Virtuoso Channel SaaS Reseller Agreement: Terms and Conditions
This Agreement is formed and is binding on execution of the Details by the Parties and comprises the Details, these Terms and Conditions and includes all schedules, attachments and appendices.
A. Cinglevue provides Virtuoso to schools, school districts, home schools, universities, research institutions, research companies and other organisations engaged in the provision of education and/or education research.
B. The Channel Partner wishes to have the right to promote, market, sell access and offer implementation services for Virtuoso to Customers in the Territory.
C. Cinglevue grants the Channel Partner a right to promote, market, sell access to, implement and support Virtuoso to Customers in the Territory on and subject to the terms of this Agreement.
In this Agreement unless the context otherwise requires capitalised terms are as defined in the Details or below:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Business Day means a weekday that is not a public holiday in the location of the Channel Partner;
Business Hours means the hours of 8:00am to 5:00pm (in the time zone of the Channel Partner) on a Business Day;
Change Request means a written notice given by the Channel Partner to Cinglevue of a desired change to the features and functionality of Virtuoso;
Channel Partner Certification means completion of the Channel Partner Training to the reasonable satisfaction of Cinglevue, as evidenced by a certificate issued by Cinglevue;
Channel Partner Commission has the meaning given to that term in clause 6.4;
Channel Partner Fees has the meaning given to that term in clause 12.2;
Channel Partner Guidelines refers to the documentation attached as Annexure B and any updates that Cinglevue makes to such documentation from time to time, as notified to the Channel Partner in writing during the Term;
Channel Partner KPIs refers to the key performance indicators as set out in Schedule 3, which the Channel Partner must meet in performing the services under this Agreement;
Channel Partner Training means the training described in Schedule 1;
Cinglevue Materials means any source code, documents, materials, correspondence sent by and Confidential Information of Cinglevue whether in electronic or hard-copy format;
Confidential Information means in the case of the Channel Partner, any material provided by the Channel Partner to Cinglevue in connection with this Agreement and, in the case of Cinglevue includes:
information relating to Virtuoso;
information relating to the personnel, policies, business, systems and data of Cinglevue;
information relating to the terms on which the services are to be provided to the Channel Partner pursuant to this Agreement; and
any other material provided to the Channel Partner in connection with this Agreement;
Credit means a reduction in the Channel Partner Commission;
Customers means schools, school districts, home schools, universities, research institutions, research companies and other organisations engaged in the provision of education and/or education research in the Territory that have taken out a Subscription because of the Marketing Activities;
Details refers to the attached pages preceding these Terms and Conditions under the heading Virtuoso Channel SaaS Reseller Agreement: Details;
Force Majeure Event means a circumstance beyond the reasonable control of Cinglevue that results in Cinglevue being unable to observe or perform on time an obligation or obligations under this Agreement including:
any faults, defects, incorrect operation or other circumstance affecting or relating to the telecommunications networks, systems and any other facilities used or required by or on behalf of the Customer for accessing and making use of Virtuoso, other than the facilities provided by Cinglevue including desktop and laptop computers, smartphone and tablet devices, broadband service or mobile connection and subscriptions enabling access to the internet from devices on the Customer’s local area network and routers, switches and cabling at the Customer’s premises;
any unplanned system failure or data corruption on third party information, telecommunications or network infrastructure; and
acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, natural disasters, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, strikes, famines, large-scale epidemics and pandemics.
Go-Live Date has the meaning given to that term in clause 6.3(b);
GST means the ‘GST’ as defined in the GST Law and any other value-added tax, additional tax, penalty, fine, interest or other charge under the GST Law or any similar law;
GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Implementation Services means services the Channel Partner can provide to assist the Customer with aspects of implementation of Virtuoso;
Instance refers to the dedicated instance of Virtuoso as deployed and maintained for use by a Customer, which will be deployed on multi-tenanted physical server infrastructure;
Intellectual Property Rights means patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights and all applications and registrations of such, schematics, industrial designs, inventions, know-how, trade secrets, computer software programs and other intangible proprietary information;
Key Personnel has the meaning given to that term in clause 7.10;
Level 1 Support Services means basic maintenance and support services relating to the day-to-day use of Virtuoso by the Customer’s users to be provided by the Customer (as trained by the Channel Partner) or the Channel Partner;
Level 2 Support Services means maintenance and support services (including those in clause 9.3) relating to the use of Virtuoso by the Customer provided by the Channel Partner to the Customer on such terms as the Channel Partner agrees with the Customer;
Level 3 Support Services means maintenance and support services (including those set out in Schedule 2) relating to the use of Virtuoso by the Customer provided by Cinglevue to the Channel Partner;
Local Privacy Laws means any applicable privacy and/or data protection laws applicable in the Territory;
Marketing Activities means any activities undertaken by the Channel Partner in the Territory for the purposes of promoting Subscriptions to potential Customers;
Party means a party to this Agreement and Parties means both parties to this Agreement;
Personal Information means information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not;
Privacy Act means the Privacy Act 1988 (Cth) including the Australian Privacy Principles;
Resolution Time has the meaning given to that term in clause 9.5(c);
Response Time has the meaning given to that term in clause 9.5(b);
SaaS Agreement means an agreement between Cinglevue and a Customer under which Cinglevue provides the Customer access to Virtuoso in exchange for ongoing fees (attached as Annexure A);
Subscription means a subscription to Virtuoso provided by Cinglevue under the SaaS Agreement;
Term has the meaning given to that term in clause 2;
Terms and Conditions means these terms and conditions which form part of the Agreement; and
Virtuoso means the platform which provides research and educational organisations with a unified suite of configurable tools, processes and capabilities. Virtuoso incorporates a full complement of administrative features for effectively managing organisational and stakeholder needs but its primary emphasis is on facilitating improved educational outcomes, supporting teachers and students to achieve continual, measurable, and sustainable learning gains. The platform is informed by research to ensure that it is continually able to meet the current and future needs of modern educational institutions, based on a rigorous and evidence-based foundation. For further information, please visit https://cinglevue.com/virtuoso/.
This Agreement commences on the Commencement Date and continues until such time as it is terminated in accordance with this Agreement (Term).
3. Appointment as a channel partner
3.1. Cinglevue grants the Channel Partner a non-exclusive, non-transferable right to promote, sell access to, implement and support Virtuoso to Customers in its own name in the Territory during the Term and subject to the terms of this Agreement.
3.2. Nothing in this Agreement creates a partnership relationship between Cinglevue and the Channel Partner.
3.3. Any agreement, written or otherwise, between Channel Partner and a Customer (or any other person other than Cinglevue) is not binding, gives rise to no obligations and does not create any liability for Cinglevue.
4. Preparing to be a channel partner
4.1 Following the Commencement Date:
(a) Cinglevue and the Channel Partner will liaise to arrange for online delivery of the Channel Partner Training by Cinglevue;
(b) the Channel Partner must give Cinglevue notice in writing of the name, contact phone number and email address of each of its proposed Key Personnel; and
(c) on receipt of the notice pursuant to subclause (b), Cinglevue, acting reasonably, will either approve or decline to approve the Channel Partner’s proposed Key Personnel.
4.2 Within 3 months of the Commencement Date, all individuals nominated by the Channel Partner pursuant to clause 4.1(b) must undertake the Channel Partner Training and successfully obtain Channel Partner Certification.
5. Marketing Activities
5.1 The Channel Partner will conduct Marketing Activities in the Territory in accordance with and in satisfaction of the Channel Partner KPIs.
5.2 Where the Channel Partner fails to meet the Channel Partner KPIs:
(a) in any 3-month period, Cinglevue will be entitled to a Credit equal to [5%] of the Channel Partner Commission for that 3-month period;
(b) for 2 consecutive 3-month periods, Cinglevue will be entitled to a Credit equal to [10%] of the Channel Partner Commission for that 6-month period; and
(c) for 3 consecutive 3-month periods, Cinglevue will be entitled to a Credit equal to [20%] of the Channel Partner Commission for that 9-month period or may terminate this Agreement by notice in writing to the Channel Partner.
5.3 The Channel Partner must use its best endeavours to proactively market Subscriptions to potential Customers and such will include but not be limited to:
(a) conducting demonstrations of Virtuoso to potential Customers; and
(b) preparing proposals and quotations for Subscriptions.
5.4 All Marketing Activities must comply with the Channel Partner Guidelines.
5.5 The Channel Partner may amend the Channel Partner Guidelines to meet the preferences, needs and peculiarities of Customers and potential Customers in the Territory and may use such in the Territory subject to the prior written approval of Cinglevue. Cinglevue may not unreasonably withhold such approval.
6.1 When an organisation or individual wishes to become a Customer, the Channel Partner will assist that organisation or individual to do so. The Channel Partner may do this by:
(a) helping the organisation or individual to register for a Subscription on the Virtuoso website by agreeing to the online ‘clickwrap’ SaaS Agreement; or
(b) helping the organisation to negotiate with Cinglevue a tailored SaaS Agreement by emailing the Cinglevue Representative relevant particulars include a description of the prospective Customer’s business and their specific requirements.
6.2 The Channel Partner will ensure that their Customers:
(a) are aware of and agree to be legally bound by the terms of the SaaS Agreement;
(d) are not entitled to any rights or the fulfilment of any request unless such is:
(i) outlined in this Agreement; or
(ii) approved by Cinglevue in writing before such rights or the fulfilment of such request are granted to the Customer.
6.3 Once a Customer has entered into a SaaS Agreement with Cinglevue:
(a) the Channel Partner may provide Implementation Services to the Customer as the Channel Partner sees fit and for fees as agreed between the Channel Partner and the Customer, provided such fees are demonstrably commercially reasonable with reference to similar services provided in the Territory;
(b) the Channel Partner and Cinglevue will liaise to have Cinglevue establish an Instance for use by the Customer, which will become functional on a go-live date specified by Cinglevue to the Customer in writing (Go-Live Date); and
(c) Cinglevue will invoice the Customer directly for the payment of fees under the SaaS Agreement.
6.4 Once a Customer has been a Customer for 3 months after being referred by the Channel Partner the Channel Partner becomes entitled to an amount equal to the Commission Rate multiplied by the total amount of fees received by Cinglevue from that Customer for the Subscription (Channel Partner Commission).
7. General Channel Partner obligations
7.1 The Channel Partner must comply with any reasonable instructions or guidelines issued to the Channel Partner by Cinglevue.
7.2 The Channel Partner must permit Cinglevue to inspect copies of all relevant documents relating to Subscriptions and Marketing Activities.
7.3 The Channel Partner must promptly notify Cinglevue in writing if any dispute arises between the Channel Partner and a Customer in respect of the Subscriptions and/or the Channel Partner’s provision of Level 1 Support Services and Level 2 Support Services.
7.4 If any of a Channel Partner’s Customers express to the Channel Partner that the Customer desires or would benefit from a particular feature being incorporate into Virtuoso, the Channel Partner will make a Change Request on behalf of that Customer.
7.5 The Channel Partner must communicate to Cinglevue and Cinglevue must approve each of the Key Personnel in accordance with clause 4.1.
7.6 All Key Personnel must complete the Channel Partner Training and obtain Channel Partner Certification within 3 months of becoming Key Personnel.
7.7 The Channel Partner must create and maintain records of which of the Key Personnel have:
(a) completed the Channel Partner Training;
(b) obtained the Channel Partner Certification,
and on what dates.
7.8 If any Key Personnel cease to be an employee or contractor (as applicable) of the Channel Partner, the Channel Partner must within 1 month:
(a) notify Cinglevue of such; and
(b) nominate and communicate to Cinglevue the name, contact number and email address of an individual to take the place of such Key Personnel in accordance with clause 4.1.
7.9 On receipt of the notice pursuant to clause 7.8, Cinglevue, acting reasonably, will either approve or decline to approve the Channel Partner’s proposed replacement Key Personnel.
7.10 The Channel Partner must have at least:
(a) 2 system engineers;
(b) 1 senior systems architect; and
(c) 1 account manager,
(collectively Key Personnel) representing the Channel Partner at all times during the Term.
7.11 The individual referred to in clause 7.10(b) must be suitably skilled and/or qualified in:
(a) the Google Cloud Platform (GCP); and
(b) configuration and maintenance of software platforms like Virtuoso.
7.12 The Channel Partner must ensure that all its personnel who assist in the carrying out of its obligations under this Agreement have attended the Channel Partner Training.
7.13 The Channel Partner must train and maintain its staff at its own expense to be conversant with the technical language and functionalities of Virtuoso (e.g. through satisfactory completion of the Channel Partner Training), the Subscriptions, Level 1 Support Services and Level 2 Support Services so as to be capable of:
(a) providing Implementation Services;
(b) explaining the benefits and functions of Virtuoso; and
(c) providing Level 1 Support Services (and/or training the Customer on performing Level 1 Support Services) and Level 2 Support Services,
7.14 The Channel Partner is responsible for and will cover all of its own expenses incurred in connection with fulfilling its obligations under this Agreement.
Compliance with the law
7.15 The Channel Partner must comply with and warrants that its employees and contractors will be contractually required to comply with:
(a) all applicable local laws in the Territory; and
(b) applicable Australian laws.
In addition to all of its other obligations in this Agreement, the Channel Partner must provide reasonable assistance to the Customer and Cinglevue in relation to:
(a) implementation of the Instance for the Customer; and
(b) any services the Channel Partner has agreed, with the Customer, to provide to the Customer.
9. Level 1 Support Services and Level 2 Support Services
9.1 Where a Customer is a school or school district or otherwise could reasonably be expected to be capable of performing the Level 1 Support Services, the Channel Partner may seek to make the Customer responsible for the provision of Level 1 Support Services to the Customer’s users provided that the Channel Partner provides any necessary training to the Customer. Otherwise, the Channel Partner must offer and provide Level 1 Support Services to the Customer.
9.2 The Channel Partner must offer and provide Level 21 Support Services to each of its Customers from the applicable Go-Live Date for each of those Customers.
9.3 After the Go-Live Date for Customer, the Channel Partner will promptly establish and thereafter operate an efficient customer support service for that Customer, including:
(a) telephone technical support during Business Hours; and
(b) email and ticketed online technical support during Business Hours.
9.4 The Channel Partner may charge its Customers for the provision of Level 1 Support Services and/or of Level 2 Support Services as the Channel Partner sees fit but the arrangement must be demonstrably commercially reasonable with reference to similar services in the Territory.
9.5 The Channel Partner must make a maintain complete, up-to-date and accurate records of:
(a) each Level 2 Support Services request received;
(b) the time taken by the Channel Partner to respond to each Level 2 Support Services request received (Response Time); and
(c) the time taken by the Channel Partner to resolve the Level 2 Support Services request received (Resolution Time).
9.6 At the Channel Partner’s request, Cinglevue will provide remote Level 2 Support Services to the Channel Partner’s Customers at the Channel’s Partner’s expense on a time and materials basis and in accordance with the following rates:
|During Business Hours||Outside of Business Hours|
|$ [insert] per hour||$ [insert] per hour|
10. Level 3 Support Services
10.1. On the Channel Partner’s request, Cinglevue will use its best efforts to offer and provide Level 3 Support Services to the Channel Partner for the benefit of the Channel Partner’s Customers.
10.2 Fees for the Channel 3 Support Services will be incurred by the Channel Partner in accordance with the pricing set out in Schedule 2.
11. General Cinglevue obligations
11.1 Cinglevue will provide all support and assistance reasonably required by the Channel Partner to fulfil its obligations under the Agreement to the best of its ability.
11.2 Cinglevue will promptly inform the Channel Partner:
(a) if Cinglevue or any of Cinglevue’s other channel partners have submitted a proposal to or are already in in talks with a potential Customer; and
(b) of any reasons it is or ought to be aware of why a Channel Partner cannot approach a particular potential Customer (e.g. if Cinglevue considers that a particular potential Customer poses a reputational risk to Cinglevue).
11.3 Cinglevue will forward via email or otherwise make available a copy of all documents and materials that the Channel Partner reasonably requires to carry out its duties to Cinglevue where Cinglevue is not prevented from doing so by a legal or contractual reason.
Channel Partner Commission
12.1 Subject to clause 6.4, on or around each 31 March, 30 June, 30 September and 31 December during the Term, Cinglevue will pay to the Channel Partner the total Channel Partner Commission amount due to the Channel Partner at that point in time.
Channel Partner Fees
12.2 During the Term, the Channel Partner may incur fees for services provided by Cinglevue to the Channel Partner (Channel Partner Fees) in relation to:
(a) Cinglevue’s provision of Channel Partner Training;
(b) Cinglevue’s provision of Level 32 Support Services to the Channel Partner; and
(c) other services provided by Cinglevue as agreed in writing between the Parties.
12.3 On or around each 31 March, 30 June, 30 September and 31 December during the Term, Cinglevue will issue to the Channel Partner an invoice for Channel Partner Fees incurred by the Channel Partner and owing and payable to Cinglevue plus any applicable GST.
12.4 The Channel Partner will pay Cinglevue the Channel Partner Fees in accordance with payment instructions as set out on the invoice.
12.5 For any given quarter, Cinglevue may offset:
(a) any Credits; and
(b) applicable Channel Partner Fees payable by the Channel Partner to Cinglevue,
against applicable Channel Partner Commission payable by Cinglevue to the Channel Partner and such will be reflected in either the payment described in clause 12.1 or the invoice described in clause 12.3.
13. Audit rights
13.1 During the Term and for a period of two years after, the Channel Partner agrees to retain all usual and proper records and books of accounts and all usual and proper entries relating to the volume of Subscriptions and Support Services sold to Customers plus all other information on which payments made under this Agreement are based.
13.2 Cinglevue may request an audit and/or inspection be undertaken by a Cinglevue representative of the Channels Partner’s records as described in clause 13.1 for the purposes of:
(a) verifying financial metrics relating to Subscriptions referred by the Channel Partner; and
(b) verifying the Channel Partner’s compliance with the terms of this Agreement, provided that such audit and/or inspection be conducted during Business Hours and in such a manner as not to unreasonably interfere with the operations of the Channel Partner.
14.1 Cinglevue may terminate this Agreement on 10 Business Days’ written notice to the Channel Partner pursuant to clause 5.2(c) and/or if:
(a) there is a material breach of the terms of the Agreement by the Channel Partner, including a failure by the Channel Partner to pay any sum of money due under the Agreement;
(b) the Channel Partner ceases or threatens to cease to carry on business or becomes insolvent, passes a resolution for winding up or a court of competent jurisdiction makes a wind-up order, an administrator, liquidator, receiver or similar official is appointed over the whole or a substantial part of the Channel Partner’s undertaking or assets;
(c) a Force Majeure Event lasts more than 20 Business Days; and/or
(d) the Channel Partner is in persistent breach of any term of this Agreement and after receiving written notice of such breach from Cinglevue, fails to remedy the breach within 20 Business Days of such request.
14.2 Either Party may terminate this Agreement without cause by giving the other Party at least 6 months’ notice.
14.3 On termination of this Agreement, the Channel Partner must:
(a) return all copies of any Cinglevue Materials to Cinglevue;
(b) cease promoting Subscriptions to Customers;
(c) on Cinglevue’s request assign all trademarks owned and transfer all domain names controlled by the Channel Partner in connection with performing the Channel Partner’s obligations under this Agreement which refer to ‘Virtuoso’, ‘Cinglevue’ and/or ‘Haven’ to Cinglevue and take all steps and sign all documents as are required to give effect to this subclause; and
(d) use its best efforts to hand over relationship management of all its Customers to Cinglevue.
14.4 On termination of this Agreement, the Parties can agree to transfer management of a relationship with any of the Channel Partner’s Customers to another channel partner. Otherwise, the management of such relationship will be transferred to Cinglevue.
14.5 Termination of this Agreement for any reason will not prejudice either Party’s rights accrued prior to termination. Clauses 1, 12, 13, 15, 17, 18, 20 and 21 and 22 survive termination of this Agreement.
15.1 Where the Channel Partner collects, stores, uses and/or discloses Personal Information from individuals in connection with performing its role under this Agreement, the Channel Partner:
(a) will, and warrants that it will, comply with the Privacy Act as though it were an ‘APP entity’ as defined in the Privacy Act including;
(i) ensuring that all Personal Information is collected by lawful and fair means; and
(ii) all necessary notices have been given and consents have been obtained in connection with the collection of Personal Information; and
(b) is responsible for its compliance with and must comply with all Local Privacy Laws; and
15.2 If the Channel Partner becomes aware of or has reason to suspect unauthorised access to, disclosure or loss of Personal Information, the Channel Partner will notify Cinglevue as soon as practicable.
15.3 The Channel Partner will defend, indemnify and hold Cinglevue and its directors, officers and employees harmless from and against any costs, losses, liabilities, expenses and damages reasonably incurred or arising from any claim relating to or resulting from any Channel Partner breach of clause 15.1 and/or 15.2.
16. Intellectual Property Rights and Branding
16.1 The Parties acknowledge and agree that there is no transfer whatsoever of title or any Intellectual Property Rights or other similar rights in Virtuoso as software and in the Cinglevue Materials. Cinglevue remains the exclusive and sole owner of all such rights.
16.2 Cinglevue grants to the Channel Partner a non-exclusive, non-transferable, non-sublicensable, revocable licence for the Term to use, copy, reproduce and produce derivative works of:
(a) the Cinglevue logo;
(b) the Virtuoso logo; and
(c) Intellectual Property Rights in the Cinglevue Materials,
provided such is directly related to the purposes of this Agreement and approved by Cinglevue prior to use by the Channel Partner.
16.3 The Channel Partner may submit to Cinglevue for approval and Cinglevue, acting reasonably, will either approve or decline to approve words, a logo or a mark that the Channel Partner wishes to use in connection with the Marketing Activities to denote that its Key Personnel have obtained the Channel Partner Certification.
16.4 The Channel Partner may provide services to Customers through a web portal with the Channel Partner’s own branding provided that the Channel Partner is wholly responsible for any trademarks used for such branding including any claims of infringement of any third party’s trademarks, logos or branding.
17.1 Each Party may use the Confidential Information of the disclosing Party only for the purposes of this Agreement and must keep confidential all Confidential Information disclosed to it.
17.2 Either Party may disclose the Confidential Information of the other Party to those of its employees and agents or to Customers who need to know or access the Confidential Information for the purposes of this Agreement provided the employee, agent or Customer is bound by confidentiality undertakings substantially equivalent to those set out in this Agreement.
17.3 The obligations of confidentiality in this clause 17 does not extend to information that:
(a) was in a Party’s lawful possession before execution of this Agreement;
(b) is or after the Commencement Date becomes public knowledge (other than by reasons of a breach of this Agreement by the receiving Party);
(c) is independently developed by the receiving Party; or
(d) is required to be disclosed by law to any regulatory, governmental or other authority with relevant powers to which the receiving Party is subject.
18. Warranties, liability and indemnities
18.1 Each Party warrants and represents that:
(a) it has full power and authority to enter into this Agreement and to perform the obligations required under this Agreement; and
(b) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is compatible with any applicable laws.
18.2 Cinglevue is not liable to the Channel Partner under this Agreement or otherwise if and to the extent that any of the Channel Partner’s activities to perform its obligations under this Agreement are contrary to any existing or future obligations of the Channel Partner, including those owed under contract or any laws.
18.3 Neither Party is liable to the other where the first party breaches a term of this Agreement due to a Force Majeure Event.
18.4 Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.
18.5 The Channel Partner acknowledges and agrees that:
(a) prior to entering into this Agreement it has been given a reasonable opportunity to examine and satisfy itself regarding all matters the subject of this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity; and
(a) at no time prior to entering into this Agreement has it relied on the skill or judgment of Cinglevue and that it would be unreasonable for the Customer to rely on any such skill or judgment.
18.6 Except in relation to:
(a) liability for personal injury or death;
(a) liability referred to in clause 18.4; and
(a) liability for Cinglevue’s breach of this Agreement (which the Channel Partner agrees will be limited, for all claims in aggregate, to paying an amount equal to the Channel Partner Fees paid by the Channel applicable to the point in time that the first claimed breach occurred),
Cinglevue will be under no liability to the Channel Partner in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this Agreement (including in respect of goods or services supplied pursuant to this Agreement).
18.7 Without limiting the following sentence, the Channel Partner warrants that it has not relied on any representation made by Cinglevue which has not been stated expressly in this Agreement or on any descriptions, illustrations or specifications in any way relating to Virtuoso including brochures, the website or publicity material produced by Cinglevue. The Channel Partner acknowledges that to the extent Cinglevue has made any representation which is not otherwise expressly stated in this Agreement, the Channel Partner has been provided with an opportunity to independently verify the accuracy of that representation.
18.8 The Channel Partner will at all times indemnify and hold harmless Cinglevue and its officers, employees, contractors and agents (those indemnified) from and against any loss (including legal costs and expenses and liability) incurred or suffered by any of those indemnified arising from any claims against those indemnified where such loss or liability was caused by a breach:
(a) by the Channel Partner of its obligations under this Agreement;
(b) by the Channel Partner of any law including the Privacy Act and Local Privacy Laws; and/or
(c) any wilful, unlawful or negligent act or omission of the Channel Partner.
18.9 In respect of any claim between the Parties under or in connection with this Agreement, the Parties agree that to the maximum extent permitted by law, this Agreement excludes the operation of any laws which would apportion any liability to Cinglevue which would not have been so apportioned but for such laws.
19. Australian Consumer Law
Pursuant to section 64A of the Australian Consumer Law:
(a) this sub-clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the Channel Partner establishes that reliance on it would not be fair and reasonable; and
(b) liability for breach of a guarantee conferred by the Australian Consumer Law, other than those conferred by sections 51 to 53 of the Australian Consumer Law, is limited:
(i) in the case of goods, to any one of the following as determined by Cinglevue:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(ii) in the case of services, to any one of the following as determined by Cinglevue:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
20. Non-compete and non-solicitation
20.1 During the Term and for a period of 12 months following termination of this Agreement the Channel Partner will not directly or indirectly own, manage, control, participate in, consult with, render services for or in any other manner engage in any business, or invest in or lend money to any business which competes with any Cinglevue business.
20.2 Neither Party will induce any person employed by or acting on behalf of the other Party in connection with this Agreement to enter into the employment of that Party during the Term or for a period of 6 months following termination of this Agreement.
21. Governing law and disputes
21.1 This Agreement is governed by the laws of the State of Western Australia.
21.2 Subject to clause 21.3, the Parties submit to the jurisdiction of the courts of Western Australia including courts of appeal.
21.3 Any dispute arising between the Parties in connection with this Agreement that cannot be settled by negotiation between the Parties within 21 days may only be submitted (by either Party) to arbitration at the Australian Centre for International Commercial Arbitration in accordance with its ACICA Rules 2016.
21.4 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.
22.1 Assignment: The benefit of this Agreement may not be assigned by the Channel Partner without Cinglevue’s prior written consent.
22.2 Entire agreement: This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, relating to the subject matter of this Agreement.
22.3 Subcontracting: Cinglevue may subcontract its obligations under this Agreement to third parties.
22.4 Variation: The provisions of this Agreement will not be varied, except by agreement in writing signed by both Parties.
22.5 Waiver: No right under this Agreement will be deemed to be waived except by notice in writing signed by each party. A waiver by Cinglevue will not prejudice its rights in respect of any subsequent breach of the Agreement by the Channel Partner. Any failure by Cinglevue to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Cinglevue to the Channel Partner, will not be construed as a waiver of Cinglevue’s rights under this Agreement.
22.6 Execution: This Agreement may be executed in counterparts by the Parties, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and same agreement, provided that this Agreement will have no force or effect until the counterparts are exchanged between the Parties.
23.1 Notices under this Agreement may be delivered by hand, by mail, by email to the relevant Party’s Address for Notices.
23.2 Notice will be deemed given:
(a) in the case of hand delivery, on written acknowledgement by an officer or other duly authorised employee, agent or representative of the receiving Party;
(b) in the case of posting, three days after despatch; and
(c) in the case of email, at the time of receipt of the email, specifically when that email enters the receiving party’s information systems.