Willow360 Terms of Supply

Software Reseller Agreement

This Reseller Agreement is between:

(1) Info Technology Supply Ltd, a company incorporated in England and Wales under number 2230502 whose registered office is at 2 Hobbs House, Harrovian Business Village, Bessborough Road, Harrow, HA1 3EX, United Kingdom (“Vendor”); and

(2) Company agreeing to be appointed by Vendor as reseller to market, promote and sell Subscription Services to Customer, in accordance with the terms herein, which is named as reseller on a Reseller Agreement Form  ("Reseller"),
each of the Vendor and Reseller being a party and together the Vendor and Reseller are the parties.

BACKGROUND
(A) The Vendor owns or has rights to certain software and services.
(B) The Reseller is an experienced provider of software resale services.
(C) The Vendor wishes to appoint the Reseller as an authorised Reseller of certain Vendor software, to market and distribute the software and Subscribed Services in accordance with the terms of this Agreement on the basis Reseller contracts with Customers and is paid by Customers.

AGREED TERMS

1. Definitions and interpretation 

1.2 Interpretation

In this Agreement:
1.2.1 a reference to this Agreement includes its schedules, appendices, annexes (if any) , Reseller Agreement Form ;
1.2.2 the table of contents, background section and any clause, schedule (if any) or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement;
1.2.3 unless the context otherwise requires, reference to a ‘clause’ shall be to a clause of the main body of this Agreement and reference to a ‘paragraph’ shall be a reference to the relevant paragraph of a schedule;
1.2.4 a reference to a party includes that party’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.6 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.7 a reference to a gender includes each other gender;
1.2.8 words in the singular include the plural and vice versa;
1.2.9 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.10 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form, including email;
1.2.11 each of the obligations of the Reseller (and each of the rights and remedies of the Vendor) are cumulative and each such obligation (and right and remedy) shall be without prejudice to any other to the maximum extent permitted by applicable mandatory law;
1.2.12 a reference to any law or legislation is a reference to that law or legislation as amended, recast, replaced, extended, re-enacted or consolidated from time to time;
1.2.13 a reference to legislation includes all subordinate legislation made from time to time under that legislation;
1.2.14 Any obligation of the Reseller under the Agreement to comply or ensure compliance by any person or the Subscribed Services with any law shall be limited to compliance only with laws within the Territory, as set out in the Order Form, Reseller Agreement Form and Jurisdiction Specific Terms, as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on the Vendor (or anyone acting on its behalf) or any part of the Subscribed Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors); and 
1.2.15 in the case of any inconsistency between any provision of the schedule to this Agreement and any clause of this Agreement  this Agreement shall prevail. 

2. Duration

2.1 This Agreement shall continue from the Commencement Date for an initial term of 12 months and shall continue after that for additional periods of 12 months unless or until terminated:
2.1.1 by either party for convenience on not less than 30 days’ prior written notice to the other, provided that such notice may not expire until the earlier at  the end of the initial term of 12 months (unless terminated earlier as provided in this Agreement) ; or
2.1.2 is terminated  in accordance with any other term of this Agreement including without limitation under clause 24
(the Term).

3. Reseller’s Appointment and Rights

3.1 The Vendor grants the right of the Reseller to onward sell Subscribed Services to the Customer  .
3.2 The Vendor appoints the Reseller to resell subscriptions to the Software and Subscribed Services to Customers in accordance with the terms of this Agreement and on the basis all Customers must accept as a minimum  the Terms of Service. Such appointment is on a non- exclusive, non- transferrable basis, within the Territory for the Term, and the Reseller accepts this appointment, subject to the terms of this Agreement.
3.3 The Vendor reserves the unrestricted right to sell, market, reference and distribute or to grant to others the right to sell, market, reference and distribute the Subscribed Services worldwide.
3.4 The Vendor grants the Reseller the following rights for the Term in relation to the Subscribed Services and the Documentation on the following terms and subject to the terms of this Agreement:
3.4.1 Rights: The Vendor grants the Reseller rights to market, promote, reference, distribute and provide Reseller Support in connection with the Subscribed Services and the Documentation to Customer in the Territory (the Reseller’s Rights).
3.4.2 Rights reserved: All rights not specifically and expressly granted in writing to the Reseller under this Agreement are hereby expressly reserved to the Vendor. Nothing in this Agreement shall prevent the Vendor from marketing, promoting, distributing and supporting the Software or Documentation to any persons within the Territory and/or Worldwide either directly or via other distributors, Resellers, Resellers or agents.
3.5 The Reseller undertakes during the Term that it shall not assist any third party in the sale of any of the Software.

4. Delivery of Software and Documentation

4.1 The Vendor shall use its reasonable endeavours to notify the Reseller when the Software and the Documentation is ready to be downloaded and/or accessed, and shall provide all reasonable instructions, including any necessary access rights, activation codes or licence keys.
4.2 The Vendor shall use its reasonable endeavours to ensure the latest version of the Documentation is available at https://willow360.com/en/resources/knowledge-base for the Reseller for use in accordance with this Agreement.
4.3 The Vendor shall use its reasonable endeavours to communicate any product, Software or meaningful documentation updates to the Reseller.
4.4 The Vendor is entitled to make changes to the Specification that do not have a material adverse impact on the Subscribed Services, at any time, provided that the Vendor notifies the Reseller of such changes as soon as reasonably practicable and shall ensure that details of any such changes affecting the Customers’ use of the Subscribed Services are included in the next commercially available update of the Documentation and/or found at https://willow360.com/en/resources/release-notes.
4.5 Unless otherwise agreed in writing, the Reseller shall be responsible for configuring and deploying the Software in accordance with the instructions provided by the Vendor.

5. Reseller’s Responsibilities – Customers

5.1 The Reseller shall ensure it does not:
5.1.1 make, give or by any act or omission give rise to any licence, promise, warranty, guarantee, indemnity, representation, agreement, arrangement or binding right, remedy or obligation (howsoever arising under any legal theory) concerning the Subscribed Services or Documentation other than strictly in accordance with the Terms of Service;
5.1.2 supply or license the Subscribed Services or Documentation to any third party:
5.1.2.1 until the relevant third party has duly entered into the Terms of Service that is legally binding under all applicable laws on each of the Reseller and Customer (and shall promptly provide evidence of the same at the Vendor’s request); and
5.1.2.1 other than in accordance with the terms of the Terms of Service and this Agreement;
5.1.3 provide any support, maintenance or other services in connection with the Subscribed Services other than Reseller Support on the terms of the duly accepted Terms of Service; or
5.1.4 amend, modify or vary any terms of the Terms of Service with any Customer (other than price  Reseller charges Customer)  without the Vendor’s prior express written consent.
5.2 The Reseller shall at all times:
5.2.1 promptly forward to the Vendor any enquiry from a person relating to the supply of the Subscribed Services (or any other support or services analogous to those available under an EULA) outside of the Territory;
5.2.2 comply at all times with its obligations under and in connection with each EULA;
5.2.3 only:
5.2.3.1 provide the latest and most up to date version of the Subscribed Services and the Documentation to the Customers; and
5.2.3.2 make a reasonable attempt to provide new or modified updates of the Subscribed Services and relevant updates to the Documentation available to each Customer, when product or documentation updates or upgrades are released by the Vendor, in accordance with the terms of the Terms of Service.
5.3 The Reseller shall at all times:
5.3.1 make the Customer aware of their obligations under the Terms of Service; and
5.3.2 enforce the Terms of Service against a customer and provide the Vendor with such information and assistance as the Vendor may reasonably require for the purpose of enforcing the said Terms or Service.
5.4 If a Customer has breached the terms of the Terms of Service, the Reseller shall promptly:
5.4.1 use all reasonable endeavours including court action and obtaining injunction(s) to ensure such breach is promptly ceased and remedied; and
5.4.2 unless otherwise agreed in writing by the Vendor exercise its right(s) to terminate the relevant Terms of Service to the extent they arise as a consequence of such breach.
5.5 The Reseller agrees to, when requested to do so by the  Customer, collect the subscription fees from the Customers of the  Subscribed Services to which Customer  subscribes. Reseller shall also be responsible for ensuring  the Customer accepts the Terms of Service.
5.6 The Reseller acknowledges and agrees to adhere to any Jurisdiction Specific Terms relating to the Subscribed Services purchased from the Vendor and shall ensure the same of the Customer.

6. Reseller’s Responsibilities – General

Marketing
6.1 The Reseller shall at all times:
6.1.1 market and promote the Subscribed Services to Customers and prospective customers in the Territory in accordance with the terms of this Agreement;
6.1.2 distribute the Subscribed Services and the Documentation to Customers in the Territory in accordance with the terms of this Agreement;
6.1.3 use all reasonable endeavours to promote use of the Subscribed Services throughout the Territory; and
6.1.4 make a reasonable attempt to inform the Vendor of any relevant marketing information received by the Reseller which is likely to benefit the marketing or sale of the Subscribed Services or any related products or services in or outside of the Territory.
6.2 The Reseller shall ensure it does not:
6.2.1 conduct its business or any dealings with third parties (including Customers) in any manner which is likely to have a negative impact on the goodwill or reputation of the Vendor; or
6.2.2 do, permit or omit to do anything which in the reasonable opinion of the Vendor is prejudicial to marketing or sales of the Subscribed Services or any related products or services.
Reseller resources and training
6.3 The Reseller shall ensure that at all times:
6.3.1 all personnel engaged in the performance of the Reseller’s Responsibilities shall have the appropriate training and experience to adequately perform the Reseller’s Responsibilities.
Other general obligations
6.4 The Reseller shall at all times:
6.4.1 comply with its warranties and obligations in clause 14;
6.4.2 without prejudice to any other obligation, comply with the Vendor’s reasonable instructions in relation to the use of the Subscribed Services;
6.4.3 provide such information and assistance as the Vendor may reasonably require to perform the Vendor’s obligations and exercise the Vendor’s rights under this Agreement;
6.4.4 ensure all information provided to the Vendor, as far as is possible, is complete and accurate in all material respects;
6.4.5 give the Vendor reasonable prior written notice of any information the Reseller requires in accordance with this Agreement and promptly notify the Vendor if the Reseller has reason to suspect that any such information is inadequate, inaccurate or incomplete;
6.4.6 indicate it is acting as Reseller and not as author or developer of the Subscribed Services in all correspondence and dealings with third parties;
6.4.7 perform the Reseller’s Responsibilities in compliance with such Vendor policies as are relevant to the Reseller’s performance of the Reseller’s Responsibilities;
6.4.8 perform its other obligations as set out in this Agreement.
6.5 The Reseller shall ensure it:
6.5.1 does not incur any liability, debt or obligation whatsoever on behalf of the Vendor; or
6.5.2 uses all reasonable endeavours to ensure either:
6.5.2.1 it manages the Subscribed Services on behalf of the Customer; or
6.5.2.2 it provides adequate training and documentation to the Customer on how to use the Subscribed Services; or
6.5.2.3 it provides adequate signposting information to the Customer to ensure the Customer understands how they can directly work with the Vendor to acquire all the Documentation and Support Services to successfully operate and use the Software and or Subscribed Services.
6.6 The Reseller shall be responsible for:
6.6.1.1 ensuring Customer(s) agrees with the Terms of Service; and
6.6.1.2 ensuring Customer(s) receives up-to-date and factually correct information on the Subscribed Services and is not misled into purchasing Subscribed Services unsuitable for their requirements.
Indemnity
6.7 The Reseller shall indemnify, keep indemnified and hold harmless the Vendor from and against all losses, damages, liabilities, fees, costs and expenses incurred by the Vendor arising in connection with any one or more of the following:
6.7.1 any breach of this Agreement by the Reseller;
6.7.2 any use or combination of the Subscribed Services and/or Software with the Reseller Products; and/or
6.7.3 any claim by any third party that any materials produced by, or conduct of, the Reseller in connection with the Reseller’s Responsibilities and/or this Agreement, is defamatory or otherwise contrary to law.
6.8 This clause shall survive termination or expiry of the Agreement.
 
7. Vendor’s Obligations

7.1 The Vendor shall:
7.1.1 provide the Reseller with the Vendor Support as set out on the Reseller Agreement Form;
7.1.2 provide the Reseller with information about the Subscribed Services and the Documentation as the Vendor in its discretion considers necessary in connection with the performance of its obligations under this Agreement, and update the same, on a timely and regular basis;
7.1.3 provide the Reseller with such information and assistance as the Reseller may reasonably require to perform its obligations under this Agreement;
7.1.4 to the extent reasonably possible, give the Reseller advanced written notice of any updates of the Subscribed Services; and
7.1.5 The Vendor shall use all reasonable endeavours to adhere to the Terms of Service.

8. Record keeping and reporting

8.1 The Reseller shall maintain accurate and complete accounts and records of all matters relevant to the performance of its obligations under this Agreement, including regarding:
8.1.1 enquiries from and correspondence with Customers and potential customers;
8.1.2 transactions and legal or other proceedings with Customers;
8.1.3 all communications regarding the Subscribed Services or Documentation (including any calls or other communications with Customers relating to reported defects or deficiencies in any of them); and
8.1.4 the distribution and sub-licensing of the Subscribed Services to each Customer.
8.2 The parties’ respective rights and obligations under this clause 8 shall apply during the Term, survive termination or expiry of this Agreement and continue for two years after the end of the Vendor Support Runoff Period.

9. Fees, taxes and expenses

9.1 All amounts payable under this Agreement are exclusive of VAT, sales and other tax or duties applicable which shall be paid in addition by the Reseller to the Vendor at the rate and in the manner prescribed by law. 
9.2 The Reseller shall bear all costs and expenses, including travel and accommodation expenses, of its personnel and all other costs and expenses incurred by the Reseller in performing the Reseller’s Responsibilities under this Agreement.

10. Invoicing and payment

10.1 The Vendor shall invoice the Reseller electronically to the email address notified by the Reseller in writing to the Vendor for all sums due under this Agreement, unless otherwise stipulated in the Reseller Agreement Form; and
10.2 The Reseller will pay the Vendor annually in advance of the subscription of the Customer commencing. Payment is due to the Vendor prior to the commencement of a subscription and annually thereafter, unless otherwise stipulated in the Reseller Agreement Form.
10.3 The Fees paid shall pay such sums in full and without deduction or set-off.
10.4 Amounts payable under this Agreement shall be paid into the bank account of the relevant party, notified within any invoice issued.

11. Interest

11.1 Where sums due are not paid in full by the due date, the Vendor may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of the Bank of England (GBP, EUR, AUD invoices) or the Federal Reserve (USD invoices) from time to time in force.
11.2 Interest shall apply from the due date for payment until actual payment in full, whether before or after judgment.

12. Price variation

12.1 The Fees payable under this Agreement shall not change except as agreed in accordance with this Agreement.
12.2 The Vendor may at its sole discretion at the end of an annual subscription period modify the fees Reseller pays the Vendor for the Subscribed Services. Any subscription fee change will become effective at the end of the then-current billing cycle. The Vendor will provide reasonable prior notice of any change in subscription fees to give the Reseller the opportunity to terminate Subscribed Services before such change becomes effective.
12.3 Reseller is free to charge Customers whatever fees it so chooses  for the sub-licensing /access to the Vendor's Subscribed Services/Software which Reseller sublicenses/provides to Customer as reseller.

13. Costs

Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents to which reference is made in it).

14. Warranties

14.1 The Reseller warrants and represents to the Vendor that:
14.1.1 the Reseller has the right, power and authority to enter into this Agreement and to perform the Reseller’s Responsibilities;
14.1.2 the performance of the Reseller’s Responsibilities does not and shall not infringe the Intellectual Property Rights of any third party; and
14.1.3 the Reseller’s Responsibilities shall be performed:
14.1.3.1 with all reasonable skill, care and diligence;
14.1.3.2 in compliance with any applicable service standards and so as to meet or exceed any agreed service standards;
14.1.3.3 in accordance with Good Industry Practice; and
14.1.3.4 so as to conform with all applicable laws.
14.2 The Vendor warrants to the Reseller that subject to the terms of this Agreement and the Reseller’s compliance with this Agreement, the Subscribed Services provided to each Customer under the Terms of Service shall operate materially in accordance with their description when used in accordance with this Agreement under normal use and normal circumstances during the relevant Subscribed Service Period; and
14.2.1 it will provide each of the Subscribed Services with reasonable care and skill.
14.3 The Subscribed Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that the Vendor shall have no liability for any such delays, interruptions, errors or other problems to the fullest extent permitted by law.
14.4 If the Subscribed Services delivered to a Customer fail to conform to the warranty in clause 14.2 or any other applicable warranty, the Vendor shall, at its option:
14.4.1 use all reasonable endeavours to correct errors in the Subscribed Services within a reasonable time provided the Reseller notifies it in writing within a reasonable period of time following commencement of the Subscribed Services and provides sufficient information to enable the Vendor to reproduce the errors; or
14.4.2 require the Reseller to terminate the relevant sub-licence of the Subscribed Services i.e. the Terms of Service  with the Customer and following compliance by the Reseller refund any Fees already paid by the Reseller to the Vendor in respect of that Customer less a reasonable deduction to reflect the Customer’s use of the Subscribed Services and any applicable support.
14.5 The warranty in clause 14.2 is subject to the Reseller complying with its obligations under this Agreement and shall not apply to the extent that any error in the Subscribed Services arises as a result of:
14.5.1 any error arising from any act or omission by the Reseller;
14.5.2 breach by any Customer of the Terms of Service;
14.5.3 any IP Claim;
14.5.4 incorrect operation or use of the Subscribed Services (including any failure to follow the Documentation);
14.5.5 installation or use of the Subscribed Services other than for the purposes for which they are intended;
14.5.6 modification or alteration of the Subscribed Services without the written consent of the Vendor;
14.5.7 installation or use of the Subscribed Services with other software or on equipment with which it is incompatible (unless the Vendor recommended or required the use of that other software or equipment in this Agreement);
14.5.8 installation or use of the Subscribed Services when in conjunction with any Reseller Products purchased by the Customer; or
14.5.9 failure to install any Update or Upgrade recommended and made available by the Vendor.
14.6 The Reseller acknowledges that no liability or obligation is accepted by the Vendor (howsoever arising whether under contract, tort, in negligence or otherwise) to the fullest extent permitted by law:
14.6.1 in relation to any of the Reseller Products, errors with or issues caused, or any part thereof; whether installed and used independently by the Customer or in conjunction with any Subscribed Services;
14.6.2 that the Subscribed Services shall meet any Customer’s (or other person’s) individual needs, whether or not such needs have been communicated to the Vendor;
14.6.3 that the operation of the Subscribed Services shall not be subject to minor errors or defects; and
14.6.4 that the Subscribed Services shall be compatible with any software or with any particular hardware or equipment and set out in the Order Form.
14.7 Subject to this clause 14 and its express warranties and obligations in respect of the Subscribed Services and the Documentation set out in this Agreement, the Vendor does not give any warranties or have any obligations in respect of third-party software, equipment or products.
14.8 Subject to clause 22.10, clauses 14.4 and 17 set out the Reseller’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of clause 14.2 or for any other error or defect in, defective performance of or inability of any person to use the Subscribed Services or any part of it.
14.9 Other than as set out in this clause 14, and subject to clause 22.10, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable care and skill or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
 
15. Promotional materials

15.1 Subject to the terms of this Agreement, the Vendor grants the Reseller:
15.1.1 the right to use the title ‘Authorised ITS Cloud Reseller’ of the Vendor on its advertising and promotional materials during the Term; and
15.2 For exceptional requests, the Vendor shall promptly approve or reject any advertising and promotional material submitted to the Vendor for approval by the Reseller. Requests should be made to marketing@its-group.com
15.3 Nothing in this Agreement grants the Reseller Vendorship or any rights in or to use the Vendor’s Marks, except in accordance with the licence in clause 15.1 and the Reseller acknowledges and agrees that:
15.3.1 any goodwill or reputation generated through the Reseller’s use of the Vendor’s Marks and the Reseller’s performance of its obligations with respect to the marketing, promotion and distribution of the Subscribed Services, Support and the Documentation under this Agreement shall accrue to the benefit of the Vendor; and
15.3.2 the Reseller shall not at any time be entitled to claim compensation or payment in respect of such enhanced goodwill or reputation.
15.4 The Vendor shall have the exclusive right to own, use, hold, apply for registration for, and register the Vendor’s Marks during the term of, and after the expiration or termination of, this Agreement, and the Reseller shall neither take nor authorise any activity inconsistent with such exclusive right.
15.5 The Reseller shall not (and shall ensure that all persons acting on its behalf do not) make or give any comments, assurances, statements, representations, publications, advertisements (in each case, in any form whether oral, written or otherwise) relating to the Subscribed Services or any related products or services that are in any way inconsistent with any of the marketing materials as provided by the Vendor, the Terms of Service or the Specification.

16. Intellectual Property Rights

Vendor IPR
16.1 Except as expressly agreed in this Agreement, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
16.2 The Subscribed Services, the Documentation, the Vendor’s Marks and all Intellectual Property Rights in these (Vendor IPR) are and shall remain the sole and exclusive property of the Vendor and its licensors, if any, whether the Subscribed Services is separate or combined with any other products. Nothing in this Agreement or any licence or sub-licence granted under it shall convey or transfer any proprietary interest in any Vendor IPR to the Reseller or any third party.
Licences of Vendor IPR
16.3 Subject to the terms of this Agreement, the Vendor grants to the Reseller a non-exclusive and personal licence to use and sell subscriptions of the Subscribed Services during the Term only to the extent necessary for the Reseller to perform its obligations and exercise the Reseller’s Rights in accordance with this Agreement.
16.4 The Reseller’s rights in relation to the Subscribed Services and the Documentation under clause 16.3 are subject to restrictions that the Reseller shall not (except to the extent such activities are expressly permitted by mandatory law which cannot be varied by agreement of the parties):
16.4.1 modify, adapt, correct errors in or create derivative works from, the Subscribed Services or Documentation or permit the Subscribed Services or any part of it, except as expressly permitted under this Agreement, to be combined or merged with or become incorporated in any other program;
16.4.2 decode, reverse engineer, adapt, decipher, disassemble, decompile or otherwise translate or convert the Subscribed Services except as expressly authorised by the Vendor in writing after the date of this Agreement and except in so far as permitted by applicable law;
16.4.3 assign, sub-license, lease, resell, distribute or otherwise deal in or encumber any of the Vendor IPR (other than the granting of sub-licences of and distribution of the Subscribed Services and the Documentation to Customers in accordance with this Agreement);
16.4.4 use the Subscribed Services in any manner to provide outsourcing or any other services to third parties or (unless separately licensed) for its own use;
16.4.5 attempt to circumvent or interfere with any security features of the Subscribed Services;
16.4.6 remove or alter any copyright or other proprietary notice on or displayed in the Subscribed Services or the Documentation and, as a condition of any reproduction rights granted to the Reseller in this Agreement, the Reseller shall reproduce and display such notices on each copy it makes of any Subscribed Services and/or Documentation; or
16.4.7 re-brand, re-name, re-package or white-label the Products or Subscribed Services
16.5 The Reseller is not granted any rights in relation to the Vendor IPR except for those rights expressly granted in this Agreement. The rights in the Subscribed Services licensed to the Reseller shall not include the right for any person (including any affiliate, sub-contractor or contractor of the Reseller) that is not a Customer in accordance with this Agreement to use or have access to the Subscribed Services unless expressly agreed in writing by the Vendor.
16.6 The Reseller is not permitted to modify the code, backwards engineer (except in so far as permitted by law) nor create copies of the Subscribed Services. However the Vendor does support and encourage integration and inter-operability of the Subscribed Services with other third-party Products. Where this is supported, the Vendor will provide the Reseller with product APIs (Application Programming Interfaces) and supporting Documentation to facilitate the integration.
16.7 Without prejudice to any other rights or obligations of either party, if the Reseller at any time has or obtains additional units of the Subscribed Services beyond those licensed under this Agreement, the Reseller should notify the Vendor.
16.8 The Vendor reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of the Vendor IPR.
16.9 In marketing and distributing the Subscribed Services, the Reseller shall take reasonable steps in accordance with Good Industry Practice to protect the Vendor IPR and shall promptly notify the Vendor of any confirmed or suspected infringement of such rights of which the Reseller becomes aware.
Grant by Reseller and reuse of Know-how
16.10 Subject to any other terms expressly agreed by the parties, the Reseller grants the Vendor a licence of such of its Intellectual Property Rights as are necessary to enable the Vendor to fulfil its obligations and exercise its rights under this Agreement but not otherwise.
16.11 Each party shall be entitled to use in any way it deems fit any skills, techniques or Know-how acquired or developed or used in performance of this Agreement provided always that such skills, techniques or Know-how do not:
16.11.1 infringe the other party’s Intellectual Property Rights;
16.11.2 disclose or breach the confidentiality of the other party’s Confidential Information; or
16.12 If the Reseller provides feedback, feature requests or any other suggestions to the Vendor and these are subsequently used by the Vendor to develop or adapt the Software and/or Products, the Reseller provides such on the understanding that they waive any Intellectual Property Rights in any feedback or feature that may form part of the resulting products, features or improvements resulting from the suggestion.

17. Intellectual Property claims

17.1 Subject to clauses 17.2 and 17.5, the Vendor shall:
17.1.1 defend at its own expense any IP Claim; and
17.1.2 pay, subject to clause 17.7, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
17.2 The provisions of clause 17.1 shall not apply unless the Reseller:
17.2.1 promptly notifies the Vendor upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
17.2.2 makes no comment or admission and takes no action that may adversely affect the Vendor’s ability to defend or settle the IP Claim (and ensures that any Customer affected by such IP Claim does likewise);
17.2.3 provides (and ensures any affected Customer provides) all assistance reasonably required by the Vendor subject to the Vendor paying the Reseller’s reasonable costs; and
17.2.4 gives (and ensures each affected Customer gives) the Vendor sole authority to defend or settle the IP Claim as the Vendor considers appropriate.
17.3 If the Subscribed Services is or is likely to become subject to an IP Claim, the Vendor shall use reasonable endeavours to:
17.3.1 obtain the right for the Reseller and each affected Customer to continue to use the Subscribed Services; or
17.3.2 replace or modify the Subscribed Services (or the part of it subject to the IP Claim) and without diminishing any of the material functions or facilities of the Subscribed Services so that it becomes non-infringing.
17.4 If the Vendor is unable to achieve either of the outcomes described in clause 17.3 having used reasonable endeavours (including where the costs of doing so are commercially prohibitive) or otherwise elects to proceed under this clause 17.4 then, the Vendor may elect by written notification to the Reseller that:
17.4.1 this Agreement shall immediately terminate;
17.4.2 the Reseller shall promptly terminate each set of Terms of Service with a Customer in accordance with its terms and the Reseller shall (and shall ensure that each Customer shall) uninstall, delete and cease to use the Subscribed Services and/or the Documentation which is the subject of the IP Claim; and
17.4.3 the Vendor shall issue a credit or a refund (at the Vendor’s option) to the Reseller for the Fees paid by the Reseller to the Vendor under this Agreement in respect of any set of Terms of Service with a Customer terminated pursuant to this clause 17.4 subject to a reasonable deduction to reflect each affected Customer’s use of the Subscribed Services and access to Reseller Support under their respective Terms of Service. This clause 17.4.3 is without prejudice to the Reseller’s rights and remedies under clause 17.1.
17.5 The Vendor shall have no liability or obligations under this clause 17 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
17.5.1 the Reseller Products or any installation or use of the Subscribed Services with the Reseller Products or any part thereof (whether separately or as part of the Value-added Products);
17.5.2 any software other than the Software (whether or not provided by or on behalf of the Vendor in connection with this Agreement);
17.5.3 any modification of the Subscribed Services without the Vendor’s express written approval;
17.5.4 installation or use of the Subscribed Services otherwise than in accordance with this Agreement or the Vendor’s instructions; or
17.5.5 installation or use of the Subscribed Services in combination with any software, hardware or data that has not been supplied or expressly authorised by the Vendor.
17.6 Subject to clause 22.10, the provisions of this clause 17 set out the Reseller’s sole and exclusive remedies (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim or any other actual or alleged infringement of any Intellectual Property Rights.
17.7 The provisions of clause 22  which cap and limit liability of the Vendor shall apply to this clause 17.
 
18. Confidential information and Data Protection

18.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the exercise of its rights and performance of its obligations under this Agreement.
18.2 The parties acknowledge and agree that:
o the terms of this Agreement; and
o all information relating to the Subscribed Services, the Documentation and any other technical or operational specifications or data relating to the Subscribed Services, are all part of the Vendor’s Confidential Information.
18.3 Each party undertakes to:
18.3.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents, sub-contractors and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
18.3.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 18 and comply with such obligations.
18.4 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
18.5 The provisions of this clause 18 shall not apply to information which:
18.5.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents, sub-contractors or contractors;
18.5.2 is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
18.5.3 is independently developed by the recipient, without access to or use of the other party’s Confidential Information; or
18.5.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
18.6 The obligations under this clause 18 shall survive the variation and expiry or termination of this Agreement  without limit as to time.
18.7 Each party shall establish and maintain adequate security measures to safeguard Confidential Information and data of the other party in its possession from unauthorised access, use or copying.
18.8 Nothing in this Agreement shall prevent the Vendor from retaining and utilising for any purpose (at all times during and after the Term of this Agreement):
18.8.1 any Confidential Information of the Vendor; and/or
18.8.2  any of the records and accounts referred to in clauses 8.1.
The rights and obligations of the parties in this clause 18 and in clause 25 are agreed to be subject to this clause 18.8.
18.9 Each party shall only supply personal data as defined in UK GDPR/Data Protection Act 2018 as amended ("Data Laws") that it has a lawful basis to supply to the other party. Reseller shall ensure Customers accept all required data protection/acceptable use documents and policies of Vendor which Vendor notifies to Reseller. Where Vendor requires Reseller to enter into a data protection agreement in relation to personal data transferred between the parties 
18.10 Each party (the Indemnifier) shall indemnify, keep indemnified and hold harmless the other (the Indemnitee) from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Indemnitee arising from or in connection with any breach by the Indemnifier of this clause 18.

19. Compliance with the law

19.1 Subject to clause 19.2, each party shall comply with all laws applicable to them and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform their obligations under or in connection with this Agreement.
19.2 The Reseller shall:
19.2.1 be responsible for obtaining and maintaining all necessary export and other government approvals, permits, authorisations and authorities to allow the distribution of the Subscribed Services and the Documentation and the exercise of the Reseller’s Rights and performance of the Reseller’s Responsibilities in accordance with all applicable laws; and
19.2.2 indemnify, keep indemnified and hold harmless the Vendor from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Vendor as a result of or in connection with any failure by the Reseller to comply with clause 19.2.1.

20. Anti-bribery

20.1 For the purposes of this clause 20:
20.1.1 the expressions adequate procedures and associated with shall be construed in accordance with the Bribery Act 2010 and guidance published under it; and
20.1.2 Bribery Laws means the Bribery Act 2010 and all other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to bribery or corruption and any similar or equivalent laws in any other relevant jurisdiction.
20.2 The Reseller shall ensure that it and each person referred to in clauses 20.2.1 to 20.2.3 (inclusive) does not, by any act or omission, place the Vendor in breach of any Bribery Laws. The Reseller shall comply with all applicable Bribery Laws in connection with the performance of the Reseller’s Responsibilities and this Agreement, ensure that it has in place adequate procedures to prevent any breach of this clause 20 and ensure that:
20.2.1 all of the Reseller’s personnel and all direct and indirect sub-contractors, suppliers, agents and other intermediaries of the Reseller;
20.2.2 all others associated with the Reseller; and
20.2.3 each person employed by or acting for or on behalf of any of those persons referred to in clauses 20.2.1 and/or 20.2.2, involved in performing the Reseller’s Responsibilities or with this Agreement so comply.
20.3 Without limitation to clause 20.2, the Reseller shall not in connection with the performance of the Reseller’s Responsibilities and/or this Agreement make or receive any bribe (which terms shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
20.4 The Reseller shall immediately notify the Vendor as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 20.
20.5 Any breach of this clause 20 by the Reseller shall be deemed a material breach of this Agreement that is not remediable and entitle the Vendor  immediately to terminate this Agreement by notice under clause 24.1.1.
 
21. Anti-tax evasion facilitation

21.1 For the purposes of this clause 21:
21.1.1 the expressions associated with, prevention procedures, UK Tax Evasion Offence and Foreign Tax Evasion Offence shall be construed in accordance with Part 3 of the Criminal Finances Act 2017 (CFA 2017) and guidance published under it;
21.1.2 Corporate Failure to Prevent Offence means an offence under section 45 and/or section 46 of CFA 2017 and any other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to preventing the facilitation of tax evasion, and any similar or equivalent laws in any other relevant jurisdiction including the USA and the EU) ; and
21.1.3 Reseller Associated Persons means all or any of the following:
21.1.3.1 persons associated with the Reseller (Reseller’s Associates); and
21.1.3.2 persons associated with any of the Reseller’s Associates,
in each case, involved in performing services for or on behalf of the Reseller in connection with the Reseller’s Responsibilities or with this Agreement.
21.2 The Reseller shall ensure that it and the Reseller Associated Persons shall not by any act or omission commit, or cause, facilitate or contribute to the commission by any person including the Vendor, of a:
21.2.1 Corporate Failure to Prevent Offence;
21.2.2 UK Tax Evasion Offence; or
21.2.3 Foreign Tax Evasion Offence,
in connection with the Reseller’s Responsibilities or with this Agreement.
21.3 The Reseller shall not, solicit or engage with or take steps to solicit or engage with any person associated with the Vendor to facilitate the commission of a UK Tax Evasion Offence or a Foreign Tax Evasion Offence in connection with the Reseller’s Responsibilities or with this Agreement.
21.4 Without prejudice to clause 21.2, the Reseller shall ensure that:
21.4.1 it and all relevant Reseller Associated Persons have in place such prevention procedures as it is reasonable in all the circumstances to expect the Reseller and such persons to have in place to prevent any breach of this clause 21 and comply with the Vendor’s prevention procedures as notified to the Reseller from time to time; and
21.4.2 its own policies and other prevention procedures and those of relevant Reseller Associated Persons are endorsed by the Reseller or relevant Reseller Associated Persons’ top-level management and include clear written guidance and training to each of the Reseller Associated Persons. Such policies and procedures shall include the following:
21.4.2.1 the procedures that each such person should follow if they are requested to facilitate a UK Tax Evasion Offence or a Foreign Tax Evasion Offence;
21.4.2.2 acceptable conduct in relation to engagement with Customers and Reseller Associated Persons;
21.4.2.3 risk assessments and due diligence procedures for identifying tax evasion facilitation risks in relation to Customers and Reseller Associated Persons; and
21.4.2.4 the Reseller’s procedures for taking action to inform the relevant enforcement bodies or regulatory authorities about requests to facilitate a UK Tax Evasion Offence or a Foreign Tax Evasion Offence,
and the Reseller shall provide the Vendor on request with copies of these policies (and prompt notice of any material changes to the same from time to time);
21.5 The Reseller shall immediately notify the Vendor as soon as it becomes aware of any allegation, investigation, evidence or report relating to a breach or possible breach of any of the requirements in this clause 21. 
 
22. Limitation of liability

22.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract, under indemnity or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 22.
22.2 The parties agree that the limitations in this clause 22 are reasonable given each party’s respective commercial positions and their ability to obtain insurance in respect of the risks arising under or in connection with this Agreement.
22.4 Subject to clauses 22.9 and 22.10, in no event shall the aggregate liability of the Vendor in respect of any one claim or series of connected claims arising under or in connection with this Agreement exceed the 100% of the total Fees paid to the Vendor in the 12 Months preceding the event giving rise to the claim.
22.5 Subject to clauses 22.8 to 22.10 (inclusive), neither party shall be liable to the other for any consequential, indirect or special loss.
22.6 Subject to clauses 22.8 to 22.10 (inclusive), neither party shall be liable to the other for any of the following (whether direct or indirect):
22.6.1 loss of profit;
22.6.2 loss of contracts;
22.6.3 loss of operation time;
22.6.4 loss of production;
22.6.5 loss of commercial opportunity;
22.6.6 loss of reputation or goodwill;
22.6.7 loss or corruption of data;
22.6.8 loss of commercial opportunity; or
22.6.9 loss of savings, discount or rebate (whether actual or anticipated);
22.7 Subject to clauses 22.9 and 22.10, the Vendor shall not be liable for any of the following (whether direct or indirect):
22.7.1 any losses, liabilities, claims, costs or expenses arising from the combination of the Subscribed Services with Reseller Products or any other software or products.
22.8 Notwithstanding clauses 22.5 to 22.6 (inclusive), and without limiting its entitlement to recover other types of losses, the parties agree that the Vendor may recover the following from the Reseller as direct losses:
22.8.1 wasted expenditure or unnecessary charges incurred by the Vendor (including regulatory fines); and
22.8.2 liability to third parties (including Customers).
22.9 The limitations and exclusions of liability set out in this clause 22 shall not apply in respect of:
22.9.1 any indemnities given by either party under this Agreement.
22.10 Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited or excluded in any way in respect of the following:
22.10.1 death or personal injury caused by negligence;
22.10.2 fraud or fraudulent misrepresentation;
22.10.3 breach of any obligation as to title implied by:
22.10.3.1 section 12 of the Sale of Goods Act 1979; or
22.10.3.2 section 2 of the Supply of Goods and Services Act 1982;
22.10.4 breach of section 2 of the Consumer Protection Act 1987;
22.10.5 any other losses which cannot be excluded or limited by applicable law; and
22.10.6 any obligation to pay the Fees (including any interest and expenses properly incurred).
22.11 In respect of any indemnity given by either party under this Agreement, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.
 
23. Insurance

23.1 The Reseller shall, for the duration of this Agreement and any Vendor Support Runoff Period, maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Agreement in respect of the Reseller.
23.2 The Reseller shall provide to the Vendor upon request sufficient evidence of the insurance cover that it is obliged to have and maintain under this Agreement.
 
24. Termination

24.1 Either party may terminate this Agreement at any time by giving notice in writing to the other party if the other party:
24.1.1 commits a material breach of this Agreement and such breach is not remediable;
24.1.2 commits a material breach of this Agreement which is not remedied within 60 days after receiving written notice requiring it to remedy that breach; or
24.1.2 has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue.
24.2 Any breach by the Reseller of:
24.2.1 clause 16;
24.2.2 clause 18;
24.2.3 clause 20;
24.2.4 clause 21; or
24.2.5 clause 30,
shall be deemed a material breach of this Agreement which is not remediable.
24.3 The Vendor may terminate this Agreement at any time by giving notice in writing to the Reseller if the Reseller:
24.3.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
24.3.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Vendor reasonably believes that to be the case;
24.3.3 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
24.3.4 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
24.3.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
24.3.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
24.3.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
24.3.8 has a resolution passed for its winding up;
24.3.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
24.3.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 5 Business Days of that procedure being commenced;
24.3.11 has a freezing order made against it;
24.3.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
24.3.13 is subject to any events or circumstances analogous to those in clauses 24.3.1 to 24.3.12 (inclusive) in any jurisdiction;
24.3.14 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 24.3.1 to 24.3.13 (inclusive) including for the avoidance of doubt, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
24.4 The right of the Vendor to terminate the Agreement pursuant to clause 24.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of solvent amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.
24.5 The Vendor may without prejudice to its other rights and remedies by notice in writing to the Reseller immediately terminate this Agreement if the Reseller undergoes a change of Control that is, in the Vendor’s reasonable opinion, likely to have a material adverse effect on the Vendor or the performance of the Reseller’s Responsibilities, such as if the Reseller is acquired by a competitor of the Vendor.
24.6 The Vendor may terminate this Agreement for convenience at any time by giving at least 90 days prior written notice to the Reseller including during the initial term and in addition to the termination rights in clause 2 above..
 
25. Consequences of expiry or termination

25.1 In the event of expiry or termination of this Agreement for any reason:
25.1.1 the Reseller shall immediately;
25.1.1.1 stop promoting, marketing, advertising and soliciting and accepting orders for the Subscribed Services and the Documentation; and
25.1.1.2 cease to use all the Vendor’s Marks;
25.1.2 the Reseller shall thereafter not (at any time) enter into, extend the term of or amend the terms of any Terms of Service with a Customer;
25.1.3 the Reseller shall immediately remove from all materials in any form which are to be provided or made accessible to any person (including websites, notices, advertisements, catalogues and documents) any reference to it being an ‘authorised Reseller’ of the Vendor;
25.1.4 save to the extent necessary to comply with its obligations under clause 25.1.7, the Reseller shall immediately stop reproducing, and distributing the Subscribed Services;
25.1.5 save to the extent necessary to comply with any obligations to Customers pursuant to clause 25.1.7, the Reseller shall within 7 days of such termination or expiry (or if later the point in time at which it is no longer necessary to retain the information to comply with clause 25.1.7) return to the Vendor (or, at the Vendor’s written notice, destroy) all Confidential Information of the Vendor in its possession or under its control and all copies of such information, including returning or destroying (as appropriate):
25.1.5.1 all copies of the Subscribed Services and the Documentation; and
25.1.5.2 all promotional material relating to the Subscribed Services,
then in its possession or under its control;
25.1.6 the sub-licences of the Subscribed Services granted in accordance with this Agreement under each set of Terms of Service with a Customer  shall continue for the remainder of their respective terms;
25.1.7 subject to the Reseller complying at all times with its obligations under this Agreement, the Reseller shall continue to:
25.1.7.1 comply with its binding obligations relating to delivery of the Subscribed Services under any Terms of Service with a Customer entered into by the Reseller prior to the termination or expiry of this Agreement; and
25.1.7.2 provide Reseller Support to each Customer as required under the terms of their respective Terms of Service during the Vendor Support Runoff Period
except to the extent otherwise expressly agreed in this Agreement (including in clauses 25.1.1 to 25.1.6 (inclusive)) each of the parties’ rights and obligations under this Agreement shall survive and remain in full force and effect until the end of the Vendor Support Runoff Period.
25.2 Termination or expiry of this Agreement for whatever reason shall be without prejudice to the rights of the parties accrued up to the date of such termination or expiry.
25.3 Those clauses expressed or implied to survive termination or expiry or this Agreement or the end of the Vendor Support Runoff Period shall survive in accordance with their terms, including that the following clauses shall survive: clauses 1, 6.7, 9 to 11 (inclusive), 13, 16 to 18 (inclusive), 19.2, 22, 25 to 39 (inclusive) and 41 to 43 (inclusive).
25.4 The Reseller shall have no claim against the Vendor for compensation for loss of any Reseller rights, loss of goodwill or similar loss following termination or expiry of this Agreement, in whole or in part, for any reason.
25.5 Within 20 days of any request(s) by the Vendor following the end of the Vendor Support Runoff Period, the Reseller shall certify in a written notice to the Vendor that it has complied with the relevant obligations set out in this clause 25 (except to the extent expressly permitted in writing by the Vendor) to the extent not previously subject to such certification.

26. Notices

26.1 Any notice or other communication given by a party under this Agreement shall:
26.1.1 be in writing and in English;
26.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
26.1.3 be sent to the relevant party at the address set out in clause 3.
26.2 Notices may be given, and are deemed received:
26.2.1 by hand: on receipt of a signature at the time of delivery;
26.2.2 by recorded delivery;
26.2.3 by email, on receipt of a delivery email from the correct address.
26.3 Notices and other communications shall be sent to:
26.3.1 Info Technology Supply Ltd, for the attention of Managing Director at 2 Hobbs House, Harrovian Business Village, Bessborough Road, Harrow, HA1 3EX, England, United Kingdom, info@its-group.com
26.3.2 The Reseller at the address notified by the Reseller in the Reseller Agreement Form, Terms of Service and/or registered office if not stipulated in the above.
26.4 Any change to the contact details of a party as set out in clause 26.3 shall be notified to the other party in accordance with clause 26.1 and shall be effective:
26.4.1 on the date specified in the notice as being the date of such change; or
26.4.2 if no date is so specified, 10 Business Days after the notice is deemed to be received.
26.5 All references to time are to the local time at the place of deemed receipt.
 
27. Announcements

No announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, the Reseller without the prior written consent of the Vendor (such consent not to be unreasonably withheld or delayed), except as required by law, any court, any governmental, regulatory or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction.

28. Relationship

The parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

29. Severability

29.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
29.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

30. Assignment and sub-contracting

Reseller shall not assign, transfer, sub-contract or encumber any right or obligation under this Agreement, in whole or in part, without Vendor's prior written consent.

31. Successors in title

This Agreement shall be binding upon, and endure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title.
 
32. Variation

No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

33. Entire agreement

33.1 The parties agree that this Agreement and any documents entered into pursuant to it including the Reseller Agreement Form and Terms of Service are the entire agreement between them and supersede all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. In the event of a conflict between the Reseller Agreement Form and this Agreement this Agreement shall prevail.
33.2 Each party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
33.3 Nothing in this Agreement purports to limit or exclude any liability for fraud.

34. Waiver

34.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
34.2 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
34.3 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

35. Set-off

Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

36. Dispute resolution

36.1 Any dispute arising between the parties out of or in connection with this Agreement shall be dealt with in accordance with the provisions of this clause 36.
36.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
36.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures
36.3.1 Within 7 days of service of the notice, the commercial/sales managers (or equivalent) of the parties shall meet to discuss the dispute and attempt to resolve it.
36.3.2 If the dispute has not been resolved within seven days of the first meeting of the commercial/sales managers (or equivalent), then the matter shall be referred to the chief executives (or persons of equivalent seniority). The chief executives (or equivalent) shall meet within seven days to discuss the dispute and attempt to resolve it.
36.4 The specific format for the resolution of the dispute under clause 36.3.1 and, if necessary, clause 36.3.2 shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.
36.5 Until the parties have completed the steps referred to in clause 36.3, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.

37. Equitable relief

Each party recognises that any breach or threatened breach of this Agreement may cause the other party irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the other party, each party acknowledges and agrees that the other party is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

38. Force majeure

38.1 A party will not be liable if delayed in or prevented from performing its obligations under this Agreement due to a Force Majeure Event, provided that it:
38.1.1 promptly notifies the other of the Force Majeure Event and its expected duration, and
38.1.2 uses reasonable endeavours to minimise the effects of that event.
38.2 If, due to Force Majeure Event, a party:
38.2.1 is unable to perform a material obligation; or
38.2.2 is delayed in or prevented from performing its obligations for a continuous period of more than 90 days,
the other party may, within a further Ten Business Days, terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

39. Further assurance

The Reseller shall at the request of the Vendor do all acts and execute all documents which are necessary to give full effect to this Agreement.

40. Counterparts

This Agreement may be signed in any number of separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement. This Agreement shall not be effective until each party has signed one counterpart.

41. Language

41.1 The language of this Agreement is English. All documents, notices, waivers, variations and other written communications relating to this Agreement shall be in English.
41.2 If this Agreement and any document relating to it is translated, the English version shall prevail.

42. Third party rights

Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise  to enforce any of the provisions of this Agreement.

43. Governing law and jurisdiction

43.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales unless stated otherwise in the Jurisdiction Specific Terms.
43.2 The parties agree to adhere to any Jurisdiction Specific Terms that form part of this Agreement.
43.3 Subject to clause 36, the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).

This Agreement is agreed by the parties on the date set out on the signed Reseller Agreement Form.

Reseller Agreement v1 April 2023