(collectively the “Agreement”)
by and between ADVISERA EXPERT SOLUTIONS Ltd with registered seat in Croatia, Zagreb, Zavizanska ulica 12, VAT No: HR13077006668, (the "Advisera" or "we") and the applicable reseller partner ("Partner" or "you").
By placing an Order for Conformio to resell to a Customer, you indicate your assent to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not place an Order to resell the Conformio. Individually, either Advisera or Partner may be referred to as a “Party” and, together, Advisera and Partner may be referred to as the “Parties”.
The Partner desires, and Advisera is willing to grant Partner, a right to resell the Conformio as white labelled application to its Customers in accordance with this Agreement.
Therefore, this Agreement sets forth the terms and conditions that apply to Partner’s placement of any Orders for resale of Conformio to a Customer.
Whenever used in this Agreement, the following capitalized terms shall have the respective meaning specified below:
“Brand elements” means the Advisera and/or Conformio trademarks, service marks, names, logos, marketing collateral or similar materials.
“Confidential Information” means information disclosed under this Agreement that is designated by the disclosing Party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Advisera’s Confidential Information includes all non-public technical information and business information, programming, software code, trade secrets, marketing, strategies, software, documentation, customer data, financial information and any non-public documentation provided by Advisera and any new product information regarding the Conformio.
“Customer” means an end-user customer of the Conformio that desires to use or acquire the Conformio for its own use, rather than for resale or distribution.
“Effective date” means the date on which you adhere to this Agreement.
“Intellectual Property Rights” means all rights protectable by copyright, trademark, patent, industrial design or trade secret and other intellectual property rights under any law.
“Order” means order for the Conformio submitted by Partner on behalf of a Customer, using a standard ordering process designated by Advisera.
“Price” means the price of Conformio as provided by Advisera to the Partner (as amended from time to time by Advisera) prior to or at the time Partner places the Order.
On the terms and subject to the conditions set forth herein, Advisera appoints Partner as an independent, non-exclusive authorized Partner of the Conformio and Partner hereby accepts such appointment.
The foregoing grant is subject to the following conditions:
The Conformio shall be made available only to Customers and Partner may advertise, promote and resell the Conformio solely to Customers;
Customer may use Conformio only after accepting Customer terms and conditions. For exceptional cases where Partner shall use the Conformio on behalf of the Customer it is understood that both Partner and Customer are obliged by Customer terms and conditions, regardless of the fact who subscribed to the Conformio. For clarity, Partner has no authority to (and may not) alter, remove or negotiate the terms of the Customer terms and conditions;
Partner shall pay Advisera the amounts as set out in Price for each Customer who is licensed to use the Conformio during the term of any such licence. However, for each Customer, Partner will be solely responsible for ongoing account-related activities such as billing, collecting fees and refunds as further set forth in Section 4. (Orders and Payment).
2. WHITE LABELING
Partner may provide the Conformio to Customers with Partner’s branding, provided that Partner shall be wholly responsible for any trademarks used for such branding including any claims of infringement of any third party’s trademarks.
Partner shall not alter, obscure or remove any Brand elements which are displayed during access or use of the Conformio.
For the duration of this Agreement Advisera grants Partner the right to use its Brand elements solely in connection with identifying yourself as an Advisera “Partner” in connection with your authorized resale of the Conformio. Partner will not misleadingly advertise or market Conformio presenting itself as the owner or provider of Conformio. Partner will promptly cease any use of Brand elements upon request. At no time during this Agreement or after its expiry will Partner (a) register or acquire any domain names that contain any terms that are the same or similar to the Conformio or Advisera’s domains, (b) challenge or assist others to challenge Advisera’s trademark rights in the Brand elements or the registration thereof, (c) attempt to register or acquire any trademarks confusingly similar to those in the Brand elements, or (d) use the Brand elements except as expressly permitted in this Agreement. Partner acknowledges that any unauthorized use of Advisera’s Brand elements will constitute a material breach of this Agreement.
Except as permitted in above Section 1. and 2. Partner shall not authorize or appoint any dealers, sub-resellers, agents, representatives, subcontractors, or other third parties to advertise, promote, resell, license, distribute or otherwise transfer or make available Conformio to a third party. All rights not specifically granted by Advisera hereunder are reserved by Advisera. Without limiting the generality of the foregoing Advisera reserves the right to advertise, promote, market and distribute Conformio, and to appoint third parties and other resellers to advertise, promote, market resell, license and distribute the Conformio, worldwide. Partner shall not attempt to alter, translate, adapt or modify the Conformio, in any manner whatsoever nor shall it disassemble, decompile or in any way reverse engineer the Conformio.
Further, Advisera reserves the right, in its sole discretion, at any time and from time to time, to modify the Conformio, or to discontinue providing the service, support of publication, distribution, sale or licensing of the Conformio without liability of any kind, all in in accordance with and shall be subject to Advisera’s then current standard terms and conditions applicable to the Conformio.
For avoidance of doubt Partner is authorized to provide training or other services to Customer in connection with their use of the Conformio.
4. ORDERS AND PAYMENT
In order to resell Conformio Partner must place an Order with Advisera specifying the applicable Customer, Conformio modules to be used and all relevant corresponding contact information. Once duly placed Order is deemed Accepted. Accepted Orders are non-cancellable by Partner. Advisera may collect and use certain data and information in connection with Partner’s placement of an Order in accordance with the Conformio Data Processing & Security Terms.
Partner will pay all amounts due under this Agreement in United States Dollars, unless Advisera designates another currency at the time of the Order. Partner shall be informed when payment obligation becomes due.
Partner will independently determine the pricing at which it offers Conformio to Customers. Partner will be solely responsible for collecting all fees from Customers. Non-payment by Customers will not relieve Partner of its obligation to pay fees to Advisera. Advisera reserves the right to cancel or suspend Conformio service with respect to any Customer if it fails to receive any of due recuring payments from Partner with respect to such Customer.
Advisera will deliver license keys, access keys or login or other instructions for access to the Conformio to the Partner and directly to the available Customer’s contact all in accordance with our standard delivery procedures. Partner shall have full access to each Customer’s Conformio account at all time except in case of unlinking of Customer’s account from the Partner, as provided under last paragraph of Section 11, in which case access to Customer’s account ends.
Partner shall, in addition to the other amounts payable under this Agreement, pay all sales, use, value added or other taxes, federal, state, provincial or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement.
Advisera shall keep record on transactions and performance under this Agreement. However, with respect to mentioned exceptional cases where Partner shall use the Conformio on Customer’s behalf the Partner will maintain complete, clear and accurate records of its transactions and performance for such Customers. Upon 10 days’ advance written notice, Partner will permit Advisera or its representative to audit Partner’s records for such Customers. Partner will maintain all records required under this clause for at least 3 years following expiration or termination of the Agreement.
Partner and Advisera agree that Advisera owns all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights with regards to Conformio. Nothing in this Agreement grants the Partner any ownership right with regards to Conformio.
A Party receiving Confidential Information (the “Receiving Party”) shall maintain the confidentiality of all Confidential Information of the Party disclosing the Confidential Information (the “Disclosing Party”) and shall not release, disclose, divulge, sell or distribute any Confidential Information, without the prior written consent of the Disclosing Party. The Receiving Party may only use and copy the Disclosing Party’s Confidential Information as is necessary to carry out its activities contemplated by this Agreement and for no other purpose. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees on a “need to know basis”, provided that it shall first instruct such employees to maintain the confidentiality thereof. Partner may disclose Confidential Information to Customers to the extent necessary to carry out the intent of this Agreement, but such Customers shall have entered into the Customer terms and conditions. Advisera may disclose Confidential Information to third party to the extent necessary for the execution of its obligations under this Agreement.
Disclosure of Confidential Information shall be permitted if such Confidential Information is required to be disclosed by law or by any rule, regulation or order of a person having jurisdiction or pursuant to a final order or judgment of a court of competent jurisdiction, and in such case the Parties will cooperate with one another to attempt, if possible, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded to such Confidential Information prior to disclosing such Confidential Information.
The Parties acknowledge and agree that any breach of the terms of this Agreement Section will cause irreparable harm and damage to the aggrieved Party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section, and to specifically enforce the terms and provisions of this Agreement Section, in addition to any other remedy to which such Party may be entitled.
7. CUSTOMER DATA
Advisera acting as processor of personal data and Partner as controller shall be responsible for data processing, safeguarding, and maintaining confidentiality of Customer’s data as provided under Conformio Data Processing & Security Terms.
Although Partner and Advisera have access to Customer’s data the parties shall do so only to the extent necessary to carry out their respective responsibilities under this Agreement and for no other purpose. Each Customer is sole owner of all data related to their Conformio account.
8. WARRANTIES AND DISCLAIMER
Partner represents and warrants that (i) it has the legal power and authority to enter into and perform its obligations under this Agreement, (ii) its execution and performance of this Agreement will not violate any other agreement to which it is a party, and (iii) it will comply with all laws applicable to its business in connection with its performance under this Agreement.
Conformio, any support and all other services, including any further development of Conformio, are provided hereunder “as-is”. Except as expressly provided herein, neither party makes any other warranties, conditions, or undertakings, express or implied, statutory or otherwise, including but not limited to warranties of merchantability and fitness for a particular purpose.
Partner shall not be authorized to make any warranty, guarantee, representation, or condition, whether written or oral, on behalf of Advisera. Partner shall be solely responsible for any warranties for the Conformio given by Partner.
Advisera shall defend, indemnify, and hold harmless the Partner from and against any and all claims brought by a third party arising out of or in connection with infringement or alleged infringement of the Intellectual Property Rights of such third party that have been caused by Conformio software which was distributed under this Agreement.
Partner shall defend, indemnify, and hold harmless the Advisera from and against any and all claims brought by a third party arising from or relating to: (i) Partner’s breach or alleged breach of this Agreement or Partner’s conduct in connection with resale or marketing of the Conformio, (ii) Partner’s issuance of any warranty or representation regarding Advisera or Conformio contrary to this Agreement.
10. NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
Neither Party will have any liability arising out of or related to this Agreement for any lost profits, interruption of business, costs of delay or any indirect damages of any kind, even if informed of the possibility of such damages in advance. The foregoing disclaimer of liability shall apply regardless of whether such liability is based on breach of contract, contractual or extra-contractual liability, tort (including without limitation negligence), or otherwise.
In no event shall Advisera’s liability under this Agreement exceed the amount paid, under this Agreement by Partner in the 12-month period immediately preceding the event giving rise to the claim.
11. TERM AND TERMINATION
This Agreement is effective as of the Effective Date and continues for an initial term of 12 months and will renew for successive 12-month periods to the extent there is an active Order, unless either Party gives the other Party notice of non-renewal at least 30 days before the current term ends.
Advisera may terminate this Agreement by written notice with immediate effect in case there is no active Order i.e. Customer for period of 6 months or more.
Partner may terminate this Agreement for no reason or any reason upon 30 days’ prior written notice. Either Party may terminate this Agreement or an applicable Order if the other Party fails to cure a material breach of this Agreement within 15 days after notice of such breach. Upon notice, Advisera may suspend Partner’s participation as a reseller for breach of this Agreement or may terminate this Agreement if Advisera generally ceases to have resellers for Conformio or determines that termination is necessary to comply with laws or to avoid liability or harm to its services, reputation, Customers or users.
Upon any expiration or termination of this Agreement, Partner will (i) cease to be an authorized reseller of the Conformio, (ii) immediately cease all advertising, marketing and other resale activities with respect to the Conformio, (iii) cease use of the Conformio to the extent permitted under the Agreement, and any Brand elements, and (iv) pay Advisera the amounts, if any, which come due under any Order accepted prior to the date of termination as such amounts come due. In addition, upon any expiration or termination of this Agreement, Partner will destroy any Confidential Information, or return it to Advisera in cases where Partner was using the Conformio on Customer’s behalf, that is related to this Agreement in its possession or control, provided that the Partner may maintain reasonable copies to the extent required by applicable law.
In case of Partner’s termination of this Agreement any Customer licenses granted prior to the termination of the Agreement shall be unsubscribed unless previously, with written consent of Advisera, transferred to Advisera. The Parties agree to continue cooperating to carry out an orderly termination of their relationship, and to the extent a Customer desires to purchase Conformio (including renewals and upgrade) following termination of the Agreement, Partner will refer the Customer to Advisera and fully cooperate with Advisera in connection therewith. Advisera will have no liability to Partner of any type arising from termination of this Agreement in accordance with its terms.
To the extent a Customer notifies Partner or Advisera that it wishes to terminate an existing relation with Partner and to unlink its Conformio account from the Partner prior to expiry of the license then Partner agrees to transfer applicable access to Customer account to Advisera, while Advisera shall continue to service respective Customer.
This Agreement constitutes the entire, complete, and exclusive agreement between the Parties and supersedes all previous agreements or representations, oral or written, relating to the subject matter hereof. In the event of conflict or inconsistency between any such terms and conditions, the following order of precedence will apply: 1) the Order, 2) this Agreement and 3) any other terms or documentation referenced herein. Except for an Order executed by Advisera, no purchase order or ordering documents which purports to modify or supplement this Agreement will add to or vary the terms of this Agreement.
For avoidance of any doubt the Parties agree that in case of any previous or future external agreements between the Parties in relation to Conformio such arrangement shall not in any case apply to this Agreement.
All disputes arising out of or in connection with this Agreement shall be finally settled before the Commercial court in Zagreb.
This Agreement and shall be construed in accordance with, and governed by, laws of the Republic of Croatia and European Union.
Advisera may update this Agreement from time-to-time at its sole discretion by posting the updated terms to its web site or a successor site. The version of this Agreement in place at the time each Order is submitted is the version that will govern such Order.
If any provision of this Agreement or any document contemplated herein is determined to be illegal or unenforceable, this Agreement and/or said document shall be construed as if the illegal or unenforceable provision had been written so as to provide for the maximum permitted legal and enforceable rights and obligations, so as to effectuate to the greatest extent the intent manifested by the Parties in entering the said provision.
The benefits and obligations bestowed by this Agreement upon each of the Parties are personal to each Party and shall not be assigned, delegated, transferred, or otherwise disposed of.
The failure of any Party to enforce or to exercise, at any time or for any period of time, any term of or any right or remedy arising pursuant to or under this Agreement does not constitute, and shall not be construed as, a waiver of such term or right or remedy and shall in no way affect such Party’s right to enforce or exercise it later.
The Parties are independent contractors. This Agreement will not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give either Party the express or implied right, power or authority to create any duty or obligation of the other Party.
Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, internet or utility failures, refusal of government license, pandemic, or natural disaster.
All obligations of Parties which by their nature survive expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding such expiration or termination and until they are satisfied or by their nature expire.