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For Accountants
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Programme Benefits
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i. This ProAdvisor Programme Agreement, which includes these terms and conditions and the terms of the ProAdvisor Programme membership guide ("Programme Guide"), which can be found at http://advisors.quickbooks.co.uk/programmeguide/programmeguide.pdf, and all other policies and documentation referred to herein (together, the "Agreement") is made between you ("ProAdvisor") and Intuit Limited ("Intuit") and, subject to clauses 1.ii and 1.v below, is effective the date your Programme membership begins, as described in Section 7 below. Your participation in the Intuit ProAdvisor Programme (the "Programme") means that you agree to the terms and conditions of membership provided in this Agreement. As used herein, "you," "your," and "ProAdvisor" are synonymous and refer to the person that purchased Programme membership as identified on the application.
ii. Acceptance by you of this Agreement does not mean that you have been accepted as a member of the Programme. You will not be accepted as a member of the Programme until you have received an e-mail confirmation to that effect from an authorised representative of Intuit. Intuit gives no guarantee or assurance that your application will be accepted. This clause 1.ii shall take effect from the time you indicate acceptance of the terms of this Agreement as part of your application to become a member of the Programme.
iii. Your participation in the Programme is subject to your compliance at all times with the Programme requirements set forth in this Agreement, which may include, but may not be limited to, payment of an annual fee and other training fees and certification testing.
iv. Full (i.e. paid) membership in the Programme entitles you to the Programme benefits set forth at http://advisors.quickbooks.co.uk/programmeguide/programmeguide.pdf. Intuit reserves the right to modify the Programme terms including, but not limited to, discounts, pricing and Programme benefits, at any time at its discretion upon reasonable notice to you. Your continued participation in the Programme following receipt of such notice from us will be deemed to be acceptance by you of any such modification to the Programme terms. If you do not agree to any such modifications, you may terminate this Agreement by giving us notice within 10 days after we have notified you of the modifications.
v. You may only apply for membership of the Programme if you are acting in the course of business and not as a consumer. By applying for membership of the Programme, you confirm that you are acting in the course of a business and not as a consumer. This clause 1.v shall take effect from the time you indicate acceptance of the terms of this Agreement, as part of your application to become a member of the Programme.
i. You shall:
a. conduct business and provide services in a manner which reflects favourably at all times on the products, services, goodwill and reputation of Intuit;
b. not use or display any materials or content in a manner that is defamatory, misleading, obscene or otherwise potentially damaging to the reputation of Intuit, its products or services, or the goodwill associated therewith;
c. abide by the terms of the licences for the Intuit software as specified by Intuit from time to time;
d. not hold Intuit out as offering any financial or other advice, nor as endorsing your business or services and indemnify Intuit against any loss or damage caused to it by your negligent, inaccurate or incomplete advice, your actions or omissions whether, in each case, in relation to financial matters, software use, or otherwise;
e. not use Intuit's names, trademarks or logos for marketing, or other purposes, without Intuit's prior written permission. Where such permission is given, any such use shall be in accordance with Intuit's trademark guidelines in force from time to time, including in particular those set out in the Programme Guide. ;
f. warrant and represent that the information provided by you to Intuit (including without limitation the information provided to Intuit as part of your application for membership of the Programme) is complete and accurate;
g. inform Intuit in writing, forthwith, of any change in your status which would affect the completeness or accuracy of the information provided to Intuit as part of your application for membership of the Programme;
h. not make any statements, representations, warranties or guarantees in respect of an Intuit product or service which have not been published by Intuit in writing in respect of that particular product or service, or which are inconsistent with the policies established by Intuit;
i. not engage in deceptive, misleading or unethical practices;
j. comply with Intuit's reasonable instructions in relation to the end-users of any software sold by you hereunder, or other matters;
k. comply with all applicable laws and regulations including, without limitation, those relating to data protection and export control.
ii. Upon reasonable prior notice, Intuit shall have the right to inspect your provision of support and services under the Programme, your business premises, and all signage, advertisements, promotional material, and documentation if Intuit reasonably believes you have breached any term or condition contained in this Agreement and/or in order to ensure your full compliance with the Programme terms, as the case may be. You shall cooperate fully and shall provide Intuit with immediate access to all requested materials and to your business premises in order to allow Intuit to exercise its right to inspect.
i. Subject to the terms of this Agreement, and in particular, subject to Intuit's acceptance of your application for membership of the Programme, Intuit hereby appoints you, and you accept such appointment, throughout the Term (as defined in clause 7.i below) as a non-exclusive reseller of certain Intuit software (as identified by Intuit from time to time) to end-user customers within the territory for which you have been appointed as a reseller, as identified by Intuit as part of the application process ("Territory"). You may not market, distribute or resell the Intuit software outside the Territory without Intuit's prior consent in writing. As a ProAdvisor, you shall only resell the Intuit software licences:
a. for Intuit software in respect of which Intuit has granted you permission to resell;
b. in your own name;
c. on your own terms and the terms of the applicable Intuit end-user licence agreement accompanying the software. Your terms must not conflict in any way with the terms of the Intuit end-user licence agreement;
d. to your clients, or prospective clients;
e. at prices to be set by you.
ii. You shall use all reasonable efforts to ensure, at your own expense, that the persons to whom you resell the Intuit software comply with the terms of any applicable licence.
iii. Throughout this Agreement, all references to the "sale" or "purchase" of Intuit software by you from Intuit or by an end-user customer shall mean the licence of such Intuit software pursuant to a valid Intuit end-user licence agreement.
iv. Intuit may, from time to time, at its discretion, offer to sell all or some of your Intuit software licences for your own use or non-exclusive resale. Intuit does not transfer any intellectual property right in any Intuit software to you except as expressly provided in this Agreement.
v. The price payable for the Intuit software shall be as specified by Intuit from time to time. Unless otherwise specified, all prices are inclusive of VAT and other sales taxes. All sums payable by you under this Agreement must be paid in British pound sterling. Prices may or may not include delivery, packing, and other incidental expenses, depending, among other things on the address for delivery. Further details of delivery and packing charges and other incidental expenses are set out in the Programme Guide. All sums for Intuit software (including, without limitation, any applicable delivery and packing charges and other expenses) are due and payable to Intuit at the time you make an order.
vi. All orders must be submitted in accordance with Intuit's ordering processes in place from time to time, as notified to you by Intuit. Each order for Intuit software submitted by you shall be deemed to be an offer by you for such software subject to the terms of this Agreement. No order placed by you shall be deemed to be accepted by Intuit until confirmation of order acceptance is issued by Intuit or (if earlier) Intuit delivers the software to you.
vii. Your sole compensation from the sale of licences of Intuit software to end-user customers shall be the difference between the price paid by the applicable end-user customer to you and the price you paid to Intuit for the Intuit software. For the avoidance of doubt, you are free to set your own price for the Intuit software to end-user customers.
viii. Unless otherwise agreed by Intuit in writing, any orders for Intuit software that have been accepted by Intuit shall not be shipped unless and until Intuit has received in cleared funds all sums payable in respect of such orders.
i. The Intuit software will be shipped by Intuit to you FOB Intuit headquarters as specified by Intuit from time to time, provided, however, that you shall not obtain any ownership rights in the Intuit software other than the right to use the Intuit software pursuant to the applicable licence agreement or to resell licences to the Intuit software to end-user customers pursuant to the terms of this Agreement.
ii. Any dates for delivery are only estimates. Intuit shall not be liable for any loss which may arise due to delayed or partial deliveries.
iii. If you fail to take delivery of any of the products at the delivery address specified in the order form at the time requested by Intuit, Intuit shall be entitled, by way of delivery, to store the products in a warehouse at your expense and risk.
iv. You may return Intuit software that is defective pursuant to the terms of the relevant end-user licence agreement during the warranty period specified in the relevant end-user licence agreement. Otherwise, Intuit will not accept returns of the Intuit software for any reason.
v. You shall not stockpile Intuit software licenced to you by Intuit. If, in the sole opinion of Intuit, you are, or may become, in breach of this clause, Intuit may decline to licence its software to you for resale, or at all.
By submitting ideas, suggestions, proposed business plans or any other material to Intuit, you agree that Intuit will treat such submissions as non-confidential, that Intuit can use the information without compensation to you or to any other person or entity, and that Intuit may have already developed, and is not restricted from developing, products, services or plans similar to or competitive with any described in such submissions. You hereby authorise Intuit and third parties authorised by Intuit to disclose and/or publish information regarding your name, address and other contact information, expertise profile, and business profile in printed and/or electronic forms in any medium. The provisions of this clause 5 shall survive expiry or termination for whatever reason of this Agreement.
Except to the extent expressed by statute to be incapable of exclusion or limitation, or as otherwise provided by Intuit in its applicable software licences:
i. Intuit hereby disclaims all representations, warranties, conditions or other terms (in each case whether oral, written, express or implied by statute, collaterally or otherwise) with respect to this Agreement, the Programme and the Intuit software and services other than the express term and conditions of this Agreement. Intuit does not intend, either by the Programme, or the Intuit software or services, or by any other means, to provide accounting or other professional advice. The Intuit software and services are not suitable for, and should not be relied upon, for this purpose;
ii. Neither you nor Intuit limits or excludes any liability for death or personal injury caused by negligence or for any other liability that cannot be limited or excluded by applicable law.
iii. Subject to sub-clause 6 (ii) Intuit shall not be liable for any indirect or consequential loss, damage or expense arising in any manner out of, or in connection with, the Programme or for any loss, whether direct or indirect, of business, profits, revenue or anticipated savings;
iv. Subject to sub-clause 6 (ii), in no event shall the total aggregate liability of Intuit howsoever arising, under, or in connection with, this Agreement, exceed the fees paid by you under this Agreement in the twelve month period immediately preceding the date upon which the event giving rise to the liability first occurred.
i. Initial Term. New Programme memberships shall commence on the date Intuit sends to you an E-mail confirmation that you have been accepted for Programme membership (the "Effective Date"). Unless otherwise terminated as provided herein, such new Programme membership will automatically expire on the anniversary of the Effective Date (the "Term").
ii. Renewals. You may apply for renewal of your Programme membership by submitting a renewal order, in the form required by Intuit from time to time, and the then-current renewal fee to Intuit prior to the expiration of your then-current Term and complying with any recertification requirements imposed by Intuit at its sole discretion. All applications for renewal shall be subject to acceptance by Intuit and the terms of clause 1.ii shall apply in respect of all such applications for renewal. When you apply for renewal of your Programme membership early or within thirty (30) days after Term expiration ("Grace Period"), you may, subject to acceptance by Intuit of your renewal application, renew at the then-current Programme membership renewal price, as specified by Intuit, and your Programme benefits will continue without interruption. If you fail to apply for renewal of your Programme membership by the end of the Grace Period, your Programme membership (including all Programme benefits) will automatically terminate. In such case, participation in the Programme will require re-applying for the Programme as a new member at the then-current new member price and obtaining recertification under the then-current certification requirements. For permitted Programme membership renewals, all renewal Term expiration dates will be annualised based upon the expiration date of your initial Term. Therefore, regardless of whether you renew early or within the Grace Period, the expiration date for your renewal Terms will be in one-year increments from the expiration date of your initial Term. For example, if your initial Term expires on July 31, 2005, all of your permitted renewal Terms will expire on July 31 in your renewal Term years. You are solely responsible for timely renewal of Programme membership. In no event shall you or Intuit be obligated to renew or extend your membership.
Intuit or you may terminate THIS AGREEMENT (AND your membership of the Programme) at any time, with or without cause, by written notice to the other not less than fourteen (14) DAYS before the effective date of such termination notice. Intuit may terminate this Agreement (and your membership of the Programme) for cause effective immediately on notice in the event that: (i) you fail to perform any of your obligations under this Agreement or are otherwise in default hereunder and such failure or default remains unremedied for FIFTEEN (15) DAYS after written notice thereof; (ii) Intuit, in its sole discretion, determines that you do not meet the criteria for membership in the Programme as determined by Intuit from time to time; (iii) you commit a criminal offence or engage in an unlawful business practice; or (iv) any conduct or proposed conduct that exposes or threatens to expose Intuit to any liability or obligation, including any obligation under applicable laws and regulations.
Upon expiration or termination of this Agreement, regardless of the reason therefore: (a) your membership of the Programme shall automatically terminate and all privileges and benefits of the Programme membership will be immediately revoked; (b) you shall immediately cease use of the name "Intuit ProAdvisor" and shall otherwise discontinue representing in all instances and locations (e.g., on materials, website, etc.) that you are a participant or member in the Programme; (c) you shall promptly return to Intuit all Intuit confidential information and software or, at Intuit's option, certify in writing that you have destroyed such information and uninstalled any software; and (d) all rights and licences granted under this Agreement will immediately and automatically terminate. No refund or partial refund of the Programme's annual membership fee will be made in the event this Agreement is terminated.
i. Neither party is or shall represent itself to be the agent, employee, partner or joint venturer of the other, and neither shall either party transact any business in the name of the other, nor on the other's behalf, except as expressly provided herein, or in any manner make promises, representations, warranties, or incur any liability, direct or indirect, contingent or fixed, on behalf of the other party, except as specifically provided herein. The parties acknowledge and agree that your relationship to Intuit is that of an independent contractor, and nothing herein shall be construed or deemed as creating any other relationship, including without limitation that of agent, employee, partner or joint venturer. As an independent contractor, you shall have the sole responsibility for paying taxes, workers compensation, employee benefits (if any), and any other obligations to your employees.
ii. This Agreement shall be governed by English law and any dispute under this Agreement shall be submitted to the exclusive jurisdiction of the English courts.
iii. You confirm that you have read, understand, and will comply with all applicable anti-bribery laws, including the US Foreign Corrupt Practices Act ("FCPA") any local anti-corruption laws, and other laws implementing the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (together, "Anti-Bribery Laws"), regardless of applicability of the laws as a whole to you.
You represent and warrant that neither you nor any person representing you or retained by you will make, offer, promise or authorise, directly or indirectly, any payment or transfer of anything of value to: i) a foreign government official, or ii) any officer, director, employee or agent of Intuit or any potential or actual supplier or end user for the Intuit software. In addition to the foregoing, you will not make any payment to anyone who you know or should know will make a payment to any of the foregoing, in order to obtain or retain business or any improper business advantage, direct business to any party, nor engage in any activity that would expose Intuit to a risk of liability under the Anti-Bribery Laws.
You represent and warrant that you have no knowledge of any past or current violations of the Anti-Bribery Laws (or similar offence such as fraud); that you shall promptly report any violation or suspected violation to Intuit; and that neither you, nor any direct or indirect owner, shareholder, director, officer, partner, employee, agent or consultant of your firm, is a foreign government official, family member or close business associate of a foreign government official.
You shall take all reasonable steps to ensure that you and each of your partners, contractors, subcontractors, consultants, agents or representatives, or other third parties, and their respective affiliates, do not violate the Anti-Bribery Laws; and shall require them to sign similar anti-bribery provisions.
iv. This Agreement is subject to restrictions and controls imposed by the laws applicable in the Territory and all United States laws and regulations relating to exports and to all administrative acts of the US Government pursuant to such laws and regulations. Export, re-export or transshipment of the Intuit software or any other technical data licenced under this Agreement, or the derivative products thereof, is contingent upon : (i) written authorisation from Intuit; and (ii) compliance with all necessary approvals, consents and licences in each territory in which the Intuit software licence is sold and with all necessary approvals, consents and licences of the United States Government.
v. Intuit and you each confirm their understanding and agreement that you are appointed as Intuit's distributor under this Agreement and not as Intuit's agent. However, if and to the extent that the Commercial Agents (Council Directive) Regulations 1993 (as from time to time amended) ("Regulations") apply as finally determined by the English courts, and provided that you give notice of your intention as required thereunder, you shall, unless any of the circumstances mentioned in Regulation 18 of the Regulations applies, have the right to be indemnified as provided in Regulation 17 of the Regulations. For the avoidance of doubt, you shall have no right to any compensation under those Regulations on termination of this Agreement.
vi. No waiver of any right or remedy on one occasion by either party will be deemed a waiver of such right or remedy on any other occasion.
vii. Any notice given under this Agreement must be in writing and may be given by any reasonable means (including post, fax and/or E-mail) addressed to the other party's contact person, in Intuit's case, at the address stated in the Programme Guide and in your case, at the address stated on your application, or (in each case) such other address as may be notified from time to time. Save as otherwise expressly stated in this Agreement, notices will be effective upon actual receipt or the fifth day following the date the notice was sent, whichever is sooner.
viii. No provision of this Agreement shall be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
ix. The rights granted to you hereunder are personal, and you may not assign this Agreement or any right or obligation hereunder, whether in conjunction with a change in employment, voluntarily transfer, transfer by operation of law, or otherwise, without the prior written consent of Intuit, which Intuit may give or withhold in its sole discretion. Any such purported assignment or transfer shall be deemed a material breach of this Agreement and shall be null and void. This Agreement is freely assignable by Intuit (either in whole or in part) and will be for the benefit of Intuit's successors and assigns.
x. The failure of Intuit to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not affect the validity of the remaining provisions unless Intuit determines in its discretion that the court's determination causes this Agreement to fail in any of its essential purposes.
xi. This Agreement constitutes the entire agreement and understanding between the parties with respect to the Programme and supersedes all previous Programme agreements and membership guides, and all prior and contemporaneous negotiations, discussions and understandings of the parties, whether written or oral, regarding the Programme. In entering into this Agreement, each party confirms that it has not relied on any statement or representation not set out in this Agreement. However, nothing in this Agreement limits or excludes liability for fraudulent misrepresentation. No waiver of or modification to any of the provisions of this Agreement shall be valid unless in writing and signed by Intuit. This Agreement, including, without limitation, the Programme and all Programme benefits may be changed from time to time by Intuit in its sole discretion.
xii. You acknowledge that Intuit makes no claims on behalf of you or your company as to the quality of the products or services you offer.
xiii. The provisions of Clauses 2.ii, 5, 6, 7.ii, 9, 10.ii and 10.v shall remain in force after termination of this Agreement.
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