Cognitives Reseller Agreement

Last updated: 17th July 2018

SUBJECT TO COGNITIVES NOTIFYING YOU OF ITS ACCEPTANCE OF YOUR RESELLER APPLICATION, THIS RESELLER AGREEMENT (AGREEMENT) FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND COGNITIVE PLATFORM PTY LTD (COGNITIVES) AND ACCEPTANCE BY YOU OF THE TERMS OF THIS AGREEMENT IS A CONDITION TO ACCEPTANCE OF YOUR RESELLER APPLICATION BY COGNITIVES.

BEFORE AGREEING TO THE TERMS OF THIS AGREEMENT, PLEASE READ THIS AGREEMENT CAREFULLY. BY ENTERING INTO THIS AGREEMENT, YOU (THE PERSON SUBMITTING THE RESELLER APPLICATION) REPRESENT TO US THAT YOU REVIEWED THE TERMS OF THIS AGREEMENT, HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE RESELLER, AND THAT THE RESELLER AGREES TO BE BOUND BY THIS AGREEMENT.

A LEGALLY BINDING AGREEMENT WILL ONLY BE FORMED BETWEEN COGNITIVES AND THE RESELLER UPON COGNITIVES NOTIFYING YOU OF ITS ACCEPTANCE OF YOUR RESELLER APPLICATION.

1. Definitions

For purposes of this Agreement, the following terms have the corresponding definitions listed below.

Cognitives Terms of Use’ means the Cognitives Terms of Use available at www.cognitives.io/terms.

Cognitives’ ‘we’, ‘us’ and ‘our’ means Cognitive Platform Pty Ltd, a company incorporated in Victoria, Australia with offices at (WeWork c/o Cognitives) 401 Collins Street, Melbourne, VIC, 3000, Australia.

Confidential Information’ means all know-how, specifications, catalogues, books, price books, maintenance, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, price lists, cost data, sales aids, such as filmstrips and recordings, and all other publications and information, whether or not reduced to writing, relating to the formulation, manufacture, use, marketing and sale of the Products, as well as any other information relating to the business of Cognitives which may be disclosed to Reseller in the course of its performance of this Agreement.

Effective Date’ means the date on which Cognitives provides written notice of its acceptance of your Reseller Application, which may take the form of an electronic mail message.

End Customer(s)’ means Cognitives’ end customers only, and explicitly excludes other resellers, distributors, or any other person or entity that purchases the Products for any reason other than to use in a directly owned and operated network.

Intellectual Property Rights’ means all intellectual property rights in or related to the Products, which may subsist in Australia or elsewhere, whether or not they are current or future or registered or capable of being registered, including without limitation in relation to, copyright, designs, trade marks (including unregistered marks), business and company names, domain names, database, circuit layouts, patents, inventions, discoveries, know-how, trade secrets and confidential information, including all related moral rights.

Notice’ means written notification and can be delivered by mail, facsimile or e-mail at Cognitives’ discretion pursuant to clause 7.

Product Term’ means the term for which we will supply a Product as set out in clause 2.5.

Products’ means only those products of Cognitives specifically listed in the Reseller Price List.

Purchase Order’ means a purchase order for Products in a form specified by Cognitives duly completed and submitted by you to Cognitives.

Purchase Price’ means the aggregate price of any purchase order submitted to us taking into account the pricing specified in clause 2.2.

Reseller, ‘you’, ‘your’ and ‘yours’ means the company, person or other entity submitting the Reseller Application.

Reseller Application’ means the application to become a Cognitives reseller on the terms of this Agreement and the Cognitive Terms of Use, submitted by you.

Reseller Price List’ means the list of products, SKUs, and corresponding pricing available through Cognitives’ website or requested via sales@cognitives.io.

Term’ means the term of this agreement as set out in clause 6.1.

Trademarks’ means Cognitives’ trademarks, service marks, designs, markings, logos, or trade names as may be designated by Cognitives from time to time

2. Appointment, Pricing, Purchase & Delivery

2.1 Appointment and Acceptance

Subject to your continued compliance with the terms of this Agreement, Cognitives appoints you as a non-exclusive reseller of the Products, and you accept such appointment. Nothing in this Agreement prevents us from: (i) appointing other resellers or distributors within the territory or territories in which you typically operate; (ii) marketing, selling, or distributing Products directly to End Customers; or (iii) maintaining direct sales channels for the marketing, selling and distribution of the Products. Reseller will not, directly or indirectly, without the prior written consent of Cognitives: (i) market, distribute or sell Products to third party resellers, agents or sales representatives for resale; or (ii) purchase Products from third party resellers, authorised distributors of Cognitives, agents or sales representatives for resale.

2.2 Pricing

As a Reseller, you will be entitled to purchase the Products at the various prices listed on the Reseller Price List. You will pay the Purchase Price pursuant to clause 2.6. Cognitives reserves the right at any time to change the prices listed on the Reseller Price List. Subject to clause 2.9, any changes to the prices on the Reseller Price List will be effective 30 days from notification of the change to you.

2.3 Purchase Orders

All purchases of Products you make under this Agreement will be subject to the terms and conditions of this Agreement and will be evidenced by a Purchase Order. Any terms or conditions of any Purchase Order or acknowledgements given or received that are accepted by Cognitives will form part of this Agreement. If there is inconsistency between the terms of a Purchase Order and the terms of this Agreement the terms of this Agreement will prevail. Purchase orders will, at a minimum, include terms regarding: (i) the Product name or identification; (ii) quantity of Products; (iii) time of requested delivery; and (v) all applicable addresses, including End Customer information where available. Purchase Orders will be deemed to be accepted unless Cognitives provides you written notice of rejection (which may take the form of an electronic mail message).

2.4 Delivery

Where a Purchase Order for purchase of Products is created, Cognitives will enable access for you or the End Customer, as applicable, to the Products.

2.5 Product Term

Each Product the subject of a Purchase Order will be provided by us to you from the date of that Purchase Order until cancelled by either party under this Agreement (‘Product Term’).  Either party may cancel the provision of a Product on written notice to the other party, which cancellation will be effective on the last day of the subsequent billing period from the date the written notice is effective.

2.6 Payment

Unless otherwise agreed to in writing, Purchase Orders will be invoiced immediately and the Purchase Price will be due within 30 days of the invoice date. All orders will be processed when received. Invoices will be issued for the Purchase Price on an ongoing monthly basis, for each Product for which the Product Term has not yet been terminated, on the same conditions as set out in this clause.

2.7 GST

Where GST is imposed on a taxable supply made in connection with this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay the GST to the supplier (without deduction or set-off) by the tax invoice due date.  If one party is required to indemnify or reimburse another party (‘Payee’) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with this clause if the amount payable is consideration for a taxable supply.

2.8 End Customer Pricing and Payment

You will independently set your own pricing to each End Customer. You bear all risk of non-payment by End Customers, and you are solely responsible for all of your costs and expenses. You may not terminate a Purchase Order or receive any refunds due to non-payment by an End Customer.

2.9 Existing Pricing

Where a change to a price on the Reseller Price List (made in accordance with clause 2.2) results in an increased price for a Product subject to a Purchase Order immediately prior to the change, the price change will not apply to that Product for the Product Term.  This restriction on price increases where a Product Term is terminated, even if that Product is the subject of a subsequent Purchase Order.  For the avoidance of doubt, where any change to a price on the Reseller Price List results in a decreased price for a Product, you will be entitled to any such reduction in price.

3. Reseller’s Obligations and Restriction

3.1. Cognitives Terms of Use

All use of the Products by End Customers is subject to the Cognitives Terms of Use, and you: (i) must ensure that your End Customers understand their obligations under the Congitives Terms of Use; and (ii) may not expressly or impliedly impose any other terms pertaining to their use of the Products.

3.2 Enforcement and defect cooperation

You agree to immediately notify us of: (i) any known or suspected breach of the Cognitives Terms of Use or other unauthorised use of the Products and to assist us in the enforcement of the terms of the Cognitives Terms of Use; and (ii) any suspected or actual defects or safety problems with respect to the Products.

3.3 Marketing

Subject to the licence and the restrictions in clause 5, Reseller will market the Products only under the Trademarks. Reseller will not publish or use or co-operate in the publication or use of, any misleading or deceptive advertising material with regard to Cognitives, its suppliers or the Products. Reseller must only use descriptions of the Products produced or otherwise approved by Cognitives in any marketing material used by Reseller to promote the Products.

3.4 Training and Cognitives policies

Reseller will comply: (i) as soon as practicable with any and all training requirements with respect to the Products that Cognitives may require from time to time via written notice; and (ii) with all policies and procedures of Cognitives relating to sale and marketing of the Products, as notified by Cognitives from time to time (including information provided by Cognitives to the Reseller as part of the Reseller welcome pack provided after acceptance of the Reseller Application).

3.5 Independent contractor status.

Reseller is an independent reseller of the Products.  Reseller is not and will not be considered a legal representative of Cognitives for any purpose and, accordingly, will have no power or authority, expressed or implied, to make any commitment or incur any obligations on behalf of Cognitives.  For the avoidance of doubt, neither party is an employee, agent, officer or partner of the other party nor, by virtue of this Agreement, authorised to bind or represent the other party.

3.6. Compliance with Laws

In connection with the resale of the Products, Reseller will comply with, and ensure all its officers, employees, agents and subcontractors comply with, all Commonwealth laws and policies relevant to the Products, including all country, federal, state and local laws, ordinances, codes, regulations, rules, policies, licensing requirements, regulations and procedures  The Reseller will specifically comply with those laws and regulations related to recycling or take-back programs for packaging, resale or use of Products, the use of Products under telecommunications laws/regulations, and all applicable anti-corruption laws.

4. Warranty, Limitation of Liability and Indemnity

4.1 Warranty Disclaimer

Cognitives makes warranties directly to its End Customers pursuant to the Cognitives Terms of Use. Reseller will not make any representations, warranties, or any other commitments regarding Cognitives or the Products. Cognitives will not be responsible for any representation, warranties, or other commitments made by Reseller without Cognitives’ prior written consent. To the extent permitted by law: (i) Cognitives’ entire responsibility to the Reseller with respect to warranties is to the extent required to grant the Reseller the right to pass to the End Customer the benefit of any warranties in the Cognitives Terms of Use; and (ii) Cognitives makes no other warranties, express or implied, regarding the Products.

4.2 Consequential loss

To the extent permitted by law, Cognitives will not be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), whether in contract, tort or otherwise.

4.3 Liability cap

To the fullest extent permitted by law, Cognitives’ entire liability to Reseller under this Agreement will be limited to the: (i) re-supply of the Product(s); or (ii) refund of any amounts paid to Cognitives in respect of the Product(s).

4.4 Indemnity

You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products. You will indemnify, hold harmless and (at Cognitives’ option) defend Cognitives from and against any claim, loss, cost, liability or damage, including legal fees, for which Cognitives becomes liable arising from or relating to: (i) any breach or alleged breach by you of any term of this Agreement; (ii) the issuance by you of any warranty or representation regarding Cognitives or its Products not specifically authorised by Cognitives by prior written consent; or (iii) any of your other acts or omissions in connection with the marketing or resale of the Products under this Agreement.

5. Intellectual Property

5.1. Licence to Trademarks

Subject to Reseller’s compliance with this Agreement, Cognitives hereby grants to Reseller a royalty-free licence to use the Trademarks during the Term solely in connection with the marketing and promotion of the Products as contemplated in this Agreement. The licence granted hereunder shall be revocable at will by Cognitives effective upon notice to Reseller.

5.2. Ownership of Trademarks

The Trademarks provided by Cognitives are and will remain the sole property of Cognitives, and Cognitives reserves all rights in trademarks, trade names and logos not expressly granted to Reseller under the terms of this Agreement. Reseller will not register any domain name, trade name, or corporate name containing or comprising any of the Trademarks or anything that would cause confusion in the marketplace, and will not remove or efface any of the Trademarks on any Products sold by Reseller. Reseller will not contest the validity of any of the Trademarks or Cognitives’ exclusive ownership of the Trademarks.

5.3. Other Intellectual Property

As between the parties, Cognitives owns all Intellectual Property Rights and no rights to such Intellectual Property Rights are granted to Reseller, except as expressly provided in this Agreement.  Reseller will not and will not permit any third party to: (i) modify, duplicate, disassemble, or attempt to reverse engineer the Products; (ii) remove or erase the software from the Products, or otherwise try to disable or alter the Products’ functionality; or (iii) load any other software onto the Products. Products offered for sale and are sold by Cognitives subject in every case to the condition that such sale does not convey any licence, expressly or by implication, to manufacture, modify, duplicate, or otherwise copy or reproduce any Product or component thereof.

5.4. Protection of Proprietary Rights

If Reseller becomes aware that any third party is infringing or misappropriating any intellectual property in or relating to any Product (including the Trademarks), then Reseller must promptly notify Cognitives in writing and cooperate with and assist Cognitives in the protection of such intellectual property.

6. Term and Termination

6.1. Term

This Agreement will commence in force on the Effective Date and will remain in force until terminated under this clause 6.

6.2 Termination for Convenience

Either party may terminate this Agreement upon 30 days’ prior written notice to the other party.

6.3 Termination for Cause

Either party may terminate this Agreement immediately if the other party breaches a term of this Agreement, and the breaching party fails to cure the breach within 15 days of receipt of written notice thereof. In addition, either party may immediately terminate this Agreement upon: (i) the insolvency of the other party; (ii) the institution of any proceeding in relation to the credit standing of the other party, such as bankruptcy, reorganisation, rehabilitation or composition, by or against the other part; or (iii) the appointment of any receiver or trustee for the other party.

6.4. Effect of Termination

Termination of this Agreement will not release any party either from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination. Upon termination of this Agreement, each party will return (or destroy) any Confidential Information of the other party in its possession. The following provisions of this Agreement will survive any termination of the Agreement: clause 1, clause 2.6, clause 4, clause 5, clause 6.4 and clause 7.

7. Miscellaneous

7.1 Confidentiality

Any and all non-public information provided directly or indirectly by one party (the ‘Disclosing Party’) to the other party (the ‘Receiving Party’) related to the business or technology of the Disclosing Party (collectively, ‘Confidential Information’), will be kept confidential by the Receiving Party and may not be used, except as necessary in the performance of the Receiving Party’s obligations under this Agreement or otherwise in connection with the marketing, sale, deployment, operation, or maintenance of the Products. The Receiving Party agrees to limit access to the Confidential Information to those of its employees or contractors as are reasonably required for the purpose of performing the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products and will ensure that each such employee or contractor is subject to an agreement with the Receiving Party with respect to third party confidential information substantially as protective of the Disclosing Party’s Confidential Information as the provisions of this clause 7.1. Notwithstanding the foregoing, Confidential Information does not include any information that the Receiving Party can verify based on its written records was (a) already lawfully in the Receiving Party’s possession without confidentiality obligations prior to receiving it from the Disclosing Party, (b) independently received from a third party without an accompanying duty of confidentiality and without breach of such third party’s obligations of confidentiality, (c) becomes available in the public domain through no action or inaction of the Receiving Party, or (d) developed independently by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information. If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy.

7.2 Entire agreement

This Agreement, together with Cognitives’ Terms of Use, constitutes the entire agreement between Cognitives and the Reseller with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings, and arrangements, oral or written, between Cognitives and Reseller. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement have been made either by Cognitives or Reseller which is not expressly set forth in this Agreement.

7.3 Notices

All notices required or permitted under this Agreement will be in writing, including notices sent by email, and will be deemed received by Reseller: (a) for email notices, upon the time the email enters the information processing system that the recipient has designated or uses for the purposes of receiving email (as provided below); or (b) for mailed notices, one day after deposit with a commercial express courier specifying next day delivery, or two days for international courier packages specifying two-day delivery, with written verification of receipt by the courier. All notices to Reseller will be sent to the email address provided under clause 7.4 or for mailed notices to the Reseller’s address provided at the time of application. All notices to Cognitives will be sent to the address provided in the definition of ‘Cognitives’ in clause 1 of this Agreement or to sales@Cognitives.com.

7.4 Electronic Notice

Reseller hereby consents to receiving any notice(s) required under this Agreement by electronic mail (email). Reseller acknowledges that legal notices such as notices of termination or non-renewal, changes in pricing, software licence terms, policies or programs may be given by email. Reseller will provide an email address of a person authorised by Reseller to accept such notices either at the time of application or after receipt of an approval notice by sending such information, including any additional or alternative email addresses, to Cognitives by email to sales@Cognitives.com. Notices from Cognitives to Reseller will be deemed effective when sent to Reseller’s email address(es) provided to Cognitives under this clause 7.4.

7.5 Force Majeure

Neither Reseller nor Cognitives will be liable under this Agreement by reason of any failure or delay in the performance of its obligations (except for payment obligations) on account of strikes (other than strikes of a party’s own employees), riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labour conditions (other than with respect to a party’s own employees), earthquakes, material shortages, or any other causes that are beyond the reasonable control of such party so long as the parties use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.

7.6 Governing Law

This Agreement is governed by the laws of the State of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this Agreement.

7.7 Severability

Any provision of, or the application of any provision of this Agreement, which is prohibited, void, illegal or unenforceable in any jurisdiction: (i) is, in that jurisdiction, ineffective only to the extent to which it is void, illegal, unenforceable or prohibited; (ii) does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of this Agreement in that or any other jurisdiction; and (iii) is severable from this Agreement and will not affect the remaining provisions of this Agreement. The application of this clause 7.7 is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.

7.8 Waiver

No failure or delay by you or by us to exercise any right under this Agreement will constitute a waiver of that right.

7.9 Assignment

Cognitives may assign, in whole or in part, any of its rights under this Agreement upon written notice to the Reseller. The Reseller cannot assign any of its rights under this Agreement, in whole or in part, without the prior written consent of Cognitives.

7.10 Amendment to terms

From time to time, we may modify this Agreement. Subject to your agreement to any such change, the version of this Agreement in place at the time you submit each Purchase Order is the version that will govern such order.

7.11 Dispute Resolution Process

Where a dispute arises between the parties in connection with this Agreement, the parties must enter into discussions in good faith to resolve the dispute or to agree on a process to resolve all or part of the dispute without court proceedings.  Unless the parties otherwise agree, discussions between the parties under this clause must continue for 21 days unless resolved earlier.  Where the dispute is not resolved in this time, either party may refer the dispute for mediation administered by the Australian Disputes Centre Limited (‘ADC’) in accordance with the ADC’s guidelines for commercial mediation, as updated from time to time. The mediator must be appointed by agreement between the parties but, failing agreement, will be appointed by the Chairperson of the ADC or the Chairperson’s authorised representative. Where a dispute is not resolved within 30 days of referral to mediation (or such longer period agreed by the parties in writing), either a party may commence court proceedings in respect of a dispute arising out of this Agreement. Nothing in this clause will prejudice the right of a party to seek urgent injunctive or declaratory relief in respect of any matter arising out of this Agreement. The parties must continue to perform their obligations under this Agreement during the resolution of any dispute(s).