Solution Provider Agreement

This Solution Provider Agreement (“Agreement”) is entered into as of the date set forth below between Adroit Information Solutions PTY. LTD. (“Adroit”), with its headquarters located at Suite 1405, Level 14, 99 Bathurst Street, Sydney NSW 2000, Australia and “Business Name” a “ Country” sole proprietorship.

WHEREAS, Adroit through its hosted ASP/IT provides few comprehensive web-based application for businesses that integrates Cloud Based Media Content Delivery Application - Cloud AdWord and partner collaboration capabilities. The ASP/IT provides private transactions within a 128-bit encoded level of security, and offers valued-added application services that include: Cloud Based Media Content Deliverable Application Featuring Media Management, Campaign Management, User management, Library Of Add-Ons (Notice Board, Canvas, Digital Menu Board, Way-Finder, Templates) Integration Center (Facebook, YouTube, News, Weather Check, Exchange Online) and much more ;

WHEREAS, Solution Provider desires to become an approved member of the Cloud AdWord Solution Provider Program for the purpose of promoting the Cloud AdWord business applications to its customers and potential customers;

WHEREAS, by entering into this Agreement, Solution Provider and Adroit agree that any prior Solution Provider Agreements entered into between Solution Provider and Adroit are hereby terminated and this Agreement is the sole and exclusive agreement between the parties with respect to the subject matter contained herein, and

WHEREAS, Adroit seeks additional customers, and Solution Provider seeks an additional source of revenue, Solution Provider and Adroit have agreed to form a relationship according to the terms herein, which will mutually benefit both parties.

Defined Terms

“Affiliate” shall mean any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with that Party, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of the Party.

“Applicable Currency” means United States dollars, which shall be the currency in which the Parties make all payments to each other pursuant to this Agreement.

“Authorized Third Party” means any third party whose products or services are included in and made a part of this Agreement by Adroit and Solution Provider.

“Authorized Third Party License Agreement” means the applicable agreement that governs an End User’s use of the Authorized Third Party’s Products and Services.

“Confidential Information” means any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the Disclosing Party to the Receiving Party for purposes arising out of or in connection with this Agreement, that: (a) in the case of information in tangible form, is marked “confidential” or “proprietary;” (b) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; (d) relates to the pricing or other terms of any product or service offering of either Party or its suppliers or of any agreement or proposed arrangement between the Parties; and (e) will include any reproduction of such information in any form or medium, or any part of such information. Confidential Information also includes End User Data, the terms of this Agreement, and names and information about each Party’s prospects and customers.

“Disclosing Party” means the Party disclosing information and may be an Affiliate of a Party.

“End User” means the Adroit or Authorized Third Party licensee and customer of Adroit or the Authorized Third Party and Solution Provider.

“End User Data” shall mean any data, information, or other materials of any nature whatsoever, provided to Solution Provider by an End User in the course of the demonstration or use of the Service, including any data otherwise captured or generated by the Service.

“Intellectual Property Rights” shall mean any and all intellectual property rights existing from time to time under any law or regulations, including without limitation patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect.

“Marks” shall mean the service marks, trade marks, trade names, logos, and trade dress of Adroit or the applicable Authorized Third Party.

“Adroit Agreement” means the Subscription Services Agreement (or equivalent agreement) that governs an End User’s access and use of the Service.

“Party” or “Parties” shall mean Adroit and/or Solution Provider.

“Product Appendix” means an amendment to this Agreement describing Products and Services that are available for marketing and/or promotion by Solution Provider as set forth in this Agreement and such amendment.

“Product(s) and/or Service(s)” means the Service or an Authorized Third Party’s products or services that are listed in the Solution Provider Program Guidelines or in a Product Appendix as being available for marketing and/or promotion by a Solution Provider under this Agreement and the applicable Product Appendix.

“Receiving Party” means the Party receiving (including by being given access to) information and may be an Affiliate of a Party.

“Rules of Engagement” means the policies and guidelines regarding which sales team or sales person owns a lead, prospect or customer, which are posted at www.cloudadword.com on the “Partner Resource Center” tab under “Partner Program Information” or any successor web site or page, and which are subject to change, modification, or discontinuance by Adroit in its sole discretion.

“Service” means, with respect to Adroit, the Cloud AdWord branded Internet-based, ASP products and services, including, but not limited to, Cloud Based Media Content Deliverable Application Featuring Media Management, Campaign Management, User management, Library Of Add-Ons (Notice Board, Canvas, Digital Menu Board, Way-Finder, Templates) Integration Center (Facebook, YouTube, News, Weather Check, Exchange Online) system integration; and other services offered by Adroit, or introduced by Adroit during the term of this Agreement.

“Solution Provider Program” means the Cloud AdWord Solution Provider Program.

“Solution Provider Program Guidelines” means the policies and procedures associated with promoting the Products and Services that are posted at www.cloudadword.com on the “Partner Resource Center” tab under “Partner Program Information” or any successor web site or page, and are subject to change, modification, or discontinuance by Adroit in its sole discretion. Solution Provider hereby acknowledges that it has received, reviewed, and agreed to the current terms of the Solution Provider Program Guidelines.

“Territory” is defined as: “Country”

Agreement Subject To Approval

The effectiveness of this Agreement is subject to Adroit’s approval in writing (via mail, fax or e-mail) of Solution Provider’s application for participation in the Solution Provider Program. This Agreement shall commence on the date of the latter of the two duly authorized signatures below (“Effective Date”). Adroit may reject or decline to accept Solution Provider’s application for any or no reason at its sole discretion. Adroit may conduct background checks and other screening measures of any sort in connection with Solution Provider’s application. If Adroit approves Solution Provider’s application, Solution Provider may refer sales leads within the Territory to Adroit in accordance with all terms and conditions of this Agreement, to enable Adroit to solicit orders for the Products and Services.

Terms and Condition Of Participant

• Solution Provider Program Guidelines. Solution Provider agrees to comply with the terms and conditions of the Solution Provider Program Guidelines, and any subsequent modifications thereto (which are posted at www.cloudadword.com on the “Partner Resource Center” tab under “Partner Program Information”) or successor website. Solution Provider agrees that any and all modifications to the Solution Provider Program Guidelines shall be effective upon the earlier of Adroit notifying Solution Provider in writing via email or 30 days after being posted. Notwithstanding the foregoing, if modifications to the Program Guidelines will materially change Solution Provider’s or Adroit’s obligations, a six (6) month grace period will be granted from the date of notice before changes become effective.
• Lead Submission and Acceptance.
  • Solution Provider may refer leads within the Territory whom, in Solution Provider’s sole opinion, it identifies as potential customers of Adroit (“Solution Provider Lead”) to Adroit In addition, from time-to-time Adroit may provide Solution Provider with sales leads (“Adroit Leads”). Solution Provider shall promptly follow up on each Adroit Lead. Adroit Leads and Solution Provider Leads are hereinafter collectively referred to as “Leads.”
  • In order for a Lead to qualify as a Commissionable Lead, the following must have occurred:
    • Solution Provider has complied with, continues to comply with, and is able to document compliance with, the Rules of Engagement, Solution Provider Program Guidelines or other processes required by Adroit in writing, including, without limitation, the process for submitting a Lead; and
    • Adroit has issued a Referral Confirmation for the Lead.
  • Acceptance of Leads. At its sole discretion, Adroit may provide Solution Provider with a written or electronic confirmation of its acceptance of a Lead (“Referral Confirmation”). For the avoidance of doubt, no Lead shall be deemed accepted unless and until Adroit has issued a Referral Confirmation. Adroit will be under no obligation to accept any Lead (including Leads that originated as Adroit Leads) and may reject or decline to accept any Lead for any or no reason at its sole discretion, including, without limitation, because:
    • The Lead was an existing customer of Adroit’s at the time of referral by Solution Provider;
    • Adroit was already involved in preliminary or advanced discussions relating to the sale of Products and Services to the Lead at the time of referral by Solution Provider;
    • A referral has already been submitted to Adroit by another Solution Provider or any third party with respect to the Lead;
    • Screening measures employed by Adroit reveal that the Lead
      • Does not meet Adroit’s credit requirements,
      • Is on a list of restricted or prohibited parties issued by the government of the Australia or any other jurisdiction, or
      • Is located in a country that is subject to a Australia trade embargo or that is deemed a terrorist supporting country by the Australian Government;
    • The Lead is located outside the Territory, or is located in an area in which Adroit has an exclusive arrangement for the sale of Products and Services, or Adroit is otherwise contractually prohibited from offering Products and Services to the Lead; or
    • Solution Provider at any time fails to comply with any aspect of this Agreement (including the Rules of Engagement or the Solution Provider Program Guidelines), or is unable to document its compliance therewith.
• End User License Execution. Without exception, all End Users must fully execute an Adroit Agreement and/or an Authorized Third Party License Agreement, as applicable and as provided by and approved by Adroit. Solution Provider has no authority to alter, modify, edit, or otherwise change or enter into the Adroit Agreement or any Authorized Third Party License Agreement with or on behalf of the End User, and any such change by Solution Provider shall not be binding upon Adroit or an Authorized Third Party, as applicable. Solution Provider shall assist Adroit in gaining End Users’ execution of the Adroit Agreement and to assist an Authorized Third Party in gaining End Users’ execution of the applicable Authorized Third Party License Agreement.
• Solution Provider License Execution. If Solution Provider purchases any Products and Services for its own internal use, whether or not in conjunction with this Agreement, Solution Provider shall be required to execute an Adroit Agreement and Authorized Third Party License Agreement, if applicable.
• Sale and Delivery of Products and Services. Solution Provider shall not misrepresent the capabilities of any Adroit’s or Authorized Third Party’s Products and Services nor the requirements for End Users of the Products and Services. All sales are subject to final acceptance and approval by Adroit or the applicable Authorized Third Party. Following a sale, at Adroit’s request, Solution Provider is responsible for assisting Adroit and/or the Authorized Third Party in the assignment and distribution of End User logon IDs and passwords to the End User. Solution Provider shall follow the process and procedures indicated for delivery of the Products and Services contained in the Solution Provider Program Guidelines or in the applicable Product Appendix.
• Ensuring End User Satisfaction. Implementation, training, and support services (“Professional Services”) are a critical part of providing the Products and Services to an End User, and any Professional Services provided by the Solution Provider are necessary to achieve and maintain End User satisfaction in using the Products and Services. Solution Provider shall not promote any Products and Services or Professional Services to any End User where the Solution Provider does not have the experience, abilities, and resources necessary to provide the appropriate level of Professional Services to End Users sufficient to result in high End User satisfaction. Solution Provider shall competently serve the End User.
• Protection of Confidential End User Data. Solution Provider may be given access to End User Data by the End User for Solution Provider’s demonstration purposes and/or following End User’s execution of an Adroit Agreement or Authorized Third Party License Agreement for the purpose of provisioning or populating End User’s account. Solution Provider agrees to hold and keep any End User Data in the strictest confidence and to protect against disclosure or dissemination of such End User Data by utilizing commercially reasonable efforts designed to protect against disclosure and/or dissemination. Neither Adroit nor an Authorized Third Party is in any way responsible for the disclosure or dissemination of any End User Data caused by Solution Provider.
• Solution Provider’s Rights to End User Data. Solution Provider has no rights to End User Data entered or processed via the Products and Services. Solution Provider cannot compel Adroit or an Authorized Third Party to restrict or otherwise prevent End User from accessing the Products and Services following End User’s execution of an Adroit Agreement or Authorized Third Party License Agreement.
• User Billing. Adroit and any Authorized Third Party shall be exclusively responsible for the billing and collection of fees from the sale of Products and Services to End Users, as well as any appropriate additional fees based upon End User’s increased usage of the Products and Services.
• Program Fee. Solution Provider shall pay a nonrefundable annual Solution Provider Program fee in the amount indicated in the Solution Provider Program Guidelines for the Initial Term and any Renewal Term of this Agreement.
• Minimum Participation Requirements. Solution Provider’s right to promote Products and Services is subject to meeting minimum sales levels, as indicated in the Solution Provider Program Guidelines or a Product Appendix, during the Initial Term or any Renewal Term of this Agreement.
• Discontinuation of Program. Adroit may discontinue and/or cancel the Solution Provider Program at any time. If Adroit suspends or discontinues the Solution Provider Program, then Adroit’s sole obligation to Solution Provider is in accordance with Below Section Adroit’s Recurring Revenue Obligations. of this Agreement.
• Nonexclusive Agreement. This Agreement does not create an exclusive agreement between the Parties. Each Party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, once Solution Provider establishes a Commissionable Lead with Adroit, Solution Provider will not refer a direct competitor of Adroit to such Commissionable Lead. Solution Provider will not enter into an agreement with a third party the effect of which would prohibit Solution Provider’s submission of a Lead pursuant to this Agreement.

Limitation of Activities

Solution Provider’s activities under this Agreement shall be limited as follows:

• Solution Provider shall conduct all of its business in Solution Provider’s own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all laws (as set forth in Section Compliance), and not perform any act which would or might reflect adversely upon the Products and Services or the business, integrity or goodwill of Adroit or an Authorized Third Party.
• Solution Provider shall not be, or purport to be, authorized to legally represent Adroit or an Authorized Third Party or to conduct negotiations on behalf of Adroit or an Authorized Third Party. Solution Provider shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Adroit or an Authorized Third Party or register this Agreement under any local registered agency law. Adroit nor any Authorized Third Party shall be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Solution Provider.
• Solution Provider is an independent contractor, and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; (b) create an employer-employee relationship; (c) give Solution Provider the authority to bind Adroit to any contract with a third party; (d) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (e) appoint Solution Provider as a commercial agent.
• All financial and other obligations associated with Solution Provider’s business are solely Solution Provider’s responsibility. As an independent contractor, the mode, manner and method used by Solution Provider shall be under Solution Provider’s sole control and Solution Provider shall be solely responsible for risks incurred in the operation of its business and the benefits thereof. Solution Provider shall bear all of its own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by Adroit.
• Except as expressly authorized herein, Solution Provider shall not make any representations or other statements about Products and Services, prices or business practices, except that Solution Provider shall forward to potential customers (i) unmodified marketing materials provided by Adroit or an Authorized Third Party (except such modifications as expressly permitted in the material) and (ii) references to Adroit’s or an Authorized Third Party’s standard conditions of sale, as published by Adroit or an Authorized Third Party on its website or otherwise. Solution Provider will not in any way express or imply that any opinions contained in Solution Provider’s promotional activities are endorsed by Adroit or an Authorized Third Party, unless such promotional activities have in advance been approved or endorsed in advance in writing by Adroit or the applicable Authorized Third Party.
• Solution Provider may only market and/or promote Products and Services to Commissionable Leads. Further, to the extent permissible under applicable law, neither Solution Provider nor someone acting for Solution Provider will market and/or promote products and/or services competitive with Adroit’s Cloud Adword branded Service or an Authorized Third Party’s products and/or services to any persons or entities which Solution Provider knows to be (or should reasonably know to be) using the Service or applicable Authorized Third Party product or service. Solution Provider shall not scan Adroit’s or an Authorized Third Party’s web site, purchase Adroit’s or an Authorized Third Party’s keywords, or otherwise engage in activities which interfere in Adroit’s or an Authorized Third Party’s relationships with its customers. Solution Provider shall use Adroit Leads only for the purposes expressly authorized herein and shall not disclose Adroit Leads to any other person or entity.
• VII. Pooling of Revenues Prohibited. Solution Provider may not aggregate or combine its revenues with any other Solution Provider in order to qualify for any (or additional) revenue share percentage. Solution Provider may enter into referral agreements or relationships with third parties allowing the third party to provide sales leads to Solution Provider for Products and Services (“Referral Agreement(s)”), provided that any such Referral Agreement shall meet all of the following requirements:
  • If Solution Provider elects to pursue Referral Agreements, Solution Provider shall be subject to, and shall require the other party to any such Referral Agreements to agree to be subject to, the terms of this Agreement and the Solution Provider Program Guidelines, including but not limited to all obligations under Section (“Terms and Conditions of Participation”), Section (“Limitations on Activities”), and Section (“Reservation of Rights”).
  • Solution Provider shall be subject to, and shall require the other party to any Referral Agreement to agree to be subject to, Solution Provider’s confidentiality obligations set forth in Section Confidentiality, including the obligation not to disclose the terms of this Agreement or the Solution Provider Program Guidelines.
  • Any written materials or documentation used by Solution Provider in connection with any Referral Agreement shall be considered marketing materials subject to the provisions of Section Marketing of this Agreement.
  • If Adroit in its sole discretion provides Solution Provider with written notice of its good faith objection to the terms of any Referral Agreement that Solution Provider has entered into pursuant to this Section “Pooling of Revenues Prohibited” and Solution Provider fails to cure such objections within thirty (30) days, Solution Provider will be deemed to be in breach of this Agreement pursuant to Sections “In The Event of Breach” and “For Breach or Bankruptcy”.
  • Any Referral Agreement may only include Authorized Third Party Products and Services if the Product Appendix expressly permits such Referral Agreements, and only pursuant to any additional terms set forth in the applicable Product Appendix.

Commissions

• Payment. Subject to the Solution Provider’s compliance with all terms and conditions of this Agreement, the Rules of Engagement and the Solution Provider Program Guidelines, Adroit shall pay Solution Provider its revenue share as set forth in the Solution Provider Program Guidelines. The revenue share equals the discount percentage, as indicated in the Solution Provider Program Guidelines, times the gross revenue collected by Adroit for sales to a Commissionable Lead net of refunds, subsequently credited charges, write-offs, charge-backs, cancellations, and adjustments. All payments will be made in the Applicable Currency.
• Payment Resolution. If Solution Provider disputes Adroit’s calculation of the Solution Provider’s revenue share (under Section Payment herein) or any other payment obligation, Solution Provider must provide Adroit with a written statement explaining the basis for its position within sixty (60) days following the date payment was made. Solution Provider agrees to cooperate with Adroit by providing documents, explanations, and other information as requested by Adroit in good faith in an attempt to resolve the dispute. If Solution Provider fails to provide notice within sixty (60) days, or if Solution Provider does not cooperate in Adroit's investigation of the dispute, Solution Provider forever waives any and all rights to such payments..
• Adroit’s Recurring Revenue Obligations. If Adroit discontinues or cancels the Solution Provider Program or the availability of any Authorized Third Party Products and Services hereunder, except for Solution Provider’s breach of this Agreement, and subject to Solution Provider’s continuing obligations under Sections (“Limitations on Activities”), (“Compliance”), (“Confidentiality), and (“Survival”) of this Agreement, then Adroit shall be obligated to pay to Solution Provider “Renewal Business,” as that term is defined in the Solution Provider Program Guidelines during the one (1) year period from such date of discontinuation or cancellation..

License

• Product License Grant. Subject to the terms and conditions of this Agreement, and the terms and conditions of a ”Trial Account Agreement” that will be presented to Solution Provider for acceptance upon provisioning of each demonstration or test account, Adroit grants Solution Document Solution Provider Agreement Adroit Australia, - Confidential Provider during the term of this Agreement a non-exclusive, limited, non-transferable and terminable license to use and display content for three demonstration accounts of the Cloud Adword Service solely for demonstration purposes in order to promote and sell to End Users the Products and Services, provided such operations shall not include service bureau use, outsourcing, renting, or time-sharing the Service. At Adroit’s sole discretion, Adroit may authorize additional demonstration accounts for Solution Provider, which shall be subject to the terms of this Section and this Agreement. The rights granted to Solution Provider here are provided to Solution Provider on the condition that Solution Provider does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile any Adroit software, or any part of the Service, or otherwise attempt to discover any source code, modify the Service, or any software associated or related therewith, in any manner or form, or use unauthorized modified versions of the software or Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. The license granted is not a concurrent user license and Solution Provider is prohibited from sharing passwords and/or user names with unauthorized users. Adroit shall own all rights, title and interest in and to all intellectual property rights in the Service and software.
• Use of Trademarks. Solution Provider may use the Marks solely during the term of this Agreement and solely as necessary to perform the marketing and promotional obligations described herein. Any use of the Marks shall be subject to Adroit’s or the applicable Authorized Third Party’s right to review and approve or reject in advance each proposed use of the Mark, and shall conform with any trademark usage guidelines, polices, or requirements provided by Adroit or the applicable Authorized Third Party. Any rights not expressly licensed herein are reserved by Adroit or the applicable Authorized Third Party, and all use by Solution Provider shall accrue to the benefit of Adroit or the applicable Authorized Third Party. Solution Provider will not take any action that would conflict with or be contrary to Adroit’s or the applicable Authorized Third Party’s rights and interest in its Marks, including without limitation (i) asserting any ownership interests in or contesting the validity of the Marks, (ii) registering or causing to be registered the Marks or any trademarks, marks or trade names confusingly similar to the Marks, or (iii) using the Marks in any manner that is likely to cause confusion, mistake, or deception. Solution Provider agrees not to adopt, use or attempt to register any corporate name, trade name, brand name, domain name, trademark or service mark that contains the component “Suite” in combination with any other term or component (e.g. “Suite _____” or “_____ Suite”), including any such use in any marketing, collateral, material or service/product offering attributed to Solution Provider. Solution Provider will reproduce all copyright, trademark and other notices on any copies of the Adroit or Authorized Third Party promotional materials created or distributed by Solution Provider. Adroit is the sole and exclusive owner of its Marks and the applicable Authorized Third Party is the sole and exclusive owner of its Marks.
• Reservation of Rights. Except as expressly provided herein, no license is granted under this Agreement to use or access any Products or Services, any of Adroit’s or any Authorized Third Party’s proprietary technologies embodied therein, or any data, information or other content provided thereby. As between Adroit, an Authorized Third Party and Solution Provider, Adroit and/or the applicable Authorized Third Party retains all right, title and interest in and to the Products and Services and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and Solution Provider neither owns nor acquires any rights in or to the Products and Services. Any rights not expressly granted herein are reserved by Adroit and the applicable Authorized Third Party.

Marketing; Publicity

• Marketing. Subject to the terms and conditions of the Agreement, Adroit hereby authorizes Solution Provider to include in its marketing or product distributions, marketing materials about the Products and Services and any Authorized Third Party Products or Services, which Adroit has prepared and provided to Solution Provider for this purpose. Solution Provider shall not alter, modify or otherwise change any material provided to it by Adroit. Solution Provider may also use other marketing materials of its own to promote the Products and Services, however, all such marketing materials must be approved in advance in writing by Adroit.
• Advertising. Solution Provider agrees not to publish or advertise, in any publicly available media, including, but not limited to, radio, television, print, Internet, or otherwise, any price for Adroit or Authorized Third Party Products and Services that are less than the then current suggested retail price that is listed in the then current Solution Provider Program Guidelines or any applicable Product Appendix. Solution Provider agrees to consult the Solution Provider Program Guidelines posted at www.cloudadword.com on the “Partner Resource Center” tab under “Partner Program Information”, including without limitation any Marketing Guidelines referenced therein, immediately prior to conducting any advertising for the Products and Services.
• Publicity. Adroit will determine in its sole discretion whether a press release announcing the establishment of the Parties’ relationship is warranted. Solution Provider shall reasonably cooperate with Adroit as necessary to effectuate any such press release. Adroit shall have sole authority to approve any and all press releases, announcements, marketing materials mentioning Adroit (including without limitation any mention of Cloud Adword), an Authorized Third Party, or any other materials submitted to any analyst or public source. Solution Provider shall have sole authority to approve the use of its name in any marketing or other materials submitted to any public source. Neither Party shall unreasonably withhold its approval.

Confidentiality

• Non-Disclosure and Protection. Each Party anticipates that it may disclose certain Confidential Information to the other Party in connection with performance under this Agreement. Each Receiving Party agrees to: (a) preserve the confidentiality of the Disclosing Party’s Confidential Information; (b) not to disclose the Disclosing Party’s Confidential Information to any third party; (c) not to use the Disclosing Party’s Confidential Information except solely to the extent necessary to perform its obligations under this Agreement; and (d) to use at least the same degree of care, but not less than a reasonable degree of care, as it uses in protecting its own similar information to protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure. Notwithstanding the foregoing, Adroit may disclose Solution Provider’s Confidential Information to Adroit’s Affiliates and contractors provided that such Affiliates and contractors agree to obligations of confidentiality no less restrictive than those in this Agreement.
• Exceptions. Confidential Information shall not include information, which: (i) is or becomes publicly known through no wrongful act or negligence of the Receiving Party; (ii) is rightfully received by Receiving Party from a third party without restriction and without breach of this Agreement; (iii) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is in the Receiving Party’s possession prior to disclosure of such information by the Disclosing Party, as evidenced by Receiving Party’s records and is not the subject of a separate non-disclosure agreement.
• Government Request/Subpoena. Nothing contained in the above exceptions shall permit Solution Provider to disclose Confidential Information pursuant to the requirements of a court, governmental agency or operation of law unless and until notice of such required disclosure has been given to Adroit prior to disclosure and Solution Provider has used reasonable efforts to receive confidential or protected status for the Confidential Information. 8.4 Return of Materials. Upon termination of this Agreement by either Party for any reason, or expiration of this Agreement, each Party shall, within twenty (20) days of a written request, return any and all tangible materials containing Confidential Information of the other Party or an Authorized Third Party.

Warranties

• Authority to Contract. Each Party warrants that it is a corporation duly organized, validly existing and in good standing and has the full and unrestricted power and authority to execute and deliver the Agreement and to carry out the transactions contemplated hereby. The Parties further warrant that the execution of this Agreement and the performance of any work and delivery of any products will not conflict with or violate any commitment, agreement or understanding either Party has with any other person or entity and there is nothing that will prevent the Parties from performing its obligations under the terms and conditions imposed on it by the Agreement. The Parties represent and warrant that the Agreement has been duly authorized by all necessary corporate action and constitutes a valid obligation, binding and enforceable in accordance with the terms hereof. Solution Provider warrants that the information provided in its application is accurate and complete.
• Standard of Work. Solution Provider warrants and agrees that it will promote Products and Services in good faith, in a professional and ethical manner, with a quality of service that meets or exceeds industry standards, in compliance with the Solution Provider Program Guidelines and all applicable local, state, federal, and foreign laws, treaties, regulations and conventions in connection with Solution Provider’s performance of this Agreement including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws. Solution Provider has submitted and will submit complete and truthful information in connection with its application and all referrals. Solution Provider will submit all filings and obtain any approvals that may be necessary for Solution Provider to perform its obligations under this Agreement. Solution Provider will commit no act that will reflect unfavorably on Adroit. Solution Provider agrees to render all work in a professional and timely manner and warrants that qualified personnel shall perform all work provided hereunder in a good and workmanlike manner in accordance with professional practices applicable to the work being performed. In the event of a breach of this warranty, Solution Provider agrees to timely engage in the re-performance of such work at no extra charge to any End User until the work performed is in accordance with this warranty.
• Marketing Materials. Adroit warrants to Solution Provider that the information contained in Cloud Adword generated and authorized marketing materials will be timely, accurate, and complete. In the event of a breach of this warranty, in addition to any other remedies provided under this Agreement, Adroit agrees to timely provide Solution Provider with current, updated, and/or corrected marketing materials.

Disclaimer Of Warranties

• Definition of Confidential Information : Confidential information is any and all current and future Product information, roadmap, technical or financial information, Customer names, addresses and related data, contracts, practices, procedures and other business information, including reports, strategies, plans, documents, drawings, machines, tools, models, patent disclosures, samples, materials and requests for proposals that may be disclosed between the parties, whether written, oral, electronic or otherwise, or information which by its nature is clearly confidential, however and wherever acquired (Confidential Information). Confidential Information excludes any information which was (1) known to the recipient party (Recipient) before receipt from the disclosing party; (2) publicly available through no fault of recipient; (3) rightly received by Recipient from a third party without a duty of confidentiality; (4) disclosed by disclosing party to a third party without a duty of confidentiality on the third party; (5) independently developed by Recipient without breach of this or any other confidentiality agreements; or (6) disclosed by Recipient after prior written approval from the disclosing party.
• Obligations of Confidentiality and Remedies : Recipient will protect, for a period of three (3) years from the date of disclosure, the disclosing party's Confidential Information with the same degree of care, but no less than a reasonable degree of care, as Recipient uses with respect to its own Confidential Information. The disclosure of Confidential Information required by a government body or court of law is not a violation of this Clause if the Recipient gives prompt notice of the required disclosure to the disclosing Party.
• Obligations under law : Should one party be compelled by law or be required to act in compliance with the legal requirement of a governmental agency to disclose the Confidential Information that party shall provide the other with reasonable notice of any disclosure and comply with any reasonable instructions as to such disclosure;
• Return of other party's Confidential Information : Upon any termination of these T&Cs, each party will promptly return to the other party all Confidential Information of the other party in its possession or control (including all media or physical evidence thereof).
• Accidental Disclosure : In the case of accidental or inadvertent disclosure by the Reseller, the Reseller shall promptly notify to Adroit and inform Adroit of the steps taken to prevent misuse or further disclosure.
• Exclusions : Reseller expressly agrees that nothing herein shall prevent Adroit as it sees fit in its sole discretion from disclosing relevant financial information (whether or not such information includes Confidential Information) to credit reference agencies, suppliers, banks or any other interested third parties.
• Survival : Notwithstanding anything elsewhere in this T&Cs, the provisions of this Clause shall survive the termination or expiry of these T&Cs.

Publicity, Trademark, Retention of Intellectual Property Rights & Advertising

Except for the warranties expressly provided in section 9 this agreement, the parties specifically disclaim all warranties, express or implied, including, without limitation, warranties of merchantability and/or fitness for a particular purpose.

Limitation Of Liabilities

To the extent permissible under applicable law, neither party will be liable for any loss of use, loss of data, interruption of business, downtime, lost profits, or any indirect, special, incidental, or consequential damages of any kind regardless of the form of action whether in contract, tort (including negligence), strict product liability, or otherwise, even if it has been advised of the possibility of such damages. In no event will adroit’s liability under this agreement exceed the total amount of adroit’s payment obligations to the solution provider during the 12-month period immediately preceding the first date an event giving rise to such liability occurred. The parties acknowledge and agree that this section is an essential element of the agreement and that in its absence, the economic terms of this agreement would be substantially different. This section is severable and shall survive any termination or expiration of this agreement.

Indemnification

Solution Provider will indemnify and defend Adroit from and against any and all claims, demands, liabilities, costs, losses, damages and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) brought by any third party against Cloud Adword which arise out of or result from any act, default, misrepresentation or any omission of Solution Provider (including, without limitation, negligence and breach of this Agreement), or any of Solution Provider’s agents, employees or representatives, directly or indirectly relating to this Agreement or any Referral Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.

Terms and Termination

Unless terminated pursuant to this Section “Term and Termination” of this Agreement, this Agreement shall remain in effect from the Effective Date to one (1) year after the Effective Date (“Initial Term”). Thereafter, the Agreement shall be automatically renewed for successive one (1) year terms (“Renewal Term”), unless either Party delivers notice of its intention not to renew at least thirty (30) days prior to the Initial Term or any Renewal Term.

• In The Event of Breach. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party in the event of a breach of any provision of this Agreement by the other Party, provided that, during the thirty (30) day period, the breaching Party fails to cure such breach.
• Solution Provider’s Failure to Meet Sales Levels. Adroit may terminate this Agreement for Solution Provider’s failure to meet minimum sales levels as outlined in the Solution Provider Program Guidelines with thirty (30) days notice to Solution Provider.
• Bankruptcy. Either Party may terminate this Agreement if the other Party becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code, or any similar statute.
• Convenience. Either Party may terminate this Agreement upon giving thirty (30) days written notice to the other Party.
• Effect on Payment Obligations.
  • For Convenience: If Adroit terminates this Agreement for convenience, then any revenue earned and/or due to Solution Provider from Adroit shall be paid to Solution Provider as set forth in Section “Recurring Revenue Obligations” of this Agreement. If Solution Provider terminates this Agreement for convenience, then Adroit shall have no obligation to pay Solution Provider as of or after the date of the termination.
  • For Breach or Bankruptcy: Upon termination of this Agreement by Adroit for Solution Provider’s breach of this Agreement, or pursuant to Section Solution Provider’s Failure to Meet Sales Levels or Bankruptcy, Adroit shall have no obligation to pay Solution Provider as of or after the date of the termination.
• Effect of Termination on End Users. After expiration or termination of this Agreement, End Users may enter into arrangements directly with Adroit or another party to receive any services as necessary to continue to use the Products and Services, and these End Users will no longer be considered Solution Provider’s End Users and Solution Provider shall not be entitled to any commissions or revenue sharing for sales of Products and Services to these End Users after the expiration or termination of this Agreement.
• Effect of Termination on Solution Provider. Effective immediately upon termination of this Agreement, any access and/or administration rights to End Users’ accounts shall be cancelled by Adroit and Solution Provider will no longer be permitted to promote Adroit’s or any Authorized Third Party’s Products and Services. Furthermore, Solution Provider’s access to the Service for its internal use as set forth in the Guidelines will terminate. Any further access and use of the Service and the associated number of users must be procured based on Adroit’s then current pricing. Solution Provider shall have no rights or claims against Adroit in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, Solution Provider hereby irrevocably waives any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.
• Survival. Any terms of this Agreement which by their nature extend beyond the day this Agreement ends remain in effect until fulfilled, and apply to respective successors and assignees. For clarity, Section 8 (Confidentiality) survives any termination or expiration of this Agreement. Except as provided for in a related agreement, upon termination or expiration of this Agreement, all rights and licenses granted to each party hereunder shall cease.

Miscellaneous

• Notice. Any notice required under this Agreement shall be provided to the other party in writing. If Solution Provider has a legal dispute with Adroit or if Solution Provider wishes to provide a notice under the Indemnification Section of this Agreement, or if Solution Provider becomes subject to insolvency or other similar legal proceedings, Solution Provider will promptly send written notice to: Adroit Australia, Suite 1405, Level 14, 99 Bathurst Street, Sydney NSW 2000, Australia Attention: Legal Department.
• Force Majeure. Neither Party shall be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Products and Services date shall be extended to the extent of any delay resulting from any force majeure event.
• Assignment. This Agreement shall inure to benefit and bind the Parties hereto, their successors and assigns, but Solution Provider may not assign this Agreement without written consent of Adroit. Adroit may assign this Agreement and delegate its obligations hereunder to any third party with or without Solution Provider’s consent.
• Headings. The headings of the Sections of this Agreement are intended for convenience only, and will not affect the intent, scope, or meaning of any provision of this Agreement.
• Governing Law and Jurisdiction. This Agreement is governed by the substantive and procedural laws of the states and territories of Australia and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts Australia in any dispute arising out of or relating to this Agreement.
• Compliance
  • Solution Provider represents and warrants that (i) Solution Provider will conduct its business activities in a legal and ethical manner; (ii) Solution Provider has submitted and will submit complete and truthful information in connection with its application and all referrals; (iii) Solution Provider will submit all filings and obtain any approvals that may be necessary for Solution Provider to perform its obligations under this Agreement, (iv) Solution Provider will commit no act that would reflect unfavorably on Adroit; and (v) Solution Provider will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws. Any act, omission, or breach by Solution Provider’s contractors, agents or Affiliates shall be deemed an action or breach by Solution Provider and Solution Provider waives all of those defenses that Solution Provider may have as to why it should not be liable for its contractors’, agents’ or Affiliates' acts, omissions and/or noncompliance with this Agreement.
  • Export laws and regulations of Australia and other relevant local export laws and regulations apply to the programs. Solution Provider agrees that such export control laws govern Solution Provider’s use of the programs (including technical data) and any services deliverables provided under this agreement and Solution Provider agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Solution Provider agrees that no data, information, program and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation or development of missile technology.
  • Solution Provider acknowledges that any sums paid to Solution Provider under this Agreement are for Solution Provider’s own account and that, except as appropriate to carry out Solution Provider’s duties set forth herein in a legal manner, Solution Provider did not, has no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or any thing of value to any other person in connection with the performance of Solution Provider’s referral activities hereunder. In particular, without limitation, Solution Provider agrees not to take any actions that would cause Solution Provider or Adroit to violate the anti-bribery law.
• Integration; No Waiver. There are no third-party beneficiaries to this Agreement. This Agreement (including the Solution Provider Program Guidelines, Rules of Engagement and any Exhibits or Product Appendices hereto, which are incorporated herein by reference) represent the entire agreement of the Parties and supersedes all prior discussions and/or agreements between the Parties including any prior Solution Provider Agreements and is intended to be the final expression of their agreement. Except as expressly provided herein, it shall not be modified or amended except in writing signed by both Parties. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.

Other Terms

• Authority: If either party is a corporation or limited liability company, each person executing this T&Cs on behalf of such party hereby covenants, represents and warrants that such party is duly formed or duly qualified and that each person executing this T&Cs on behalf of such party is an officer or member of such party and is duly authorized to execute, acknowledge and deliver the T&Cs to the other party.
• Entire Agreement: These T&Cs supersedes all prior agreement, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of these T&Cs shall be binding upon the parties unless made in writing signed by both parties.
• Forbearance and Waiver: No forbearance, delay or indulgence by either party in enforcing the provisions herein shall prejudice or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power, or remedy herein conferred upon or reserved for either party, is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative, unless where otherwise expressly stipulated in this T&Cs. No waiver of any term is valid unless it is in writing and signed by an authorized person of the party charged with the waiver. A waiver is valid for the specific situation for which it was sought. All remedies provided for in this T&Cs are cumulative and in addition to and not in lieu of any other remedies available to either party at law in equity or otherwise.
• Governing law & Jurisdiction: This T&Cs shall be governed by and construed in accordance with the laws of Australia and shall be subject to the non-exclusive jurisdiction of the Hyderabad courts.
• Assignment: This T&Cs shall not be assigned by Reseller in whole or in part, without the express written permission of Adroit. Any attempt to assign this T&Cs without Adroit's written consent will render this T&Cs null and void.
• Force Majeure: Neither Party shall be liable to the other Party for any failure to perform any of its obligations under this T&Cs during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
• Severability: If any provision of this T&Cs is held to be illegal, invalid or unenforceable by any law, rule, order or regulation of any government, or any competent court of law such invalidity shall not affect the enforceability of any other provisions not held to be invalid.
• Survival: Notwithstanding anything contained in the Invitation Letter, or these T&C the following Clauses Payment Terms, Indemnities, Limitation of Liability, Publicity, Trademark Retention of Intellectual Property Rights and Advertising, Warranty shall survive and continue to apply and shall continue to bind the Parties and their permitted successors and assigns: