Copy of AmberOBD RESELLER TERMS 2
Reseller Terms and Conditions
Please read these terms and conditions carefully, as they contain important information about your rights and obligations. You can print out these terms and conditions by clicking on the print icon on your browser.
1.1 Please read these terms and conditions carefully before agreeing to become an AmberOBD Reseller. AmberOBD is a trading name of TSS Accessories (AmberOBD). In these terms and conditions AmberOBD is referred to as ‘we’ or ‘us’ and you (Reseller) are referred to as ‘you’.
1.2 By signing-up for a reseller account and/or logging into the reseller system you agree to be legally bound by the Conditions.
1.3 If you do not wish to be bound by the Conditions then you may not resell Products purchased from the Website.
- Definitions and interpretation
2.1 In these terms and conditions the following words and phrases shall have the following meanings:
Appointment: the agreement of the parties set out in clause 3.1.
Conditions: AmberOBD’s terms and conditions for resellers as they may be modified and posted on the Website from time to time.
End User: a person or entity that places an order for the Product with Reseller.
End User Agreement: Supplier’s standard licence agreement provided with the Products and which 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).
Reseller Area: the log in area of the Website made available to the Reseller by Servertastic following the Appointment.
Standard Terms and Conditions: the standard terms and conditions for purchases from the Website as modified and posted by AmberOBD from time to time https://www.amberobd.com.au/pages/terms-of-service.
Supplier: means the person that owns a Product and which agrees to licence it to End Users.
Term: the term of the Appointment as set out in clause 10.
Website: the amberOBD website on the domain servertastic.com.
- Appointment and licence
3.1 AmberOBD appoints Reseller as a non-exclusive 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 product to their own customers during the Term.
3.3 AmberOBD, in consideration of Reseller’s performance of its obligations under these Conditions, grants to Reseller a non-transferable, non-exclusive right to use, sub-license, market and support the Products (including the Intellectual Property Rights therein) to the extent necessary for Reseller to perform its obligations under the Conditions.
- Intellectual property rights
4.1 The Supplier is the owner or licensee of all Intellectual Property Rights forming part of the Products and AmberOBD has the right to grant the sub-licences set out in the Conditions.
4.2 The Conditions shall not be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Products to Reseller or 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 is expressly permitted otherwise in the Conditions.
- AmberOBD’s obligations and rights
5.1 AmberOBD agrees with Reseller throughout the Term to provide such support to Reseller as Reseller may reasonably require to enable it to fulfil its obligations and exercise its rights under the Appointment.
5.2 AmberOBD agrees with Reseller to use its reasonable endeavours to remain invisible to the End User.
- Prices, payment and delivery
6.1 On payment in cleared funds by Reseller AmberOBD will credit the account of Reseller at the end of each month.
6.2 The order and delivery process for each Product will be that set out in the Reseller Area.
6.3 Any times or dates stated on the Website for delivery are estimates only. AmberOBD reserves the right to delay delivery of the Products or any of them until it has received payment in full. If AmberOBD is unable for any reason to deliver an ordered Product it will notify the Reseller.
- Refunds and cancellations
7.1 Standard Terms and Conditions shall apply to Resellers
- Reseller’s obligations
8.1 Reseller undertakes and agrees with AmberOBD 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 transaction relating to the Products, clearly indicating that it is acting as a reseller and not as author and developer of any of the Products;
(b) using at all times its best endeavours to promote and extend the market for the Products and work diligently to obtain orders from End Users for the Products;
(c) at its own expense providing advertising, publicity, promotion and marketing for the Products;
(d) issuing Access Codes to End Users after the End User has paid Reseller for the Product [and entered into the End User Agreement];
(e) handling all sales queries it receives from End Users;
(f) dealing with all aspects of End User billing and payment;
(g) dealing with and paying, whether on its own account or as agent of AmberOBD, all applicable taxation whether in the country in which Reseller is doing business or in the country in which Reseller is established.
(h) ensuring that any servers used by Reseller in performing its obligations as a Reseller are secure to the reasonable satisfaction of AmberOBD; 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 AmberOBD on End Users purchasing Products directly from the Website.
8.2 Reseller undertakes not to:
8.2.1 translate, adapt, vary, modify, disassemble, decompile or reverse engineer any of the Products; or
8.2.2 modify, amend, add to or in any way alter any of the Products supplied to it or to End Users by it, without AmberOBD’s or Supplier’s prior written consent.
9.1 AmberOBD warrants that for any Product purchased by Reseller:
(a) AmberOBD has the right to sell the Product to Reseller;
(b) the Product will correspond with the description provided by AmberOBD to Reseller; and
(c) the Product will be of satisfactory quality.
9.2 AmberOBD shall not be liable for a breach of any warranty in clause 9.1 unless Reseller gives notice of the defect to AmberOBD within  days after the date of delivery of a Product to Reseller and if the Product does not conform with any of the warranties AmberOBD shall within  days of receiving such notice and at its option replace such Product or refund to the Reseller’s account.
9.3 AmberOBD makes no representations and gives no warranties, express or implied that making the Products available in any particular jurisdiction outside of Australia is permitted under any applicable non-Autralian laws or regulations.
- Term, suspension and termination
10.1 The Appointment shall become effective when the Reseller creates an account and shall continue in force until terminated:
10.2 Either party shall be entitled forthwith to terminate the Appointment by written notice to the other 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) becomes insolvent; or
(c) that other party ceases, or threatens to cease, to carry on business
10.3 AmberOBD shall have the right at any time on giving written notice to suspend the Appointment with immediate effect provided that its reasons for doing so are set out in such notice.
10.4 On termination of the Appointment by AmberOBD under clause 10.1(a), the Reseller shall be entitled to a refund of to its account on the date of such termination and AmberOBD will pay the refund to Reseller within seven  days after such date. For the avoidance of doubt, where the Appointment is terminated by the Reseller under clause 10.1(a), the Reseller shall not be entitled to a refund.
10.5 On the termination of the Appointment for any reason Reseller shall cease to promote, market, advertise or solicit the End Users for the Products.
- Limitation of liability
11.1 The following provisions set out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party 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.
11.2 Nothing in these Conditions excludes or limits the liability of either party:
(a) for death or personal injury caused by the either party’s negligence; or
(b) for any matter which it would be illegal for the party’s to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
11.3 Subject to clauses 11.1 and 11.2:
(a) each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, 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 sub-clause; and
(b) neither party shall be liable to the other party for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Appointment.
11.4 Reseller is solely responsible for ensuring that it is legally able to resell the Products and AmberOBD shall have no liability, to the extent permitted by applicable laws, for any costs, losses or damages resulting from or related to the purchase or attempted purchase of the Products from Reseller by persons in jurisdictions outside Australia or who are nominees of or trustees for citizens, residents or nationals of other countries.
11.5 Reseller is solely responsible for all orders placed via the Reseller Area of the Website and shall take all necessary steps to ensure that no unauthorised persons access or place orders for Products through the Reseller Area of the Website. Reseller shall be liable to pay AmberOBD for all orders for Products placed via the Reseller Area of the Website whether authorised, unauthorised or fraudulent.
No amendment or variation of the Conditions shall be effective unless in writing and signed by a duly authorised representative of each of the parties.
- Nature of relationship
The Appointment shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Conditions.
- No assignment
Reseller shall not, without the prior written consent of AmberOBD, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Appointment.
- Data protection
15.1 AmberOBD undertakes to comply with its obligations under the Data Protection Act
15.2 Reseller undertakes to comply with its obligations under data protection laws applicable in the countries where it does business throughout the Term.
16.1 All notices under the Conditions shall be in writing and shall be deemed given when personally delivered, when received in full by e-mail, (where Reseller’s address is in Australia) three (3) days after being sent by pre-paid first class post, or (where Reseller’s address is outside Australia) ten (10) days after being sent by pre-paid airmail to the address of the party to be noticed as set forth in this Agreement or such other address as such party last provided to the other by written notice.
16.2 No failure of either party to exercise or enforce any of its rights under the Conditions will act as a waiver of such rights.
16.3 The Conditions are made only in the English language. If there is any conflict in the meaning between the English language version of the Conditions and any version or translation of the Conditions in any other language, the English language version shall prevail.
16.4 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 enforceable.
16.5 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 and can only be modified or waived 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.
16.6 The parties confirm their intent not to confer any rights on any third parties by virtue of the Appointment and accordingly the Contracts
- Dispute resolution
17.1 The Appointment shall be governed by and construed in accordance with the laws of Australia.
17.2 The parties accept the exclusive jurisdiction of the Australian courts over any claim or matter arising under or in connection with the Appointment.
17.3 If a dispute arises Reseller undertakes that, before taking any other steps whatsoever, it shall, at its own cost and expense, identify and notify in writing to AmberOBD any applicable mandatory rules or matters reserved to courts of exclusive jurisdiction.
17.4 In the event that an End User who is a consumer brings a claim before any court, tribunal or other decision-making body, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, against AmberOBD arising in connection with the performance or contemplated performance of the Appointment by Reseller, Reseller indemnifies and shall keep indemnified AmberOBD from all costs, losses or damages arising from such claim.
- Reseller Structure
18.1 Fees payable to the Reseller
The Reseller Commission will be calculated based on the following:
|10 - 49||12%|
|50 - 99||15%|
|100 - 499||18%|
|500 - 999||20%|
|1000 - 4999||25%|