Terms of Service
For purposes of clarity, the terms "we", "us" and "our" are used in this agreement and refer to the SERVICE PROVIDER. The terms "you" and "your" refer to the VENDOR of the software. The term "Product" refers to a copy of VENDOR'S software itself or the licence key or registration key for the software, the documentation, and EULA (if any), packaged in computer readable form together for electronic deliveries. The term "Customer" refers to the purchasing customer of VENDOR. "Default Interest Rate" means interest at the rate of 8% above the base lending rate charged by Globiz Solutions Pty Ltd.
GENERAL DESCRIPTION OF SERVICE
- We provide functions to assist you to complete order processes on our e-commerce platform SWpal.com. This includes, but is not limited to, submitting the Product into our virtual catalogue, provisioning an order form of the Product via our server, electronically delivering the Product to Customers and collecting Customers' information.
- You will provide us your Product information such as name, price and other information in order to complete order processes. Title to all Products will remain with you.
- You certify that you are the author and copyright holder of any and all Products that we sell or plan to sell as a reseller on our e-commerce platform, or that you have been authorized by the copyright holder to release it for distribution. In addition you warrant to us that (i) the Products and your websites shall not contain any violent, sexual, gambling, hacking, cracking or other objectionable material, including, without limitation, any material intolerant, offensive or otherwise offensive material regarding race, sex, religion, nationality, disability, sexual orientation, or age, or any material that is illegal or that may give rise to civil liability on the part of us of any sort, and (ii) that any Products you provide to us shall not contain any viruses, Trojan horses, malware, spyware, adware or other disruptive software, or any software code which is designed to disrupt, damage, or perform unauthorized actions on a computer system, or which transmits data from an end-user's computer without notice to and the express prior consent of the end-user, and (iii) that you will comply with all applicable laws, rules and regulations.
- You authorize us to process orders of the Product via SWpal.com and to electronically package, reproduce, promote and distribute the Products to Customers. You authorize us to use your trademarks in connection with our activities under this Agreement.
- You will defend and indemnify us, our affiliated companies and assignees and hold us, our affiliated companies and assignees harmless from and with respect to any loss, damage, claim, action, suit, proceeding, cost (including reasonable attorneys' fees), penalty and/or expense that the indemnified party may incur or suffer, resulting from, arising out of, or in connection with (i) the quality or functionality of your Product, or (ii) any claim or allegation by any third party of any infringement or misappropriation of any intellectual property right through your trademarks, Products, brands or other intellectual property rights, or (iii) any breach, violation or non-performance of your representations, warranties, obligations under this Agreement; provided that you shall have no obligation under this Section 2 in connection with any third party claim arising solely by reason of our gross negligence, willful misconduct, or repeated material breach of this Agreement after written notice thereof from you. We will promptly tender to you any claim for which we are entitled to defense and indemnification, and upon receipt you will defend and indemnify such claim and will have sole control over the defence of such claim if legally possible. You will obtain our express prior written approval to settle any claim if such settlement (i) arises from or is part of any criminal action, suit or proceeding, or (ii) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on our part, or (iii) requires any specific performance or non pecuniary remedy by us.
- You authorize us to state publicly that you are using the SWpal.com e-commerce platform for your e-commerce solutions and/or software marketing, distribution and licensing.
FEES, TAXES AND DEFAULT INTEREST OF LATE PAYMENT
- You will pay us the fees set out in the pricing Schedule. You hereby authorize Globiz Solutions Pty Ltd to charge your PayPal account in advance for all applicable fees incurred by you or on your behalf in connection with your use of the SWPal product or service you have chosen to use.
- You are responsible for all VAT/GST and any other taxes, duties and levies (other than our income tax) assessed in connection with its use of SWpal.
- You must pay us interest at the Default Interest Rate on any overdue amounts under this agreement, calculated daily from the due date until the actual day of payment. You will pay us all reasonable costs (including collection costs and legal costs on a solicitor-client basis) that us incurs in attempting to recover any such overdue amounts.
DATA PROTECTION AND CONFIDENTIALITY
- We will provide information to you provided to us by a Customer during the order process (excluding specially protected information), but only to the extent such disclosure is permitted by law. You represent, warrant and undertake that you shall use any personal data of the Customer that is provided to you by us only for the execution of this Agreement and its legitimate internal business purposes unless the Customer has specifically and expressly consented to another use. Furthermore, you agree to maintain adequate data protection, to appropriately instruct your employees of these obligations, and not to resell any such information or data related to the Customer to third parties without the agreement of the Customer.
- As between you and us, we will own all Customer information provided in connection with an order. We may post "opt in" language in the order process, providing each Customer with an opportunity to elect to receive solicitations from you and/or from us. We make a copy of all order information provided by Customers available to you, and such information shall specify whether the Customer has opted in to receive solicitations. You represent, warrant and undertake that you shall not use any Customer data to solicit any Customer who has not opted in to receive solicitations from you.
- We are permitted to use your personal information to provide you with support and inform you about new SWpal.com updates/upgrades or new releases that are part of our service.
- All Confidential Information (information which is designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature) provided by one party will be maintained in confidence by the other party. Each party agrees to notify the other party if disclosure of such other party¡¯s Confidential Information is necessary to comply with the requirements of any law, government order, regulation or legal process prior to such disclosure. The provisions of this section will not have application to any information disclosed by a party to the extent such information (i) becomes lawfully available to the public; (ii) is received without restriction from another person or organization lawfully in possession of such information; (iii) was rightfully in the possession of a party without restriction prior to its disclosure; or (iv) is independently developed by a party or its employees or agents without access to the other party¡¯s similar information.
- For selling your Products you have to pay us the determined service fees as described in this Agreement and on www.swpal.com.
- You shall provide on your website or in other appropriate forms technical support for the Products that are distributed to the Customer.
- You are solely responsible for (i) the correct and adequate description of your Products; (ii) the terms and conditions of any and all end-user license agreements (EULA) associated with the Products, as well as their compliance with all applicable laws and regulations; and (iii) the provision of support and responsibility for warranty obligations relating to Products consistent with the terms and conditions of the applicable EULA. In the event any warranty obligations are imposed on us by law due to our acting as the seller, you agree to allow us to honor any such obligations and shall be responsible for handling any such claims we tender to us as our claims agent.
- You promise to us that our distribution of your Products will not violate any laws concerning export over national borders, including laws involving encryption technology. You agree that we may, in our sole discretion, decline to carry (or to continue to carry) any of your Products at any time, with or without reason.
- You confirm that all information you entered to our platform is correct as of the time you entered it. You promise that you will update any of that information when it has changed.
- You will comply with all relevant laws, including all statutory, regulatory and common laws, in its use of SWpal.com and carrying out its obligations under this Agreement.
TERMINATION OF THIS AGREEMENT
- Either party (the "First Party") may terminate this agreement at any time and with immediate effect by written notice to the other party (the "Second Party") if the Second Party (i) is in material breach of any of its obligations under this agreement, and has failed to remedy the breach within 20 Business Days of receiving written notice from us to remedy the breach; or (ii) goes into liquidation, has a receiver appointed or is unable to pay its debts as they fall due.
- Expiry or termination of this agreement will not affect the rights or obligations of the parties which have accrued prior to or accrue on termination or which by their nature are intended to survive termination.
WARRANTIES AND LIMITATION OF LIABILITY
- We provide our services to you on an AS IS basis and make no promises as to the percentage up-time or that our site will operate without error. WE MAKE NO WARRANTIES CONCERNING THE QUALITY OF OUR RESELLER SERVICES ON THE SITE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT
- NEITHER WE, NOR ANY OTHER PERSON OR COMPANY THAT PARTICIPATES IN THE SELLING OF THE PRODUCTS IS LIABLE FOR DAMAGES OF ANY KIND OR DESCRIPTION, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS OR INTERRUPTION OF BUSINESS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OF NATURE OF CLAIMS.
FINAL PROVISIONS, APPLICABLE LAW, JURISDICTION
- With the signing of this contract and as of the effective day the parties hereby mutually revoke all previous agreements which affect the contents of this contract. This Agreement constitutes the entire understanding and agreement between you and us with respect to its subject matter.
- We may assign this Agreement or assign its rights or delegate our duties under this Agreement without your consent upon notice to you. You may not assign this Agreement or assign your rights or delegate your duties under this Agreement without our express prior written consent.
- In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
- This agreement is governed by the laws of Australia and the parties submit to the non-exclusive jurisdiction of the Australia courts in respect of all matters relating to this agreement.
- Each party is an independent contractor of, and is not an employee, agent or authorized representative of, the other party. The provisions of this Agreement will not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between us and you. Except as may be expressly provided in this Agreement, neither you nor us shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other. No provisions in either party's purchase orders or other business forms will modify, supersede or otherwise alter the terms of this Agreement. We may engage the services of subcontractors or agents to assist us in the performance of our obligations without notice to you.
By accepting this Agreement, you attest that you have read, understood, and agree to all provisions of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date.