this Agreement.
10.2. Reseller furthermore consents, and grants First Distribution a non-exclusive license, to sub-license the right to process the Reseller Data to any Software Vendor only 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.
10.3. Reseller warrants that the processing of the Reseller Data by First Distribution in accordance with this Agreement will not breach the provisions of any Applicable 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, save where First Distribution processes the Reseller Data in a manner that constitutes a breach of any Applicable Laws.
10.4. Reseller warrants that it has obtained all necessary consents in respect of any personal information it provides to First Distribution. All Reseller 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 to the Reseller on written request.
11. CONFIDENTIALITY OBLIGATIONS
11.1. Each Party undertakes to:
11.1.1. Keep the other Party’s Confidential Information confidential;
11.1.2. Not disclose the other Party’s Confidential Information to any person or third party without the other Party’s prior written consent;
11.1.3. 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;
11.1.4. 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.
11.2. First Distribution may disclose Reseller’s Confidential Information to its officers and employees who have a need to access the Reseller’s Confidential Information for the performance of their work with respect to providing Reseller with access and/or use of the Online Products or any of the Support Services, which officers and employees are obligated to protect the confidentiality of Reseller’s Confidential Information.
11.3. Information shall not be deemed Confidential Information where it:
11.3.1. is authorised to be disclosed by the disclosing Party to that extent of the authority given;
11.3.2. is made public by the disclosing Party or becomes part of the public domain;
11.3.3. is in possession of or is known by the receiving Party prior to its receipt from the disclosing Party;
11.3.4. becomes public other than by the default of the receiving Party; or
11.3.5. is independently developed by the receiving Party.
12. ACKNOWLEDGEMENTS AND WARRANTY DISCLAIMER
12.1. The Online Products purchased under this Agreement are made available by Software Vendors that are not affiliated with First Distribution and, as such, Reseller agrees that First Distribution is not responsible for such Online Products. 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 Products. Reseller’s purchase of, access to, performance of and use of the Online Products are regulated directly between the Reseller and the applicable Software Vendor, and is subject to that Software Vendor’s Acceptable Use Policy, Product Terms and Additional Terms.
12.2. The Reseller indemnifies First Distribution from any liability to the Software Vendor for any failure by the Reseller to make payment for the subscription to and/or consumption of the Online Products.
12.3. The Reseller acknowledges and agrees that, in relation to the above clause 7.7, should the Reseller fail to make payment to First Distribution for its subscription to and/or consumption of the Online Products, First Distribution shall be entitled to suspend and/or terminate provision of the Online Products to the Reseller. The Reseller is aware that any such suspension and/or termination of the Online Products may result in core business functionalities required by the Reseller’s business being rendered unavailable. Accordingly, the Reseller expressly indemnifies First Distribution against any and all direct and/or indirect losses suffered by the Reseller as a result of such suspension and/or termination.
12.4. RESELLER EXPRESSLY AGREE THAT THE ACCESS AND/OR USE OF THE ONLINE PRODUCTS IS AT ITS 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”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. RESELLER MAY, HOWEVER, HAVE ADDITIONAL WARRANTY RIGHTS DIRECTLY FROM THE APPLICABLE THRID PARTY SERVICE PROVIDER.
12.5. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO THE APPLICABLE LAWS OF THE REPUBLIC OF SOUTH AFRICA, 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.
12.6. FIRST DISTRIBUTION AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS ABOUT THE SOFTWARE VENDORS OR THE SOFTWARE VENDOR’S SERVICES AND ONLINE PRODUCTS. ANY WARRANTY MADE REGARDING ANY SOFTWARE VENDOR’S SERVICE AND ONLINE PRODUCTS IS MADE DIRECTLY BY SUCH THRID PARTY SERVICE PROVIDER. THE EXCLUSIONS OF WARRANTIES CONTAINED IN THIS AGREEMENT APPLY TO THE RESELLER TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE REPUBLIC OF SOUTH AFRICA.
13. LIMITATION OF LIABILITY
13.1. 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, RELIANCE, 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 RESELLER’S USE 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 RESELLER. IN SUCH CASES, FIRST DISTRIBUTION’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
14. BASIS OF THIS AGREEMENT
14.1. FIRST DISTRIBUTION HAS CONCLUDED THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, 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 WITH THE ONLINE PRODUCTS ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
15. OWNERSHIP AND PROPRIETARY RIGHTS
15.1. Reseller’s access and/or use of the Online Products does not confer to Reseller any right, title, and/or interest (of whatsoever nature and howsoever arising) worldwide, in any intellectual property rights vesting in the Online Products.
15.2. 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 Reseller except as expressly set forth in this Agreement.
16. REFUND POLICY AND RISK OF LOSS
16.1. All Fees and payments relating to Reseller’s access and/or usage of the Online Products are final, non-cancellable and non-refundable.
16.2. The applicable Software Vendor may have its own policies regarding refunds and/or returns which are available to Reseller, which are set forth in the applicable Software Vendor’s Product Terms.
16.3. If Reseller has paid for access to Online Products that are later disabled, nonfunctioning, modified, or otherwise interfered with before the end of the period for which Reseller purchased access, Reseller may rely on the applicable Software Vendors Product Terms for any remedies available to Reseller. The Reseller has no remedy available to it against First Distribution.
17. AVAILABILITY OF CONTENT
17.1. First Distribution reserves the right to make changes to or discontinue any of the Online Products and/or Support Services available to Reseller at any time. In these circumstances First Distribution will provide the Reseller with as much reasonable notice, based to the notice period provided to First Distribution by the Software Vendor.
18. ANTI-BRIBERY AND CORRUPTION
18.1. Reseller warrants that it will and will procure that persons associated with it will:
18.1.1. comply with the Anti-Bribery Requirements;
18.1.2. not engage in any activity, practice or conduct which would constitute an offence under PRECCA or any equivalent legislation, if such activity, practice or conduct had been carried out in the Republic of South Africa or any other country where the equivalent legislation applies;
18.1.3. not do, or omit to do, any act that may lead First Distribution to be in breach of any of the Anti-Bribery Requirements;
18.1.4. promptly report to First Distribution any request or demand for any undue financial or other advantage received by it in connection with this Agreement;
18.1.5. will ensure that there exists no actual and/or potential conflict of interest, whether direct or indirect, between Reseller and/or End User;
18.1.6. promptly notify First Distribution of any actual and/or potential conflict of interest, whether direct or indirect, between Reseller and End User. Should First Distribution, in its sole discretion, determine that such conflict of interest is material and/or prejudicial to First Distribution, First Distribution will be entitled to terminate this Agreement immediately without liability to the Reseller;
18.1.7. have and maintain in place throughout the Agreement its own policies and procedures to ensure compliance with the Anti-Bribery Requirements and this clause 18.1 and will enforce them where appropriate;
18.1.8. ensure that any person associated with the Reseller who is performing services in connection with the Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Reseller in this clause 18 (“Relevant Terms”). The Reseller shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to First Distribution for any breach by such persons of any of the Relevant Terms; and
18.1.9. if requested, provide First Distribution with reasonable assistance to enable First Distribution to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with any of the Anti-Bribery Requirements.
18.2. The Reseller indemnifies First Distribution, against any losses, liabilities, damages, costs, expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis)) and all other reasonable professional costs and expenses) suffered or incurred by, or awarded against First Distribution, arising out of or in connection with any breach or negligent performance by the other party of this clause 18.
18.3. Reseller shall keep at its normal place of business detailed, accurate and up to date records, books or account and such other necessary documentation to provide compliance with the Anti- Bribery Requirements and showing all payments made by Reseller in connection with the Agreement and the steps taken by Reseller to comply with the Anti-Bribery Requirements and clause 18.2. Reseller shall ensure that such records and books of accounts are sufficient to enable First Distribution to verify Reseller’s compliance with its obligations under this clause 18.
18.4. Reseller shall permit First Distribution and its third party representatives (who have signed a suitable non-disclosure agreement with First Distribution), on reasonable notice during normal business hours, but without notice in case of any reasonably suspected breach of this clause 18 to access and take copies of Reseller’s records and any other information held at Reseller’s premises and to meet with First Distribution’s personnel to audit Reseller’s compliance with its obligations under this clause 18. Such audit rights shall continue for twenty four (24) months after termination of the Agreement. Reseller shall give all necessary assistance to the conduct of such audits during the duration of the Agreement and for a period of twenty four (24) months after termination of the Agreement.
18.5. Reseller warrants and represents that:
18.5.1. neither Reseller nor any of Reseller’s directors, shareholders, team, officers, employees or other persons associated with it:
18.5.1.1. has been convicted of any offence involving bribery or corruption fraud or dishonesty;
18.5.1.2. has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Bribery Requirements; or
18.5.1.3. has been or is listed by any government agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or other governments contracts;
18.5.2. none of the officers or employees of Reseller or any person associated with it or any other person who is performing services in connection with the Agreement is a foreign or local public official; and
18.5.3. no foreign or local public official owns a direct or indirect interest in Reseller, or any person associated with it or any other person for whom Reseller is responsible under clause 18.5.2 and no public official has any legal or beneficial interest in any payments made by First Distribution under the Agreement.
18.5.4. the director(s) of the Reseller by their signature(s) below, acknowledge and agree to:
18.5.5. indemnify First Distribution and all related third party’s in full; and
18.5.6. be ultimately responsible for ensuring the Reseller’s compliance with this clause 16; and
18.5.7. be held jointly and severally liable to First Distribution and all related third party’s for any breach of this clause 18.
18.6. Breach of this clause 18 shall be deemed a breach not capable of remedy in terms of this Agreement.
18.7. If First Distribution terminates this Agreement for breach of this clause 18. Reseller shall not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination.
18.8. Regardless of any other provision in this Agreement, Reseller shall not be obliged to do, or omit to do, any act which would, in its reasonable opinion, put it in breach of any of the Anti-Bribery Requirements.
19. DISPUTE RESOLUTION
19.1. 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 Parties in writing to that effect.
19.2. 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 (ten) business days from date of written invitation. In the event that such negotiations do not result in a mutually acceptable resolution within 10 (ten) business days of the commencement thereof, the Dispute shall be handled in accordance with the below.
19.3. 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.
19.4. Any arbitration award will be final and not subject to appeal. This agreement to arbitrate shall be enforceable, and judgement upon any award may be entered in any court of any country having appropriate jurisdiction.
19.5. These provisions shall not prevent either Party from approaching any court or other judicial forum in any country having appropriate jurisdiction to obtain timely interim or other relief in cases of urgency.
19.6. 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.
20. SANCTIONS
20.1. Reseller shall ensure it has access to the current list of Restricted Territories (as defined below) and shall not, and shall not permit its End User to, at any time conduct any business concerning or otherwise facilitate use of the Online Products in any of the Restricted Territories.
20.2. First Distribution’s policy relating to Restricted Territories may change from time to time and it is the Reseller’s obligation to ensure that it (and its End User(s)) operates in compliance with the most up to date version of the list.
20.3. Reseller hereby confirms that:
20.3.1. it shall, at all times during the term of this Agreement, conduct its business and comply with all sanction laws, regulations and regimes imposed by relevant authorities including but not limited to the Office of Foreign Assets Control (OFAC), UN, UK and EU sanctions, and shall not export or allow the export or re-export any of Online Products to such countries, or to any person or entity listed on a “Denied Persons List” in violation of any such restrictions, laws or regulations;
20.3.2. neither it, nor any of its affiliates are listed on any national, international or governmental sanctions list (including, without limitation, any list issued by the United Nations, the UK, the European Union, the United States Treasury Department or any other international body or national government with jurisdiction in respect of this Agreement);
20.3.3. it has and shall maintain throughout the duration of this Agreement appropriate procedures and controls in place to ensure and be able to demonstrate Reseller’s compliance with this clause 20.3.
20.4. If Reseller becomes aware that it is in breach of clause 20.3 then it will notify First Distribution in writing immediately upon becoming aware of such breach.
20.5. Where prior consent has been provided by First Distribution for the use of or other access to the Online Products, but a territory subsequently becomes a Restricted Territory, to the extent it deems necessary, First Distribution may immediately suspend marketing, promotion, distribution, support, use of or access to Online Products purchased by the infringing Reseller and/or End User, whereupon First Distribution shall promptly notify the Reseller and/or End User of the suspension and investigate the breach; or terminate this Agreement, including all other agreements concluded between First For Cloud and Reseller, immediately upon written notice.
20.6. In the event that First Distribution has grounds to suspect that Reseller, or any End User (engaged by the Reseller) is marketing, promoting, reselling, supporting using or accessing the Online Products within any Restricted Territory (as updated from time to time), then Reseller shall provide First Distribution with full cooperation and assistance to First Distribution in respect of any enquiry it may make of the Reseller in respect of the same.
20.7. For the purpose of this Agreement, “Restricted Territories” shall mean the list of restricted territories that First Distribution is prohibited or restricted from trading in, in accordance with sanctions laws, including but not limited to the Office of Foreign Assets Control (OFAC), UN, UK and EU sanctions), Acceptable Use Policy, Additional Terms, or otherwise in accordance with its own policies, which may be updated from time to time.
21. TERM AND TERMINATION
21.1. 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:
21.1.1. by First Distribution immediately due to Reseller’s breach of the terms of this Agreement;
21.1.2. by either Party by giving 30 (thirty) days’ written notice to the other Party of its intention to terminate the Agreement.
22. CONSEQUENCES OF TERMINATION
22.1. Subscription Based Products
22.1.1. Should either Party terminate this Agreement in accordance with clause 21 above, termination will not affect the Reseller`s access to perpetual Online Products paid for,
22.1.2. Termination of this Agreement will only terminate Reseller’s right to place new orders for additional Online Products and/or to renew the Subscription Term for Subscription Based Products under this Agreement.
22.1.3. The Reseller will be liable for payment of all outstanding Fees as at the termination date of the Agreement and for the remaining term of any Subscription Based Product.
22.2. Consumption Based Products
22.2.1. Should either Party terminate this Agreement in accordance with clause 21 above, Consumption Based Products billed periodically based on usage will terminate immediately. The Reseller will be liable for payment of all Fees for unpaid usage as of the date of termination.
23. NOTICES
23.1. 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:
23.2. FOR FIRST DISTRIBUTION
Physical Address: 26 Augrabies Road,
Waterfall Office Park,
Midrand, 1685,
Gauteng
Attention: Legal Department
Email: legal.enquiries@firstdistribution.com
23.3. FOR RESELLER – It will be the physical/business address of the Reseller as set out in its credit application form with First Distribution.
23.4. Any notice required or permitted to be given under this Agreement shall be deemed given when delivered:
23.4.1. By hand on the day of delivery;
23.4.2. When a party receives the notice, notwithstanding the method or address of delivery;
23.4.3. By overnight courier, on the date of delivery;
23.4.4. By email at the time that same is transmitted and delivered.
24. GENERAL
24.1. This Agreement 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;
24.2. 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 Reseller’s prior consent.
24.3. 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.
24.4. 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.
24.5. Notwithstanding anything to the contrary, and notwithstanding the termination of this Agreement for any reason whatsoever, those provisions of this Agreement which expressly or by their nature are intended to survive the termination of this Agreement, shall survive such termination and shall continue to be of force and effect.
24.6. The failure of either Party 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 the Parties.
24.7. 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, epidemics, pandemics, war, riot, acts of civil or military authorities, fire, flood, earthquake, accidents, strikes, pandemics, epidemics, government orders/instructions, or shortages of transportation, facilities, fuel, energy, labour, or materials.
24.8. 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.
24.9. Each Party shall pay its own costs of and incidental to the preparation, drawing, finalising and execution of this Agreement, including incidental negotiations, consultations and attendances.
24.10. 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 and costs on an attorney and own client scale and costs of counsel.
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