Channel Partner Reseller Agreement

Channel Partner Reseller Agreement

PARTIES:

Ai-Media:       Ai-Media Technologies LLC

Reseller:         the company or other entity accepting this Agreement or placing a prospective order.

RECITALS:

1. The Reseller wishes to become an Ai-Media Partner to offer broadcast quality captioning devices and captioning services to Clients, who pay the Reseller for those products and services.
2. The Reseller wishes to engage Ai-Media to provide the Products and Services to the Reseller’s Clients, or to the Reseller for on-supply to its Clients, and Ai-Media has agreed to the engagement, on the terms set out in this Agreement.

OPERATIVE PART:

1. DEFINITIONS AND INTERPRETATION

1.1         Definitions

• The following capitalized words are defined as follows in this Agreement:
  • Agreement means this agreement and includes the descriptions of parties, recitals, schedules and annexures to the agreement;
  • Ai-Media Facility means Ai-Media’s EEG facility located in New York, United States;
  • Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in the place in which the applicable Ai-Media entity is incorporated;
  • Captioning means any real-time captioning or transcription services that are provided by EEG’s “Lexi” service over the Platform and streamed to the requisite Client or third party destination, including without limitation captioning for any media live-streamed through any online or third party platform;
  • Claims means actions, suits, causes of action, arbitrations, debts, dues, costs, claims, demands, verdicts, orders and judgments either at law or in equity or arising under a statute and whether or not the matters giving rise to those claims are known to the parties at the date of this Agreement;
  • Client means the client of the Reseller;
  • Client Materials means the audio, video, written files, documents or materials the Reseller or its Client provides to Ai-Media in connection with the Services;
  • Code of Conduct means the Ai-Media Code of Conduct policy available at: https://investorrelations.ai-media.tv/investor-centre/?page=corporate-governance
  • Commencement Date means the date set out at Item 1 of Schedule 1;
  • Confidential Information means all information and material (whether oral, in writing or electronic) relating to a party and its business, or the Client, that is not publicly available (other than by breach of this Agreement), including without limitation strategic, corporate, operational and financial information. Confidential Information also includes the contents of this Agreement;
  • Delivered Materials means the captions, caption files and/or transcripts delivered to the Client by Ai-Media in connection with an Order;
  • Discount Amount means the discount percentage set out at Item 5 of Schedule 1;
  • Encoder Warranty & Product Support Terms means the Ai-Media Encoder Warranty & Product Support Terms as available at https://www.ai-media.tv/global-terms/;
  • Facilities means the facilities of the Client including but not limited to the premises, working space, computer equipment, access to the Internet, and access to the Client’s computer network and telecommunications system;
  • Fees means the fees set out at Item 5 of Schedule 1;
  • Force Majeure Event means any event beyond the reasonable control of the party affected by it, in consequence of which that party cannot reasonably be required to perform its obligations under this Agreement including but not limited to, fire, outbreaks of war, pandemics, epidemics, acts of hostility, terrorist activity, national emergency, government action, or any act of God (but does not include a lack of funds of a party). In respect of Ai-Media, it includes where any of its employees, agents or contractors who are captioners or transcribers directly involved in providing the Products are sick or suffer some other emergency or unexpected event;
  • Further Term means the period set out at Item 3 of Schedule 1;
  • Global Terms means the Ai-Media Global Terms as available at https://www.ai-media.tv/global-terms/;
  • Hardware means the hardware devices set out at Item 4 of Schedule 1 and such other hardware the parties agree in writing from time to time to come under this Agreement;
  • Initial Term means the period set out at Item 2 of Schedule 1;
  • Insolvency Event means the occurrence of any one or more of the following events in relation to a party:
    • an application is made to a court for an order that it be wound up, declared bankrupt or that an administrator, liquidator provisional liquidator or receiver or receiver and manager be appointed, and the application is not withdrawn, struck out or dismissed within twenty one (21) days of it being made;
    • a liquidator or provisional liquidator is appointed and the appointment is not terminated within fourteen (14) days of it being made;
    • an administrator or a controller is appointed to any of its assets and the appointment is not terminated within fourteen (14) days of it being made;
    • it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;
    • it proposes a winding-up or dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
    • it is insolvent as disclosed in its accounts, or otherwise states that it is insolvent, or it is presumed to be insolvent under an applicable law;
    • it becomes an insolvent under administration or action is taken which could result in that event and the proceeding is not dismissed within twenty one (21) days of the date action is taken;
    • a writ of execution is levied against it or a material part of its property which is not dismissed within twenty eight (28) days;
    • it ceases to carry on business or threatens to do so, other than for reorganisation or restructuring; or
    • anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
  • Intellectual Property all copyright, designs and industrial designs, circuit layouts, trademarks, service marks and commercial names and designations, trade secrets, know-how, confidential information, patents, invention and discoveries, literary artistic and scientific works, inventions in all fields of human endeavor, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
  • Intellectual Property Rights means all rights in the Intellectual Property, including current and future registered and unregistered rights, whether conferred by statute, common law or equity, in any jurisdiction in the world;
  • Loss means, in relation to any person, any damage, loss, cost (including legal costs on a full indemnity basis), expense or liability incurred by the person or any claim, action, proceeding or investigation made against the person however arising and whether present or future, fixed or unascertained, actual or contingent;
  • On-Premises Software means any Ai-Media or Ai-Media Affiliate software products for installation on the Client’s premises or a third party cloud environment controlled by the Client, such as virtual EEG encoders, including any updates to such software as may be provided by Ai-Media;
  • Order means an order for Products or Services from the Reseller accepted by Ai-Media;
  • Personnel means a party’s employees, agents and contractors;
  • Platforms means the online EEG customer platform (located on eegcloud.tv) or as otherwise notified by Ai-Media to the Reseller from time to time;
  • Privacy Policy means the Ai-Media policy located at: https://www.ai-media.tv/privacy-policy/
  • Product Terms means the Ai-Media Product Terms as available at: ai-media.tv/global-terms/;
  • Products means Hardware and On-Premise Software;
  • Re-Sell means to promote, market and issue proposals and invoices in respect of the Products and Services.
  • Services means the services set out at Item 4 of Schedule 1, and such other services the parties agree in writing from time to time to come under this Agreement;
  • Term means the Initial Term and the Further Term in accordance with clause 2(b) (if any); and
  • Terms of Service means the Ai-Media Terms of Service as available at: https://www.ai-media.tv/global-terms/.

1.2         Interpretation

• In the construction of this Agreement unless contrary to or inconsistent with the context:
  • a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  • a reference to the singular number includes a reference to the plural number and vice versa;
  • mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included;
  • the word person includes a natural person, a firm, a body corporate, an unincorporated association, trust, partnership or an authority;
  • a reference to any person or company shall mean and include the legal personal representatives, successors in title, substitutions (including, but not limited to, persons taking by novation) or assigns of such person or company as the circumstances may require;
  • a reference to a month shall mean a calendar month, a reference to a year shall mean a calendar year, and a reference to a quarter shall mean three (3) months;
  • a reference to a business day means a day that is not a Saturday, Sunday or a public holiday in the place where Ai-Media’s office is located; and
  • a reference to dollars, USD or $ is to an amount in the currency of the United States of America.

1.3         Construction

• Headings are for convenience of reference only and do not affect the interpretation of this Agreement.
• Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.

2. TERM AND ENGAGEMENT

2.1         Term

• This Agreement will commence on the Commencement Date and continue for the Term, unless terminated earlier in accordance with clause 8(e).
• This Agreement will automatically extend for the Further Term on expiry of the Initial Term unless either party gives the other party notice of non-renewal at least 30 days prior to the expiry of the Initial Term.

2.2         Engagement

• Ai-Media hereby grants to the Reseller the non-exclusive, non-transferrable and revocable right to Re-sell the Products and/or Services to the Reseller’s Clients for the duration of the Term and on the terms outlined herein. To avoid doubt, nothing herein will prevent Ai-Media from entering into any reseller, products, services or other agreement with any third party either during or after the Term.
• Subject to the terms herein, the Reseller is permitted to identify itself as an ‘Ai-Media Partner’, and to use the Ai-Media trade mark and logo (Ai-Media Marks) solely in connection with its Re-selling of the Products and Services and provision of associated support. The Reseller must comply with any guidelines for use of the Ai-Media Marks that are notified to it by Ai-Media from time to time. All goodwill arising from the Reseller’s use of the Ai-Media Marks inures to the benefit of Ai-Media.
• Ai-Media will provide the Products and/or Services Ordered by the Reseller from time to time, in consideration of the Reseller paying the Fees to Ai-Media, subject always to the terms of this Agreement.

2.3         All Products

• The parties acknowledge and agree that, unless otherwise agreed between Ai-Media and the Reseller, the installation and integration of Products within Client premises and systems shall be the responsibility and cost of the Reseller or the Client, and not Ai-Media.
• Ai-Media reserves the right (but does not assume the obligation) to make any changes in the specification of the Products which are required to conform with any applicable legislation, and otherwise which do not materially affect their quality or performance.

2.4         Hardware (Physical Encoders)

• The Reseller acknowledges that the Hardware will be manufactured by Ai-Media in New York, United States of America.
• Ai-Media will use commercially reasonable efforts to arrange delivery of Hardware Ordered by the Reseller to the Reseller’s delivery address specified in the Order by the date specified in the Order.
• Ai-Media will pay the cost of shipping and freight of the Hardware to the Reseller. The Reseller will be responsible for all customs duties and other related charges, which Ai-Media may on-charge to the Reseller if paid for by Ai-Media..
• The Reseller is responsible for shipping the Hardware to its Clients, and any and all associated costs.
• All risk and liability in respect of the Hardware shall be borne by the Reseller once such Hardware is delivered to the Reseller.
• Title in any Hardware purchased outright by the Reseller shall pass to the Reseller on the later of delivery of the Hardware to the Reseller and when Ai-Media has received in full in cleared funds the requisite Fees and all other sums which become due to Ai-Media from the Reseller in respect of such Hardware.
• Until title to the Hardware purchased outright by the Reseller has passed to the Reseller under clause 3(d), where Hardware has been delivered to the Reseller, the Reseller shall: (a) hold the Hardware on a fiduciary basis as Ai-Media’s bailee; (b) not be entitled to sell, Re-sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber the Hardware; (c) store the Hardware (at no cost to Ai-Media) in satisfactory conditions and separately from all its other equipment or that of a third party, so that it remains readily identifiable as Ai-Media’s property; (d) not destroy, deface or obscure any identifying mark or packaging on or relating to the Hardware; and (e) keep the Hardware insured on Ai-Media’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Ai-Media, ensure that Ai-Media’s interest in the Hardware is noted on the policy, and hold the proceeds of such insurance on trust for Ai-Media and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
• For any Hardware supplied to the Reseller on a rental basis:
  • Ai-Media owns and retains title to the Hardware, and neither the Reseller nor the Client may encumber Ai-Media’s title to the Hardware in any way, or allow it to be encumbered;
  • the rental Fees and instalment frequency will be specified in the Order. Ai-Media will invoice the rental instalments in accordance with the Order;
  • subject to paying the rental instalments, the Reseller (and its Client) may use the Hardware during the rental term specified in the Order (Rental Term);
  • the Reseller agrees to return the Hardware to Ai-Media at the address nominated by Ai-Media within five (5) business days of the expiry of the Rental Term, provided that Ai-Media will not refund any rental Fees if the Reseller elects to return the Hardware before expiry of the Rental Term;
  • the Reseller will solely be responsible for the administration, management, coordination and payment of shipping and costs associated with the return of Hardware to Ai-Media and must promptly inform Ai-Media of details of return delivery (to this end, the Reseller will be responsible for all costs (including Late Fees) that may arise from the Reseller not acting in accordance with this sub-clause);
  • if the Reseller fails to return the Hardware to Ai-Media at the address nominated by Ai-Media by the expiry of the Rental Term, the Reseller acknowledges and agrees that it will be charged a fee of 2 times the weekly rate of such Hardware as specified in the applicable Order (Late Fee) from the expiry of the Rental Term until the date that the Hardware is returned or 28 days after expiry of the Rental Term (whichever occurs earlier). If the Hardware is still not returned 28 days after expiry of the Rental Term, the Reseller must pay a further fee of 2 times the market value of the Hardware as calculated at that date, payment of which must be made to Ai-Media within 3 days of being invoiced to the Reseller. To avoid doubt, the Reseller agrees that the fees under this clause are reasonable and commensurate with amounts lost by Ai-Media due to such delay or failure to return the Hardware;
  • the Reseller (and its Client) must operate, maintain and store the Hardware in accordance with the Documentation and otherwise keep the Hardware in good repair and condition (normal and reasonable wear and tear excepted). If the Hardware is not in good repair or condition (in Ai-Media’s reasonable opinion) when it is returned to Ai-Media, Ai-Media may make such repairs as it considers are necessary and the Reseller must reimburse Ai-Media’s actual cost of doing so (which Ai-Media may invoice the Reseller for);
  • the Reseller will be responsible for the risk of loss (including theft) or damage to the Hardware at all times once it is delivered to the Reseller until it is delivered and returned back to Ai-Media’s warehouse;
  • if the Hardware is damaged, the Reseller must promptly notify Ai-Media, must continue to pay the rental instalments, and (if the Hardware is repairable), pay to Ai-Media the cost of having the Hardware repaired or (if the Hardware is not repairable, or the cost of repairing it would exceed the market value of the Hardware), pay to Ai-Media all remaining rental instalments to the end of the Rental Term, plus the applicable Late Fee applicable (inclusive of the duration of Ai-Media’s inspection and potential repair of Hardware), plus the market value that the Hardware would have had at the end of the Rental Term but for the damage (as calculated by Ai-Media) (Recouped Value);
  • if the Hardware is lost, the Reseller must promptly notify Ai-Media and must pay to Ai-Media the Recouped Value;
  • the Reseller must take out and maintain during the Rental Term, appropriate insurance covering the risk of loss or damage to the Hardware; and
  • if the Reseller fails to pay a rental instalment when due, breaches a term of this Agreement in relation to the Hardware, or an Insolvency Event occurs in relation to the Reseller or its Client (Default), without limiting any other remedy available at law or in equity, Ai-Media may, at its election: (A) retake possession of the Hardware wherever it may be located, in which case the Reseller must provide all necessary access to its facilities, and procure all necessary access to its Client’s facilities, to permit Ai-Media to retake possession; (B) declare the rental instalments for the remainder of the Rental Term immediately due and payable by notice to the Reseller; (C) terminate the Order for the Hardware; and/or (D) commence proceedings to recover the rental Fees and any other liabilities arising before or after the Default.
• The Hardware includes software and firmware that is embedded in the Hardware (Embedded Software). The Client’s right to use the Embedded Software is granted under, and is subject to the Product Terms, which the Reseller must notify the Client of at the time of sale of the Hardware.

2.5         On-Premise Software (Virtual and Cloud Based Encoders)

• The On-Premise Software is licensed for use on a subscription basis, subject to payment of subscription fees, and not sold. All access, installation and use of the On-Premise Software by the Reseller’s Clients and their users is subject to the Global Terms and Product Terms, and the Reseller must not purport to impose any other terms and conditions in relation to the access, installation and use of the On-Premise Software.

2.6         Services

• Ai-Media hereby grants to the Reseller the non-exclusive, non-transferrable and revocable right to on-supply the Services ordered by the Reseller to Reseller’s Clients, and to manage the Services on behalf of the Clients, for the duration of the Term and on the terms outlined herein.
• All access to and use of the Services by the Reseller, its Clients, and its and their users is subject to the Global Terms and Terms of Service, and the Reseller must not purport to impose any other terms and conditions in relation to the access and use of the Services.
• Unless otherwise agreed by Ai-Media, the Reseller (or its Client) is responsible for setting up accounts on the Platform for its Clients, configuring the Services for its Clients, and managing the Services on behalf of the Clients. The Reseller must not provision an account for a Client until the Client has accepted the Global Terms.
• The Reseller acknowledges that the Services will be:
  • provided by Ai-Media remotely via the Platform.
  • performed by auto-captioning software via the Platforms.
• Ai-Media is permitted to subcontract performance of some or all of the Services to any person, provided that Ai-Media is responsible for the acts or omissions of any subcontractor.

2.7         Support

• During the Term, Ai-Media will provide the Reseller with high level support in connection with the Reseller’s Re-sale of the Products and Services. Ai-Media may also offer training modules from time to time in connection with Ai-Media Products, Services and Re-sale of them.
• Other than as set out in clause 7(c) or 2.7(d), the Reseller is solely responsible for providing support to its Clients in respect of any Products or Services Re-sold by the Reseller.
• Ai-Media will provide support to the Client, or the Reseller on behalf of the Client, for Products in accordance with the Encoder Warranty & Product Support Terms. Any support after the ‘Warranty Service Period’ or ‘First Year Support Period’ (as those terms are defined in the Encoder Warranty & Product Support Terms) is subject to the Client purchasing an annual Product support plan covering the Products through the Reseller.
• Ai-Media will provide the Client (or the Reseller on behalf of the Client) with reasonable remote technical support for Services during Ai-Media’s US business hours in accordance with the Global Terms.
• In respect of any support provided, the Reseller must, or the Reseller must ensure that the Client must:
  • Notify Ai-Media of issues or problems in a timely manner using the support contact details made available on Ai-Media’s website.
  • Provide Ai-Media with access to equipment, software and services for the purposes of maintenance, updates and fault prevention.
  • Keep Ai-Media informed about potential changes to its IT system.
  • Maintain good communication with Ai-Media at all times.
• Ai-Media shall not provide support in respect of any third party (including Reseller) software or Client or Reseller IT infrastructure or Facilities.

2.8         Acceptance of terms by Client

• The Reseller must ensure that each Client accepts the Global Terms, including the Product Terms and Terms of Service (as applicable) in a manner legally binding on the Client, including by:
  • notifying each Client that use of the (A) On-Premise Software is subject to the Global Terms, including the Product Terms, and that they must accept them before they will be permitted to access, install and use the On-Premise Software; and (B) Service is subject to the Global Terms, including the Terms of Service, and that they must accept them before they will be permitted to access and use the Service; and
  • including a link to the Global Terms in each proposal the Reseller provides to a Client that includes the On-Premise Software or Services, and any other marketing material the Reseller uses in promoting the On-Premise Software or Services.
• The Reseller must:
  • immediately notify Ai-Media if it becomes aware of, or suspects, a breach of the Global Terms by a Client; and
  • assist Ai-Media in the enforcement of the Global Terms against the Client in the manner directed by Ai-Media, including taking actions in accordance with Ai-Media’s reasonable instructions.

2.9         General

• This Agreement applies to all transactions between Ai-Media and Reseller relating to the supply of Products during the Term. This Agreement takes precedence over any terms and conditions contained in any document of the Reseller or elsewhere, unless otherwise agreed in writing by the parties.
• The relationship between Ai-Media and the Reseller is that of a principal and an independent contractor. Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee or representative of any other party or to create any trust relationship between them.
• The parties acknowledge and agree that Ai-Media is not a party to the agreement or arrangement between the Reseller and Client. Ai-Media is in no way liable to the Client for any loss, damage, cost, claim or expense, however so arising, in connection with this Agreement or the agreement between the Reseller and the Client.

3. ORDERING AND FEES

3.1         Ordering

• From time to time during the Term the Reseller may place a proposed order for Products and/or Services to Ai-Media in writing (including by email to Ai-Media’s designated orders email from time to time).
• In each proposed order, the Reseller must detail the name of the Client and corresponding contact information (including but not limited to Client contact’s email address, phone number and business address), and the Client’s proposed use of the Products and/or Services.
• Ai-Media may in its absolute discretion refuse to accept a proposed order, or otherwise refuse to provide Products and/or Services, where:
  • the proposed order relates to a jurisdiction that Ai-Media does not supply Products or Services to;
  • the proposed order relates to a Client that Ai-Media has previously cancelled services to;
  • the proposed order relates to a Client, or a country, that is embargoed or sanctioned by the United States of America or Australia;
  • the order is for renewal of a subscription or support plan for a Client where Ai-Media has given notice of non-renewal in relation to that Client;
  • Ai-Media is not able to provide the Products and/or Services due to a Force Majeure Event;
  • the content provided is illegal, offensive, malicious, racist, pornographic, sexist, profane, against public decency or otherwise in breach of the Global Terms or Terms of Service;
  • Ai-Media has not received payment for Products and/or Services previously provided to the Reseller; or
  • in accordance with the ordering rules set out on the Ai-Media Website.
• A proposed order will only become an Order under this Agreement once accepted by Ai-Media in writing.
• Ai-Media may collect and use certain personal data and information in connection with Reseller’s placement of an Order in accordance with the Privacy Policy.

3.2         Client Pricing

• The Reseller will independently determine the pricing at which it offers the Products and/or Services to its Clients.
• The Reseller will be solely responsible for collecting all fees from its Clients. Non-payment by Clients will not relieve Reseller of its obligation to pay Fees to Ai-Media.
• The Reseller is responsible for determining any taxes applicable to the supply of the Products and Services to the Clients;
• Ai-Media reserves the right to cancel or suspend provision of the Products and/or Services with respect to any Client if it has not received payment from the Reseller of the Fees with respect to such Client.

3.3         Fees

• In consideration of the provision of the Products and/or Services, the Reseller will pay Ai-Media the Fees.
• The Fees are fixed for the Initial Term, and thereafter may be varied by Ai-Media from time to time by notice to the Reseller sixty (60) days prior to the change taking effect. If the Reseller does not agree to the relevant variation of Fees, then the Reseller may terminate this Agreement on written notice to Ai-Media and this Agreement will terminate on the day that the relevant variation of Fees takes effect.
• The Fees and Discount Amounts are exclusive of tax, fees, imposts or charges imposed under law. Each party agrees to comply with relevant laws relating to goods and services or sales tax.
• In respect of each Order, Ai-Media will issue the Reseller a tax invoice setting out the Fees for the relevant Products and Services under the Order. The Reseller must make payment within thirty (30) days of receipt of a tax invoice from Ai-Media.
• The Reseller must pay Ai-Media the Fees for a relevant Order by Electronic Funds Transfer to Ai-Media’s nominated bank account.
• Ai-Media may set-off any amount payable to the Reseller by Ai-Media under this Agreement against any amount payable by the Reseller to Ai-Media under this Agreement.
• If the Reseller does not make a payment by the due date required under this Agreement, without prejudice to Ai-Media’s rights under clause 10, Ai-Media may do any or all of the following:
  • charge interest at the rate of ten per cent (10%) per annum on all overdue amounts owed by the Reseller to Ai-Media, calculated and accruing daily, until the relevant overdue amount (and accrued interest) is paid;
  • not provide any Products and/or perform any Services until any outstanding amount due by the Reseller under this Agreement has been paid; and/or
  • require the Reseller to immediately return (at the Reseller’s cost) any Products that have already delivered to the Reseller for which the requisite Fees have not been paid.

4. RESELLER OBLIGATIONS

4.1         Obligations

• The Reseller must:
  • co-operate with Ai-Media as Ai-Media reasonably requires, to enable Ai-Media to provide the Products and/or Services; and
  • provide quarterly reports on its Re-sale activities in a format reasonably requested by Ai-Media from time to time, including details of Clients, Products and Services Re-sold, and serial numbers of all Hardware Re-sold, for the preceding quarter; and
  • provide information and documentation that Ai-Media reasonably requires, to enable Ai-Media to provide the Products and/or Services.

4.2         Restrictions

• The Reseller will not, and will not permit any third party to:
  • sell, copy, reproduce, provide access to, make available, distribute or sub-license the Products and/or Services to any party other than its Clients unless expressly authorized in this Agreement;
  • use the Products and/or Services to develop a similar or competing product or service;
  • reverse engineer, de-compile or seek to access the source code or circuit workflows, designs or patents of or in respect of the Products and/or Services, Intellectual Property or other goods or services of Ai-Media; or
  • reproduce, adapt, disseminate, modify or create derivative works of the Products and/or Services, services, platforms or the Intellectual Property of Ai-Media (or parts thereof).

4.3         Conduct

• The Reseller must:
  • hold and protect the goodwill, brand and image of Ai-Media continually in high regard in respect of its activities and communications with its Clients;
  • act in good faith and in compliance with all laws and regulations (including export controls, trade sanctions anti-corruption, and data privacy and protection) at all times in connection with this Agreement and in the Reseller’s interactions with Clients and Ai-Media;
  • in respect of its and its personnel’s activities hereunder and in respect of the Products and/or Services, comply with the Ai-Media Code of Conduct;
  • not represent itself as an agent or employee of Ai-Media nor make representations, warranties or otherwise in respect of the Products and/or Services without the prior written consent of Ai-Media in each instance; and
  • not engage in any misleading, deceptive, fraudulent, illegal, or unethical conduct in connection with its performance under this Agreement or provision of Products and/or Services to the Clients.

4.4         Records and audit

• The Reseller must:
  • keep full and complete records in sufficient detail to enable Ai-Media to verify the Reseller’s compliance with this Agreement for the Term and for seven years after the Term;
  • permit Ai-Media, or an auditor appointed by Ai-Media, to examine such records on reasonable prior written notice, and otherwise cooperate with Ai-Media or the auditor in relation to verifying the Reseller’s compliance with this Agreement; and
  • provide all such information and assistance as Ai-Media reasonably requires in connection with any statutory, government agency or other industry body investigation, audit, review or assessment in connection with this Agreement or the Services.

4.5         Breach

• Any breach of the obligations of the Reseller as set out in this clause 4 will constitute a material breach of this Agreement.

5. LIABILITY

• The liability of Ai-Media under or in connection with this Agreement for any Loss or Claim whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the total Fees paid by the Reseller to Ai-Media under this Agreement.
• Other than for liability of the Reseller under clause 5(e), neither party will be liable to the other party for any indirect, special, economic or consequential loss or damage, or any loss of revenue, profits, goodwill, data, opportunities or anticipated savings, whether arising in negligence, breach of contract, statute or otherwise.
• Nothing in this Agreement is intended to exclude, restrict or modify any guarantees under law which apply and cannot be excluded, restricted or modified. Otherwise, all terms, conditions, guarantees, warranties and representations, express or implied by statute or otherwise are excluded.
• Notwithstanding clause 5(a), to the extent permitted by law, Ai-Media’s liability for a breach of any guarantee or warranty imposed under this Agreement or at law, is limited at Ai-Media’s election to:
  • the supplying of the Products and/or Services again; or
  • the payment of the cost of having the Products and/or Services supplied again.
• The Reseller will defend, indemnify and hold harmless Ai-Media and its officers, directors, employees, related companies, affiliates, representatives and agents (“AIM Parties”) from and against any third-party claim brought against such AIM Parties, and any resulting Losses, to the extent arising from or relating to the Reseller’s:
  • breach or alleged breach of this Agreement or its conduct in connection with Re-sale of the Products and/or Services; and/or
  • issuance of any warranty or representation regarding Ai-Media or its Products and/or Services.
• Where the Reseller is incorporated in Australia, additional terms apply as set out in clause 15.

6.           WARRANTIES

• Each party warrants that:
  • it is validly existing under the laws of the place of its incorporation and has the power and authority to carry on its business;
  • it has the power to enter into and perform its obligations under this Agreement; and
  • it has all necessary licences, approvals, permits and consents to enter into this Agreement and perform the obligations under it.
• Ai-Media warrants that it will use reasonable care and skill in providing the Products and/or Services.

7. CONFIDENTIALITY

• A party must not, and must ensure that its employees, contractors and agents do not, either during or after the Term, disclose any Confidential Information which has disclosed to it by the other party, except:
  • as required by law judicial or parliamentary body or governmental agency, or
  • with the previous written consent from the other party.
• A party and its employees, contractors and agents must only use the Confidential Information disclosed to it, for the purpose of performing its obligations under this Agreement.
• A party must at all times store Confidential Information disclosed to it, safely and securely.
• A party must immediately notify the other party in writing of any actual, threatened or suspected unauthorized disclosure of any Confidential Information.
• Upon termination or expiry of this Agreement, each party must deliver to the other party or destroy (and provide to the other party a written statutory declaration in respect of the same), all Confidential Information in its possession or control (and any copies of the Confidential Information).
• The obligations of this clause 7 survive termination or expiry of this Agreement.

8. PLATFORMS

• For the duration of the Term the Reseller (and its employees, contractors and agents) are given a limited, non-exclusive, non-transferable, revocable licence to use the Platform, in connection with the provision of Services to Clients and to order such Services subject to the terms of this Agreement.
• The Reseller must, and procure that its employees, contractors and agents using the Platform must:
  • not use the Platforms for any unlawful, fraudulent or criminal purpose;
  • not use the Platforms in any way that interrupts, damages or impairs the Platforms;
  • not use the Platforms to cause nuisance, annoyance or inconvenience, in any manner whatsoever,
  • not permit any other person to access and use any user account on the Platforms (other than permitting the Client to use any user accounts created on behalf of the Client);
  • keep any user account passwords confidential and secure;
  • not harm the Platforms in any manner whatsoever, including but not limited to the transfer files that contain viruses, trojans or other harmful programs, accessing or attempting to access the accounts of other users, penetrate or attempt to penetrate any security measures, launch any automated program or script (for example web robots, web ants or web spiders);
  • not modify, adapt, encrypt, decompile, tamper or reverse engineer all or any part of the Platforms;
  • not modify or make derivate works based on the Platforms;
  • not remove or alter any copyright, trade mark, logo or other proprietary notice or label appearing on the Platforms;
  • comply with all applicable laws in the use of the Platforms; or
  • not in any way use the Platforms in any manner that:
    • may be obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue or political; or
    • may infringe or breach the Intellectual Property Rights of any third party.
  • If the Reseller or any of its employees, contractors or agents breach any of the provisions in clause 8(b), without prejudice to any other rights under this Agreement or at law, Ai-Media may suspend or terminate access to the Platforms (and the licence granted under clause 8(a) for any or all users.
  • Notwithstanding anything to the contrary herein, the Reseller further agrees that it will wholly abide by the Ai-Media Terms of Service in connection with its use of the Service. In the event of inconsistency between the terms herein and the Terms of Service, the Terms of Service shall take precedence to the extent of that inconsistency only with respect to the use of the Services by the Reseller.
  • Ai-Media does not warrant that the Platforms will be compatible with all hardware and software which the Reseller or Client may use. Ai-Media does not warrant guarantee or make any representation that the Platforms, or the server that makes the Platforms available on the internet are free of software viruses, free from errors, or that the Platforms will operate uninterrupted. Ai-Media makes no warranty that access to the Platforms will be uninterrupted, timely or error-free.

9. INTELLECTUAL PROPERTY

• Ai-Media or its affiliates owns all rights, title and interest, including Intellectual Property Rights, in and to the Products and Services. Except as expressly set out in the limited licences granted under this Agreement, nothing in this Agreement transfers or is intended to give to the Reseller any right, title or interest, including any Intellectual Property Right, in the Products or Services.
• Subject to the licence granted by the Client to Ai-Media pursuant to the Global Terms, all Intellectual Property Rights in the Client Materials remain with the Reseller’s Client.
• All rights to the Delivered Materials are determined in accordance with the Global Terms.
• Notwithstanding any other provision in this Agreement, Ai-Media shall not be liable to the Reseller, Client or any other person for any Loss or Claim to the extent that the Delivered Materials infringe the Intellectual Property Rights of a third party.

10. TERMINATION

• A party may terminate this Agreement immediately without notice upon the happening of any of the following events:
  • if the other party suffers an Insolvency Event; or
  • if the other party commits a material breach of this Agreement, and fails to remedy the breach within fourteen (14) days of receiving a notice from the first party identifying the breach and requiring the breach to be remedied.
• Either party may terminate this Agreement at any time, without cause, by providing to the other party thirty (30) days’ notice.
• Upon termination or expiry of this Agreement,
  • all tax invoices for Fees issued to the Reseller and which have not been paid by the Reseller, become immediately due and payable;
  • Ai-Media will issue a tax invoice in respect of Fees for Products and Services provided by Ai-Media at any time prior to the date of termination or expiry (for which Ai-Media has not previously issued a tax invoice), and the Reseller must make payment within five (5) days of receipt of the tax invoice from Ai-Media;
  • other than where the Reseller terminates this Agreement for the material breach of Ai-Media, all pre-paid entitlements are forfeited, and Ai-Media may retain the Fees paid for them;
  • the Reseller will immediately lose all rights and licences granted to it hereunder and will accordingly cease to be an authorized reseller of the Products and Services, and therefore must immediately cease identifying itself as an Ai-Media partner and using the Ai-Media Marks; and
  • the Reseller must provide all assistance reasonably requested by Ai-Media to transition billing, invoicing and support arrangements for Clients from the Reseller to Ai-Media.
• Termination of this Agreement does not affect any accrued rights or remedies of either party.

11. FORCE MAJEURE

• A party will not be liable for any Loss to the other party arising from any failure of or delay in performance of its obligations under this Agreement, where the failure is wholly or substantially due to a Force Majeure Event, provided that a party seeking to rely on the benefit of this clause:
  • as soon as reasonably practical, notifies the other party in writing with details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
  • uses reasonable endeavors to minimize the duration and adverse consequences of the Force Majeure Event.
• Where the Force Majeure Event prevents a party from performing a material obligation under this Agreement for a period in excess of thirty (30) days, then the other party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice.

12. DISPUTE RESOLUTION

• Unless a party to this Agreement has complied with all of the provisions of this clause 12, that party may not commence court proceedings in connection with any dispute, controversy or Claim arising out of or relating to this Agreement, including its validity, breach or termination (Dispute), except where that party seeks urgent interlocutory relief in which case that party need not comply with this clause before seeking such relief.
• Notwithstanding the existence of a dispute or difference each party shall continue to perform its obligations under the Agreement.
• This clause 12 shall survive termination or expiry of this Agreement.
• A party claiming that a Dispute has arisen must give written notice to the other party setting out the nature of the Dispute (Dispute Notice).
• The parties must meet (which may be satisfied by means of telephone or video conference) within fourteen (14) days of service of the Dispute Notice with a view to negotiating and resolving the Dispute.
• If the Dispute is not settled within thirty (30) days of the date of the notice in clause 12(d), then the parties may commence court proceedings.

13. NOTICES

13.1       Address for service

• Ai-Media may provide notifications to the Reseller via email notice, written or hard copy notice to the email and physical address provided by the Reseller when entering into this Agreement, or the physical address of the Reseller’s registered office. The Reseller may give notifications to Ai-Media under this Agreement in writing and in English, by email to , or in person or via post to Ai-Media’s registered office.

13.2       Service

• Service will be sufficient if any such notice is:
  • delivered personally to the party to be served;
  • sent by ordinary pre-paid post to either the above address or to a registered office. If a notice is posted, it is deemed to have been duly served on the third day after postage;
  • sent by email to the email address set out in the party’s address for service and receipt is deemed to be acknowledged by the recipient by a delivery receipt notification generated by the recipient’s email system after sending of the email containing the notice or to which the notice is attached but if this delivery or receipt is later than 5.00 pm (local time) on a business day of the recipient, the notice is deemed to have been given and served on the next business day. Emailing notices will constitute sufficient and effective delivery when delivered to the recipient’s email account whether or not the specific electronic communication is accessed or read.

14. GENERAL

14.1       Entire Agreement

• This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement.

14.2       Amendment

• Ai-Media reserves the right, at its complete discretion, to amend or modify this Agreement at any time. Ai-Media will notify the Reseller of any changes either by replacing this Agreement on the Ai-Media’s website (showing the date that it was updated), or via email, or via any other means Ai-Media deems reasonable. Any changes made will become effective immediately and either the Reseller’s explicit consent or the Reseller’s continued Re-sale of the Product or Service constitutes the Reseller’s acceptance of the new terms. If the Reseller does not agree with any amendment or modification of this Agreement, then the Reseller can choose to terminate this Agreement at any time by notice under clause 10(b).

14.3       Assignment

• Neither party may assign, transfer or novate, whether in whole or part, the benefit of this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Ai-Media may assign or novate any or all of its rights and obligations under this Agreement to one or more of its affiliates at any time without requiring further consent from the Reseller.

14.4       Waiver

• The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under this Agreement.

14.5       Severance

• If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

14.6       Counterparts

• This Agreement may be executed by any number of counterparts and all of those counterparts taken together constitute one and the same instrument. A party is entitled to treat (and it shall be deemed) a signed copy of this Agreement exchanged by electronic mail in portable document format (PDF) as an original signed Agreement.

14.7       Governing law

• This Agreement shall be governed by and construed in accordance with the law applying in the State of New York, USA, and each of the Parties hereby submits to the jurisdiction of the Courts of New York, USA. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

15.        AUSTRALIAN SPECIFIC CONDITIONS

• For Resellers that are incorporated in Australia, clause 5(f) is replaced with the following:
• Other than for liability of the Reseller under clause 5(e)(ii), or the Reseller’s obligation to pay the Fees, the liability of the Reseller under or in connection with this Agreement for any Loss or Claim whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed an amount equal to two (2) times the total Fees paid by the Reseller to Ai-Media under this Agreement.

 

Item 1 Commencement Date	On the earlier of (i) written acceptance by the Reseller of these terms; and (ii) the date that the Reseller places a prospective order following receipt of a copy of this Agreement
Item 2 Initial Term	Two years
Item 3 Further Term	Further 1 year
Item 4 Product/Services	Services: LEXI automated captioning services: LEXI Toolkit: LEXI Live, LEXI Recorded, LEXI Translate, LEXI Library, LEXI DR
	Products: EEG Encoder Suite (Hardware/Virtual/Cloud) and associated Product Support plans
Item 5 Fees	Services Encoders (other than Rental) Product Support plans	A baseline fixed 10% discount on Ai-Media’s market price list (which will be provided to the Reseller from time to time). Additional discount may apply in accordance with Item 6 (Incentives) below
	Encoder Rental	Price on request for each rental
Item 6 Incentives	From the date that the Reseller completes the following training modules it will be entitled to the additional discount on Products (other than Encoder Rental) and Services specified in the table below for a period of 18 months. On expiry of this period, any entitlement to additional discounts will be subject to Ai-Media’s then current terms, and completion by the Reseller of refresher training. Training module Additional Discount (cumulative) Product Training 2.5% LEXI Resale Training 2.5% Support Training 2.5%