Re-seller Agreement Schedule Re-seller Company Name:*ABN:*Re-seller Name:*Re-seller Address:*Contact Number:*Email Address:*Start Date* Date Format: DD slash MM slash YYYY Commission: Base rate of 5% of the total monthly customer payment received by Emerge for mobile services and 10% of all other services. Rebate only starts for a reseller when the reseller has at least 2 customers on the system. Reseller must at all times fulfil Appendix B – “Minimum Client Servicing Requirements” or reseller status maybe revoked based on a review of performance. Commission Payment will then be deducted from the Reseller account where the balance being paid is greater than $100. Commission is calculated on the customer’s total monthly invoice including GST. Setup fees, line rental, account fees, surcharges and recovery fees are excluded from commissions. By signing below you acknowledge that you have read and agree to be bound by Emerge’s Reseller Terms as attached to this Schedule Executed by the ResellerIn accordance with its constitutionDate* DD MM YYYY Director*Emerge Internet Pty Ltd Reseller Terms BACKGROUND a. Emerge is a company which provides services set out in Appendix A (“Emerge Services”). b. The Reseller has a market presence and an existing customer base and contact with potential customers for Emerge’s Services. c. The Reseller wishes to represent Emerge as Reseller and Emerge wishes to appoint the Reseller for the marketing of Emerge’s Services. 1. ENGAGEMENT 1.1 THE PARTIES AGREE that Emerge will appoint the Reseller and the Reseller will represent Emerge as Reseller for the sale of Emerge Services from the Start Date until the End Date subject to the terms of this agreement. 2. AGENT’S OBLIGATIONS 2.1 Each Reseller must: · Comply with the Minimum Client Servicing Requirements set out in Appendix B; · Transmit to Emerge all orders generated or received by the Reseller within 24 hours after their receipt by or on behalf of the Reseller, including a signed copy of the customer’s terms and conditions; · Act diligently, ethically, soberly and honestly and in good faith toward Emerge at all times; · Comply with all relevant laws including State and Federal laws and local government laws and regulations; · Keep all Confidential Information confidential. The Reseller must not use or disclose Confidential Information without Emerge written authority, either during or after the term of this Agreement; · Comply with any reasonable instructions given by Emerge in relation to any promotional activities concerning the nature, type, quality, characteristics, fitness for purpose, suitability, use and description of the Emerge Services; · Provide and maintain at its own expense and in a business-like manner the equipment and the facilities from which it conducts its business and commercial affairs to enable it to discharge its responsibilities under this contract. 3. EMERGE’S OBLIGATIONS 3.1 Advice and Assistance · Emerge will provide the Reseller with any technical information and standard guidelines relating to Emerge’ Services that may be needed by the Reseller; and · Emerge will endeavour to provide advice and/or training to the Reseller in relation to Emerge’ Services from time to time, in their absolute discretion. 3.2 Provision of equipment · Emerge may provide the Reseller with any equipment, software or information to assist the Reseller in providing Emerge’ Services. 4. COMMISSION 4.1 Emerge must pay the Reseller the commission applicable according to the Schedule. 4.2 The commission amount is subject to the Reseller’s performance as outlined in the Schedule. 5. PROMOTION AND ADVERTISING 5.1 The Reseller must at all times and at its own costs diligently promote and procure sales of Emerge’ Services, with the goal of generating orders, by appropriate means including: · Advertising and promoting Emerge’ Services in such a manner that it considers appropriate; and · Attendance at trade shows and other sales outlets. 6. TERMINATION 6.1 This agreement may be terminated: · By either party upon 30 days’ written notice; · Emerge immediately by notice if the Reseller becomes bankrupt or enters into a composition, deed of assignment or deed of arrangement with his or her creditors under the Bankruptcy Act 1966 (Cth) or if the Reseller becomes permanently incapable of performing his or her duties as Reseller; or · Emerge immediately upon written notice if the Reseller fails to comply with Emerge’ policies regarding Minimum Client Servicing Requirements despite at least 14 days’ written notice of default from Emerge; or · By either party immediately by notice if the other party is guilty of dishonesty, serious misconduct or serious neglect of duty. 7. CONSEQUENCES OF TERMINATION 7.1 If this agreement is terminated for any reason: - Emerge is not liable to pay any commission to the Reseller on payments received in respect of any lead, order or repeat order where the payment is received after the termination of the Reseller under this agreement; and - Emerge may deduct from any amount owed to the Reseller at the time of termination, any amounts which it is entitled to offset including costs incurred under Clause 12.2; and - Emerge may at its sole discretion act directly or appoint another reseller to carry out any after sales servicing to its customers in the place of the Reseller; and - The Reseller must immediately cease holding itself out to be a reseller of Emerge or using any trade mark or logo associated with Emerge; and - The Reseller must return upon request all material belonging to Emerge. 8. BAD DEBTS 8.1 If Emerge has paid commission to the Reseller on any order that result in a bad debt, the Reseller is liable to refund that commission as soon as and to the extent that the debt is ascertained to be bad and is so entered in Emerge books. Emerge’ determination that a debt has become bad is final and irrevocable, and the Reseller may not go behind that determination. 8.2 Emerge must notify the Reseller the amount of the debt that has become bad under clause 8(1) immediately if any debt becomes bad and is son entered in Emerge’ books under clause 8(1). The Reseller must refund that commission within seven (7) days after the Reseller is notified that the debt has become bad. 8.3 If the Reseller does not refund any commission under clause 8(1), then Emerge may deduct that sum from the next or any later payment of commission so long as Emerge notified the Reseller of the reason for the deduction of that sum from any payment due to the Reseller. 8.4 Any commission that is not deducted under clause 8(3) may be recovered by Emerge as a debt in any court or tribunal of competent jurisdiction. This clause 8 survives termination of this agreement. 9. LICENCE 9.1 Emerge grants to the Reseller a non-exclusive, royalty-free licence for the term of this Agreement to use the trade marks (whether registered or unregistered) set out in Appendix C, for the limited purpose of carrying out the Reseller’s obligations under this Agreement; 9.2 The use of any logos and trademarks not specified in Appendix C must be pre-approved by Emerge. 10. EXPENSES 10.1 The Reseller is responsible for all expenses incurred by the Reseller in the agency for advertising, postage, telephone calls, telegrams, carriage of parcels and insurance, including costs and charges incurred on any equipment supplied by Emerge. 11. COPIES OF ORDERS 11.1 Emerge agrees to provide the Reseller access to its own online customer panel where the Reseller may view all orders added to Emerge’ system, whether the order was initiated by the Reseller or the customer directly. 12. INDEMNITY 12.1 Emerge is not liable to indemnify the Reseller for any of its costs, expenses or liabilities incurred in discharging this agency except to the extent that Emerge agrees to do so by a notice in writing given to the Reseller. 12.2 The Reseller warrants to Emerge that they will hold current public liability, and if applicable professional indemnity, insurance policies for the duration of thie Agreement and for the 12 month period following the termination of this Agreement. 12.3 The Reseller must indemnify Emerge at all times against: - All liability for loss, damage or injury to persons or property caused by the Reseller; and - All claims, damages, costs and expenses suffered by Emerge in respect of such loss, damage or injury; and - Any resulting indirect or consequential damage including loss of profits and legal costs on a full solicitor and own client basis suffered by Emerge. 13. WARRANTIES 13.1 The Reseller warrants to Emerge that the Reseller: - Has the necessary commercial, technical and marketing skills to sell Emerge’ Services to customers; - Will use any equipment or information provided by Emerge in accordance with their instructions and return the same upon Emerge’ request; - Will not accept payment and/or enter into any contract with the customers directly, but will forward all orders and customer’s signed terms and conditions to Emerge within 24 hours of their receipt; - Will not make any false or misleading representations, warranties or training support to the customers for Emerge’ Services; - Will not assign to or appoint another reseller or contractor to carry out its obligations under this Agreement. 14. RESTRAINT 14.1 During the term of and for 12 months following termination of this Agreement the Reseller must not own (other than as a shareholder in a publicly listed corporation) or manage any business which competes with Emerge. 14.2 The Reseller agrees that this restraint is reasonable in the circumstances and necessary for the protection of Emerge’ interests. 14.3 If the restrictions set out in Clause 14.1 above are judged by a court of law or other relevant tribunal to be unreasonable, then the parties agree that the restrictions in clause 14.1 will remain operative for six months only. 15. NON-SOLICITATION 15.1 During the term of and for 12 months following termination of this Agreement, the Reseller must not cause Emerge’ customers to decrease their dealings with Emerge. 15.2 During the term of and for 12 months following termination of this Agreement the Reseller must not solicit, entice or interfere with Emerge’ employees, contractors, suppliers or resellers, or cause them to decrease their dealings with Emerge. 15.3 If the restriction set out in clause 15.1 above is judged by a court of law or other relevant tribunal to be unreasonable, then the parties agree that the restriction in clause 15.1 will remain operative for six months only and will only apply to customers of Emerge with whom the Reseller came into contact during the term of the agreement. 15.4 If the restriction set out in clause 15.2 above is judged by a court of law or other relevant tribunal to be unreasonable, then the parties agree that the restriction in clause 15.2 will remain operative for six months only and will only apply to employees, contractors, suppliers or resellers of Emerge with whom the Reseller came into contact during the term of the agreement. 16. MEDIATION 16.1 If a dispute arises in relation to this Agreement, either party may give the other party a written notice that they intend to arrange a mediation. 16.2 The parties must refer the dispute to an independent mediator within 21 days of the written notice. 16.3 If the parties cannot agree on a suitable mediator, either party may contact the Western Australian Law Society and request that they provide a mediator. 16.4 The costs of the mediation must be paid by the parties in equal shares. 16.5 If the dispute is not resolved within 7 days of the mediation then either party may commence court proceedings. 17. GENERAL 17.1 Nothing in this Agreement constitutes a partnership or contract of employment. It is the express intention of the parties to deny any such relationships. 17.2 The laws of Western Australia apply to this Agreement and the parties submit to the courts of that jurisdiction. 17.3 If any provision of this Agreement is ruled by a court to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision or part provision of this Agreement. 17.4 Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights. 17.5 This Agreement contains the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to the subject matter of this agreement. 17.6 Any variation or amendment to this Agreement must be in writing signed by all parties. 17.7 In this Agreement: - “Confidential Information” means all spoken, written or electronically stored information belonging to or relating to Emerge or its customers and includes without limitation: o Any kind of technical, financial or business information; o Details of employees, suppliers, contractors, customers; o Intellectual Property, concepts, know-how and trade secrets; and o Material developed by Emerge; o But excludes information in the public domain (other than by default under this Agreement) or information independently known to the Reseller. - “Intellectual Property” means all intellectual property rights including copyright, trade mark, design, patent, semi-conductor and current layout rights. - “Level 1 Support” means: o Anything associated with the connection of customer’s equipment to the Emerge network; o Configuration of the customer’s settings within the Reseller Admin Panel; and o Troubleshooting the customer’s internet connection, network equipment, IP phones, Gateways, IP PABXs and ATAs. APPENDIX A: EMERGE’ SERVICES Emerge provides business grade communication and internet services giving customers access to a reliable quality network. Services include: (a) Call Termination Services (CTS): these include SIP and IAX to public switched telephone network for mobile, fixed line national and international dialling; (b) National Call Collection services (NCC): Local telephone numbers (DID) are available nationally. Local number porting. Full CLI facilities including 3rd party presentation. Inbound fax to email. (c) Online real-time call billing and call logs (d) National Broadband ADSL/SHDSL/EoC tails (e) PSTN and mobile telephone services. APPENDIX B – MINIMUM CLIENT SERVICING REQUIREMENTS (a) The Reseller must: a. Abide by all Australian Communications Industry Forum and ACMA regulations; and (b) The Reseller will provide Level 1 Support to the customer before referring them to Emerge for Level 2 Support. (c) Level 1 Support means: a. Initial enquiry about hardware delivery b. Consultation with client until completion of services setup c. Troubleshooting the customer’s services before escalating to Level 2 Support APPENDIX C – EMERGE TRADE MARKS Use of logo’s, name, marketing materials and trade marks by the reseller must be approved by Emerge management before use.