MOBIMATTER RESELLER AGREEMENT

Mobimatter owns and operates a B2B platform (“Platform”) that allows businesses to access and resell a range of mobile telecommunications services, such as data and voice packages, bundles, airtime, and other value added services (“Products”) offered by the mobile operators it represents.

The Platform is only accessible legally recognized businesses. You can only sign-up to use the Platform on behalf of a legally recognized business if you are authorized to act on behalf of the business and have the authority to bind the business to this Agreement.

This Reseller Agreement ("Agreement") is a legal agreement between you (the “Reseller”) and MOBIMATTER LTD (“Mobimatter”), that gives you right to resell and distribute the Products and governs your use of the Platform. Your use of the Service is subject to your acceptance of all the terms & conditions contained hereinafter.

Mobimatter may amend this Agreement from time to time by posting a revised version on its website. The revised version will be effective at the time it is posted and will be notified to you by email.

Mobimatter may close, suspend, or restrict your access to the Platform at any time if you violate this Agreement.

  1. DEFINITIONS
    Unless otherwise defined in the Agreement, the following terms when capitalized shall have the meaning set out as follows:
    Applicable Law/s” means all laws, ordinance, statutes, rules, orders, decrees, judgments, injunctions, licenses, permits, approvals, authorizations, consents, waivers, privileges, agreements and regulations of any Governmental Authority having jurisdiction over the relevant matter as such, and as may be amended, modified, enacted or revoked from time to time hereafter.
    Claim/s” shall have the meaning ascribed to it Clause 12 of this Agreement.
    Confidential Information” shall mean this Agreement and all information, know-hows, software, technical tools, ideas, designs, documents, concepts, technology, internal processes, guidelines, marketing, commercial knowledge, and other materials of a confidential nature including but not limited to, information of a commercial, technical or financial nature which contains amongst other matters, trade secrets, know-how, proprietary or confidential information, Intellectual Property rights, regardless of form, format, media including without limitation written or oral, market studies, marketing information, brochures, printed matter, rates and rate tables, computer software and programs, database technologies, financial statements, business plans, financial projections and budgets, business operations or systems, financial and trading positions, current or prospective financing sources, information relating to the officers, directors or employees of the Disclosing Party and its affiliates, details of customers, suppliers, debtors or creditors and any other information made available through a preliminary/confidential information memorandum, documents and materials prepared in connection with the purpose that is being entered into, however such information is documented and also includes those communicated or obtained through meetings, documents, correspondence or inspection of tangible items, facilities or inspection at any site or place and all other non-public information, provided by a Party (“Disclosing Party”) (including receipt or acquisition of) to the other Party (“Receiving Party”) , or any other information which may come to the knowledge of the Receiving Party whether marked as Confidential Information or not.
    Consumer” means any Person that desires to use or acquire and subsequently purchases the Ordered Products from the Reseller.
    Force Majeure Event” shall have the meaning ascribed to it Clause 17 of this Agreement.
    Governmental Authority” means any federal, state, local or foreign government, and any political subdivision of any of them; or any agency or instrumentality of any such government or political subdivision; or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law) and any arbitrator, court or tribunal of competent jurisdiction.
    Indemnitee” shall have the meaning ascribed to it Clause 12 of this Agreement.
    Intellectual Property” shall mean patents, patentable materials, inventions, algorithms, designs copyrights, trademarks, domain names, trade secrets, know-how, including, but not limited to, source code, data, presentation, research, documents, product plans, products, pricing, services, customers/ business information, methods, processes, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business related information and any other intellectual property, whether registered or not and whether arising by operation of law, contract, license or otherwise.
    Ordered Product/s” shall mean such Products that are successfully purchased on the Platform by the Reseller in accordance with the terms of this Agreement.
    Person” means any individual, sole proprietor, unincorporated association, unincorporated organization, body corporate, corporation, partnership, limited liability company, joint venture, Governmental Authority, trust or any other entity or organization.
    Personal data” means any information or data that directly or indirectly identifies the Consumer that the Reseller obtains while reselling the Ordered Products through the online application tools to such Consumer.
    Platform” shall have the meaning ascribed to it in Recital A of this Agreement.
    Product/s” shall mean any product that is listed on the Platform and offered for purchase by Mobimatter from time to time and shall include the Products identified in Annexure A to this Agreement.
    Reseller Wallet” shall mean pre-paid e-wallet service provided to the Reseller on the Platform.
    Security Breach” shall refer to any unauthorized access, use, disclosure or destruction of the Platform and/or any data on the Platform and shall include without limitation, any viruses or other alien computer programming having been transmitted to the Platform that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any part of the system or data on the Platform.
    Taxes” includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related changes, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by law, contract or otherwise.
    Terms” shall mean the terms and conditions and privacy policy of Mobimatter and such other terms as may be set out from time to time on the Platform and shall include any updates made thereto.
  2.  PURPOSE
    1. Subject to the terms of this Agreement, Mobimatter authorizes and appoints, and the Reseller accepts the authorization and appointment, as Mobimatter’s non-exclusive reseller to promote, market, distribute and sell the Ordered Products to the Consumers.
    2. Subject to the terms of this Agreement, the Reseller shall have the non-exclusive,  and independent right to distribute the Ordered Products to the Consumers or any other Person through its distribution network or in a manner and for consideration, it may deem fit.
  3. ORDERS, delivery and other commercial terms
    1. During the term of this Agreement, the Reseller shall have access to view and purchase all the Products listed on the Platform. The Reseller can place orders for such Products in bulk or otherwise, in consideration of payments made on the Platform.
    2. The Reseller hereby acknowledges and accepts that Mobimatter has the right to modify, add, alter, replace or remove any or all the Products and their corresponding prices, at its sole discretion, at any time during the term of this Agreement. Notwithstanding the foregoing, the Parties agree that such changes shall not affect any transactions relating to Ordered Products for which payments have already been made by the Reseller in accordance with the terms of this Agreement.
    3. The Reseller acknowledges and agrees that the availability of the Products depends solely on the telecom operator companies and such other Persons and the Products may become unavailable for any reason whatsoever during the term of this Agreement. At no point, shall Mobimatter be held responsible or liable for such non-availability of the Products.
    4. During the term of this Agreement, the Reseller will be granted access to the Reseller Wallet on the Platform to make prepaid payments in full to Mobimatter. All the payments shall be made in US Dollars or as otherwise agreed the Parties hereto. Upon receipt of funds in the Reseller Wallet, Mobimatter shall send confirmation mail/notification to the Reseller via e-mail which shall consist the details of funds credited by the Reseller to the Reseller Wallet.
    5. Prior to purchasing a Product on the Platform, the Reseller shall be required to make payments to Mobimatter from the immediately available funds in the Reseller Wallet. Upon receipt of full payment by Mobimatter against the Products procured, Mobimatter shall send payment confirmation mail/notification to the Reseller via e-mail which shall consist the details of Ordered Products made by the Reseller.
    6. The e-delivery shall be done immediately by Mobimatter, in a manner it may deem fit, upon receipt of full payment towards the Ordered Products procured by the Reseller. If Mobimatter is unable to deliver the Ordered Products in the manner indicated herein, Mobimatter shall intimate the Reseller of the same via e-mail specifying reasons for its inability to deliver and make every reasonable effort to avoid late delivery. The Parties shall mutually agree upon extending the time-period for delivery, if such inability to deliver is due to occurrence of a Force Majeure Event or if such delay in delivery is not due to Mobimatter’s failure to comply with the terms of this Agreement.
    7. It is further agreed by the Parties hereto, once the Ordered Products are purchased by the Reseller in accordance with the terms of this Agreement, the Reseller may use such Ordered Products for its own use or further resell the Ordered Products in a manner it deems fit, subject to its compliance with the Applicable Laws. Mobimatter shall not be responsible for any use or subsequent sale of the Ordered Products, in any manner whatsoever. Unless otherwise specified by Mobimatter, the Reseller may market, promote and sell the Ordered Products in a manner it deems fit.
    8. Notwithstanding anything contained herein in this Agreement, all rights, title, interest, including without limitation, risk of loss and damage to the Ordered Products shall pass on to the Reseller upon e-delivery of the Ordered Products to the Reseller.
  4.  SUPPORT SERVICES
    1. Once the Ordered Products have been delivered to the Reseller in accordance with the terms hereof, the Parties hereby agree that Mobimatter shall only be required to provide technical, trouble-shooting, e-delivery assistance and support, as Mobimatter deems reasonable from time to time, to the Reseller. The Parties further agree that the method and means of providing such support services in relation to the Ordered Products shall be under the exclusive control, management, and supervision of Mobimatter, giving due consideration to the requests of the Reseller as it may deem fit.
    2. Reseller shall be solely responsible for all interactions with the Consumers with respect to the Ordered Products including, without limitation, usage of the Ordered Products, access, installation, payment, damage, theft, malfunction, misuse, failure and performance. Unless otherwise mutually agreed in writing, this Agreement does not obligate Mobimatter to provide Reseller with support services, diagnostic software or any other support in the context of Reseller providing maintenance or support services to the Consumers in relation to the Ordered Products.
    3. Reseller shall take calls from the Consumers, including in relation to complaints and feedbacks directly and use reasonable commercial efforts to remedy any problem without Mobimatter’s participation. Mobimatter shall under no circumstance be required to directly interact with the Consumers or any other Person for the purpose of this Agreement.
  5.   PRICING OF THE ORDERED PRODUCTS

    Unless otherwise indicated by MobiMatter, the Reseller shall be free to resell the Ordered Products to the Consumers at any price it may deem fit.

  6. COMPLIANCE WITH APPLICABLE LAWS
    1. The Reseller acknowledges and agrees that it shall be the sole responsibility of the Reseller to obtain all necessary approvals from Governmental Authorities and comply with any and all Applicable Laws that may be applicable to the Reseller by reason of execution of this Agreement.
    2. The Reseller shall, at all times, maintain appropriate technical and organizational measures to protect any Personal Data of the Consumer or any other Person that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration in accordance with all Applicable Laws and the Reseller hereby acknowledges that Mobimatter shall have no liability to the Reseller or any other Person, including the Consumers, that may arise from violation or restriction on the processing or use of such data.
    3. The Parties hereby agree that Mobimatter shall, under no circumstance whatsoever, be held liable or responsible for any actions of the Reseller or the Consumers, whilst selling or using the Ordered Products (as the case may be), which may be in non-compliance with the Applicable Laws.

  7.  ROLES AND RESPONSIBILITIES OF THE PARTIES
    1. Roles and Responsibilities of Mobimatter
      1. Mobimatter shall ensure that all the Products and services offered on the Platform are in good working condition.
      2. Mobimatter shall ensure that compensation or refunds accruing to the Reseller, if any, under this Agreement, shall be paid to the Reseller in case of any (a) cancellation of orders placed on the Platform by Mobimatter (for any reason whatsoever); or (b) genuine product malfunction of the Ordered Products, upon proof of such product malfunction being provided to Mobimatter. Provided however that the Reseller agrees that Mobimatter shall not be responsible or liable for inability to use Ordered Products due to device incompatibility, misunderstanding of actual product details, or damage to the Ordered Product caused by the Reseller and/or the Consumer (as the case may be).
      3. Mobimatter shall keep the Reseller informed about any new features of the Products, marketing trends in relation to the Products and/or other Products of Mobimatter, as reasonably necessary to enable the Reseller to properly perform its obligations under this Agreement. Mobimatter may, if required by the Reseller, provide recommendations to the Reseller with respect to the preferred Products and services that may be offered for sale to the Consumers.
    2.  Roles and Responsibilities of the Reseller
      1. The Reseller shall perform all accounting, billing and collection activities necessary to service its Consumers and shall be solely responsible for all expenses related to the performance of such services.
      2. The Reseller shall ensure availability of sufficient funds in the Reseller Wallet, at all times and shall be solely responsible for maintaining the confidentiality of login credentials to make procurements, payments and/or otherwise access the Platform.
      3. The Reseller shall ensure availability of sufficient funds in the Reseller Wallet, at all times and shall be solely responsible for maintaining the confidentiality of login credentials to make procurements, payments and/or otherwise access the Platform.
      4. The Reseller shall perform all accounting, billing and collection activities necessary to service its Consumers and shall be solely responsible for all expenses related to the performance of such services.
      5. The Reseller shall be solely responsible for all Taxes, if any, arising from the provision of Ordered Products to its Consumers.
      6. The Reseller shall be solely responsible for providing appropriate after sales customer support and such other assistance to its Consumers at its own cost.
      7. The Reseller shall not make any representation or give any warranty with respect to any of the Ordered Products, other than those contained in any online current brochures or leaflets or product descriptions relating to such Ordered Products, which may be issued from time to time by Mobimatter, or as otherwise may be indicated by Mobimatter.
  8.  REPRESENTATIONS & WARRANTIES
    1. Each Party represents and warrants to the other that:
      1. it is duly incorporated and existing in good standing under the laws of the relevant jurisdiction;
      2. such Party has the power and authority to execute and deliver this Agreement and to perform its/his obligations as stated herein;
      3. the execution and delivery of this Agreement has been duly authorised and approved and does not require any further authorisation or consent of any third party;
      4. upon execution, this Agreement will be a legal, valid and binding obligation of the Party enforceable in accordance with its terms; and
      5. the execution and delivery of this Agreement by such Party, and its promises, agreements or undertakings under this Agreement do not or shall not violate any Applicable Law, rule, regulation or order applicable to it or violate or contravene the provisions of or constitute a default under any documents, contracts, agreements or any other instruments to which it is a party.
    2.  The Reseller additionally represents and warrants to Mobimatter that:
      1. the Reseller’s performance of all its obligations hereunder, including the distribution and sale of the Ordered Products, will be conducted in compliance with all Applicable Laws;
      2. it has taken all necessary actions (corporate, statutory or otherwise) to authorize the execution, delivery and performance of this Agreement;
      3. it shall not violate the Intellectual Property of Mobimatter and/or any third party (as the case may be), and for any breach or violation of such Intellectual Property, the Reseller shall be solely responsible;
      4. there is no private and governmental actions, suit, proceedings, claim, arbitration or investigation pending before any Governmental Authority, which is ongoing, or in relation to which a notice has been received by it, that may restrain, prevent or make illegal the performance of this Agreement by such Party;
      5. it has read this Agreement along with its Annexures and understands and accepts all terms, conditions and covenants;
      6. it acknowledges and accepts that Mobimatter shall not be liable for any claims for any losses or damages to the Reseller or Consumers or any other third party in relation to the Ordered Product/s.
      7. it acknowledges and accepts that Mobimatter’s ability to provide/supply Products is conditioned upon the continuing validity of distributor licenses issued to Mobimatter by the telecom operator companies and/or the availability of the stocks in the inventory and Mobimatter, at any point of time, shall not be responsible to replenish the stock; and
      8. it hereby acknowledges and agrees that it shall use and access the Platform as per the Terms.
  9.  NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
    1. During the term of this Agreement, each Party may make available to the other, the Confidential Information as well as information and materials embodying and/or conveying the same for the sole purpose of this Agreement, which information and materials may include technical data with respect to the Platform and/or the Products. The Parties hereby agrees as follows with regard to the Confidential Information:
      1. The Receiving Party shall not, without the prior written authorization of the Disclosing Party, use, reverse engineer or copy any of the Confidential Information disclosed by the Disclosing Party for any purpose other than as specifically authorized by this Agreement, and shall not transfer or disclose any of the Confidential Information to any Person, except to authorized employees and/or agents as required for the performance of the terms of this Agreement on a strict “need to know” basis.
      2. The Receiving Party agrees to regard and preserve as confidential and proprietary all Confidential Information, and to take all steps necessary or appropriate to protect the same against unauthorized disclosure or use, including, without limitation, causing each of its representatives, employees and agents with access to the Confidential Information to enter into a confidentiality agreement in a form acceptable to the Disclosing Party and prior to being granted such access.
      3. The Receiving Party shall immediately notify the Disclosing Party of any unauthorized disclosure or use of any of the Confidential Information that comes to its attention and shall take all action that the Disclosing Party requests to prevent any further unauthorized use, access or disclosure thereof. 
    2.  The Parties acknowledge and agree that all the Confidential Information constitutes valuable, special and unique assets of the business of the Disclosing Party. Accordingly, the Receiving Party agree that, in the event of any breach of this Clause, the Receiving Party shall be responsible for any breach of this Clause caused by its own actions or any of its affiliates, representatives and employees and in addition to any other remedies at law or in equity, the Disclosing Party shall be entitled to equitable relief, including injunctive relief.
    3. This Agreement imposes no obligation with respect to Confidential Information which:
      1. was known to Receiving Party before receipt from Disclosing Party;
      2. is or becomes publicly available;
      3. is rightfully received by Receiving Party from a third party without a duty of confidentiality;
      4. is disclosed by the Disclosing Party to a third party without a duty of confidentiality on the third party;
      5. is independently developed by Receiving Party without a breach of this Agreement;
      6. is disclosed by Receiving Party with Disclosing Party’s prior written approval; and
      7. is disclosed by Receiving Party to any Governmental Authority under the Applicable Laws.
  10.  intellectual property rights
    1. As between Mobimatter and Reseller, all rights, title and interest in and to the Intellectual Property of Mobimatter and documentation provided by Mobimatter shall remain the property of Mobimatter or their rightful providers only and such items may only be used by Reseller as expressly permitted hereunder.
    2. The Reseller shall not remove, alter, or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Products and/or any other documentation provided by Mobimatter to the Reseller.
    3. The Reseller shall not create or attempt to, or aid or permit others to, create by reverse engineering, disassembly, decompilation, reverse engineering or otherwise, the internal structure, the source code, hardware design, or organization of any Intellectual Property of Mobimatter.
    4. The Reseller acknowledges and agrees that the Reseller shall not acquire any right to goodwill, trademark, service mark, copyright or any other Intellectual Property interest of Mobimatter. The Reseller shall not use the Intellectual Property of Mobimatter in any manner in connection with this Agreement or the sale of Products, unless otherwise permitted hereunder.
    5. Any sale literature, advertising or other materials employed by or for Reseller in connection with the sale of Ordered Products that uses Intellectual Property of Mobimatter shall be submitted to Mobimatter for prior written approval.
    6. The Reseller shall use the same methods and degree of care to prevent misuse or disclosure of Mobimatter’s Intellectual Property as it uses to prevent misuse or disclosure of its own Intellectual Property.
  11.  INDEMNIFICATION

    Either Party agrees to indemnify, defend, and hold harmless the other Party and its directors, agents, and employees (each, an “Indemnitee“) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim” and collectively, the “Claims“), which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of the defaulting Party during the performance of this Agreement without limitation, Claims arising out of or relating to any material misrepresentation or breach of warranty of any representation or any material breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of the Indemnitee.

     

  12. LIMITATION OF LIABILITY

    Notwithstanding any other provision set forth herein, Mobimatter shall not be liable for any indirect, special, and/or consequential damages arising out of or in connection with this Agreement to the Reseller, Consumer and/or any other Person. The liability of Mobimatter towards the Reseller, whether based on an action or claim in contract, equity, negligence, tort, or otherwise for all events, acts, or omissions under this Agreement shall not exceed the compensation paid or payable under this Agreement.  
  13.   DISCLAIMER OF WARRANTIES
    Except the express warranties provided herein, the Products are provided by Mobimatter on an "as is," "as available" basis, without representations or warranties of any kind. To the full extent permitted by Applicable Law, Mobimatter disclaims any and all representations and warranties with respect to the Products, including, without limitation, warranties of title, merchantability, and fitness for a particular purpose or use.
  14. Term and Termination
    1. This Agreement shall continue until terminated in accordance with the terms of this Agreement.
    2. Either Party shall be entitled to terminate this Agreement by giving the other Party a prior written notice of [30 (Thirty)] days.
    3. Mobimatter shall be entitled to terminate the Agreement immediately on the occurrence of any of the following events:
      1. If the Reseller commits a Security Breach or breach of the terms of this Agreement or fails to perform or satisfy any obligation, undertaking or covenant under this Agreement.
      2. If the Reseller commits any fraud, dishonesty or acts in any manner which is likely to bring Mobimatter into disrepute or is materially adverse to the interest of Mobimatter.
      3. If the Reseller commits any act or makes any omission with the knowledge or intention that such act or omission would cause Mobimatter to be in violation any Applicable Laws.
      4. If the Reseller is declared a defaulter or black-listed by any Governmental Authority or any Governmental Authority orders to discontinue the services of the Reseller.
      5. If Mobimatter is unable to offer a particular Product for sale to the Reseller or otherwise provide any services to the Reseller, due to any limitations imposed by Applicable Laws and/or for any reason whatsoever.
    4. Upon termination, the Reseller shall not be given access to its account, the Products and/or Platform and Mobimatter shall cease all its services in relation thereof to the Reseller immediately. Unless otherwise specified by Mobimatter, the termination of this Agreement shall not disrupt the service of Ordered Products already purchased by the Reseller under the terms of this Agreement.
    5. The termination of this Agreement shall not relieve the Reseller of its obligation to make all or any payments in accordance with the terms of this Agreement. If there exists any outstanding unused balance amounts in the Reseller Wallet of the Reseller prior to the date of termination, Mobimatter shall refund the balance amounts to the Reseller’s designated bank account, as may be mutually agreed by the Parties hereto.
    6. Upon termination of this Agreement, all rights, obligations and liabilities of the Parties hereto accrued up to and including the date of such termination and those rights, obligations or liabilities of the Parties stated to survive the termination of this Agreement shall not be affected thereby.
    7. Without prejudice to the foregoing, nothing in this Agreement shall in any manner prejudice the rights of the Parties arising either under this Agreement or under Applicable Law.
  15.  Governing Law; Jurisdiction
    Any dispute or difference arising between the Parties as to the effect, validity or interpretation of this Agreement or as to their rights, duties or liabilities thereunder, failing amicable resolution through mutual negotiations, shall be referred to and settled by the laws of Abu Dhabi Global Market, without regard to the conflict of laws principles and the commercial courts in Mobimatter headquarters shall have the exclusive jurisdiction to decide any matter under this Agreement.
  16. Severability
    If any term or provision of this Agreement shall be held to be invalid, illegal, or unenforceable in whole or in part, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.