Reseller Services

Reseller Services
TERMS FOR APPOINTMENT OF RESELLER AND PROVISION OF SERVICES BY APPLAYER
A. These terms (‘Terms’) are entered into on the Acceptance Date set out in the Acceptance Email
(both defined in clause 2.2 below) from AppLayer between (i) APPLAYER LIMITED, a company
incorporated and registered in England and Wales with company number 06978039 whose registered
office is at Flat 0, Davis Court, Argyll Road, London W8 7BQ (‘AppLayer’), trading as “WhiteLabelBox”;
and (ii) RESELLER, whose details are set out in the Sign-Up Form (‘Reseller’) (‘parties’). The Sign-Up
Form and Acceptance Email together with these Terms (and the documents referred to in clause 18.25)
constitute the entire agreement between the parties relating to the subject matter herein (‘Agreement’).
B. An Agreement governs the Licence (defined in clause 2.3 below) to the Reseller of the right to
License the Reseller Services as a non-exclusive reseller to EUs and EUOs (defined below) subject to
an Agreement and so Reseller is requested to read these Terms carefully before Licensing the Reseller
Services from AppLayer. By completing a Sign-Up Form, Reseller confirms that it agrees to be bound
by an Agreement.
AGREED TERMS
1.
INTERPRETATION
1.1
The following definitions and rules of interpretation in this clause apply in an Agreement.
Acceptable Use, Privacy, Data Protection and Security Policy: such policy set out on the Website
and on the Partner Portal as amended by AppLayer from time to time;
Additional Services: means any services (whether hosted services or otherwise) other than those
already subscribed for by Reseller;
Affiliate: means in respect of any party means any entity which Controls, is Controlled by, or is under
common Control with such party, including without limitation, Group Companies;
AppLayer
Billing
Platform:
means
the
AppLayer
billing
system
located
https://cp.securecloudpanel.com or such other domain address as may be nominated by Reseller;
at
AppLayer Security Policy: the security policy located on the Partner Portal and Website (as part of
the Acceptable Use, Privacy, Data Protection and Security Policy) adhered to by Applayer and Reseller
with regard to security of all EU Stored Data as such policy shall be and as may be amended, updated
or replaced from time to time in accordance with an Agreement;
Application: a program or group of programs for use by EUs.
Application Catalogue: the applications which are located in the catalogue on the Control Panel.
Bespoke Services: such services as may be required from time to time by a Reseller for an EUO which are
bespoke in their nature and not set out on the Price List;
Business Customer: means a customer who is not an individual consumer, and who is:
i.
ii.
iii.
iv.
v.
vi.
vii.
a company within the meaning of section 1 (1) of the Companies Act 2006; or
a company incorporated in pursuance of a royal charter or letters patent; or
a partnership; or
a limited liability partnership; or
a corporation sole; or
a government or other subscription or publicly funded enterprise; or
any other body corporate or other entity which is a legal person distinct from the persons (if any) of
which it is composed; or
viii. any subscriber that AppLayer in its absolute discretion agrees is a Business Customer.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK;
Competitor: means any licensor providing licences of services similar to or identical to the Reseller
Services (other than the parties) and who may from time to time be carrying on business in competition
(or who, within the knowledge of Reseller, intends to carry on business in competition) with AppLayer or
any Affiliate of AppLayer in the Territory;
Confidential Information: information that is proprietary or confidential and is either clearly labelled as
such or otherwise identified as Confidential Information including but not limited to all information
whether recorded or not (and, if recorded, in whatever form, in whatever media and by whomever
recorded) which is a trade secret or other confidential or private information which is not generally
known or easily accessible by the public and/or information which would appear to a reasonable person
as being confidential (either as an individual item of information or as part of a body of knowledge) in
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any way relating to or concerning the business, finances, dealings, transactions or affairs of AppLayer,
or of any third party with whom or which AppLayer has dealt and in respect of whom or which AppLayer
is bound by an obligation (whether express or implied) of confidence and includes, but is not limited to
the following:
i.
information relating to AppLayer’s Resellers and/or EUO’s and/or EUs (including but not limited
to names, addresses, telephone, e-mail or fax numbers or other contact details) and all EU
Details and Reseller Data;
ii.
information relating to AppLayer’s Staff, suppliers, agents, shareholders and distributors
(including but not limited to names, addresses, telephone, e-mail or fax numbers or other
contact details);
iii.
information relating to the pricing arrangements and/or trading arrangements and/or terms of
business in force or under discussion as at the date of the Termination of an Agreement
between AppLayer and its customers, suppliers, agents and distributors and the requirements
of such persons in terms of AppLayer’s business or services;
iv.
information relating to the development and marketing of AppLayer’s services (including but not
limited to all formulae, trade secrets, materials, products, systems, operations, processes,
plans or intentions, product information, know-how and market opportunities, know-how,
specifications, designs, applications, drawings, component lists, databases, mailing lists,
software, manuals, instructions brochures, timetables, schedules, catalogues, price lists or
discount arrangements (whether in force or approved by AppLayer to be implemented) in
whatever medium);
v.
information relating to AppLayer’s sales (including but not limited to sales targets and statistics,
market share and pricing statistics, marketing surveys, research and reports and advertising
and promotional material);
vi.
all password and other access details for Use of the Reseller Services;
vii.
information relating to Intellectual Property Rights in which AppLayer has an interest or which it
owns; and
viii.
all EU Stored Data.
Control: the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract
or otherwise;
Control Panel: the AppLayer cloud control panel providing Reseller with ability to offer Reseller
Services, access to management and billing systems and which is located at
https://cp.securecloudpanel.com or, if Reseller has branded its use of the Control Panel under its own
domain name and brand, then located at such domain name;
Data Controller: means AppLayer, or as otherwise notified in writing by AppLayer to Reseller;
Data Protection Legislation: means all legislation relating to data protection including Directive
95/46/EC on the protection of individuals with regard to the processing of personal data and on the free
movement of such data, the Data Protection Act 1998 and all subordinate legislation relating thereto,
Director 2002/58/EC on privacy and electronic communications and the Privacy and Electronic
Communications (EC Directive) Regulations 2003;
Dedicated Environment: any platforms, servers or services which are provided under the Reseller
Services by a Reseller to an EUO on a dedicated basis solely for that EUO’s Use;
Dedicated Servers: a server dedicated to an EUO solely for that EUO’s Use;
Documentation: means the standard user technical documentation (either in print or digitally format)
regarding Supported Software, generally made available by AppLayer for the purposes of an
Agreement. Advertising materials are not to be regarded as Documentation.
DPA: Data Protection Act 1998;
EU Details: means all data personally identifying EUs and EUOs including but not limited to billing
information but excluding any such data that has come into AppLayer’s possession other than through
disclosure of such data by Reseller to AppLayer;
EU Migration Charges: such costs incurred by AppLayer in the migration of EU Stored Data from
AppLayer to a third party;
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EU Stored Data: means all data generated by EUs and EUOs through their Use of the Reseller
Services, but excluding any such data that has come into AppLayer’s possession other than through
disclosure of such data by Reseller to AppLayer;
EUO/End User Organisation: a prospective or actual organisation that is a Business Customer using
Reseller Services who are customers of Reseller;
EU: means an employee of an End User Organisation who is authorized by Reseller or by the EUO (if
applicable) (through a password or other user identification method) to access and Use Reseller
Services.
EULA: an end user licence agreement between Reseller and an EUO governing the Use;
Error: means a defect in any software that prevents it from functioning substantially in accordance with
the functional requirements as set forth in the Documentation;
Good Industry Practice: means all relevant practices and professional standards that would be
reasonably expected of a well-managed expert commercial enterprise performing services substantially
similar to the Reseller Services (taking into account factors such as the service levels, terms and
pricing) and promoting the sale of services substantially similar to the Reseller Services, to EUO’s of the
same nature and size as the EUO’s;
Group Company: means either a subsidiary or a holding company of any company, "subsidiary" and
"holding company" bearing the meaning assigned to them in s.1159 and Schedule 6 Companies Act
2006 (as amended);
Hosted: installed on Servers;
Intellectual Property Rights: means all intellectual property rights of any kind existing anywhere in the
world whether or not registered and all applications, renewals and extensions of the same and
whenever arising, registered or applied to be registered including, without limitation, copyright, database
rights, design rights, patents, trade marks, service marks, trade names and other rights in goodwill,
rights in know-how, trade secrets and other confidential information, rights relating to semiconductor
chip topography, copyrights including rights in computer software, rights relating to software and
applications or rights to apply for any of the foregoing rights of confidentiality in information of any kind;
Keys: software activation keys;
Licensor: any third party licensor providing licences of software or services to AppLayer from time to
time;
Loss: all losses, liabilities, costs, expenses and damages whether direct, indirect or consequential
losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable
professional costs and expenses, howsoever arising;
Minimum Contract Period: a period of one Year.
Minimum Requirements: sufficient internet bandwidth and contention against the number of EUs and
any other requirements as may be necessary to Use the Reseller Services;
Minimum Sales Target: means the amount of total Charges (defined in clause 6.2) that Reseller was
charged in the previous Month determining which Partner Discount Tier will be applied to each Reseller
Service(s) in the following Month(s), as described in the Price List, except that the first Minimum Sales
Target will be according to the Partner Tier applied to Reseller Service(s) for that Month in AppLayer’s
sole discretion;
Month: a calendar month;
Normal Business Hours: 8.30am to 6.00pm local UK time, Monday to Friday, excluding public holidays
in the UK;
Partner Discount Price: such prices set out in the Price List according to the Partner Tier applicable to
the Reseller at the date when a Reseller Service is first supplied to an EUO (or its EUs);
Partner Portal: the AppLayer partner portal which provides Reseller with access to documentation,
sales and marketing collateral, support material, ticketing system and other resources and which is
located at http://portal.cloudpartnerhub.com.
Partner Tier: such partner tier applied to each Reseller Service according to the Minimum Sales Target
achieved by Reseller just prior to the date when such Reseller Service is first supplied to an EUO (or its
EUs);
Price List: the price list located on the Partner Portal setting out the recommended retail price for each
Service and setting out the Minimum Sales Targets and related Partner Discount Prices;
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Primary Contact: two (2) people nominated by Reseller authorised by Reseller to liaise with AppLayer
on Reseller’s behalf from time to time;
Quarter: on or about 1 January, 1 April, 1 July, 1 October of each Year;
Reseller Charges: means the charges made by Reseller (in its absolute discretion) in connection with
the provision of the Reseller Services to EUOs;
Reseller Data: means data relating to Reseller, including billing information but excluding any such
data that has come into AppLayer's possession other than through disclosure of such data to AppLayer
from Reseller;
Reseller Services: means the range of managed customer services as described in each of the Services
Schedules that Reseller is licensed to provide to EUO’s in accordance with an Agreement and a EULA
as a whole, and any Additional Services or Bespoke Services as may be agreed from time to time;
Reseller Software: any software owned partly or wholly by Reseller or directly licensed by Reseller
from a third party;
Reseller Systems: the computer and information systems owned, controlled and/or used by Reseller in
the provision of the Reseller Services to EUOs and EUs, excluding any such systems owned and/or
controlled by AppLayer;
RPIX: the All Items Retail Prices Index Excluding Mortgage Interest Payments as published from time to
time by the Office for National Statistics or any successor body, or the nearest equivalent successor to
that index, and RPIX Inflation means the annual percentage increase in RPI as published from time to
time by the Office for National Statistics or any successor body.
Servers: such servers belonging to Applayer or its Licensors;
Service Change: means any change in the nature or description of the Services;
Service Levels: means the service levels described in Schedule 2, as amended from time to time;
Services Schedules: the services schedules agreed by the parties from time to time setting out details
of each service;
Shared Platform: a Server used by multiple EUOs and EUs;
Sign-Up Form: the automated sign up form on the Website;
Software: any Supported Software, Unsupported Software or Reseller Software;
Supported Software: means the machine-readable, object-code version of such software, including
Documentation and Keys, (whether owned by AppLayer or licensed by AppLayer from a third party),
licensed by AppLayer to Reseller as part of the Reseller Services under an Agreement, Hosted and
Supported;
Staff: means all employees, agents, sub-contractors and representatives of a legal entity.
Support: such support provided by AppLayer to Reseller in accordance with the Service Levels;
Term: the duration of an Agreement as described in clause 15;
Termination: termination of an Agreement for any reason;
Trade Marks: such trade marks belonging to AppLayer from time to time;
Unsupported Software: means Hosted, but not Supported, machine-readable, object-code version of
certain software, as part of the Reseller Services under an Agreement;
Upload: upload of data of any kind onto the Server;
Use: means the loading, utilization, storage or display of Reseller Services by EUOs and for such
purposes as shall be described in each Services Schedule for EUOs’ internal purposes only;
Website: the website describing the Reseller Services which is located at www.whitelabelbox.co.uk;
Year: the period of 12 months from the Acceptance Date and each consecutive period of 12 months
thereafter during the Term of an Agreement;
1.2
Clause, Schedule and paragraph headings shall not affect the interpretation of an Agreement.
1.3
A person includes a natural person, corporate or unincorporated body (whether or not having
separate legal personality).
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1.4
A reference to a company shall include any company, corporation or other body corporate,
wherever and however incorporated or established.
1.5
Unless the context otherwise requires, words in the singular shall include the plural and in the
plural include the singular.
1.6
Unless the context otherwise requires, a reference to one gender shall include a reference to
the other genders.
1.7
A reference to a statute or statutory provision is a reference to it as amended, extended or reenacted from time to time.
1.8
A reference to writing or written includes faxes and e-mail.
1.9
References in an Agreement to AppLayer and to Reseller will be deemed to include their Staff,
Affiliates and their lawful successors and assigns.
2.
APPOINTMENT
2.1
So that Reseller (being a Business Customer only) can place an order to Licence the Reseller
Services, Reseller shall complete the Sign-Up Form and accept these Terms by clicking on the
“Accept Terms” button (“Order”). Please note that this does not mean that the Order has been
accepted by Reseller.
2.2
After placing an Order, Reseller will receive an automated email acknowledging that AppLayer
has received the Order and confirming that AppLayer will contact Reseller shortly by e-mail or
telephone. AppLayer will then decide whether to accept the Order and reserves full rights in its
sole discretion not to do so for any reason. AppLayer will acknowledge whether or not it has
accepted the Reseller by sending an email to Reseller within one Business Day confirming
accordingly and, if so, with relevant account (“Account”) and user details for Reseller to
access the Control Panel and Partner Portal (“Access”), (the date of such email being the
“Acceptance Date”) (“Acceptance Email”). Subject to confirmation of such acceptance, a
binding contract between the parties shall be formed which shall consist of the Sign-Up Form,
Acceptance Email and these Terms (which also incorporate the documents referred to in
clause 18.25).
2.3
Subject to clauses 2.1 to 2.2 inclusive, Reseller shall then be appointed by AppLayer as a non
exclusive Reseller to provide Reseller Services on the terms of an Agreement for the Term and
grants to Reseller with effect from the Acceptance Date, a non-exclusive, non-transferable,
revocable, personal licence to provide the Reseller Services (“Licence”), and shall be
permitted to:
a)
licence, for Use only, the Reseller Services directly to EUOs for such simultaneous
number of licences for EUs as it shall decide, (and which may include Staff and any
Affiliates of Reseller);
b)
manage the Reseller Services; and
c)
market and promote the Reseller Services.
2.4
AppLayer shall provide each of the Reseller Services in accordance with each applicable
Service Schedule. The description of Provisioning and Management defined in each Service
Schedule describes what the Reseller (and the EUO or EU where stated) shall be entitled to
under the Licence, in relation to each Reseller Service. Each Service Schedule shall describe
what Additional Services Resellers may Licence from AppLayer subject to the provisions of an
Agreement. The security features adopted by AppLayer in relation to each Reseller Service is
also described in each Service Schedule, together with the applicable Service Levels, in
accordance with Schedule 2. AppLayer’s Back-up and Disaster Recovery procedures defined
in each Service Schedule are described in relation to each specific Reseller Service. Any Price
and Payment terms defined in each Service Schedule for specific Services where they differ
from the provisions of the Terms are described in each Service Schedule. Any terms which are
additionally set out in respect of each Reseller Service in a Service Schedule shall govern the
Licence of the relevant Reseller Service to the Reseller.
2.5
Reseller shall be entitled to describe itself as an "Authorised Reseller" of the Reseller Services
but shall not represent itself as an agent of AppLayer for any purpose, nor pledge AppLayer's
credit nor give any condition or warranty nor make any representation on AppLayer's behalf nor
commit AppLayer to any contracts.
2.6
Reseller shall not without AppLayer's prior written consent make any representations,
warranties, guarantees or other commitments with respect to the features or capabilities of
Reseller Services which are inconsistent with those contained in any terms or promotional
material supplied by AppLayer or otherwise incur any liability on behalf of AppLayer.
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2.7
AppLayer may, in its reasonable discretion, refuse to accept any order for Reseller Services
placed by any Reseller or EUO for any reason whatsoever.
2.8
Reseller shall not provide any Reseller Services through a sales agent or to a sub-distributor or
reseller or sub-reseller without the prior written permission of AppLayer. Where AppLayer
agrees to any such appointment, Reseller shall ensure that it enters into a written contract with
such sales agent, sub-distributor or reseller on terms which provide at least the same level of
protection to Reseller as set out in an Agreement.
2.9
Reseller’s appointment under this clause 2 only grants to Reseller a licence to distribute
Reseller Services, and does not transfer any right, title or interest to any such Reseller
Services to Reseller or its EUO’s or EUs. Use of the terms “provide”, "sell", "licence",
"purchase", "licence fees" and "price" in an Agreement will be interpreted in accordance with
this clause.
2.10
Subject to an Agreement, Reseller may use the Reseller Services solely for Reseller’s
commercial business operations only and for no other purpose or use, without the prior written
consent of AppLayer.
2.11
For the avoidance of doubt, the Licence of the Reseller Services and of the Website shall also
be governed by the Website Acceptable Use, Privacy, Data Protection and Security Policy set
out on the Website.
2.12
Reseller acknowledges that the Licence of the Reseller Services is dependent on the Reseller
and any EUO having the Minimum Requirements and Reseller acknowledges that Reseller and
EUOs will be responsible for obtaining and maintaining any equipment or ancillary services
needed to connect to, access or otherwise Use the Reseller System including, without
limitation, modems, hardware, software and long distance or local telephone service, and their
own telecommunication facilities and internet connection.
2.13
Supported Software is provided within the Reseller Services. By providing the Reseller
Services, Reseller shall be deemed to have accepted the licence terms of all
Supported Software contained or provided as a part of the Reseller Services. Copies of
all Supported Software licences are available upon request from AppLayer and copies
are also available on the Partner Portal. Wherever possible, all Supported Software
licences will be deemed sub-licensed to Reseller within these Terms except where a direct
licence is required between Reseller and the Third Party Licensor of such Supported Software
whereupon Reseller will enter into a direct licence with such Third Party Licensor or otherwise
cease to Use the Supported Software.
2.14
Unsupported Software is Hosted by AppLayer within the Reseller Services. Reseller
represents, warrants and shall ensure that all EUOs and EUs (as applicable) shall
accept the licence terms of all Unsupported Software prior to using such Unsupported
Software or shall otherwise not commence or shall cease to use such Unsupported Software.
2.15
If Reseller uses any Reseller Software then Reseller represents and warrants to AppLayer that
it has the legal right to use the Reseller Software in the manner for which it intends to use such
Reseller Software.
2.16
EUOs may contact Reseller for Support and accordingly, Reseller may contact AppLayer for
Support subject to the Service Levels. For the avoidance of doubt, AppLayer will not provide
direct Support to EUOs. Support training courses shall be supplied by AppLayer to Reseller at
AppLayer’s standard training costs in force from time to time. AppLayer reserves the right at
any time to require Reseller to undertake a training course at Reseller’s expense if Reseller is
unable, in AppLayer’s opinion, to provide a reasonable level of Support to EUOs.
3.
RESELLER'S OBLIGATIONS
3.1
Reseller undertakes and agrees with AppLayer to:
3.1.1
provide the Reseller Services fully in accordance with an Agreement, act at all times in its
relations with AppLayer and EUO’s/EU’s in good faith and in accordance with Good Industry
Practice and use its reasonable endeavours to promote the distribution and sale of the Reseller
Services to EUO’s (who shall be Business Customers only);
3.1.2
comply with all reasonable and lawful instructions of AppLayer;
3.1.3
ensure that EUO’s are aware of and accept the terms and conditions of a EULA before using
Reseller Services;
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3.1.4
be responsible for and will procure at all times that all EUOs comply with and adhere to a EULA
and Reseller shall be entirely responsible and liable for any breach of a EULA by any of its
EUOs;
3.1.5
employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of
Reseller’s obligations under an Agreement;
3.1.6
during the Term of an Agreement provide to all EUOs Support in respect of the Reseller
Services to the standard of and in accordance with the Service Levels, including, without
limitation, the provision of necessary and useful installation assistance and consultation on the
Use of Reseller Services; timely responses to EUOs’ general questions concerning Use of
Reseller Services; and assistance to EUOs in the diagnosis and correction of problems
encountered in Using Reseller Services;
3.1.7
inform AppLayer immediately of any proposed changes in ownership or Control of Reseller and
of any change in its organisation or method of doing business which might affect the
performance of Reseller’s duties in an Agreement;
3.1.8
provide AppLayer and its Licensors upon request with all reasonably requested information
within a reasonable period of time and access to EUOs if required at the sole discretion of
AppLayer;
3.1.9
refrain from action that is likely to bring AppLayer or its Licensors into disrepute with regard to
the collection of monies from EUO’s. Reseller will ensure that any debt collection or credit risk
contractor engaged by it will not engage in harassment, intimidation or threats against EUO’s
and will comply with Office of Fair Trading and Credit Risk Association guidelines;
3.1.10
comply with all legal and regulatory requirements from time to time in force in relation to the
Services including but not limited to the DPA, and the Telecommunications (Data Protection
and Privacy) (Direct Marketing) Regulations 1998;
3.1.11
use all reasonable endeavours to prevent any unauthorised access to, or use of, the Reseller
Services and, in the event of any such unauthorised access or use, promptly notify AppLayer.
In the event of any unauthorised access to the Reseller Services, AppLayer shall be entitled,
without liability to Reseller, to immediately suspend access to the Reseller Services by
Reseller. AppLayer shall not be responsible for any such unauthorised access to the Reseller
Services or to the EU Stored Data;
3.1.12
comply with all applicable laws and regulations with respect to its activities under an
Agreement;
3.1.13
obtain and maintain all necessary licences, consents, and permissions necessary for it to
perform its obligations under an Agreement;
3.1.14
ensure that its network and systems comply with any relevant specifications provided by
AppLayer from time to time;
3.1.15
be solely responsible for (i) procuring and maintaining its network connections and
telecommunications links from its systems to the Reseller Services, and (ii) for all problems,
conditions, delays, delivery failures and all other Loss or damage arising from or relating to
Reseller's network connections or telecommunications links or caused by the internet;
3.1.16
provide AppLayer with 14 days’ notice prior to authorising within any 48 hour period (i) 100 EUs
or more to Use the Reseller Services; or (ii) 200 gigabytes or more of Reseller Data or EU
Stored Data to be Uploaded;
3.1.17
upon Applayer’s request, submit to AppLayer reports in the format stipulated by AppLayer from
time to time showing details of:
(i)
all existing EUOs and EUs using the Reseller Services;
(ii)
all prospective EUs for Reseller Services of which Reseller is aware; and
(iii)
any other information relating to the performance of its obligations under an
Agreement that AppLayer may reasonably require from time to time;
3.1.18
obtain, as and where necessary, the consent of individuals whose personal data is to be held
on a domain name register or are otherwise provided to AppLayer;
3.1.19
provide, for AppLayer, its agents, subcontractors, consultants and employees, in a timely
manner and at no charge, access to the Reseller's Systems and data as reasonably required
by AppLayer or any of them;
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3.1.20
provide, in a timely manner, such information as AppLayer may reasonably require (including
email and physical addresses), and ensure that it is accurate in all material respects and that it
is updated as required;
3.1.21
ensure that all the Reseller's Systems are in good working order and suitable for the purposes
for which it is used in relation to the Reseller Services, conforms to all relevant standards and
requirements and is fully insured against all loss or damage;
3.1.22
obtain and maintain all necessary licences and consents and comply with all relevant
legislation in relation to the Reseller Services;
3.1.23
maintain in force throughout the Term full and comprehensive insurance policies including
commercial general liability insurance cover, cyber liability, employer's liability insurance cover
and public liability insurance cover in respect of the provision of the Reseller Services and shall
ensure that the Insurance Policies are taken out with reputable insurers and that the level of
insurance cover and other terms of insurance are suitable and appropriate to the level of risk
assumed by the Reseller hereunder and under any EULA; and
3.1.24
notify AppLayer about its Primary Contact and contact details for them and update such details
in the event that the Primary Contact or contact details change. All communication from
AppLayer hereunder (other than for Support) shall take place with the Primary Contact.
3.2
Reseller undertakes and agrees with AppLayer not to, whether itself or by allowing any
third party (including without limitation any EUO), (except as may be allowed by any
applicable law which is incapable of exclusion by agreement or as otherwise agreed between
the parties, and except to the extent expressly permitted under an Agreement):
3.2.1
use the Reseller Services except as expressly permitted in an Agreement;
3.2.2
decompile, disassemble or reverse engineer any Software or any element or
component of it, or otherwise attempt to derive the source code for the Software,
except as permitted by applicable law;
3.2.3
remove, alter, or obscure any patent, copyright, trademark or other proprietary notices
appearing on or in the Reseller Services and/or any Documentation;
3.2.4
without prejudice to the Licence to provide the Reseller Services, sub license, lease,
rent, loan or distribute the Reseller Services to any third party or grant any interest in
the Reseller Services with respect thereto;
3.2.5
without prejudice to the Licence to provide the Reseller Services, allow third parties to
access or use the Reseller Services, including any use in any application service
provider environment, service bureau or time sharing arrangements;
3.2.6
distribute any portion of the Reseller Services in a software utility product or software
development tool, in competition with the Reseller Services;
3.2.7
alter (other than to correct any Errors), disable, tamper with and/or inhibit any billing
system components or technical measures such as Keys that may protect misuse of
the Software or functionality that is included as part of the Software;
3.2.8
use, copy or access any Reseller Software or Unsupported Software except as authorised by
and in accordance with any applicable licence terms;
3.2.9
access the Reseller Services in source code form or in unlocked coding or with comments;
3.2.10
procure EUO’s to become EUOs of the Reseller Services for any improper, immoral or unlawful
purpose;
3.2.11
enter into any EULA to provide Reseller Services to any EUO that wishes to Use the Reseller
Services in respect of hazardous environments requiring fail-safe performance in which the
failure of the Reseller Services could be reasonably likely to lead to death, personal injury or
severe physical, property or environmental damage. Examples of these environments, without
limitation, include the operation of nuclear facilities, aircraft navigation, communication
systems, air traffic control and/or life support devices, applications or systems. Without
limitation, Reseller represents, warrants and undertakes that it will not, and will procure that all
EUOs/EUs will not, use the Reseller Services for the development, design, manufacture,
production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass
destruction, or missiles; illegal gambling, terrorism, narcotics, trafficking, or arms trafficking; nor
will it (and will procure that EUOs and EUs will not) provide administrative access to or permit
use of the Reseller Services by any persons (including any natural person, government or
private entity or other form of body corporate) that is located in or is a national of any country
8
that is embargoed or highly restricted under United Kingdom or US export laws, rules or
regulations. The Reseller shall immediately terminate any EULA with and cease to provide any
Reseller Services to any EUO which commences use of the Reseller Services in relation to
such hazardous environments;
3.2.12
access, store, distribute or transmit anything or device (including any software, code, file or
programme) which may: prevent, impair or otherwise adversely affect the operation of any
computer software, hardware or network, any telecommunications service, equipment or
network or any other service or device; prevent, impair or otherwise adversely affect access to
or the operation of any programme or data, including the reliability of any programme or data
(whether by re-arranging, altering or erasing the programme or data in whole or part or
otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and
other similar things or devices (“Viruses”), or any material during the course of its or any
EUO’s use of the Reseller Services that:
3.2.12.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or
ethnically offensive, abusive, malicious, illegal, pornographic, profane, libellous, defamatory,
infringes any Intellectual Property Rights, constitutes or encourages a criminal offence;
3.2.12.2 facilitates illegal activity;
3.2.12.3 depicts sexually explicit images;
3.2.12.4 promotes unlawful violence;
3.2.12.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or
any other illegal activity; or
3.2.12.6 causes damage or injury to any person or property;
3.2.13
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish,
download, display, transmit, or distribute all or any portion of the Reseller Services in any form
or media or by any means;
3.2.14
access all or any part of the Reseller Services in order to build a product or service which
competes with the Reseller Services;
3.2.15
except in accordance with a Licence, license, sell, rent, lease, transfer, assign, distribute,
display, disclose, or otherwise commercially exploit, or otherwise make the Reseller Services
available to any third party;
3.2.16
offer services of a Competitor which are similar or identical in nature to the Reseller Services to
any EUO or potential EUO;
3.2.17
Use the Reseller Services to violate the security of any computer network, crack passwords or
security encryption codes, transfer or store illegal material including that deemed threatening or
obscene, or engage in any kind of illegal activity is expressly prohibited; or
3.2.18
attempt to obtain, or assist third parties in obtaining, access to the Reseller Services, other
than as permitted under an Agreement.
4.
APPLAYER’S OBLIGATIONS
4.1
From the Acceptance Date, AppLayer undertakes to render the Reseller Services,
substantially in accordance with the description of the Reseller Services contained in
the Services Schedules and with the provisions of an Agreement.
4.2
AppLayer will use reasonable endeavours to meet any specified service delivery dates, but any
such dates will be estimates only and time for delivery of the Reseller Services by AppLayer
will not be of the essence of an Agreement.
4.3
AppLayer will, during the Term only, as part of the Reseller Services and at no additional cost
to Reseller, provide Reseller (but, for the avoidance of doubt, not EUs or EUO’s) with Support
in accordance with Schedule 2 during Normal Business Hours. The extent of Support provided
shall always be at the sole and final discretion of AppLayer.
4.4
AppLayer will supply Reseller with such requisite information as Reseller may reasonably
require from time to time to enable Reseller to provide the Reseller Services in accordance with
an Agreement.
4.5
AppLayer will ensure that all Reseller Data and EU Stored Data is stored and remains separate
and identifiable for each EUO on the Servers throughout the Term.
5.
CHANGES TO SERVICES AND ADDITIONAL SERVICES
9
5.1
AppLayer shall be entitled to effect a Service Change at any time without the consent of
Reseller and/or any EUO provided that:
i.
the quality of the Reseller Services is not adversely affected; and
ii.
access to and availability of the Reseller Services is not reduced.
5.2
AppLayer may at its reasonable discretion, change or modify an Agreement or the Reseller
Services upon giving to Reseller 30 days' notice of the same, setting out full details of the
proposed change and the date for commencement of such change, either by email to Reseller
or by notification on the Website (“Change Notice”). Within 14 days of the date of such
Change Notice Reseller may notify AppLayer in writing that it wishes to terminate an
Agreement with effect from the date of any proposed change in the Change Notice
(“Termination Notice”). AppLayer may then choose to whether to withdraw the Change Notice
and if it does so then such Termination Notice from Reseller shall be deemed ineffective
whereupon Reseller shall continue to be bound by the terms of its Agreement with AppLayer
without change. If AppLayer does not withdraw the Change Notice then an Agreement shall be
deemed terminated between AppLayer and Reseller with effect from the date of the proposed
change as set out in the Change Notice. No early Termination fee will be due from Reseller in
such circumstances. If no such Termination Notice is received from Reseller within 14 days of
the date of the Change Notice then Reseller shall be deemed to have accepted the Change
Notice from AppLayer and such changes shall be deemed to take effect and be incorporated
into an Agreement with effect from the date set out in the Change Notice. Subject to the
above, no amendment or variation of an Agreement shall be effective unless it is in writing and
signed by the parties (or their authorised representatives).
5.3
In the event of any amendment to the level or type of Reseller Services that Reseller requires
from AppLayer, or if Reseller requires any Additional Services or Bespoke Services from time
to time then the parties shall use their reasonable endeavours to agree in good faith about the
description, extent and cost of such Bespoke Services. AppLayer shall provide a “Statement
of Works” to Reseller setting out such terms for Reseller to sign and return to AppLayer. In
the event that an issued Statement of Works is not signed for any reason then all previous
applicable terms binding the Reseller will continue to apply for the avoidance of doubt.
AppLayer shall not be obliged to agree to provide any such Bespoke Services. Any agreement
for Bespoke Services shall be recorded in an additional Statement of Works shall incorporate
these Terms (except where varied by that Statement of Works in which case such variation
therein shall prevail) together with any applicable Services Schedules.
6.
PRICES AND PAYMENT
6.1
In consideration of the provision of a Licence for the Reseller Services, Reseller shall pay
AppLayer the Charges plus any applicable VAT. AppLayer shall invoice Reseller on a monthly
basis in arrears for Reseller’s provision of Reseller Services as recorded on the Applayer
Billing Platform. Any Bespoke Services provided by Applayer from time to time will be
additionally invoiced to Reseller as agreed from time to time.
6.2
Charges are determined by multiplying: (i) the recorded total number of Reseller Services
provisioned to EUOs and their respective EUs during the previous Month by Reseller as shown
on the AppLayer Billing Platform; by (ii) the applicable Partner Discount Price (“Charges”).
6.3
The Partner Discount Price applicable to a Reseller Service at the time it was first provisioned
to an EUO or any of their respective EUs shall continue to apply to all EUs within the EUO for
which the Reseller Service was provisioned for the remainder of the Term. Any subsequent
change in Partner Discount Price shall not apply to any Reseller Services already provisioned
to EUOs and their respective EUs.
6.4
Reseller shall be responsible for payment in full of the Charges invoiced to it by AppLayer
within 14 days of the date of invoice. Time for payment shall be of the essence under an
Agreement. AppLayer will collect payment by Direct Debit on or about 10 to 14 days after the
invoice date via credit or debit card (or by such other method of payment as AppLayer may
decide from time to time in its sole discretion) for all recurring and one-time Charges, including
but not limited to EU Migration Charges, for any Reseller Services licenced by Reseller and
any Charges or other amounts Reseller owes to AppLayer.
6.5
Except as otherwise provided in an Agreement, all Charges are non-refundable. No payment
shall be deemed to have been made until AppLayer has received such payment in cleared
funds from Reseller (“Payment”). In the absence of contrary agreement, Payment shall be
made to AppLayer in the same currency in which payment of the Charges under the relevant
invoice was set out. AppLayer may agree in its sole discretion to receipt of payment in a
currency other than British Pounds Sterling. The amount of such payment shall be the amount
payable at an exchange rate approved by AppLayer in its sole discretion and set out on the
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Price List. If at the date of invoice such exchange rate varies by more or less than five per cent
from the approved exchange rate then AppLayer reserves the right to charge at the exchange
rate prevailing on the date of invoice.
6.6
Reseller shall not be entitled by reason of any set-off, counter-claim, abatement, or other
similar deduction to withhold payment of any amount due to AppLayer. AppLayer shall be
entitled to set off any payments to Reseller against any other sums owed or liable to be paid to
AppLayer by Reseller. Bad debt shall be at the risk and responsibility of Reseller.
6.7
Reseller shall be responsible for the collection, remittance and payment of any or all taxes,
charges, levies, assessments and other fees of any kind imposed by governmental or other
authority in respect of the sale, lease, licence or other distribution of Reseller Services.
6.8
Where Charges are not paid by Reseller in accordance with this clause 6, AppLayer reserves
the right to charge:
i.
interest (both before and after any judgment) on all amounts overdue from Reseller
pursuant to The Late Payment of Commercial Debts (Interest) Act 1998 at a rate of 4 per
cent per annum above the Bank of England base rate accruing on a daily basis and
compounded quarterly from the due date of payment until receipt by AppLayer of the
overdue amount (including any accrued interest and compensation);
ii.
compensation arising out of late payment pursuant to Clause 5A of The Late Payment of
Commercial Debts Regulations 2002; and
iii.
any costs of collection, reasonable legal fees, expenses and court costs;
6.9
If Reseller fails to pay any Charges due within the number of days set out in clause 6.4 (subject
to any separate agreement in writing between the parties from time to time), without prejudice
to any other rights and remedies of AppLayer, AppLayer may, without liability to Reseller,
disable Reseller’s password, Account and suspend Access to all or part of the Reseller
Services and AppLayer shall be under no obligation to provide Access to any or all of the
Reseller Services while the invoice(s) concerned remain unpaid. Reseller shall indemnify and
hold harmless AppLayer against and from any claims of Reseller and/or any EUO as a result of
such suspension of Access.
6.10
Reseller shall keep full and proper books of account and records showing clearly all enquiries,
quotations, transactions and proceedings relating to the Reseller Services and allow AppLayer
(or its nominee, including without limitation its accountants or auditors), on reasonable notice,
access to all accounts and records relating to the Reseller Services for the purpose of
inspection. The costs of such inspection will be borne by AppLayer unless the records show a
shortfall exceeding 5 per cent in respect of any period to which the inspection relates between
the amount actually paid by Reseller and the amount due to be paid by Reseller. In that event
(without affecting or prejudicing any other rights AppLayer may have) Reseller will pay
AppLayer’s costs in full (which for the avoidance of doubt will include any reasonable costs of
AppLayer’s nominee in carrying out the inspection) and the amount of the shortfall, within 14
days of the date of AppLayer’s invoice for such costs and/or shortfall.
6.11
Subject to clause 5, AppLayer will not increase the Charges more than once per Quarter in any
12 month period unless RPIX Inflation exceeds 5%, in which case no limit on the number of
increases will apply. If any such increase exceeds the percentage increase in the RPIX since
the most recent increase of Charges under this clause 6.12 (or since the start of an Agreement
if no such increase has yet occurred) then Reseller may terminate an Agreement with effect
from the date of such increase by giving AppLayer not less than one month’s notice in writing.
6.12
In the event that AppLayer’s costs for providing the Reseller Services (for new EUO’s and EU’s
and also for existing Services where applicable) increase as a result of an increase in the cost
of provision of the Reseller Services by AppLayer’s supplier(s), AppLayer may increase its
Charges by giving Reseller written notice in accordance with clause 5.
6.13
AppLayer reserves the right to carry out credit checks on Reseller, and initially to provide
restricted Reseller Services subject to the results of such credit checks.
6.14
Non-delivery or non-performance of services by any third party other than AppLayer's subcontractors will not give the Reseller any right to delay any payment to AppLayer or to make
any claim whatsoever against AppLayer.
7.
ADVERTISING AND PROMOTION
7.1
Reseller shall:
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(i)
be responsible for the advertising and promotion of the Reseller Services provided
that the use by Reseller of any advertising materials and promotional literature or
other references to Reseller Services shall be subject to the prior written consent of
AppLayer;
(ii)
obtain prior written authority and observe all reasonable directions and instructions
given to it by AppLayer in relation to the promotion and advertisement of the
Reseller Services to the extent that such promotions or advertisements refer to
Applayer;
(iii)
conduct its business in a manner that reflects favourably at all times on AppLayer
and the good name, goodwill and reputation of AppLayer and not enter into any
contract or engage in any practice detrimental to the interests of AppLayer or the
Reseller Services;
(iv)
avoid deceptive, misleading or unethical practices that are, or might be, detrimental
to AppLayer, Reseller Services or the public and shall not publish or employ, or cooperate in the publication or employment of, any false, misleading or deceptive
advertising material or other representations with regard to AppLayer or Reseller
Services; and
(v)
not use any Trade Marks, logos, names or other distinctions referring to AppLayer.
7.2
Reseller may customize the Control Panel and Partner Portal with the logo, name and
contact details of Reseller as well as by amending the domain name to point to the
Control Panel and Partner Portal under Reseller’s domain name.
7.3
The parties acknowledge and agree that the word “partner”, which may be used in
written or verbal communications to refer to the parties, is a pure marketing concept
and is not a legal concept.
7.4
Reseller agrees that with Reseller’s prior written permission, AppLayer may use Reseller’s
name, its trade marks and logos for marketing purposes only. Where AppLayer intends to use
Reseller’s name, trade mark or logo in a press release or other marketing document, AppLayer
will notify Reseller of such intention and will provide Reseller with a copy of such release or
document for approval. If Reseller does not provide AppLayer approval or reject such release
or document within 10 Business Days of the date of the notice, Reseller will be deemed to have
approved the release/document. Any approval (including deemed approval) given under clause
7.4 will survive Termination of an Agreement.
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COMPLIANCE WITH LAWS AND REGULATIONS
8.1
Reseller shall be responsible for obtaining any necessary licences or permits necessary and for
any and all customs duties, clearance charges, taxes, brokers' fees and other similar amounts
payable in connection with the provision of the Reseller Services.
8.2
Reseller warrants to AppLayer that it has informed AppLayer of all legislation affecting the
provision and sale of Reseller Services which are in force or any part of it (Local Regulations)
at the date of an Agreement.
9.
ANTI-BRIBERY
9.1
Reseller shall:
9.1.1
comply with, and ensure that every EUO complies with, all applicable laws, regulations, codes
and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery
Act 2010 (Relevant Requirements); and
9.1.2
not engage in any activity, practice or conduct which would constitute an offence under
sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried
out in the UK.
10.
INTELLECTUAL PROPERTY RIGHTS
10.1
Unless otherwise agreed between the parties, all Intellectual Property Rights in and to Reseller
Services belong, and shall belong, to AppLayer and/or its Licensors. Reseller shall own all
Intellectual Property Rights in any Reseller Data and in the Reseller Services except where
such Intellectual Property Rights derive from AppLayer in which case such Intellectual Property
Rights shall belong to AppLayer.
10.2
Reseller shall, at the expense of AppLayer, take all such steps as AppLayer may reasonably
require to assist AppLayer in maintaining the validity and enforceability of the Intellectual
Property Rights of AppLayer during the term of an Agreement.
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10.3
Without prejudice to the right of Reseller or any third party to challenge the validity of any
Intellectual Property Rights of AppLayer, Reseller shall not do or authorise any third party to do
any act which would or might invalidate or be inconsistent with any Intellectual Property Rights
of AppLayer or its Licensors and shall not omit or authorise any third party to omit to do any act
which, by its omission, would have that effect or character.
10.4
AppLayer makes no representation or warranty as to the validity or enforceability of the
Intellectual Property Rights in the Reseller Services nor as to whether the same infringe on any
Intellectual Property Rights of third parties.
10.5
AppLayer grants to Reseller a non-exclusive, non-transferable, revocable, personal licence
(subject to the terms and conditions of an Agreement and during its Term and solely for the
purposes of performing Reseller’s obligations under an Agreement) only to:
(i)
for the purposes of demonstrating, marketing and licensing the use of Reseller
Services to EUOs and potential EUOs; and
(ii)
grant to any EUO who has signed a EULA a non-exclusive, non-transferable,
revocable, personal licence to Use the Reseller Services.
If an Agreement is Terminated, this licence will automatically terminate.
10.6
AppLayer shall be entitled to use as its own any comments, suggestions, ideas, graphics (other
than the Intellectual Property Rights in Reseller’s brand or logo), questions or other information
submitted by Reseller through the Website ("Submissions") for any commercial or other
purpose whatsoever without compensation to Reseller or anyone else.
10.7
Other than the licences expressly granted under an Agreement, neither party grants any
licence of, right in or makes any assignment of nor grant any rights to sell, rent, seek to
register, lease, transfer, assign, sub-licence or make any representations, warranties or
guarantees with regard to any of AppLayer’s or its Licensors’ Intellectual Property Rights. In
particular, except as expressly provided in an Agreement, Reseller shall have no rights in
respect of any trade names or Trade Marks used by AppLayer in relation to Reseller Services
or their associated goodwill, and Reseller hereby acknowledges that all such rights and
goodwill shall inure for the benefit of and are (and shall remain) vested in, AppLayer.
10.8
Reseller undertakes not to cause or permit anything or assist or allow its EUOs, Affiliates, or
Staff to permit, assist or allow anything that may damage or endanger AppLayer’s Intellectual
Property Rights or to allow others to do so.
10.9
Reseller fully indemnifies and holds harmless AppLayer in respect of all Losses suffered or
incurred by AppLayer arising from Reseller’s or any of its Staffs’, Affiliates’, EUOs’ or EUs’
misuse of AppLayer Intellectual Property Rights.
10.10
Reseller shall promptly give notice in writing to AppLayer in the event that it becomes aware of:
10.11
10.12
(i)
any infringement or suspected infringement of the Trade Marks or any other
Intellectual Property Rights in or relating to Reseller Services; or
(ii)
any claim that any of the Reseller Services or the manufacture, use, sale or other
disposal of any of the Reseller Services, whether or not under the Trade Marks,
infringes the rights of any third party; or
(iii)
any actual, threatened or suspected infringement of any of AppLayer Intellectual
Property Rights; or
(iv)
any unauthorised access to or abuse of the Reseller Services by any person; or
(v)
any claim by any third party of which it becomes aware that the AppLayer Intellectual
Property Rights infringe any rights of any other person.
In the case of any matter falling within clause 10.10:
(i)
AppLayer shall, in its absolute discretion determine what action if any shall be taken
in respect of the matter; and
(ii)
AppLayer shall have sole control over and shall conduct any consequent action as it
shall deem necessary; and
(iii)
AppLayer shall pay all costs in connection with that action and shall be entitled to all
damages and other sums which may be paid or awarded as a result of any such
action (except if the action was due to the conduct of Reseller);
AppLayer shall defend Reseller, its officers, directors and Staff against any claims that the
marketing, advertising or distribution of Reseller Services in accordance with an Agreement
13
infringes any Intellectual Property Right of any third party under clause 10.10 where applicable
and shall indemnify Reseller for and against any amounts awarded against Reseller in
judgment or settlement of such claims provided that:
10.13
(i)
AppLayer is given prompt notice of such claim;
(ii)
Reseller provides reasonable co-operation to AppLayer in the defence and
settlement of such claim, at AppLayer's expense; and
(iii)
AppLayer is given sole authority to defend or settle the claim.
In the defence or settlement of the claim at 10.10, AppLayer may obtain for Reseller the right to
continue providing the Reseller Services in the manner contemplated by an Agreement,
replace or modify the Reseller Services so that it becomes non-infringing or, if such remedies
are not reasonably available, terminate an Agreement forthwith by notice in writing and without
liability to Reseller. AppLayer shall have no liability if the alleged infringement is based on:
(i)
Reseller’s provision of the Reseller Services, whether in whole or in part;
(ii)
a modification of Reseller Services by anyone other than AppLayer;
(iii)
Reseller’s marketing, advertising, distribution or use of Reseller Services in a
manner contrary to the instructions given to Reseller by AppLayer; or
(iv)
Reseller’s marketing, advertising, distribution or use of Reseller Services after notice
of the alleged or actual infringement from AppLayer or any appropriate authority;
10.14
The foregoing at 10.12 and 10.13 states Reseller’s sole and exclusive rights and remedies, and
AppLayer's entire obligations and liability, in the case of any matter falling under clause 10.10.
10.15
Each party shall, at the request and expense of the other, provide all reasonable assistance to
the other (including, but not limited to, the use of its name in, or being joined as a party to,
proceedings) in connection with any action to be taken by the other party, provided that that
party is given such indemnity as it may reasonably require against any damage to its name.
10.16
Reseller acknowledges that, where AppLayer does not own any of the Reseller Services,
Reseller's use of rights in the Reseller Services is conditional on AppLayer obtaining a written
licence (or sub-licence) from the relevant Licensor or Licensors on such terms as will entitle
AppLayer to license such rights to Reseller.
10.17
All Reseller Intellectual Property Rights will belong to and remain vested in Reseller and the
Reseller will indemnify and keep indemnified AppLayer against all Loss arising from or incurred
by reason of any infringement or alleged infringement (including but not limited to the defence
of such alleged infringement) of any Intellectual Property Right of a third party suffered or
incurred as a result of or in connection with the supply or receipt of Reseller Intellectual
Property Rights.
10.18
Reseller may be assigned certain Internet Protocol ("IP") addresses to enable AppLayer to
provide the Reseller Services to Reseller. Reseller acknowledges that where such IP
addresses are assigned they will not be owned by the Reseller and that the Reseller will have
no rights in respect of such IP addresses other than the right to use such address in connection
with the receipt of the Reseller Services as defined in the Services Schedules.
10.19
In the event that AppLayer needs to alter an IP address assigned to Reseller, AppLayer will
give Reseller not less than 28 days' prior notice in writing. In such event, Reseller will be
responsible for reconfiguring its equipment in order to accommodate such changes to the IP
addresses. Reseller acknowledges that AppLayer will not be responsible for effecting such
changes or be liable for any temporary loss of service or any other Loss that Reseller may
incur in relation to such changes.
10.20
Reseller hereby grants to AppLayer during the Term and for 6 months thereafter of an
Agreement a non-exclusive, non-transferable, revocable, personal licence to view and use in
any way the EU Details and/or any database containing EU Details/EU Stored Data for the
following purposes:
(i)
in the event of Termination of an Agreement by Reseller arising under clauses 15.3 (i)
(a) to (i) inclusive or 15.3 (ii) (j), (k), (m) or (n);
(ii) to respond to Reseller’s specific support request;
(iii) to ensure that backups are being performed properly;
(iv) as appropriate to the exercise of our rights to use and disclose your Confidential
Information as described in clause 11 (Confidential Information); and
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(v) if AppLayer use third party vendors to help it provide Reseller Services, AppLayer may
permit those vendors to view and use any EU Details/EU Stored Data for the same
purposes described above, provided that the vendors are subject to confidentiality and
privacy restrictions at least as stringent as those stated in clause 11 (Confidential
Information).
11.
CONFIDENTIALITY AND PUBLICITY
11.1
Except strictly as otherwise permitted in an Agreement and subject to clause 11.2, neither party
shall disclose at any time during the Term or after Termination, to any third party any
Confidential Information relating to the other party, and each party shall ensure that it shall
keep such Confidential Information strictly restricted to those Staff, EUs, EUOs, Affiliates and
third parties who need to know such details and shall ensure all such persons are aware of the
confidential nature of such Confidential Information, that such persons are subject to written
obligations of confidentiality in respect of such Confidential Information which are no less
onerous than those set out in this clause and treat it accordingly. Reseller shall notify AppLayer
immediately if it believes that any Confidential Information is no longer secret.
3.2
The following information does not have to be kept confidential:
(i) information that has been made public prior to the Acceptance Date and to any other
agreement imputing confidentiality obligations on the Parties;
(ii) information that is trivial or obvious;
(iii) information that is requested by a government organisation or court; and
(iv) information, which by law, must be given to someone else, for example a stock
exchange.
11.3
AppLayer uses industry standard SSL encryption to protect all data transmissions. AppLayer
and Reseller shall abide by the AppLayer Security Policy.
11.4
Reseller is solely responsible for all activities that occur under Reseller or any EU’s password
or Account.
12.
PROTECTION AND PROCESSING OF PERSONAL DATA
12.1
Each party shall comply with its respective obligations under the provisions of the DPA and
references in this clause to "data processor", "data controller" and "personal data" shall have
the meanings defined in the DPA. The terms defined in the DPA will have the same meanings
when used in this clause 12.
12.2
AppLayer shall at all times be deemed to process personal data as a data processor on behalf
of Reseller acting as a Data Controller under an Agreement and disclaims all liability arising for
any action, inaction or Loss caused by the Reseller acting as Data Controller hereunder,
except that where Reseller or any of its Staff, as part of the fulfilment of its obligations under an
Agreement, shall be expressly required to process personal data as a data processor on behalf
of AppLayer acting as a Data Controller then:
(a)
(b)
Reseller shall, and shall procure that its Staff shall:
(i)
act only on instructions from AppLayer when processing personal data
provided to it under an Agreement, and keep records of all such processing;
(ii)
comply with AppLayer's instructions in relation to the processing of personal
data as such instructions are given and varied from time to time by
AppLayer;
(iii)
at all times take all appropriate technical and organisational measures
against unauthorised or unlawful processing of personal data and against
accidental loss or destruction of, or damage to, personal data;
(iv)
not transfer any personal data outside the European Economic Area without
AppLayer's prior written consent; and
(v)
immediately notify AppLayer if it becomes aware of any breach of any Data
Protection Legislation or if it receives any complaint, notice or communication
which relates directly or indirectly to the processing of personal data under
an Agreement, provide full co-operation and assistance in relation to any
such complaint, notice or communication.
AppLayer may from time to time serve on Reseller an information notice requiring
Reseller, within such time and in such form as is specified in the information notice,
15
to give to AppLayer such information as AppLayer may reasonably require relating
to:
(c)
(i)
compliance by Reseller or by its staff with Reseller’s obligations to
AppLayer under an Agreement in connection with the processing of
personal data; and
(ii)
the rights of data subjects, including but not limited to subject access rights.
Reseller shall provide to AppLayer on request a copy of all personal data held by it
pursuant to an Agreement, in the format and on the media reasonably specified by
AppLayer, and shall promptly inform AppLayer if any such data is lost or destroyed
or becomes damaged, corrupted, or unusable. Reseller will restore such data at its
own expense.
12.3
Reseller and AppLayer shall abide at all times by the Acceptable Use and Privacy Policy which
incorporates AppLayer’s Data Protection Policy.
13.
WARRANTIES AND INDEMNITIES
13.1
Each party represents, warrants and undertakes that:
(i)
it has full capacity and authority and all necessary consents to enter into and to
perform an Agreement and to grant the rights and licences referred to in an
Agreement and that an Agreement is executed by its duly authorised representative
and represents a binding commitment on it; and
(ii)
it shall comply with all applicable legislation in the performance of its obligations
under an Agreement.
13.2
Except for the express warranties set forth in an Agreement, the Reseller Services are
Licensed on an “as is” basis, and Reseller’s Use of the Reseller Services and provision of the
Reseller Services is at its own risk. AppLayer does not make, and hereby disclaims, to the
maximum extent permitted in law, any and all other express and/or implied conditions and
warranties, statutory or otherwise, including, but not limited to, future availability of the
Reseller Services, Support, maintenance or any functionality, merchantability, title, or
fitness for a particular purpose or warranties arising out of law, course of dealing,
custom or usage, or trade practice.
13.3
No oral or written information, including marketing projections, marketing analyses,
advertising, promotional literature, press releases or advice, given by AppLayer or its
Staff shall create a warranty or in any way increase the scope of the warranties given
in an Agreement, and AppLayer shall not be responsible or liable for reliance on any
such information.
13.4
AppLayer does not and cannot control the flow of data to or from its network and other portions
of the internet. Such flow depends in large part on the performance of internet services
provided or controlled by third parties. At times, actions or omissions of such third parties can
impair or disrupt connections to the internet (or portions thereof). Although AppLayer will use
commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid
such events, AppLayer cannot guarantee that such events will not occur. Accordingly,
AppLayer disclaims any and all liability resulting from or related to such events.
13.5
AppLayer makes no warranties or representations that the provision of the Reseller Services
will be uninterrupted or error-free where AppLayer relies upon the use of the internet or third
parties in connection with the provision of the Reseller Services. AppLayer shall not be
responsible for any delays, delivery failures, or any other Loss or damage resulting from the
transfer of data over communications networks and facilities, including the internet, and
Reseller acknowledges that the Reseller Services may be subject to limitations, delays and
other problems inherent in the use of such communications facilities.
13.6
AppLayer does not warrant that the Reseller Services will meet Reseller’s, any EU’s or EUO’s
requirements.
13.7
For the avoidance of doubt, AppLayer does not have knowledge of the quantity, value, use or
purpose of the EU Stored Data and shall not be held liable for the content of any such EU
Stored Data. AppLayer shall not be responsible in any way for any data of any kind loaded,
stored or held by the Servers in any way or for any loss, corruption or mutilation of data in any
way or for any data re-entry in the event of any such loss, corruption or mutilation of data in any
way. Reseller shall be responsible for handling, maintaining and deleting such data at all times
and in compliance with an Agreement. Reseller shall indemnify AppLayer in the event that
AppLayer incurs any Loss derived from this clause 13.7 arising due to the fault of Reseller
16
arising from the Reseller Services. Reseller is responsible for taking all reasonable steps to
mitigate the risks inherent in the provision of the Reseller services, including data loss and
without limitation such steps shall include adhering to any support provided by AppLayer from
time to time and also to the Acceptable Use, Privacy, Data Protection and Security Policy.
13.8
AppLayer will not be liable for the privacy of email addresses, registration and identification
information, disk space, communications, confidential or trade secret information, or any other
content stored on its equipment, transmitted over networks accessed by the Reseller Services,
or otherwise connected with the Reseller’s Licence for the Reseller Services.
13.9
The Reseller agrees to indemnify and hold AppLayer harmless from all liabilities, claims and
expenses that arise out of the content that the Reseller or EUO submits, posts or transmits via
the Reseller Services or from the Reseller’s or EUO’s (or their Staff’s) use/misuse of the
Reseller Services, or from the Reseller’s violation or breach of an Agreement in any way.
13.10
The Reseller agrees that AppLayer will not be held responsible or liable for the deletion or
failure to store any messages, communications or other content maintained or transmitted by
the Reseller Services.
13.11
The Reseller agrees that the Reseller’s dealings with, or participation in promotions of
advertisers and merchants found on or through the Reseller Services including payment and
delivery of related services, and any other terms, conditions, warranties or representations
associated with such dealings, are solely between the Reseller and such advertisers or
merchant, and the Reseller agrees not to hold AppLayer liable for any disputes the Reseller
may have with such advertisers or merchant.
13.12
As AppLayer has no control over such sites and resources the Reseller agrees that AppLayer
is not responsible for the availability of any external sites or resources reached through links to
other World Wide Web sites or resources from the Reseller Services and is not liable for the
content found at such sites or resources.
13.13
AppLayer assumes no liability for any incompatibility between the Reseller Services and other
websites, services, software and hardware.
13.14
AppLayer assumes no liability for any delays or failures the Reseller may experience in
initiating, conducting or completing any transmission or transactions in connection with the
Reseller Services.
13.15
AppLayer assumes no liability for any modification, suspension or discontinuance of any of its
websites, domain names, services or the Reseller Services.
13.16
AppLayer uses third party anti-virus software to protect the Servers and email from viruses.
Although all reasonable care is taken by AppLayer to ensure that the anti-virus software is up
to date, AppLayer makes no warranty as to the effectiveness of its third party anti-virus
software and excludes any Loss or damage caused by a virus which infects any electronic
device, computer, server or network owned or used by Reseller or any EUO. AppLayer does
not warrant that the Software will identify or filter out all known spam, viruses or other
programming routines that might cause Reseller or EUO damage, that the Software
will satisfy all needs or requirements of Reseller and/or the EUO, or that the Software
will operate with all combinations of hardware and software selected and used by
Reseller and/or the EUO. AppLayer makes no warranties or representations that the
provision of the Reseller Services will be entirely secure.
13.17
AppLayer will not be responsible for the accuracy and completeness of any result
derived by Reseller or any EU or EUO from the Use of the Reseller Services. Reseller
or EUO as applicable shall be responsible for checking any such results itself after
receiving the results.
13.18
AppLayer cannot and does not provide any warranties in relation to any third party service
providers who may supply services or software or for any Reseller Services where such
element is derived from the efforts of Reseller. The provision of the Reseller Services and any
third party services and the content thereof is dependent upon third parties, who are outside of
the control of AppLayer. Reseller acknowledges and agrees that AppLayer shall have no
liability whatsoever to Reseller in respect of the actions, inactions, omissions, completeness,
accuracy or timely release of services or Software by third parties or by Reseller itself, upon
which AppLayer may rely.
13.19
For the avoidance of doubt, AppLayer does not warrant in any way that the Reseller Services
are compliant with any laws or regulations outside of the UK. Reseller shall be entirely
17
responsible for compliance with all laws and regulations in force from time to time as may be
applicable to the Reseller Services by Reseller in the country where Reseller is located.
13.20
13.21
AppLayer expressly excludes all liability arising due to the following circumstances:
(i)
any scheduled network or system maintenance arising under clause 15.9;
(ii)
support or any liability whatsoever for any Unsupported Software, Reseller Software
or Reseller Systems;
(iii)
support required outside Normal Business Hours;
(iv)
Fixes as described in Schedule 2 are targets only and cannot be guaranteed;
(v)
any responsibility of Reseller and/or any EUO or EU to adhere to any policies, liens or
regulations arising out of the Reseller Services or any EUOs/Reseller’s business in
any way;
(vi)
any misrepresentation by Reseller of any description of Reseller Services provided to
any EUO or EU; or
(vii)
any breach of an Agreement or EULA by Reseller or EUO or EU.
Reseller shall indemnify in full, keep indemnified and hold harmless AppLayer, its Licensors,
Staff and Affiliates from and against all losses, damages, demands, liabilities and associated
costs and expenses which may be suffered, paid or incurred by AppLayer and/or its Licensors,
Staff and Affiliates as a consequence of:
i.
any material breach by Reseller of any of its obligations under an Agreement;
ii.
any material breach of a EULA by any EUO or EU; and
iii.
any failure by Reseller to comply with its obligations (in full or in part) whether or not such
Loss was foreseeable at the date of entering an Agreement.
13.22
AppLayer will have no obligation under an agreement to correct, and AppLayer makes
no warranty with respect to, Errors related to: (a) improper installation of the Software
by Reseller and/or the EUO; (b) changes that Reseller and/or the EUO have made to
the Software or Reseller Services; (c) use of the Software or Reseller Services in a
manner inconsistent with the Documentation and an Agreement; (d) combination of
the Software with third party hardware or software not conforming to the operating
environment specified in the Documentation; or (e) malfunction, modification, or relocation of the Services caused by Reseller and/or the EUO.
13.23
AppLayer will not be liable for any Loss caused by any third party software installed by
Reseller or any EUO on any Server, howsoever installed.
13.24
Reseller represents and warrants and undertakes that it will not possess, use, import, export or
resell (and shall not permit the possession, use, importation, exportation, or resale of) the
Reseller Services or any information or technical data provided by AppLayer to Reseller under
an Agreement in any manner which would cause AppLayer or its Affiliates to breach any
applicable export control laws, rules, or regulations of any jurisdiction (including without
limitation those under UK and US law).
13.25
AppLayer may from time to time recommend third party software or other products and
services for Reseller’s consideration. AppLayer makes no representation or warranty
whatsoever howsoever arising about such third party software or other products and services.
Reseller’s use of any products and services not provided by AppLayer is governed by the
terms of Reseller’s agreement with the provider of those products and services, and is at
Reseller’s sole risk.
13.26
Reseller acknowledges that the Reseller Services will not be treated as goods within the
meaning of the Sale of Goods Act 1979.
14.
EXCLUSION AND LIMITATION OF LIABILITY
14.1
The following provisions set out the entire financial liability of AppLayer (including any liability
for the acts or omissions of its Staff or Associates) to Reseller in respect of:
(i)
any breach of an Agreement by AppLayer;
(ii)
any Licence by AppLayer of the Reseller Services to Reseller; and
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(iii)
any representation, misrepresentation (whether innocent or negligent) statement or
tortious act or omission (including without limitation negligence) arising under or in
connection with an Agreement.
14.2
Except as expressly and specifically provided in an Agreement, all warranties, conditions and
other terms implied by statute or common law are, to the fullest extent permitted by law,
excluded from an Agreement.
14.3
Nothing in an Agreement excludes the liability of AppLayer:
14.4
(i)
for death or personal injury caused by AppLayer's negligence; or
(ii)
for fraud or fraudulent misrepresentation.
AppLayer shall not be liable whether in tort (including for negligence or breach of statutory
duty), contract, misrepresentation (whether innocent or negligent) or otherwise for any:
(i)
loss of profits; or
(ii)
loss of business; or
(iii)
depletion of goodwill or similar losses; or
(iv)
loss of anticipated savings; or
(v)
loss of goods; or
(vi)
loss of use; or
(vii)
loss or corruption of data or information; or
(viii)
any special, indirect, consequential or pure economic loss, costs, damages, charges
or expenses;
arising out of or in connection with an Agreement.
14.5
AppLayer's total aggregate liability in contract, tort (including without limitation negligence or
breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or
otherwise, arising in connection with the performance or contemplated performance of an
Agreement shall be limited to the amount of the Charges paid to AppLayer by Reseller for the
Reseller Services during the Year prior to the date of the alleged liability arising.
14.6
Reseller’s exclusive remedy for any Agreed Downtime as described under Schedule 2 shall be
its right to Credits (as defined therein).
14.7
Nothing in this clause 14 shall restrict or limit either party’s general obligation at law to mitigate
a Loss it may suffer or incur as a result of an event that may give rise to a claim under this
clause 14.
14.8
Reseller shall give such assistance as AppLayer may reasonably require for the purpose of
resolving faults or failures in respect of the Reseller Services or in recalling as a matter of
urgency from use by EUOs the Reseller Services or any of them.
14.9
Without prejudice to clause 10, Reseller shall when it becomes aware of a matter which may
result in a claim in respect of the Licence of Reseller Services (whether against Reseller or
against AppLayer or against any or all of the Licensors or if arising under any indemnity
provided herein by AppLayer):
14.10
i.
give immediate notice to AppLayer (or at AppLayer’s request to the relevant Licensor) of
the details of the claim;
ii.
afford reasonable access to AppLayer (or at AppLayer’s request to the relevant Licensor)
to Reseller’s premises and permit copies to be taken of any materials, records or
documents as AppLayer and/or the relevant Licensor may reasonably require;
iii.
allow AppLayer or the relevant Licensor the exclusive conduct of any proceedings or part
of the proceedings which constitute a claim against AppLayer or the relevant Licensor (as
appropriate) and/or take whatever action as AppLayer or the relevant Licensor (as
appropriate) shall reasonably direct to defend or resist the matter; and
iv.
not admit liability or settle the matter without the prior written consent of AppLayer and/or
the relevant Licensor.
Neither party shall be responsible for any failure to perform its obligations under an Agreement
to the extent caused or otherwise directly attributable to non-performance by the other party of
that party's obligations under an Agreement.
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14.11
Reseller shall indemnify and hold AppLayer harmless, and shall procure that all EUOs shall
indemnify and hold Reseller harmless, shall against any claim or demand of whatsoever nature
and howsoever arising as a result of suspension pursuant to clause 5 or 15.
14.12
Reseller warrants that it will not enter into a EULA with any EUO if such EULA will cause an
adverse impact on any employees employed by such EUO, whether prior to, upon or after
entering into such EULA, and indemnifies AppLayer for all Losses arising thereunder in the
event that AppLayer suffers any Loss due to the Reseller entering into such EULA.
15.
TERM, TERMINATION AND SUSPENSION OF SERVICES
15.1
An Agreement will take effect from the Acceptance Date and will continue for an initial term of
the Minimum Contract Period, following which an Agreement will automatically renew for
successive terms equal to the Minimum Contract Period unless terminated in accordance with
clause 15.2 or otherwise in accordance with the terms of an Agreement.
15.2
Either Party may Terminate this Agreement by giving the other not less than the following
periods of notice in writing to end on the last day of the then current Minimum Contract Period:
15.2.1
Minimum Contract Period is twelve months or less: 28 days’ notice
15.2.2
Minimum Contract Period is more than twelve months but not more than twenty-four months:
56 days’ notice;
15.2.3
Minimum Contract Period is more than twenty-four months: 84 days’ notice.
15.3
Without prejudice to any other rights or remedies to which the parties may be entitled, an
Agreement may be immediately Terminated without liability to the other by
(i) either party if:
(a)
the other party commits a material breach of any of the terms of an Agreement and
(if such a breach is remediable) fails to remedy that breach within 10 Business Days
of that party being notified in writing of the breach; or
(b)
an order is made or a resolution is passed for the winding up of the other party, or
circumstances arise which entitle a court of competent jurisdiction to make a
winding-up order of such other party; or
(c)
the other Party suspends, or threatens to suspend, payment of its debts, is unable to
pay its debts as they fall due, admits inability to pay its debts or (being a company) is
deemed unable to pay its debts within the meaning of section 123 of the Insolvency
Act 1986; or
(d)
a creditor or encumbrancer of the other Party attaches or takes possession of or a
distress, execution, sequestration or other such process is levied or enforced on or
sued against, the whole or any part of its assets and such attachment or process is
not discharged within 14 days; or
(e)
an order is made for the appointment of an administrator to manage the affairs,
business and property of the other party, or documents are filed with a court of
competent jurisdiction for the appointment of an administrator of such other party, or
notice of intention to appoint an administrator is given by such other party or its
directors or by a qualifying floating charge holder (as defined in paragraph 14 of
Schedule B1 to the Insolvency Act 1986); or
(f)
a receiver is appointed of any of the other party's assets or undertaking, or if
circumstances arise which entitle a court of competent jurisdiction or a creditor to
appoint a receiver or manager of such other party, or if any other person takes
possession of or sells such other party's assets; or
(g)
the other party makes any arrangement or composition with its creditors, or makes
an application to a court of competent jurisdiction for the protection of its creditors in
any way, or becomes bankrupt; or
(h)
the other party ceases or suspends, or threatens to cease or suspend, to trade; or
(i)
the other party takes or suffers any similar or analogous action in any jurisdiction in
consequence of debt; or
(ii) by AppLayer if:
(j)
any action by Reseller that AppLayer determines, in its sole reasonable opinion, to
interfere with the Licence, operation or Use of the Reseller Services; or
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(k)
failure to maintain current contact information for Reseller’s Account; or
(l)
there is a Change of Control of Reseller within the meaning of section 1124 of the
Corporation Tax Act 2010; or
(m)
Reseller challenges or disputes the validity of any of AppLayer's Intellectual Property
Rights; or
(n)
Reseller purports to assign any of its rights or obligations under an Agreement in
breach of clause 18.4.
15.4
Use of the Reseller Services is invoiced by AppLayer for a full Month irrespective of the
number of days’ use during such Month and therefore any Termination notice will mean the
Reseller Services will be terminated at the end of the Month following the Month during which
any Termination notice has been served.
15.5
Subject to the above conditions of Termination, Reseller may terminate a particular Reseller
Service under this Agreement without terminating an Agreement itself by giving one clear
month’s written notice to AppLayer. If Reseller terminates a Reseller Service, an Agreement
will continue in force in respect of any other Reseller Services Licensed by AppLayer to
Reseller.
SUSPENSION OF SERVICES
15.6
AppLayer may immediately suspend without notice the Licence of the Reseller Services or any
part thereof if:
i.
an EUO or EU fails to meet any of its material obligations under a EULA; or
ii.
in the sole opinion of AppLayer, Reseller’s or an EUO or EU’s conduct may result in
the breach of any law or is otherwise prejudicial to the interests of AppLayer; or
iii.
suspension is required by AppLayer in order for AppLayer to comply with any order,
instruction or request of a competent governmental, regulatory or other authority or
any Licensors.
15.7
AppLayer may suspend the Licence of Reseller Services (or any part thereof) at any time
without notice if in the reasonable opinion of AppLayer the Use or Licence of Reseller Services
by Reseller damages, or threatens, to damage the security or stability of the Licensed Reseller
Services by AppLayer to other clients, or damages the reputation and goodwill of AppLayer
due to the actions of Reseller.
15.8
Reseller shall, if reasonably requested by AppLayer, immediately suspend or terminate a EULA
in the event of an event or default of the relevant EUO that would entitle Reseller to suspend or
terminate a EULA, including without limitation in the event of a breach by a EUO of a EULA.
15.9
Subject to clauses 15.1 to 15.8, AppLayer shall use its reasonable endeavours to make the
Reseller Services available 24 hours a day, 7 days a week. It may be necessary for AppLayer
to temporarily suspend the Reseller Services in whole or in part from time to time to carry out
maintenance of the Reseller Services. AppLayer will provide Reseller with as much notice as
possible of temporary suspensions of the Reseller Services and where possible any such
planned suspensions will take place outside of Normal Business Hours in order to minimise
disruption to the Reseller Services Licensed to Reseller. Reseller Services may also be
suspended in whole or in part where AppLayer or any third party host is obliged to comply with
an order, instruction or request of government, a court or other competent administrative
authority or an emergency service organisation. AppLayer accepts no responsibility or liability
to Reseller for any Loss that may arise under this clause 15.9.
15.10
If AppLayer exercises its right to suspend any Licensed Reseller Services this will not restrict
its right to terminate an Agreement.
15.11
An Agreement shall terminate automatically upon the termination or expiration of any licence
that is required for any part of the Licence of the Reseller Services unless such licence is
replaced by a new licence (whether between AppLayer and Microsoft or otherwise) which
permits AppLayer to continue to comply with its obligations to Reseller.
15.12
AppLayer may immediately suspend or delete the Licence of Reseller Services to Reseller if an
Account remains inactive for a period of 3 (three) months or more.
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15.13
Where the Licence of Reseller Services to Reseller has been suspended AppLayer reserves
the right to charge a £30.00 (thirty pounds) administration fee for reconnection or any
resumption of the provision of the Reseller Services.
16.
EFFECTS OF TERMINATION
16.1
Upon Termination or expiry of an Agreement for any reason:
16.1.1
the Licence to Reseller shall promptly cease and Reseller shall cease to provide the
Reseller Services under any unexpired EULA;
16.1.2
Reseller shall within 10 days thereof return to AppLayer, or otherwise dispose of as
AppLayer may instruct, all samples, technical pamphlets, catalogues, advertising
materials, specifications and other materials, documents or papers whatsoever sent
to Reseller and relating to AppLayer's business (other than correspondence which
has passed between the parties) which Reseller may have in its possession or under
its control or destroy such property and/or irretrievably delete the same if stored on
electronic or magnetic media and certify in writing to AppLayer that this has been
done;
16.1.3
the accrued rights of the parties as at Termination or the continuation after
termination of any provision expressly stated to survive or implicitly surviving
Termination shall not be affected or prejudiced;
16.1.4
Subject to the foregoing provisions of this clause 16,
(i)
all rights and licences of Reseller under an Agreement shall terminate;
(ii)
subject to 16.2 all unpaid Charges due under an Agreement shall
immediately become due and payable; and
(iii)
clauses 1 and 8 to 18 inclusive shall survive Termination of an Agreement for
any reason.
16.2
In the event that Reseller Terminates one or all of the Reseller Services prior to the expiry of
the Minimum Contract Period then Reseller shall pay an amount equal to (i) the Charge
invoiced to Reseller by AppLayer during the previous Month; multiplied by (ii) the number of
Months until the end of the Minimum Contract Period from the date of notice of termination
from Reseller (“Termination Notice Date”). If the Termination Notice Date is midway through
a Month then such amount payable for that Month shall be calculated for the full Month.
16.3
For the avoidance of doubt, Termination of an Agreement shall not of itself give rise to any
liability on the part of AppLayer to pay any compensation to Reseller for any Loss, to reimburse
Reseller for any costs relating to or resulting from such termination, or for any other loss or
damage.
16.4
Following service by AppLayer of notice of Termination of an Agreement Reseller shall
immediately (or on such date as AppLayer may direct) issue a notice of termination of all
EULAs to respective EUOs.
16.5
Upon Termination of an Agreement for any reason, subject to a request to do so from Reseller
but at AppLayer’s sole discretion, AppLayer may be able to find an alternative reseller to
provide reseller services to an EUO on such terms as AppLayer may reasonably require.
16.6
In the event of Termination of an Agreement for any reason each party shall immediately
provide the other if so requested, with all such assistance and access as such party (as
appropriate) may reasonably require, including without limitation, to facilitate the smooth
transition of any EU Stored Data and any Dedicated Environments. In the event of Termination
of an agreement due to the fault of AppLayer, where reasonably required by a Reseller,
AppLayer agrees to reasonably assist Reseller at Reseller’s request with finding a suitable
alternative supplier of services similar or identical to the Reseller Services.
16.7
During the term of an agreement and for 12 months after the date of Termination of an
Agreement, AppLayer shall continue to hold and shall continue to allow Reseller access to
information held by AppLayer as Reseller may reasonably require to facilitate invoicing and
debt recovery with respect to EUO’s.
16.8
In the event of termination of any Reseller Services, in part or in whole, upon request by a
Reseller all EU Stored Data will be provided to Reseller provided that Reseller has paid in full
any outstanding Charges and other monies owed under an Agreement. AppLayer reserves the
right to charge a reasonable EU Migration Charge for the transfer of EU Stored Data to
Reseller. Reseller shall supply a form of storage media to enable to transfer the EU Stored
Data at Reseller’s expense, such storage media to be encrypted or otherwise provided at
22
Reseller’s sole risk. Reseller shall pay for all expenses of transportation of such storage media
to and from AppLayer. AppLayer may transfer Confidential Information as part of any such
migration. Historical copies of EU Stored Data held in EUO's back up system will be retained
for 30 days after the date of termination (“Termination Date”) and thereafter deleted in
accordance with AppLayer’s Data Protection Policy.
17.
RESTRICTIVE COVENANTS
17.1
In order to protect the Confidential Information (clause 11) business, trade secrets and
business connections of AppLayer to which it has access hereunder the Reseller covenants
with AppLayer that it shall not (whether alone or jointly with any other person, directly, and
whether as agent, director, shareholder, partner, manager, employee, consultant or
independent contractor of, in or to any other person) other than as permitted in an Agreement
without the prior written permission of AppLayer
(i) at any time during the Term ('the date in question'):
(a)
distribute, create, carry on, or be engaged, concerned or interested in carrying on
any services or business which is the same as or directly competitive with any
Reseller Services provided by AppLayer at the Relevant Date as hereinafter defined;
or
(ii) at any time during the Term ('the date in question') and for 6 months after the Termination
Date:
(b)
licence the right to provide Reseller Services from any person (including from
AppLayer’s authorised Resellers for Services) other than from AppLayer or its
distributors who are expressly authorised to do so; or
(c)
directly and knowingly promote the Reseller Services to, deal with or solicit the
transfer of an EUO from another reseller, sales agent, dealer and/or distributor of
Reseller Services (other than AppLayer).
(d)
solicit or endeavour to entice away from or discourage from dealing with AppLayer
any person who was at any time during the period of two years preceding the
Relevant Date a supplier, distributor, agent or independent contractor of or to
AppLayer or had agreed to become such whether or not such person would commit
a breach of contract by reason of leaving service or transferring business; or
(e)
deal with, solicit or endeavour to entice away from or discourage from being
employed the other party’s Staff who was at the Relevant Date employed or
engaged in the provision of the Reseller Services in the performance of an
Agreement whether or not such person would commit a breach of contract by reason
of leaving service. For the purposes of this clause ‘solicit’ means the soliciting of
such person with a view to engaging such person as an employee, director, subcontractor or independent contractor; or
(f)
employ or engage (whether as an employee, partner, consultant or otherwise) or
attempt to employ or engage or negotiate or arrange the employment or
engagement by any person of, or be or become a member, employee, officer or
partner of or consultant or independent contractor to any person who employs or
engages or attempts to employ or engage, any individual who is, or was at any time
during the period of three months immediately prior to the Relevant Date, an
employee of AppLayer whose rate of gross contractual salary exceeds or, at the
date he left service, exceeded £30,000 per annum and where such employment or
engagement would require such individual to exercise skills and knowledge of the
same or a similar nature to those acquired or used by him while employed by
AppLayer and whether or not such individual would commit any breach of contract
by reason of leaving service.
17.2
In the event that Reseller is in breach of clause 17.1 (e) and/or (f) above then Reseller shall
pay to AppLayer by way of liquidated damages an amount equal to fifty (50) per cent of the
gross annual remuneration (as at the time of the breach or when such person was last in the
service of the relevant party) of the person so employed or engaged. This provision shall be
without prejudice to AppLayer’s ability to seek injunctive relief. The parties hereby acknowledge
and agree that the formula specified in this clause 17.2 above is a reasonable estimation of the
Loss which would be incurred by the Loss of the person so employed or engaged.
17.3
For the purposes of this Clause 17 'the Relevant Date' means the date in question or, if an
Agreement has terminated for any reason, the Termination Date.
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17.4
The parties consider the restrictions comprised in clause 17.1 are reasonable, but any party
against whom it is sought to enforce any of such restrictions further agrees to accept and
observe such substituted restrictions in place of all or any of those comprised in clause 17.1 as
any of the parties seeking such enforcement may from time to time specify, provided that such
substituted restrictions are in all respects equal to or less restrictive in extent than those
provided for in clause 17.1 which they replace.
17.5
The parties enter into the restrictions in this clause 17 having been separately legally advised
and the parties do not consider the provisions of this clause 17 to be unduly harsh or
unreasonable in consideration of the purpose of an Agreement.
17.6
The restrictions imposed on each party by this clause 17 apply to his acting:
i.
directly; and
ii.
on his own behalf or on behalf of, or in conjunction with, any firm, company or person.
18.
GENERAL
18.1
AppLayer shall not be in breach of an Agreement nor liable for delay in performing, or failure to
perform, any of its obligations under an Agreement (other than for payment of any sums due) if
such delay or failure results from events, circumstances or causes beyond its reasonable
control, including, without limitation:
(i)
an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or
other industrial dispute, war, terrorist act, riot, civil commotion; or
(ii)
failure of public power supplies, third party hacking, viruses, trojans, worms, logic
bombs or other material attacking the Website, a denial-of-service attack, a distributed
or malicious denial-of service attack, failure of communication facilities, unavailability
of internet; or
(iii)
default of suppliers or sub-contractors, or the inability to secure computer processing
facilities (including those of the necessary quality or security), obtain materials or
supplies and, in all cases, the inability to do so except at increased prices (whether or
not due to such causes).
Each of the circumstances referred to in clauses 18.1 (i), (ii) and (iii) above shall be defined in
an agreement as a ‘Force Majeure Event’.
18.2
AppLayer’s performance under an Agreement is deemed to be suspended for the period that
any Force Majeure Event continues, and AppLayer will have an extension of time for
performance for the duration of that period. AppLayer will use its reasonable endeavours to
bring the Force Majeure Event to a close or to find a solution by which its obligations under an
Agreement may be performed despite the Force Majeure Event.
18.3
However, if any of the Force Majeure Events described in clause 18.1 persist for more than
three months, either Party may terminate an Agreement by giving immediate written notice to
the other party.
18.4
If such Termination is effected by Reseller under clause 18.3, AppLayer shall not be obliged to
refund any proportion of the Charges paid to Reseller for the Reseller Services prior to the date
of Termination and for the avoidance of doubt, any Charges due hereunder shall remain due
and owing to AppLayer.
18.5
A waiver of any right under an Agreement is only effective if it is in writing and it applies only to
the party to whom the waiver is addressed and the circumstances for which it is given.
18.6
Unless specifically provided otherwise, rights arising under an Agreement are cumulative and
do not exclude rights provided by law.
18.7
If any provision of an Agreement (or part of a provision) is found by any court or administrative
body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will
remain in force.
18.8
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some
part of it were modified or deleted, the provision will apply with whatever modification or
deletion is necessary to give effect to the commercial intention of the parties.
18.9
An Agreement and any documents referred to in it constitute the whole agreement between the
parties and supersede any previous arrangement, understanding or agreement between them
relating to the subject matter of an Agreement.
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18.10
Each party acknowledges that, in entering into an Agreement and the documents referred to in
it, it does not rely on any statement, representation (whether innocent or negligent), assurance
or warranty (Representation) of any person (whether a party to an Agreement or not) other
than as expressly set out in an Agreement or those documents.
18.11
Each party agrees that the only rights and remedies available to it arising out of or in
connection with a Representation shall be for breach of contract as expressly provided in an
Agreement.
18.12
Nothing in clauses 18.9, 18.10 or 18.11 shall limit or exclude any liability for fraud.
18.13
Save as expressly provided in an Agreement and without prejudice to clause 5, no amendment
or variation of an Agreement shall be effective unless in writing and signed by a duly authorised
representative of each of the parties to it. Such amendment shall take effect immediately upon
signature by each party unless otherwise agreed in writing between them.
18.14
AppLayer may at any time assign, transfer, charge, sub-contract or deal in any other manner
with all or any of its rights or obligations under an Agreement. AppLayer shall be entitled to
assign its rights or obligations under an Agreement to any affiliate or successor of AppLayer, or
to any other party which agrees in writing to be bound by an Agreement. Reseller shall be
entitled to assign its rights under an Agreement to any affiliate or to a lawful successor to the
business or such affiliate of Reseller upon prior written consent of AppLayer, which consent
shall not be unreasonably withheld. Reseller shall remain liable to AppLayer for all obligations
hereunder unless and until any such assignee has assumed all obligations to AppLayer in
writing. AppLayer shall be entitled to transfer all Confidential Information as part of any such
transaction or assignment.
18.15
AppLayer and Reseller will at all times be independent suppliers. Nothing in an Agreement is
intended to, or shall be deemed to, establish any partnership or joint venture between any of
the parties, constitute any party as the agent, representative or employee of another party, nor
authorise any party to make or enter into any commitments for or on behalf of any other party
except as expressly provided in clause 2.
18.16
An Agreement is made for the benefit of the parties to it and (where applicable) their
successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone
else.
18.17
Reseller’s routine communications to AppLayer regarding the Reseller Services should be sent
to AppLayer using the Partner Portal. If Reseller wants to give a notice regarding Termination
of an Agreement for breach, indemnification, or other non-routine legal matter, such notice
under an Agreement must be in writing and must be delivered by hand or sent by registered
first-class post or registered airmail to the other party at its address set out in an Agreement or
such other address as may have been notified by that party for such purposes, and sent by
email to the other party's email address notified by one party to the other in writing from time to
time.
18.18
A notice delivered by hand will be deemed to have been received when delivered (or if delivery
is not in Normal Business Hours, at 9 am on the first Business Day following delivery). A
correctly addressed notice sent by registered first-class post will be deemed to have been
received 48 hours from the time of posting and by registered airmail, 72 hours from the time of
posting. A notice sent by email will be deemed to have been received at the time of
transmission (as shown by the timed printout obtained by the sender).
18.19
If Reseller provides Reseller Services outside the UK, Reseller may be subject to import duties
and taxes which are levied when the delivery reaches the specified destination or when
payment is made by Reseller for the Reseller Services. Reseller will be solely responsible for
payment of any such import duties and taxes. Reseller may not offset or reduce any payment
due to AppLayer by the amount of such import duties and taxes. Reseller shall ensure that any
Charges due to AppLayer shall be settled in full and as invoiced, in accordance with clause 5.
Please note that AppLayer has no control over these charges and cannot predict their amount.
Please contact such local customs office for further information before completing a Sign-Up
Form.
18.20
If the Reseller Services are provided by Reseller in the United States, Reseller acknowledges:
(a) these may be subject to U.S. export jurisdiction and agrees to comply with all applicable
international and national laws that apply to the Reseller Services, including the U.S. Export
Administration Regulations, as well as end-user, end-use, and destination restrictions issued
by U.S. and other governments and notwithstanding the above; and (b) the provisions of the
USA Uniform Computer Information Transaction Act do not apply to these Terms.
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18.21
The export of the Reseller Services from the country of original purchase may be subject to
control or restriction by applicable local law. Reseller is solely responsible for determining the
existence and application of any such law to any proposed export and for obtaining any needed
authorisation. Reseller agrees not to export the Reseller Services from any country in violation
of applicable legal restrictions on such export.
18.22
If any dispute arises in connection with an Agreement, either of the parties shall, within five
Business Days of it becoming evident that the dispute cannot be easily resolved in the usual
course of business, send a written request to the other parties setting out a request for a
meeting to discuss the dispute (such meeting to take place within 10 Business Days of the date
of the written request), the reason for the dispute and their reasoned opinion for their position.
The parties shall each use all reasonable endeavours to attend meetings promptly, to meet in a
good faith effort to resolve the dispute and to do whatever so agreed in a timely manner to
assist the resolution of the dispute.
18.23
If the dispute is not resolved at any such meeting described in 18.22 above, then the parties
shall attempt to settle it by mediation in accordance with the Centre for Effective Dispute
Resolution (“CEDR”) Model Mediation procedure. Unless otherwise agreed between the
parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give
notice in writing (“ADR notice”) to the other party requesting a mediation. A copy of the
request should be sent to CEDR Solve. The mediation will start not later than 20 Business
Days after the date of the ADR notice.
18.24
No party may commence any court proceedings or arbitration proceedings in relation to any
dispute arising out of an Agreement until it has attempted to settle the dispute in accordance
with clause 18.22 or 18.23 and either the mediation has terminated or the other party has failed
to participate in the mediation, provided that this clause 18.24 shall not apply if the right to
issue such proceedings or any remedy which is to be sought in such proceedings would
thereby be prejudiced.
18.25
In the event of any conflict between the provisions of the Terms, the Services Schedule, and
other documents referred to in an Agreement, the following ranking shall apply (with the
document at (i) below carrying the highest priority and):
i. Sign-Up Form;
ii. Services Schedules;
iii. these Terms;
iv. Acceptable Use, Privacy, Data Protection and Security Policy;
v. Supported Software licence terms; and
vi. Fair Use Policy.
18.26
A person who is not a party to an Agreement shall not have any rights under or in connection
with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
18.27
At the request of AppLayer, Reseller shall do or procure to be done all such further acts and
things (including the execution of documents) as AppLayer shall reasonably require to give
AppLayer the full benefit of an Agreement.
18.28
An Agreement and any disputes or claims arising out of or in connection with it or its subject
matter or formation (including non-contractual disputes or claims) are governed by and
construed in accordance with the laws of England and Wales.
18.29
The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any
disputes or claims arising out of or in connection with an Agreement, its subject matter or its
formation (including non-contractual disputes or claims).
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