SwipedOn Reseller Agreement


Last updated at: 24th May 2019
Version: 1
1. Application of this agreement
  1. 1.1 By signing (or submitting to SwipedOn) an Application for appointment as a SwipedOn reseller, or clicking I agree (or similar) in the course of an online application process:
    1. a. you agree to this Agreement; and
    2. b. where you are applying on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to this Agreement on that person’s behalf and that, by agreeing to this Agreement on that person’s behalf, that person is bound by this Agreement.
  2. 1.2SwipedOn is not bound by this Agreement until SwipedOn has accepted the Application. Acceptance occurs when SwipedOn notifies the Reseller by email that it accepts the Application.


2. Changes
  1. 2.1SwipedOn may change this Agreement at any time by notifying the Reseller of the change by email or by posting a notice on the Portal. Unless stated otherwise, any change takes effect from the date set out in the notice. The Reseller is responsible for ensuring it is familiar with the latest Agreement. By continuing to access and use the Service from the date on which the Agreement is changed, the Reseller agrees to be bound by the changed Agreement.
  2. 2.2This Agreement was last updated on 24 May 2019.


3. Interpretation
  1. In this Agreement:
  2. Agreement means this Agreement.
  3. Brands means the SwipedOn brands, trade marks, logos and/or designs used by SwipedOn in connection with the Services.
  4. Business means the promotion, marketing and reselling of the Services in the Territory.
  5. Commission means the commission as set out at the Portal or otherwise advised by SwipedOn from time to time, as applicable to the Reseller’s Reseller Category, typically calculated as a percentage of the Fees.
  6. Confidential Information means the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. SwipedOn’s Confidential Information includes Intellectual Property and in the Services Documentation or otherwise owned by SwipedOn (or its licensors) and the Customer (and prospective Customer) details described in clause 16.6c.
  7. Customer means a person in the Territory who is party to a Customer Agreement.
  8. Customer Agreement means an agreement (by way of acceptance of SwipedOn’s online terms or in writing) between SwipedOn and a Customer for the supply of the Services that results from a Referral.
  9. Documentation means the Reseller Documentation and the Services Documentation.
  10. Fees means the recurring subscription fees paid by the Customer (excluding, to avoid doubt, any one-off transactional fees.
  11. Force Majeure means an event that is beyond the reasonable control of a party, excluding:
  12. a. an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
    1. b. a lack of funds for any reason.
    1. Good Industry Practice means in relation to an undertaking, the exercise of that degree of skill and care which would reasonably be expected from an experienced operator engaging in the same or a similar undertaking.
    2. Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
    3. Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
    4. Portal means SwipedOn’s reseller portal at www.swipedon.com/partner, or such other site notified to the Reseller by SwipedOn.
    5. Referral means a referral of a Customer to SwipedOn by the Reseller in accordance with the Reseller Documentation.
    6. Reseller means the Reseller named in the Application.
    7. Reseller Category means the reseller category (e.g. Approved Reseller, SwipedOn Ambassador) assigned to the Reseller by SwipedOn, as notified by SwipedOn to the Reseller from time to time and/or as amended under clause 16.4.
    8. Reseller Documentation means SwipedOn’s directions, guidance and information relating to the operation of the Business, published at the Portal or otherwise notified by SwipedOn to the Reseller.
    9. Services means SwipedOn’s visitor management SaaS service, having the core functionality described at www.swipedon.com and further described in the Documentation.
    10. Services Documentation means the generally released documentation relating to the Services, as updated by SwipedOn from time to time.
    11. Sales Tax means sales tax, value added tax, goods and services tax or equivalent tax payable under any applicable law.
    12. Start Date means the date SwipedOn accepts the Application.
    13. SwipedOn means SwipedOn Limited, a New Zealand company, company number 655878.
    14. Tertiary means the territory in which the Reseller may market, promote and resell the Services, as notified by SwipedOn to the Reseller from time to time.
    15. Underlying Systems means the software, hardware, IT solutions, systems and networks used to provide the Services, including any third party solutions, systems and networks.
    16. Year means a 12 month period from the Start Date or the anniversary of that date.
    1. 3.1 In the Agreement:
    2. a clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
    3. b words in the singular include the plural and vice versa;
    4. c a reference to:
    5. i a party to the Agreement includes that party’s permitted assigns;
    6. ii personnel includes officers, employees, contractors, and agents, but a reference to SwipedOn’s personnel does not include the Reseller;
    7. iii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
    8. iv including and similar words do not imply any limit; and
    9. v a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
    10. d no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party.


    4. Appointment
    1. 4.1SwipedOn grants to the Reseller the non-exclusive, non-transferable right to conduct the Business in accordance with the Agreement for the duration of the Agreement. The Reseller must use best efforts to conduct the Business.
      1. 4.2 The Reseller must not market, promote, resell or distribute the Services outside the Territory. The Reseller will promptly pass to SwipedOn details of any enquiry or order received by it from a prospective Customer or reseller outside the Territory.
    2. 4.3The Reseller is an independent contractor of SwipedOn. No other relationship (e.g. employment, joint venture, agency, trust or partnership) exists under the Agreement. The Agreement does not transfer or license any SwipedOn Intellectual Property to the Reseller, except as expressly set out in the Agreement.
    3. 4.4To avoid doubt, the rights granted to the Reseller under the Agreement are non-exclusive. Nothing in the Agreement applies to limit or restrict SwipedOn’s right to conduct the Business (and to authorise third parties to conduct the Business).


    5. Referrals
    1. 5.1The Reseller must provide Referrals in accordance with the Reseller Documentation, as applicable to the Reseller’s Reseller Category.
    2. 5.2 SwipedOn has the right to accept or reject each Referral at its discretion. If SwipedOn rejects a Referral, it will provide the Reseller with its reasons for doing so.
    3. 5.3A Referral is not binding on SwipedOn until SwipedOn has entered into a Customer Agreement with the prospective Customer.
    4. 5.4SwipedOn will advise the Reseller of the entry into a Customer Agreement.


    6. Use of Services by Reseller for Demonstration and Training
    1. 6.1 Subject to clause 6.3, the Reseller may use the Services at no charge for the term of the Agreement in the Territory for the purposes of:
      1. a. evaluating and testing the Services internally;
      2. b. showing prospective Customers how the Services work; and
      3. c. training the Reseller’s personnel in the conduct of the Business.
    2. 6.2 SwipedOn will provide the Reseller with one or more demonstration and training accounts for the Reseller to use for the purposes set out in clause 6.1. The Reseller must not use the demonstration and training accounts for its internal business purposes.
    3. 6.3 The Reseller must not, nor permit any other person to:
      1. a. sell, transfer, license, sublicense, display, lease, assign or otherwise deal with or grant a security interest in the Services, other than as permitted under the Agreement;
      2. b. attempt to undermine the security or integrity of the Services or Underlying Systems;
      3. c. use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services; or
      4. d. use the Services in a manner, or to store or transmit any material, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.


    7. Marketing and Promotion
    1. 7.1 The Reseller must, at its own expense:
      1. a. work diligently to promote and protect SwipedOn’s interests, enhance and maintain the reputation of the Services and SwipedOn, and act loyally and faithfully towards SwipedOn, including:
      2. i. sell, transfer, license, sublicense, display, lease, assign or otherwise deal with or grant a security interest in the Services, other than as permitted under the Agreement;
      3. ii. maintaining good relationships with all of the Customers and prospective Customers in the Territory; and
      4. b. use best efforts to maximise sales of the Services in the Territory.
    2. 7.2 If requested by SwipedOn, the parties must meet (which may be by electronic means) to:
    3. a. review the sales made by the Reseller;
    4. b. discuss opportunities and risks, the Reseller’s marketing plans and forecast sales of Services; and
    5. c. discuss what assistance may be required from SwipedOn to support those marketing plans.


    8. Reseller Obligations
    1. 8.1 In addition to complying with its other obligations in the Agreement, the Reseller must:
    2. a. conduct the Business in accordance with Good Industry Practice;
    3. b. comply with:
    4. i. all applicable laws, regulations, rules and professional codes of conduct or practice when conducting the Business and performing its other obligations in the Agreement; and
    5. ii. the Reseller Documentation, as applicable to the Reseller’s Reseller Category;
    6. c. procure all licences, authorisations and consents necessary for the Reseller to conduct the Business; and
    7. d. promptly notify SwipedOn of:
    8. i. any breach of the Reseller’s obligations under the Agreement or any matter which may impact on the Reseller’s ability to perform its obligations under the Agreement; and
    9. ii. any complaint relating to the Services that is received by the Reseller, together with all available information relating to the complaint.
    10. 8.2 The Reseller must:
    11. a. avoid entering into any arrangement which would result in a conflict of interest with its obligations under the Agreement, including reselling any software, service or other product that competes with a Service; and
    12. b. without limiting clause 8.2a, during the term of the Agreement and for a period of 6 months after its termination or expiry, not directly or indirectly operate or otherwise be involved in a business that competes with SwipedOn’s business or the Services, whether as a principal, employee, partner, agent, shareholder or however else.
    13. 8.3 The Reseller must maintain complete and accurate written records of all information relating to its conduct of the Business and which may be required to enable SwipedOn or its authorised representative to verify the Reseller’s compliance with the Agreement and any payment made by or to the Reseller under or in connection with the Agreement. On request, the Reseller must make available those records to SwipedOn, including allowing SwipedOn to copy those records.
    14. 8.4 The Reseller must provide reports to SwipedOn in accordance with the Reseller Documentation, as applicable to the Reseller’s Reseller Category.


    9. SwipedOn Obligations
    1. In addition to complying with its other obligations in the Agreement, SwipedOn will:
    2. a. use reasonable efforts to support and assist the Reseller’s conduct of the Business;
    3. b. at the Reseller’s cost and reasonable request, provide the Reseller with:
    4. i. any existing marketing material to enable the Reseller to conduct the Business; and
    5. ii. reasonable technical training and guidance about the Services at dates and times agreed by the parties; and
    6. c. use reasonable efforts to keep the Reseller informed about any update to the Services and other products and services that SwipedOn may be making available to the Reseller.


    10. Commission
    1. 10.1 Subject to the remainder of this, SwipedOn must pay the Reseller the Commission plus Sales Tax (if any) in accordance with this and the Reseller Documentation. The payment of Sales Tax is subject to the Reseller supplying SwipedOn with a valid tax invoice.
    2. 10.2 To avoid doubt, the Reseller is not entitled to any Commission unless and until the Customer has entered into a Customer Agreement and paid the relevant Fees.
    3. 10.3 Within 14 days of the end of each calendar month, SwipedOn will provide the Reseller with a monthly statement of the Commission earned by the Reseller in the previous month, including all information reasonably required to verify the Commission.
    4. 10.4 The Reseller must notify SwipedOn in writing of any error in the calculation of the Commission within 7 days of receiving the statement or the Reseller is deemed to have accepted the statement. Clause 17 applies to any dispute relating to a calculation error.
    5. 10.5 The Reseller must supply SwipedOn with a valid invoice for the amount of the Commission. To avoid doubt, the amount stated in the invoice must be the amount in the statement provided under clause 10.3 or as determined/agreed under clause 17.
    6. 10.6 SwipedOn must pay the Commission within 30 days of the later of receipt from the Customer of payment of the Fees to which the Commission relates or a valid invoice that complies with this.
    7. 10.7 Other than Sales Tax, the Reseller is responsible for paying all taxes, duties, fees or other government charges relating to the Commission. SwipedOn may deduct any withholding tax required to be withheld by law from the Commission payments made under this. If withholding occurs, SwipedOn will advise the Reseller of the amount withheld at the time each payment is made.
    8. 10.8 If any Commission that has been paid by SwipedOn is subject to downwards adjustment in accordance with the Reseller Documentation or SwipedOn has otherwise overpaid any Commission the Reseller must, on demand by SwipedOn, promptly repay the relevant amount. SwipedOn may set off against any future Commission payment any amount that becomes repayable by the Reseller under this clause but which has not been received by SwipedOn.


    11. Intellectual Property
    1. 11.1 SwipedOn (and its licensors) owns all Intellectual Property Rights in the Services and the Documentation. The Reseller must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
    2. 11.2 As between the parties, from the date it is created, SwipedOn solely owns:
    3. a all new Intellectual Property created by SwipedOn in the course of providing the Services or otherwise in connection with the Agreement; and
    4. b all new Intellectual Property in any documentation or other materials created by the Reseller, to the extent the documentation or materials relate to the Services.
    5. 11.3 If the Reseller or any Customer provides SwipedOn with ideas, comments or suggestions relating to the Services or the Documentation (together feedback):
    6. a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by SwipedOn; and
    7. b SwipedOn may use or disclose the feedback for any purpose.
    8. 11.4 The Reseller must not:
    9. a use SwipedOn’s Intellectual Property other than to carry out its obligations under the Agreement; or
    10. b alter, remove or otherwise interfere with any copyright or proprietary marking on the Documentation.
    11. 11.5 SwipedOn grants to the Reseller a non-exclusive, non-transferable licence for the duration of the Agreement to use the Brands in the Territory in order to conduct the Business in accordance with the Agreement.
    12. 11.6 The Services must be marketed and sold by the Reseller using the Brands. SwipedOn may add or remove a Brand from the scope of the Agreement at any time by notice to the Reseller. On receipt of that notice, the definition of Brands in the Agreement is deemed to be amended in accordance with the notice.
    13. 11.7 The Reseller must use the Brands only in accordance with any usage and marketing guidelines provided by SwipedOn from time to time.
    14. 11.8 All goodwill generated through the Reseller’s use of the Brands accrues to the benefit of SwipedOn.
    15. 11.9 The Reseller must promptly notify SwipedOn:
    16. a where the Reseller becomes aware, or reasonably suspects, that SwipedOn’s Intellectual Property Rights are being infringed, or are likely to be infringed, including any circumstance that suggests a person may have unauthorised knowledge, possession or use of the Services; and
    17. b of any proceeding or known intention to bring proceedings against the Reseller and/or SwipedOn, including for infringement of Intellectual Property Rights.
    18. 11.10 SwipedOn has the sole right to take, defend or settle any proceeding for any alleged infringement of any Intellectual Property Right of any third party relating to the Intellectual Property of SwipedOn.
    19. 11.11 The Reseller must provide SwipedOn with all assistance reasonably requested by SwipedOn, at SwipedOn’s reasonable cost, relating to any action taken by SwipedOn on a matter notified by the Reseller under clause 11.9.


    12. Confidentiality
    1. 12.1 Each party must, unless it has the prior written consent of the other party:
    2. a keep confidential at all times the Confidential Information of the other party;
    3. b effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
    4. c disclose Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that the personnel or professional advisor is aware of, and complies with, clauses 12.1a and 12.1b.
    5. 12.2 The obligation of confidentiality in clause 12.1a does not apply to any disclosure or use of Confidential Information:
    6. a for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
    7. b required by law (including under the rules of any stock exchange);
    8. c which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
    9. d which was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; or
    10. e by SwipedOn if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that SwipedOn enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 12.


    13. Warranties
    1. 13.1 Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
    2. 13.2 SwipedOn does not give any warranty to either the Reseller or any Customer relating to the Services, other than the warranties:
    3. a that SwipedOn makes directly to Customers in a Customer Agreement; or
    4. b for which SwipedOn cannot exclude its liability.
    5. 13.3 The Reseller must not give any warranty or make any representation relating to the Services, including that the Services will be exclusively licensed or made available to the Customer or prospective Customer.
    6. 13.4 To the maximum extent permitted by law:
    7. a SwipedOn’s warranties are limited to those set out in Customer Agreements and the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
    8. b SwipedOn makes no representation concerning:
    9. i the quality of the Services, and does not promise that the Services will operate without error or interruption; or
    10. ii the level of Commission to be earned from the conduct of the Business.
    11. 13.5 The Reseller agrees and represents that it is acquiring the right to conduct the Business, and entering the Agreement, for the purposes of trade. The parties agree that:
    12. a to the maximum extent permissible by law, no consumer protection laws apply to the supply of that right or the Agreement; and
    13. b it is fair and reasonable that the parties are bound by this clause 13.5.


    14. Indemnity
    1. 14.1 SwipedOn indemnifies the Reseller from and against any claim or proceeding brought against the Reseller in the Territory to the extent that claim or proceeding alleges that the resale of the Services or the use of the Brands by the Reseller in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights in the Territory (IP Claim). The indemnity in this clause is subject to the Reseller:
    2. a promptly notifying SwipedOn of the IP claim;
    3. b making no admission of liability and not otherwise prejudicing or settling the IP Claim, without SwipedOn’s prior written consent; and
    4. c giving SwipedOn complete authority and information required for SwipedOn to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for SwipedOn’s account.
    5. 14.2 The indemnity in clause 14.1 does not apply to the extent that the IP Claim arises from or in connection with the conduct of the Business in breach of the Agreement, including:
    6. a the resale of the Services or use of the Brands outside the Territory; or
    7. b any warranty given or representation made by the Reseller to a Customer or prospective Customer in breach of clause 13.3.
    8. 14.3 Without limiting the indemnity in clause 14.1, if at any time an IP Claim is made, or in SwipedOn’s opinion is likely to be made, then in defence or settlement of the IP Claim, SwipedOn may modify or replace the items the subject of the IP Claim so they become non- infringing.
    9. 14.4 The Reseller indemnifies SwipedOn from and against any claim, proceeding, damage, loss, liability, cost and expense (including legal costs on a solicitor and own client basis) suffered or incurred by SwipedOn resulting from:
    10. a infringement of SwipedOn’s Intellectual Property Rights by the Reseller, including any misuse of the Brands; and
    11. b any warranty given or representation made by the Reseller to a Customer or prospective Customer in breach of clause 13.3.


    15. Liability
    1. 15.1 The maximum aggregate liability of SwipedOn to the Reseller under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise:
    2. a relating to any Customer, must not exceed an amount equal to the Commission paid or payable by SwipedOn to the Reseller in relation to that Customer; and
    3. b must not in any Year exceed an amount equal to the Commission paid to the Reseller under the Agreement in the previous Year (which in the first Year is deemed to be the total Commission paid to the Reseller from the Start Date to the date of the first event giving rise to liability).
    4. 15.2 Neither party is liable to the other under or in connection with the Agreement for any:
    5. a loss of profit, revenue, savings, business, data and/or goodwill; or
    6. b consequential, indirect, incidental or special damage or loss of any kind.
    7. 15.3 To avoid doubt, the Reseller’s liability to a Customer or any other person is a type of loss excluded under clause 15.2.
    8. 15.4 Clauses 15.1, 15.2 and 15.3 do not apply to limit SwipedOn’s liability:
    9. a to pay the Commission; or
    10. b under the indemnity in clause 14.1; or
    11. c under or in connection with the Agreement for:
    12. i for personal injury or death;
    13. ii fraud or wilful misconduct; or
    14. iii breach of clause 12.
    15. 15.5 Clause 15.1 does not apply to limit the Reseller’s liability:
    16. a for breach of clause 4, 6, 8.1bi, 8.1c, 8.2b, 11.4, 11.5 or 11.7;
    17. b under the indemnity in clause 14.4; or
    18. c for those matters stated in clause 15.4c.
    19. 15.6 Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
    20. 15.7 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
    21. 15.8 At its own expense, the Reseller must maintain in effect at all times during the term of the Agreement the insurance policies, with a reputable third party insurance company, that a prudent entity conducting the Business would maintain, taking into account the Reseller’s risks and potential liabilities under the Agreement.


    16. Term and Termination
    1. 16.1 Unless terminated under this clause 16, the Agreement:
    2. a starts on the Start Date; and
    3. b continues for successive terms of 12 months from the Start Date unless a party gives at least 30 days’ notice that the Agreement will terminate on the expiry of the then -current term.
    4. 16.2 No fault termination: SwipedOn may terminate the Agreement on at least 3 months’ prior notice to the Reseller.
    5. 16.3 Other termination rights:
    6. a Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
    7. i breaches any material provision of the Agreement and the breach is not:
    8. >> remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
    9. >> capable of being remedied;
    10. ii becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
    11. iii is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
    12. b SwipedOn may, by notice to the Reseller, immediately terminate the Agreement if the exercise of the remedy in clause 14.3 does not remedy or settle the IP Claim.
    13. 16.4 No fault termination: SwipedOn may terminate the Agreement on at least 3 months’ prior notice to the Reseller.
    14. 16.5 Other termination rights:
    15. 16.6 Other termination rights:
    16. a Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
    17. 16.7 Where the Agreement is terminated by SwipedOn under clause 16.3ai, no further Commission is payable by SwipedOn from the termination date. In all other cases, SwipedOn must, in relation to any Customer Agreement entered into by SwipedOn prior to the termination or expiry date, continue to pay the applicable Commission on the Fees paid by the Customer under that Customer Agreement during the 12 month period from the date of termination or expiry will continue to apply to the payment of those Fees.
    18. 16.8 No compensation is payable by SwipedOn to the Reseller as a result of termination of the Agreement for whatever reason.
    19. 16.9 Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 8.2b, 8.3, 11.1 to 11.3, 12, 13, 14.4, 15, 16.9 and 17 continue in force.


    17. Disputes
    1. 17.1 Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
    2. 17.2 Each party must, to the extent practicable, continue to perform its obligations under the Agreement even if there is a dispute.
    3. 17.3 This clause 17 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.


    18. General
    1. 18.1 Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
    2. a promptly notifies the other party and provides full information about the Force Majeure;
    3. b uses best efforts to overcome the Force Majeure; and
    4. c continues to perform its obligations to the extent practicable.
    5. 18.2 No person other than SwipedOn and the Reseller has any right to a benefit under, or to enforce, the Agreement.
    6. 18.3 To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
    7. 18.4 If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification under this clause 18.4 is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
    8. 18.5 Subject to clauses 2.2, 11.6 and 16.4, any variation to the Agreement must be in writing and signed by both parties.
    9. 18.6 The Agreement sets out everything agreed by the parties relating to the Services, the relationship between the parties, and the conduct of the Business, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.
    10. 18.7 The Reseller may not assign, novate, subcontract or transfer any right or obligation under the Agreement, without the prior written consent of SwipedOn. The Reseller remains liable for the performance of its obligations under the Agreement despite any approved assignment, subcontracting, or transfer. Any assignment, novation, subcontracting or transfer must be in writing. Any change of control of the Reseller is deemed to be an assignment for which SwipedOn’s prior written consent is required under this clause 18.7. In this clause, change of control means any transfer of shares or other arrangement affecting the Reseller or any member of its group which results in a change in the effective control of the Reseller.
    11. 18.8 The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with the Agreement.