Please read these Terms and Conditions carefully, as they contain important information about your rights and obligations.
1.1 These Terms and Conditions (“the Conditions”) are between you (“Reseller”) and vGIS, Inc. (“VGIS”), an Ontario corporation with a place of business at 238 Dunforest Ave., Toronto, ON M2N 4J9 Canada.
VGIS may, at its discretion, make changes to the Conditions. When material changes to these Conditions are made, VGIS will provide Reseller with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending Reseller an email. In some cases, VGIS will notify Reseller in advance, and Reseller’s continued participation in the Reseller Program after the changes have been made shall constitute acceptance of the changes. If Reseller does not wish to continue participating in the Reseller Program under the new version of these Conditions, Reseller may terminate the Agreements by contacting a VGIS representative.
1.2 In these terms and conditions, VGIS is referred to as “we” or “us,” and you (Reseller) are referred to as “you.”
1.3 By signing up for a reseller account and/or by logging into the reseller system, you agree to be legally bound by the Conditions.
1.4 If you do not wish to be bound by the Conditions, you may not resell the Products.
Capitalized terms used but not defined within the sections of this Agreement have the meanings given in the glossary of terms and definitions incorporated in Attachment A of this Agreement (the “Glossary of Terms and Definitions”).
2.1 Other Terms
2.2 Contract Attachments
This Agreement includes each of the following attached exhibits:
3.1 VGIS appoints Reseller as a nonexclusive reseller of the Products to the End Users for the Term, and Reseller agrees to act in that capacity subject to the Conditions.
3.2 It is agreed that both parties shall be entitled to promote, market, or sell their own products (including but not limited to the Products) or any third-party products to their own customers during the Term.
3.3 In consideration of Reseller’s performance of its obligations under these Conditions, VGIS grants to Reseller a nontransferable, nonexclusive right to use, sublicense, market, and support the Products (including the Intellectual Property Rights therein) to the extent necessary for Reseller to perform its obligations under the Conditions.
4.1 The Supplier is the owner or licensee of all Intellectual Property Rights forming part of the Products, and VGIS has the right to grant the sublicenses set out in the Conditions.
4.2 The Conditions shall not be construed as conveying or transferring any ownership or proprietary interest in any Intellectual Property Rights in the Products to Reseller or to any other party.
4.3 Reseller agrees that it will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Products in any manner to third parties except as expressly permitted in the Conditions.
5.1 VGIS agrees to provide throughout the Term such support to Reseller as Reseller may reasonably require to enable it to fulfill its obligations and exercise its rights under the Appointment.
5.2 VGIS will use commercially reasonable efforts to maintain system availability at 99.98% or better.
5.3 VGIS will use reasonable efforts to continue to develop, upgrade and enhance the Products to maintain their marketability and competitiveness.
5.4 VGIS will maintain a help-desk offering Tier-2 technical support services for the Products.
6.1 Reseller undertakes and agrees that it will at all times during the Term (and where applicable following termination of the Appointment) observe and perform the Conditions, including but not limited to:
(a) in all correspondence and other dealings relating directly or indirectly to the licensing of or other transactions relating to the Products, clearly indicating that it is acting as a reseller and not as an author and/or developer of any of the Products;
(b) using at all times its best efforts to promote and extend the market for the Products and working diligently to obtain orders from End Users for the Products;
(c) use reasonable endeavors to renew VGIS licenses in a timely fashion, and specifically (but without limitation) the Partner shall contact End User(s) who have not renewed their VGIS licenses prior to the expiry of the End User’s license;
(d) not make any promises or representations, or give any warranties, guarantees or indemnities in respect of the Products and/or the Appliances except such as are contained in the relevant License, or as otherwise expressly authorized by VGIS in writing;
(e) not hold itself out as having any authority whatsoever to agree any changes of any kind to the License terms;
(f) not endorse, market, sell or otherwise promote products that compete with the Products;
(g) not use the Products for the purposes of competing with VGIS, including without limitation the gathering of competitive intelligence; and
(h) not use the Products and information received from using VGIS technology to:
(i) at its own expense, provide advertising, publicity, promotion, and marketing for the Products;
(j) issue Access Codes to End Users after the End User has paid Reseller for the Product and entered into the End User Agreement;
(k) handle all activities related to sales to End Users;
(l) deal with all aspects of billing and collecting payment from End User in accordance with the arrangements that Reseller has made with VGIS;
(m) deal with and paying, whether on its own account or as agent of VGIS, all applicable taxes in the country in which Reseller is doing business or in the country in which Reseller is established;
(n) ensure that any servers used by Reseller in performing its obligations as a reseller are secure to the reasonable satisfaction of VGIS; and imposing on End Users to the maximum extent permitted by applicable laws terms and conditions of business no less onerous than those imposed by VGIS on End Users who purchase Products directly from VGIS;
(o) use commercially reasonable efforts to prevent VGIS’s competitors from using, evaluating, reverse-engineering or otherwise accessing the Products, promotional and commercial material, including any Products, evaluation copies, Product Documentation, Product Descriptions and all literature and other materials supplied free-of-charge or on loan or consignment to the Partner by (or for) VGIS; and
(p) ensure timely withdrawal of system access from demo, trial and discontinued accounts.
7.1 VGIS warrants that for any Product purchased by Reseller:
(a) VGIS has the right to sell the Product to Reseller;
(b) the Product will correspond with the description provided by VGIS to Reseller; and
(c) the Product will be of satisfactory quality.
7.2 VGIS shall not be liable for a breach of any warranty in clause 7.1 unless Reseller gives notice of the defect to VGIS within seven days after the date of delivery of a Product to Reseller and the Product does not conform to any of the warranties. If VGIS has been properly notified, VGIS shall within seven days of receiving such notice and at its discretion either replace such Product or refund all funds collected from End User.
8.1 The Appointment shall become effective when the Reseller creates a reseller account and shall continue in force until terminated:
(a) by either party at any time immediately upon giving written notice; or
(b) in accordance with clause 8.2.
8.2 Either party shall be entitled to immediately terminate the Appointment by written notice to the other party if:
(a) that other party commits any material breach of any of the provisions of the Conditions and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
(b) that other party becomes insolvent; or
(c) that other party ceases, or threatens to cease, to carry on business.
If VGIS terminates the Appointment under this clause, the Reseller shall not be entitled to any refund.
8.3 VGIS shall have the right at any time upon giving written notice to suspend the Appointment with immediate effect provided that its reasons for doing so are set forth in such notice.
8.4 Upon termination of the Appointment for any reason, Reseller shall cease to promote, market, or advertise the Products or solicit End Users regarding the Products.
8.5 Termination of this Agreement by VGIS in accordance with its terms shall not give the Reseller any right to compensation, damages, loss of profits or prospective profits, or consequential losses of any kind or nature whatsoever, and in no circumstances shall the Reseller acquire against VGIS any goodwill in respect of its appointment as Reseller or in respect of the Products or their distribution or sale, or otherwise under or in respect of this Agreement.
8.6 Upon the expiry or termination of this Agreement the Reseller shall return to VGIS or destroy all promotional and commercial material, including any Products, evaluation copies, Product Documentation, Product Descriptions and all literature and other materials supplied free-of-charge or on loan or consignment to the Partner by (or for) VGIS.
9.1 The following provisions set forth the entire financial liability of each party to the other party (including any liability for the acts or omissions of its employees, agents, and subcontractors) in respect of:
(a) any breach of the Conditions;
(b) any representation, statement, or tortious act or omission, including negligence arising under or in connection with the Appointment.
9.2 Nothing in these Conditions excludes or limits the liability of either party:
(a) for death or personal injury caused by the negligence of either party; or
(b) for any matter with respect to which it would be illegal for the party to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
9.3 Subject to clauses 9.1 and 9.2:
(a) each party’s total liability for contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or other matter arising in connection with the performance or contemplated performance of the Appointment shall be limited to the price of the Products supplied to Reseller in the twelve-month period before the event giving rise to the liability under this subclause; and
(b) neither party shall be liable to the other party for any purely economic loss, loss of profit, loss of business, loss of goodwill, or other loss, in each case whether direct, indirect, or consequential, nor liable for any claims for consequential compensation whatsoever (howsoever caused) that arise out of or in connection with the Appointment.
9.4 Reseller is solely responsible for ensuring that it is legally able to resell the Products. To the extent permitted by applicable laws, VGIS shall have no liability for any costs, losses, or damages resulting from or related to the purchase or attempted purchase of the Products from Reseller.
No amendment or variation of the Conditions shall be effective unless provided in writing and signed by a duly authorized representative of each of the parties.
The Appointment shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship, or other relationship between the parties except for the contractual relationship expressly provided for in the Conditions.
Reseller shall not, without the prior written consent of VGIS, assign, transfer, charge, or subcontract all or any of its rights or obligations under the Appointment.
13.1 VGIS undertakes to employ commercially reasonable measures to ensure data protection throughout the Term.
13.2 Reseller undertakes to comply with its obligations under data protection laws applicable in the countries where it does business throughout the Term.
13.3 Reseller acknowledges that personal data pertaining to End Users supplied by it to VGIS may be transferred outside the End User’s country of residence by VGIS, and Reseller undertakes that it shall obtain the consent of such End User to such transfer by VGIS before supplying such personal data to VGIS when the consent of the End User to such transfer is required by applicable data protection laws.
14.1 All notices under the Conditions shall be in writing and shall be deemed given when received in full by email and/or when personally delivered ten (10) days after being sent by prepaid airmail to the address of the party to be notified as set forth in this Agreement or such other address as such party last provided to the other by written notice.
14.2 No failure of either party to exercise or enforce any of its rights under the Conditions shall constitute a waiver of such rights.
14.3 The Conditions are made only in the English language. If there is any conflict between the meaning of the English-language version of the Conditions and the meaning of any version or translation of the Conditions in any other language, the English-language version shall prevail.
14.4 If any portion of the Conditions is illegal or unenforceable, such portion(s) shall be excluded from them to the minimum extent required, and the balance of the Conditions shall remain in full force and effect and remain enforceable.
14.5 The Appointment supersedes all prior agreements, arrangements, and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. The Appointment can be modified or waived only by a subsequent written agreement signed by both parties. The parties confirm that they have not entered into this Appointment on the basis of any representation that is not expressly incorporated into the Conditions.
14.6 In the event of any inconsistency between this Agreement and the Commercial Terms, the provisions of this Agreement shall prevail.
14.7 Reseller agrees to provide VGIS with a certification as to its compliance with this Agreement or any Clause of this Agreement upon VGIS’s request. Failure to provide such certification within thirty (30) days of VGIS’s request may be considered cause for immediate termination of this Agreement.
14.8 Reseller will maintain accurate and legible records for a period of five (5) years from the date of any transaction undertaken under this Agreement and will provide VGIS with information reasonably requested by VGIS to review compliance with the terms of this Agreement. Failure to provide such information within thirty (30) days of VGIS’s request may be considered cause for immediate termination of this Agreement.
15.1 The Appointment is governed by the laws of the Province of Ontario without giving effect to its conflict of laws provisions and is treated in all respects as an Ontario contract.
15.2 If a dispute arises, Reseller undertakes that, before taking any other steps whatsoever, it shall, at its own cost and expense, identify and notify VGIS in writing of any applicable mandatory rules or matters reserved to courts of exclusive jurisdiction.
15.3 In the event that an End User who is a consumer brings a claim against VGIS before any court, tribunal, or other decision-making body, whether pertaining to contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, or any other matter arising in connection with the performance or contemplated performance of the Appointment by Reseller, Reseller shall indemnify VGIS and shall keep VGIS indemnified against all costs, losses, or damages arising from such claim.
15.4 Reseller shall defend, indemnify, and hold harmless VGIS from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, arising or resulting from Reseller’s breach of this Agreement, any of Reseller’s Content, or Reseller’s use or misuse of the Services. VGIS shall provide notice to Reseller of any such claim, suit, or demand. VGIS reserves the right to conduct the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, Reseller agrees to comply with any reasonable requests to assist in the defense of VGIS in such matters.
All portions of the Services are Copyright 2019 by vGIS Inc. and/or its suppliers. All rights reserved.
All other trademarks are the property of their respective owners.
“Appointment” means the agreement of the parties set out in clause 3.1.
“Commercial Terms” means the commercial stipulations applicable to the Partner Program as may be provided by VGIS.
“Conditions” means VGIS’s terms and conditions for resellers as they may be modified and posted on the Website from time to time.
“End User” means a person or entity that places an order for the Product with Reseller.
“End User Agreement” means Supplier’s standard license agreement provided in “click-wrap” form with the Products and that must be accepted by each End User.
“Intellectual Property Rights” means all intellectual property rights anywhere in the world, including present and future intellectual property rights.
“Products” means the software products set out in the Price Matrix on the Website as being available from time to time for resale by the Reseller.
“Standard Terms and Conditions” means the standard terms and conditions for purchases from the Website as modified and posted by VGIS from time to time at https://www.vgis.io/terms-and-conditions/ .
“Supplier” means the person who owns a Product and who agrees to license it to End Users.
“Term” means the term of the Appointment as set out in clause 11.
“Website” means the vGIS.io and Meemim.com domains and their subdomains.