FYB Reseller Agreement

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Effective: [27 January 2022]

This Agreement is between FYB Pty Ltd (ABN 68 108 771 731) (FYB) and the applicable reseller (Reseller).  

By placing an Order for the FYB Software to resell to a Customer , the Reseller agrees to be bound by this Agreement.

1. DEFINITIONS

The following terms will have the following meanings:

Additional Services means services outside the scope of Support Services which FYB provides to Reseller (or, at Reseller’s request, directly to a Customer) which may include installation assistance, trouble shooting deployment issues, or investigating and correcting issues which are not caused by errors in the FYB Software, or other services as described in clause 6.2.  

Confidential Information means any information provided by a party or any of its employees, agents, related parties or representatives to the other party or any of its employees, agents, related parties or representatives, or otherwise obtained by that party (whether oral, written or viewed by inspection) which is marked as "proprietary" or "confidential" or similar language or which the recipient knows or reasonably should know is proprietary or confidential.  Confidential Information includes: (a) FYB’s Charges; (b) the FYB Materials; and (c) details of each party’s internal systems, business processes, future product plans, marketing, customers, prospects, finances, personnel and operations.  

Charges means the price payable for the FYB Software, Support Services or Additional Services as set out in and Order accepted by FYB.  Customer means any person or entity that acquires any FYB Software or related service from Reseller under this Agreement.

Customer Agreement means a written agreement for Reseller to provide the FYB Software and related services to Customer.  

Documentation means documents about the FYB Software as provided by FYB from time to time, and may include installation guidelines and user guides provided on a web portal.  

FYB Materials means materials created by FYB and provided to Reseller in the course of performing this Agreement including the Documentation, FYB Software, Promotional Materials, and any materials created as part of FYB providing Services.

Infringement Claim means a claim by a third party against Reseller alleging that any part of the FYB Materials or Reseller’s (or a Customer’s) use of them as authorized under this Agreement infringes that party's Intellectual Property Rights.

Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.

Intellectual Property Rights means, for the duration of the rights in any part of the world, any moral rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

Order means an order for the FYB Software, Support Services and/or Additional Services submitted by the Reseller, on behalf of a Customer, to FYB, using the process and forms designated by FYB.

Promotional Materials means all brochures, instructions, web materials, demonstrations and videos any other materials used to promote the FYB Software which are provided by FYB.

Related company means a related body corporate as defined in the Corporations Act 2001 (Cth).

Services means Support Services and Additional Services.

Support Services means the services provided by FYB set out in clause 6.1.2.

Territory (if any) is specified in an Order.

Term means the Initial Term described in an Order plus any renewal term as set out in clause 14.1, until terminated under this Agreement.

User means any user of the FYB Software via the Reseller or Customer’s account.

2. APPOINTMENT OF RESELLER

2.1 Appointment

Subject to FYB’s acceptance of the applicable Order, FYB grants the Reseller, and Reseller accepts the grant of a one-time, non-exclusive right to resell licences or subscriptions (as applicable) of the FYB Software:

(a) in the Territory (if specified in an Order);

(b) solely when bundled (including in relation to price) with the Reseller’s own software products ; and

(c) pursuant to this Agreement.

2.2 Independent Contractor

Reseller is an independent contractor, not an employee, agent, partner, franchisee, or representative of FYB.  Reseller is not authorized to create or assume any obligation or liability on behalf of FYB.

2.3 No Sub-Distributors or Subcontracting

Reseller may only appoint a sub-distributor, agent or subcontractor to undertake any of Reseller’s activities under this Agreement:

(a) where that party is a related company; or

(b) with FYB’s prior written approval.  Appointing a sub-distributor, agent or subcontractor does not relieve Reseller of its obligations under this Agreement.  If FYB has previously approved a sub-distributor, agent or subcontractor but subsequently has reasonable grounds for objecting to them, FYB may, by one month’s notice, require Reseller to replace them.  The Reseller must not place orders with, or accept orders from other FYB resellers.

2.4 Reseller’s Licence

2.4.1 Limited Licence.  Subject to all the other terms of this Agreement, FYB grants to Reseller a nontransferable, nonexclusive license in the Territory during the Term to use the FYB Materials solely to the extent needed:

(a) to fulfill Reseller's sales and marketing obligations under this Agreement (such as demonstrating the FYB Software to prospects and training Reseller’s personnel on the operation and features of the FYB Software); and

(b) to fulfill Reseller's obligations to provide services under this Agreement and any Customer Agreement.

Without limiting the above, Reseller’s right to use the FYB Materials is subject to clause 11 (Confidentiality) and Reseller is specifically prohibited from using the FYB Software in a production environment for the purposes of resale or to process the data or business of any third party or to operate a bureau service.  

2.4.2 EULA.  Reseller acknowledges that the use of the FYB Software by a Customer is subject to the licence terms provided with the FYB Software and available at https://www.fyb.com.au/end-user-license-agreement.  FYB may modify these terms (or the weblink) from time to time.  

2.4.3 No assignment or sub-licence.  Reseller may not assign or transfer the FYB Software or its licence, or sublicense the FYB Software to any third party except:

(a) to Users of Reseller or any related company of Reseller;

(b) to a Customer, under the terms of a Customer Agreement and subject to clause 7.1; or

(c) with FYB’s prior written consent.

2.4.4 Use.  Reseller has sole responsibility for its use of the FYB Software and for maintaining the required operating environment, including:

(a) using the FYB Software in accordance with the Documentation or other instructions provided by FYB;

(b) maintaining regular back-ups of data and software;

(c) installing software updates, fixes or new releases promptly after receipt; and

(d) ensuring relevant Reseller staff are trained in using the FYB Software.

2.4.5 Reseller must not modify, vary, disassemble, decompile or reverse engineer the Software (or attempt to do so), use the FYB Software to develop a similar or competing product or service, modify or create derivative works of the FYB Software; copy any element of the FYB Software; or remove, obscure or modify in any way any proprietary or other notices or attributions in the FYB Software or associated Documentation.

2.5 No Staff Solicitation

During the Term plus six months, each of FYB and Reseller agrees (for itself and on behalf of any of its related companies) not to, as a principal or for any persons, induce, solicit or entice or attempt to induce, solicit or entice from the other party (or any of its related companies), any person who is an employee of or contractor to that other party.  This clause does not prevent a party from engaging persons who apply, without solicitation from that party, to a position publicly advertised or promoted through a recruitment agency.

3. PROMOTING THE FYB SOFTWARE

3.1 Marketing & Promotion  

Reseller will use its reasonable commercial efforts to actively promote, market and sell FYB Software to Customers in the Territory, as part of a package that includes Reseller’s own software products. Reseller must not market the FYB Software to prospects outside the Territory and must promptly submit to FYB all inquiries received by prospects outside the Territory.  

3.2 No unauthorised claims  

Reseller must not make any representations, warranties, statements or claims about the FYB Software or Services:

(a) other than those which have been authorized in writing by FYB or which are contained in any Documentation or Promotional Materials; or

(b) which are false, misleading or deceptive.  Reseller must obtain FYB’s prior written consent before creating or using any promotional or marketing materials for the FYB Software (other than the Promotional Materials).

3.3 Assistance by FYB

To help Reseller market and sell the FYB Software, FYB will:

(a) Such free-of charge training as offered FYB from time to time;

(b) If requested by Reseller - provide FYB Software training to Reseller’s personnel as an Additional Service.  

(c) Give Reseller reasonable product information, Promotional Materials and Documentation (in English and in electronic format).  

(d) Respond to marketing or pre-sales inquiries from Reseller, and give Reseller reasonable information and material that it has asked for, as soon as reasonably possible.

(e) Keep Reseller informed of significant planned changes or improvements to the FYB Software or Services, including any major changes to technology, features or benefits.

4. AUDIT

The Reseller must maintain complete, clear and accurate records of its transactions and performance under this Agreement, including evidence of each Customer’s entry into the Customer Agreement.  Such records must be retained for at least 5 years following expiry or termination of all Orders.

FYB may, upon one week’s written notice, inspect, audit and analyze accounting and other records of Reseller relating to the performance of this Agreement (including use of the FYB Software and Customer Agreements) to ensure compliance with this Agreement.  FYB acknowledges such information is protected as Reseller’s Confidential Information under clause 11.  The audit may be conducted by FYB or a third party appointed by FYB who has entered a written confidentiality agreement with FYB which covers the Reseller information. If Reseller is found not to be in compliance with this Agreement, Reseller shall reimburse FYB for its audit expenses and shall immediately pay any outstanding payment or otherwise rectify the non-compliance.

5. ORDERING AND DELIVERING FYB SOFTWARE

5.1 Quotes

The Reseller may at any time request a quote for the FYB Software, Support Services or Additional Services.

If FYB provides a quote, the quote will be valid for 30 days from the date of the quote, unless stated otherwise.

Quotes need to be submitted using “FYB Reseller Quote Order Form” and sent to daniel.dawson@fyb.com.au.

5.2 Reseller Orders

Reseller may order FYB Software, Support Services or Additional Services by submitting an Order to FYB which:

Refers to this Agreement (and which does not refer to Reseller’s standard terms of purchase or refer to or contain any other terms which are inconsistent with this Agreement);

Sets out the details of:  

the Customer (including company name, address, contact person);

Reference Quote Number

the type and quantity of FYB Software ordered;

where the FYB Software is to be installed for production use;

the Charges to be paid by Reseller to FYB, calculated in accordance with this Agreement;

requested delivery of the FYB Software to the Customer (such as contact persons at the Customer to receive codes from FYB to download the FYB Software, proposed delivery date);

any other matters specified or required by FYB.

5.2 Binding when confirmed

FYB will promptly review and respond to the Order.  An Order will be accepted by FYB upon the earlier of:

(a) FYB's delivery or first attempted delivery of the FYB Software specified in such Order, or

(b) one week after FYB received it, provided FYB has not already notified Reseller of its rejection of the Order.

5.3 Invoice

FYB will sell to Reseller and deliver to the Customer and Reseller will purchase and pay for, all FYB Software ordered by Reseller pursuant to an Order submitted to and accepted by FYB according to this clause 5.  Promptly after accepting an Order, FYB will submit an invoice to the Reseller.

5.4 Software Activation, Licence expiry for non-payment

Promptly after Reseller pays FYB’s invoice for the FYB Software Charge, FYB will issue a username & password to allow the Customer to download the FYB Software from FYB’s website.  Reseller acknowledges that the FYB Software contains time-limited activation codes which only allow use of the Software once FYB has received payment of invoiced Charges, and which will expire if the annual renewal Charge is not paid.  

5.5 Demonstration licences

FYB may provide the Reseller with demonstration licences at its discretion.

6. SERVICES

6.1 Support Services

6.1.1 Reseller Support.  Reseller will provide primary support services to Customer Users including help desk services to help Users install and use the FYB Software and to identify and attempt to resolve errors reported by Users. Where Reseller is unable to resolve a query or error submitted by a Customer, Reseller may refer the matter to FYB’s Service Desk.  FYB will not accept requests for support directly from Customers.

6.1.2 FYB Support.  FYB will provide the following Support Services:

(a) FYB will use commercially reasonable efforts to resolve errors in the FYB Software used in a Customer’s production environment as soon as reasonably possible after it is logged with FYB’s Service Desk by the Reseller, based on the severity of the issue and according to FYB’s then-current support procedures.  FYB will provide 30 minutes per issue or error as part of Support Services.  Any additional time, or time spent on errors which FYB finds are not in the core FYB Software (e.g. caused by the Customer environment, installation, configuration or third party components) will be charged as an Additional Service, with a minimum of one day’s charge.  

(b) Updates or new versions of the FYB Software if and when made generally available by FYB.

7. CUSTOMER ENGAGEMENT

7.1 Customer Agreements

Reseller must ensure that each Customer enters a written contract with Reseller for the supply of FYB Software, and that each such contract contains terms which:

(a) are no more favourable to the Customer than the terms regarding the FYB Software and Services set out in this Agreement (including in respect of licensing terms, Intellectual Property Rights, warranties and liabilities);

(b) prohibit the Customer from using the FYB Software in a production environment for the purposes of resale or to process the data or business of any third party or to operate a bureau service;

(c) require the Customer to acknowledge that the FYB Software contains time-limited activation codes which only allow use of the Software once FYB has received payment of invoiced Charges, and which will expire if the annual renewal Charge is not paid; and

(d) require the Customer to direct all queries in relation to the FYB Software to the Reseller and not FYB.

7.2 Customer invoicing

Reseller is solely responsible for invoicing and collecting any amounts due by Customer to Reseller relating to the FYB Software.   Non-payment by Customers will not relieve the Reseller of its obligation to pay fees to FYB.

8. CHARGES

8.1 Customer Prices

FYB may advise Reseller of a recommended retail price for FYB Software however Reseller is responsible for setting final prices for Customers.  Reseller will keep FYB informed about Reseller’s then-current retail prices for FYB Software.  

8.2 Charges payable by Reseller  

Reseller will pay FYB the Charges, in the amounts, currency and instalments as set out in an Order accepted by FYB.  Unless agreed otherwise in writing by FYB:

(a) all Charges for FYB Software are payable annually in advance; and

(b) all Charges are due within 30 days of FYB’s invoice.  Reseller acknowledges that FYB will only release (and renew) the activation code for the FYB Software after the annual Charge for that software is paid.  Once paid, the annual Charge is not refundable.

8.4 Taxes

The Charges are quoted exclusive of GST and other taxes, duties and charges.  FYB will increase the invoiced amount to take account of any such taxes and will show the tax separately on its invoices.  FYB will issue a tax invoice complying with the GST law.

9. PRIVACY

9.1 Privacy laws

If Reseller gives FYB access to personal information (including of a Customer or User) as part of FYB providing the FYB Software and Services, then:

(a) Reseller warrants that it has the right to grant such access to FYB;

(b) FYB will collect, use and protect that data according to its then-current Privacy Policy (available at https://www.fyb.com.au/privacy.html).  FYB may modify its privacy policy (or the weblink) from time to time; and

(c) Each party must comply with any privacy or data protection laws which apply in the Territory.

9.2 Use of personal information

FYB will only use personal data or Reseller or a Customer for the purposes of providing FYB Software and Services to Reseller or a Customer.  FYB will not transfer Reseller or Customer personal data outside Australia without prior consent.  FYB will take commercially reasonable steps to ensure that Reseller or Customer personal data which FYB has control over, is protected from unauthorised use or disclosure.

10. INTELLECTUAL PROPERTY

10.1 Ownership

Reseller acknowledges that:

(a) FYB retains ownership of all Intellectual Property Rights in the FYB Materials; and

(b) no development to Reseller’s or Customer’s specifications entails ownership by or conveyance to either of them of any property right in any invention or derivative work.  Reseller receives only a limited licence to use the FYB Materials as set out in clause 2.

10.2 Derivative Works  

Any Intellectual Property Rights which are derived from or based upon or contemplated by any of the FYB Material or any Intellectual Property Rights used or embodied in a FYB Software, that may be invented or developed by Reseller in connection with this Agreement, shall and are deemed to belong and accrue to and vest in FYB on creation.  In the event such rights do not automatically vest in FYB by operation of law, Reseller agrees to assign all such rights to FYB and agrees to execute all such documents as reasonably necessary to effect such assignment.

10.3 Protection of FYB Intellectual Property Rights

10.3.1 Reseller will properly identify and accurately describe all FYB Software as products of FYB.  Reseller will not alter, remove, deface or obscure any notice of Intellectual Property Rights on any FYB Material and will not add to any FYB Material any other trademark or notice of any other proprietary right.  

10.3.2 Reseller will immediately notify FYB of any infringement, misappropriation or violation of any Intellectual Property Rights of FYB that comes to Reseller's attention.  In the event of any such infringement, misappropriation or violation relating to the activities of Reseller or any of its employees, agents, representatives, resellers, dealers, sales representatives or Customers, Reseller will take all steps reasonably necessary to terminate any such infringement, misappropriation or violation.  FYB will have exclusive control over the prosecution and settlement of any legal proceeding to enforce, to recover damages on account of any infringement, misappropriation or violation of, or to defend any of its Intellectual Property Rights.  Reseller will:

(a) provide such assistance related to such proceeding as FYB may reasonably request; and

(b) assist FYB in enforcing any settlement or order made in connection with such proceeding; provided that FYB will reimburse the expenses reasonably incurred by Reseller to provide such assistance.

10.4 FYB Branding Material  

10.4.1 Where FYB makes available to the Reseller any FYB trademarks, service marks, names, logos, marketing collateral or similar materials (Branding Material) FYB consents to Reseller using and copying (but not modifying) the Branding Material in advertising, promotional literature, documentation and other marketing materials related to the FYB Software, to the extent necessary for Reseller to perform its obligations under this Agreement.  The Reseller must not advertise or market the FYB Software without clearly identifying FYB as the developer or provider of such offerings.  Reseller will promptly cease any use of the Branding Material upon request  

10.4.2 Reseller shall comply with any marketing guidelines established by FYB in Reseller's use of the Branding Material.  Whenever Reseller uses Branding Material, it must ensure that such use is accompanied by a statement that FYB is the owner of the trademark.  

10.4.4 Reseller must not:

(a) use any trademarks in relation to the FYB Software other than the FYB trademarks;

(b) use, or permit any agent or related company of Reseller to use the FYB trademarks or any similar trade marks in any business name, company name or domain name; or

(c) do anything or omit to do anything or use the FYB trademarks in any way which, in the reasonable opinion of FYB, may prejudice or adversely affect the validity or FYB’s ownership of the FYB trademarks.

11. CONFIDENTIALITY

11.1 Obligations  

Where one party (in this clause, Recipient) receives Confidential Information from the other party (Discloser), Recipient must:

(a) keep the information confidential;

(b) not use, disclose or reproduce the information for any purpose other than as needed to perform this Agreement or a Customer Agreement; and

(c) ensure that its employees, agents and related companies do not do, or omit to do anything, which if done or omitted to be done by it, would breach this clause.

11.2 Security Measures

Recipient must establish and maintain commercially reasonable security measures (equivalent to the measures it uses to protect its own sensitive information) to protect the Confidential Information from unauthorised access, use, copying or disclosure and must immediately notify Discloser of any potential, suspected or actual unauthorised use, copying or disclosure of it.

11.3 Permitted use  

Notwithstanding clause 11.1, Recipient may use or disclose the Confidential Information to the extent necessary to comply with any law or the requirements of a regulatory body (including a stock exchange), or to obtain professional legal or accounting advice, or for use in legal proceedings regarding this Agreement.  

11.4 Exceptions  

Clause 11.1 does not apply to Confidential Information which Recipient can prove by written evidence:

(a) is in or becomes part of the public domain other than through breach of an obligation of confidence;

(b) was known to Recipient at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence;

(c) was independently developed by Recipient; or

(d) is acquired from a third party who was entitled to disclose it.

11.5 Return or destroy  

Subject to its obligations at law, Recipient must immediately on demand, or on completion or termination of this Agreement, either (at the option of Discloser) return to Discloser or destroy any documents in its possession, power or control containing Confidential Information.  The obligations in this clause 11 continue to apply after this Agreement expires or is terminated.

12. WARRANTIES

12.1 Compliance with Laws

FYB and Reseller each represent and warrant that in performing this Agreement, it will comply with all applicable laws, regulations, rules, orders and other legal requirements, including any software export laws and restrictions and regulations and any privacy or data protection laws.  

12.2 Product Limited Warranty

FYB warrants to Reseller that for a period of 30 days from when the FYB Software is first delivered or made available to each Customer (Warranty Period), the FYB Software as used in the Customer’s production environment will perform substantially in accordance with its Documentation.  This warranty does not cover errors which FYB finds are not in the core FYB Software (e.g. caused by the Customer environment, installation, configuration or third party components). FYB does not warrant that the performance of the FYB Software will be uninterrupted or error free.  

12.3 Remedy

If the FYB Software fails to comply with the warranty in clause 12.2, Reseller must notify FYB in writing (which may be by email) within the Warranty Period of any alleged defects.  FYB will have one month from receipt of such notice or an additional period of time as reasonably agreed to by the parties to correct such defects in accordance with FYB’s then-current severity levels and resolution times for Support Services.  If FYB is unable to timely correct such defects, Reseller may elect to terminate the license to such FYB Software, in which case Reseller will, as its exclusive remedy, receive a refund of Charges paid for the defective Products during the 12 months before Reseller notified FYB of the defect.

12.4 Services Warranties

12.4.1 FYB warrants that its Services will be provided:

(a) promptly, carefully, exercising all due care, skill and judgement, in an efficient and professional manner and in accordance with generally accepted professional and business practices; and

(b) using appropriately trained and skilled personnel.

12.4.2 If the FYB Services fail to comply with this warranty, Reseller shall promptly notify FYB in writing including reasonable details of any alleged defects.  Upon such notice, FYB shall, as Reseller’s sole and exclusive remedy, promptly re-perform any such Services in accordance with this Agreement. FYB shall not be responsible for any delay in the performance of any Services due to any cause outside FYB’s reasonable control.

12.5 No Other Warranties

12.5.1 Reseller acknowledges that the warranties set out in this clause 12 are the only warranties FYB gives about the FYB Software or Services and that FYB disclaims any other warranties (including any warranties implied by statute or law) to the fullest extent allowed by law.  Reseller will not make or extend any written or oral warranty in respect of any FYB Software or Services which FYB has not expressly given to Reseller in writing.  

12.5.2 FYB will not be liable for any claims or damages caused by the unauthorized use of the FYB Software or acts of abuse or misuse by Reseller, Customer or Users.  In addition, FYB will not be liable for any loss or damage in connection with or arising out of the interruption or loss of use of the FYB Software or the loss or corruption of Reseller or Customer data or files processed or stored by the FYB Software.  

12.6 Reseller indemnity

Reseller must defend, indemnify and hold harmless FYB and its officers, directors, employees, representatives and agents from and against any third-party claim brought against such FYB parties, and any resulting losses, liabilities, damages, costs or expenses (including reasonable legal fees), to the extent arising from or relating to a breach or alleged breach of this Agreement by the Reseller, the Reseller’s conduct in connection with resale or marketing of the FYB Software, Support Services and Additional Services.

13. LIABILITY

13.1 Insurance

During the Term (and for one year afterwards) each of Reseller and FYB will obtain and maintain, at its expense (or will ensure that a related company does so) a policy or policies of:

(a) Public and Products liability insurance with cover of at least $10 million; and

(b) Professional Indemnity insurance with cover of at least $5 million.  Each party will provide a certificate of current insurance upon written request.

13.2 Infringement Claims  

13.2.1 Subject to the rest of this clause 13, FYB will arrange for the defence or settlement of any Infringement Claim and FYB shall pay or arrange for the payment of Reseller’s reasonable lawyer’s fees and any damages and costs awarded against Reseller in respect of such Infringement Claim (but FYB shall not be liable for any indirect or consequential loss or damage arising in connection with such Infringement Claim). Reseller must:

(a) promptly notify FYB in writing of any Infringement Claim;

(b) cooperate with FYB in defence of any such claim; and

(c) not settle or make any admission of liability without FYB’s prior written consent

13.2.2 If an Infringement Claim has been made or threatened or FYB considers the FYB Materials may infringe any third party’s rights, FYB has the option to:

(a) modify the FYB Materials (at FYB’s expense) so it becomes non-infringing;

(b) obtain a licence for Reseller (at FYB’s expense) to continue using the FYB Materials; or

(c) terminate the licence of the infringing FYB Material and provide a prorated refund to Reseller for any prepaid Charges received by FYB for the relevant FYB Software.

13.2.3 FYB shall have no liability or obligation in connection with Infringement Claims arising from:

(a) use of a superseded or altered release of the FYB Software if infringement would have been avoided by the use of a current unaltered release of the FYB Software that FYB had provided to Reseller;

(b) products, materials or services that are modified without FYB’s written consent, where the infringement would not have occurred but for such modification;

(c) a combination of products, software, processes or materials other than those provided for or specified by FYB, and the infringement would not have occurred but for such combination;

(d) products, materials or services being marketed, sold, used, or serviced outside of the scope of the licence granted to Reseller in this Agreement; or

(e) any Infringement Claim asserted by Reseller or a related company.

13.2.4 This clause 13.2 constitutes FYB’s sole liability and Reseller’s sole remedy (whether under this Agreement or otherwise) in connection with any actual, suspected or alleged infringement of any third party Intellectual Property Rights.

13.3 Exclusion of Indirect Loss  

Each party excludes all liability for any loss of product, loss of data, loss of revenue, loss of profit, loss of or damage to reputation, loss of anticipated savings or benefits, or any indirect, special or punitive loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against the other party arising directly or indirectly under or in connection with this contract or the performance or non-performance of this contract and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, except for: interest due by any party for late payments; personal injury or tangible property damage; or losses relating to fraud or wilful misconduct.  

13.4 Limits  

13.4.1 FYB's liability to Reseller for any and all claims relating to FYB Software or Services is limited, at FYB's option, to:

(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and

(b) in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.

13.4.2 Reseller agrees that except for claims under section 13.2, to the fullest extent allowed by law, the aggregate liability of FYB arising out of, connected with, or resulting from the performance or non-performance of this Agreement, whether based on contract, warranty, tort (including negligence), statute or otherwise, is capped at the Charges paid by Reseller to FYB under the Order in which the circumstance giving rise to the liability arose. .  

13.5 Contribution

Each party’s liability shall be reduced proportionately to the extent that the other party’s acts or omissions causes or contributes to, directly or indirectly, the loss or damage for which the first party is liable.

13.6 Excused Performance

Each party will not be liable for, or be considered to be in breach of or default under this Agreement (except for an obligation to pay money) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond that party’s reasonable control.

14. TERM & TERMINATION

14.1 Term

This Agreement begins on the Effective Date and continues for the Initial Term and then automatically renews for successive one-year terms (from the end of the Initial Term) to the extent there is an active Order unless terminated as allowed in this clause 14.  

14.2 Breach or Insolvency  

Either party may terminate this Agreement or an Order if the other party:

(a) breaches this Agreement and does not remedy the breach within four weeks of written notice;

(b) breaches any term of this Agreement which cannot be remedied (including a breach of confidentiality or Intellectual Property Rights); or

(c) becomes subject to an event of insolvency (including having an administrator, receiver or liquidator appointed).

14.3 Obligations on termination  

When this Agreement is terminated or expires:

14.3.1 Each party will fulfill its obligations under all Orders accepted by FYB before the termination date.

14.3.2 Reseller will give to FYB an up to date aggregate list of all Customers using FYB Software including, for each Customer, contact name, email address and the period for which Reseller has paid FYB the annual licence Charge (i.e. showing the expiry date of the Customer’s licence).

14.3.3 Any Order under which a Customer who before the termination date has been granted a right to use the FYB Software by Reseller in accordance with this Agreement, and in respect of whom Reseller has paid the annual licence Charge to FYB, will remain on foot up to the expiry date of the annual licence Charge.

14.3.4 Reseller’s license to use the FYB Software itself will terminate, Reseller will immediately cease to market, promote and sell the FYB Software and cease use of the FYB trademarks.

14.3.5 Reseller must promptly deliver to FYB, at Reseller’s expense, any FYB Materials then in Reseller’s control or possession.

14.3.6 Each party must immediately return (or certify that it has destroyed) all of the other party’s Confidential Information, except for any information which the recipient needs to retain in order to perform any ongoing obligation under this Agreement (and any archive or back-up copies, subject to ongoing confidentiality restrictions).  

14.3.7 Any clause which by its terms is intended to survive the expiration or termination of this Agreement will do so, including clauses 2.5, 4.2, 10, 11, 13, 14 and 15.

14.3.8 Each party retains its rights under this Agreement and at law in respect of any breach of this Agreement by the other party.

15. GENERAL

15.1 Assignment  

Each party may assign this Agreement:

(a) to a related company or a purchaser of all or part of the business of that party, provided the assignee agrees in writing to assume that party’s obligations under this Agreement, and the assigning party and the assignee gives the other party written notice of the assignment (but without requiring the other party’s consent to the assignment); or

(b) with the other party’s prior written consent.

15.2 Entire Agreement  

15.2.1 This Agreement contains everything the parties have agreed in relation to the matters it deals with.  No party can rely on an earlier document, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this document was executed, except as permitted by law.  

15.2.2 Each purchase, licence and distribution of FYB Software or Services under this Agreement will be subject to, and will be governed by, this Agreement.  FYB will not be bound by, and specifically objects to, any term, condition or other provision which is materially different from or in addition to the provisions of this Agreement and which is submitted by Reseller in, or referred to in, any Order, acceptance, confirmation, correspondence or otherwise, unless FYB specifically agrees to such provision in a written instrument signed by FYB.  

15.3 Construction  

In interpreting this Agreement, no presumption shall be made against the Party that drafted the term.  The singular includes the plural and vice versa.  Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation.  Headings (including those at the beginning of clauses) are for convenience only and do not affect the interpretation of this Agreement.  

15.4 Severability  

If a clause or part of a clause of this document can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way.  If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.

15.5 Variation & Waiver  

No variation of this document will be of any force or effect unless it is in writing and signed by the parties to this document.  The fact that a party fails to do, or delays in doing, something the party is entitled to do under this document, does not amount to a waiver of any obligation of, or breach of obligation by, another party.  A waiver by a party is only effective if it is in writing.  

15.6 Counterparts  

This document is properly executed if each party executes an identical document, which may be by electronic signature.  This document takes effect when the separately executed documents are exchanged between the parties. The exchange of copies of this Agreement by email in “.pdf” form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall constitute effective execution and delivery of this contract.  

15.7 Governing law  

This Agreement and performance under it shall be governed by the laws of Victoria without regard to its choice of law principles.  Each party unconditionally accepts the jurisdiction of the courts of Victoria and any related appellate court provided that each Party shall have the right to enforce a judgment of those courts in a jurisdiction in which the other Party is incorporated or in which any assets of the other Party may be situated.