Exclusive Networks Reseller Application & Agreement

This agreement is entered into by and between Exclusive Networks, an Australian company with its principal place of business at Level 3 Building A, 20 Rodborough Road, Frenchs Forest NSW 2086 (“Exclusive”), and the reseller or dealer (the “Customer”). This agreement outlines the essential points of the business relationship that will exist between Exclusive and the Customer in the process of the resale of any and all hardware, software, service and support (collectively, “Products”) as provided by Exclusive, and suppliers of Exclusive (the “Vendors”).

1. Acceptance and Additional Terms:
Signing the Exclusive Networks Reseller Application indicates the Customer’s acceptance and understanding of these terms and conditions, and forms the agreement (“Agreement”). At all times during the relationship, terms and conditions outlined in the following documents apply and must be observed: (i) Exclusive Networks Terms and Conditions of Sale, (ii) Exclusive Networks Terms and Conditions of Evaluation and (iii) Exclusive Networks Return and Refund Policy. Any Additional Terms attached to the Exclusive Networks Reseller Application form part of the Agreement and may overrule this Agreement and any above stated document. Additional Terms may be stipulated by Exclusive only, any such terms stipulated by the Customer are null and void. The person signing the Exclusive Networks Reseller Application is deemed to have the authority to purchase on behalf of the Customer.

2. Term and Termination:
The Agreement shall commence on the date the Exclusive Networks Reseller Application is signed by both the Customer and an authorised Exclusive representative and remains in effect until a mutually agreed termination date if so desired by either party, unless earlier terminated as set forth herein. Exclusive or the Customer must give not less than thirty (30) days written notice of intent to terminate the Agreement. Exclusive may, at its option, terminate the Agreement immediately without notice if: (i) the Customer fails to comply with any terms and conditions of the Agreement or (ii) Exclusive are acquired by or merged with another business, entity or person. Upon termination of the Agreement for any reason: (i) the Customer must immediately cease further distribution of Products, (ii) the Customer must settle all outstanding amounts owed to Exclusive within the period specified for the Customer’s account terms and (iii) all current Evaluation Agreements will be terminated, and the Customer must immediately return to Exclusive any Products and all related materials, accessories, packaging and documentation on loan for evaluation purposes. The obligation of confidentiality as set forth in this Agreement shall remain in effect notwithstanding any termination of this Agreement.

3. Vendor Products and Terms:
Exclusive offers Products for resale, sourced from Vendors, both from within Australia and internationally. This agreement applies to any and all such Products offered by Exclusive current as at the time the Agreement is signed and for the duration of the term of the Agreement. The Customer must be aware that
in addition to this Agreement (i) the Vendor may provide further terms, conditions and require formal agreements (Vendor Terms) in order for the Customer to become eligible to sell some or all of the Vendor’s Products and/or purchase at a particular level of pricing, and (ii) that while such Vendor Terms may be provided by Exclusive upon request, that it is ultimately the Customer’s reponsibility to be aware of, source, and agree to them.

4. End Users:
The entities and persons to which the Customer sells the Products, and the entities and persons by whom the Products will be used and/or registered to either as a result of sale or under evaluation, will be referred to as the “End User”. End User information is often required during the sales process to validate eligibility for service and support, upgrades, special discounts, and as registration information for purchased Products. End Users may also be required to agree to Vendor Terms.

5. Territory:
Exclusive holds specific distribution agreements with Vendors that specify what geographical areas into which Products may be sold. The Customer may assume eligibility to sell to an End User located anywhere within Australian states and territories. In addition, the Customer may sell Products to an End User registered as an Australian business or entity where the site the Products will be used are outside of Australia, on the condition that delivery of the Products is not prohibited under any law. In cases where the End User is not an Australian registered business or entity and is located outside of Australia, such eligibility will be determined on a case by case basis according to conditions set forth by the Vendor.

6. Customer’s Rights:
• The Customer is authorised to resell and market Products offered by Exclusive on behalf of its Vendors, subject to Vendor Terms and Territory agreed herein.
• For each vendor the Customer will be assigned a ‘Partner Level’ according to Exclusive and Vendor selection criteria, and subject to any required Vendor Terms.
• Pricing for each Vendor, specific to the Customer’s nominated Partner Level, will be available upon request (subject to Exclusive pricing policies).
• The Customer has no minimum inventory or volume commitments, other than those stipulated per item as a minimum order quantity, or by the Vendor as part of the

Vendor Terms.
• The Customer has the right to a reasonable level of pre-sales and post-sales technical support to be provided by Exclusive engineers remotely via phone, email or remote configuration.
• The Customer will be eligible for Demonstration, Not-For-Resale and Evaluation Products. Such Products may be provided at heavily discounted prices and are subject to special terms, conditions and limitations on usage.

7. Customer’s Obligations:
• The Customer will distribute any Products only as packaged by Exclusive in accordance with this Agreement, with all vendor packaging, warranties, disclaimers and End User License Agreements intact.
• The Customer will notify all End Users, in writing: (i) of any Vendor Terms applicable to use of the Vendor’s Products, as provided or made available by Exclusive or the Vendor, and (ii) that the offer of sale and use of the Vendor’s Products is subject to the End User’s agreement to the Vendor Terms.
• The Customer will be responsible for confirming that resale, delivery and use of Vendor Products is not prohibited under any applicable laws in the Vendor’s, Customer’s and End User’s countries.
• The Customer’s personnel will become and remain adequately informed and trained in relation to the sale, usage and Vendor Terms of all Vendor Products that they offer to End Users.
• The Customer will be bound by marketing guidelines as set forth in advice by Exclusive and in Vendor Terms.
• The Customer will not make any warranties or representations in relation to Products or on behalf of a Vendor without written evidence or permission.
• The Customer will provide End User details upon request for quotations and purchase orders.
• The Customer hereby agrees that in relation to sales leads provided by Exclusive, Products will be purchased from Exclusive as a preferred supplier, with bias for Exclusive over other suppliers.
• The Customer will not divulge price lists, quotations, sales histories, leads or any other information provided by Exclusive and deemed confidential to any other entity or person without Exclusive’s written permission.
• The Customer will not compete with Exclusive in any fashion, or undertake to act as an agent or sub-distributor. The Customer may only purchase Products from Exclusive for the purposes of re-sale to an End User, and may not sell Products to another reseller, distributor or agent for the purposes of re-sale.
• The Customer will actively pursue and close any leads referred by Exclusive, and report to Exclusive on such leads regularly.
• The Customer has a duty to give service to End Users, and in all cases attempt to resolve issues independently before contacting Exclusive.

8. Exclusive’s Responsibilities:
• Exclusive may issue a press release, subject to the Customer’s approval, announcing this relationship. The Customer may use this to inform press contacts and customers about the new relationship.
• Exclusive may issue periodic email notices, which may include product availability information and other tips and techniques for successfully selling and marketing the Products.
• Exclusive will endeavour to track purchased items which require renewal, and advise the Customer of renewal opportunities where possible.
• Exclusive may, once a better understanding of the Customer’s business has been achieved, refer leads to the Customer.
• Exclusive will endeavour to maintain pricing and product information, and strive to minimise errors in such information.
• Exclusive will endeavour to process orders from the Customer as quickly as possible, and advise promptly of any delays or errors.

9. Pricing and Delivery:
Pricing issued by Exclusive is subject to change and quotations are valid only until the stated expiry date. In the case of Products sourced from outside Australia, Exclusive retains the right to invalidate any pricing if the exchange rate changes by +/- 2 cents. As a budgetary illustration, any quote offered by
Exclusive does not constitute a binding contract until a purchase order or acceptance of the quote has been provided by the Customer, and accepted by Exclusive. Processing of purchase orders and lead times are subject to acceptance by Exclusive, confirmation of required order details, payment details or account terms, and additional processing time required by Vendors of the Products, for non-stocked and non-standard Products. Cancellations of orders are accepted, though the customer is liable for any costs incurred by Exclusive up to the time of cancellation. The Customer accepts liability for Products shipped using their own courier or picked up from Exclusive premises. Responsibility passes from Exclusive to the recipient upon successful delivery. The Customer must report any delivery shortage or damage immediately, Exclusive will not be held liable for damage incurred after responsibility has passed to the Customer. The Customer must make payment of any amount due to Exclusive by the due date as stated on issued invoices and statements. Any advice issued by Exclusive is believed to be reliable, but the Customer is responsible for confirming and understanding any required information relating to a sale. The Exclusive Networks Terms and Conditions of Sale applies to all sales.

10. Returns and Refunds:
A Exclusive Networks Return Authorisation Request Form must be submitted and approved prior to returning any Products to Exclusive. Exclusive will accept returns where the product is: (i) within 30 days of invoice, and (ii) on an open support case raised with Exclusive if suspected as being DOA, and (iii)
undamaged and complete. Exclusive will use it’s discretion for returns where the Product is: (i) outside 30 days of invoice, or (ii) damaged or incomplete but still in resaleable condition, or (iii) build-to-order, a service or electronic license, or (iv) used but in a resaleable condition, or (v) considered unfit for purpose, as advised by Exclusive, or (vi) no longer required by the End User. Exclusive will not accept returns under any circumstances where the Product is: (i) outside of 60 days of invoice, or (ii) damaged to the extent requiring repair or replacement, or (iii) in any way not considered in resableable condition, or (iv) specified as non-returnable prior to sale, or (v) classified as software and has been used, or (vi) classified as a service which has been in effect, or (vii) within 30-60 days of invoice but has been deemed ‘end-of-life’, discontinued or no longer supported by the Vendor. A return fee may be charged. The Exclusive Networks Return and Refund Policy applies to all returns and refunds.

11. Confidential Information:
Exclusive and the Customer each agree to retain in confidence all information disclosed by either party or a Vendor to the other party pursuant to the Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be
understood to be confidential (the “Confidential Information”). The Customer acknowledges and agrees that the Products and all information provided to the Customer in accordance with the Agreement shall be Exclusive’s or the Vendor’s Confidential Information without the need for any marking. Each party agrees to: (i) strictly preserve and protect the privacy of the Confidential Information; and (ii) refrain from using the other party’s Confidential Information except as contemplated herein. The Customer is solely responsible for removing any data stored on the Products that the Customer may consider confidential; Exclusive and the Vendor will not have any obligations or liability with respect to data remaining on Products returned to Exclusive. The Customer shall not publish, or provide any results of benchmark tests, or other evaluations of Products without Exclusive’s prior written consent. Exclusive shall have the right to use for any purpose any information regarding the Products gained as a result of Customer’s use and evaluation of the Products. Such information shall include but not be limited to changes, modifications, corrections and improvements to the Products suggested by the Customer.

12. Warranties:
Unless explicity stated otherwise, all Products are supplied “as is” without any representations, conditions, terms or warranties of any kind. All conditions and warranties, whether expressed or implied, and whether arising by statute, custom of the trade or at common law are excluded. Exclusive and its Vendors do not warrant that the Products will be uninterrupted or error free, nor make any warranty as to the results of usage of the Vendors Products. Any abuse or alterations to Products supplied by Exclusive, including but not limited to misuse, use beyond the limits of the product or failure to follow instructions will automatically void the warranty. Exclusive does not guarantee any products against water damage, lightning strikes, abuse or improper installation and wiring without the ground being earthed. The offer and support of, and any service in relation to, product warranties and guarantees are supplied by the Vendor of the Product, not Exclusive. Exclusive may optionally provide services and support which offer additional or enhanced terms to Vendor warranties, in which case a contract is supplied between Exclusive and the Customer. Any such contracts will be binding in addition to these terms and conditions. If no such contract is supplied by Exclusive, all responsibility in maintenance of any warranties or guarantees remains with the Vendor.

13. Indemnity:
The Customer and their insurance company shall indemnify Exclusive from and against all liability, loss, damage, injury, cost, expenses, claims and demands arising from any cause to themselves, others or personal property, other than negligence or breach of contract by Exclusive. Exclusive will not be responsible for damage or losses, direct or indirect, arising from any cause whatsoever, nor for damage to the equipment caused by outside influences including modifications, improper installation and maintenance, corrosion and/or electrolysis, improper voltage supply, lightning, or careless handling, nor for labour, transportation or other charges incurred in the replacement or repair of damaged parts. Exclusive assumes no responsibility for the suitability of the intended use of the products provided unless written evidence of acceptance of required suitability is provided by Exclusive.

14. Limitation of Liability:
The Customer agrees that in no event shall Exclusive be responsible or liable, with respect to any subject matter of the Agreement or terms and conditions related thereto under any contract, tort (including negligence), strict liability or other legal theory, for any indirect, consequential, incidental, special or exemplary damages of any kind arising out of or in connection with the Agreement. In no event shall Exclusive’s liability include (i) cost of procurement of substitute Products, or (ii) loss of profits, or (iii) indirect, special, incidental or cosequantial damages, or (iv) interruption of use or corruption of data, or (vi) injury. Exclusive’s liability will never exceed the greater of (i) the amount paid by the Customer to Exclusive for Products deemed by Exclusive to be in direct relation to the Customer’s claim for damages, and (ii) the limitation of liability as provided by the Vendor Terms. The foregoing limitations shall apply even if Exclusive has been advised of the possibility of such damages, and notwithstanding the failure of the essential purpose of any limited remedy.

15. Entire Agreement:
This Agreement constitutes the entire Agreement between the parties hereto pertaining to the subject matter hereof and any and all written or oral agreements heretofore existing between the parties hereto are expressly canceled. Any modifications of this Agreement must be in writing and signed by both parties hereto. In any action to enforce this Agreement the prevailing party will be entitled to costs and legal fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. If any legal proceedings against Exclusive are initiated, Exclusive has the unfettered right to choose the jurisdiction of our preference as to where such action against us may be held.