BECRYPT LIMITED: RESELLER AGREEMENT
PARTIES:
(1) BECRYPT LIMITED a company incorporated in England and Wales under number 04328430 whose registered office is at 4th Floor, Artillery House, 11-19 Artillery Row, London, SW1P 1RT (Becrypt); and
(2) THE RESELLER (Reseller),
each of Becrypt and Reseller being a party and together Becrypt and Reseller are the parties.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
Becrypt IPR has the meaning given in clause 18.2;
Becrypt’s Marks means Becrypt’s trade marks and trade names, service marks and service names and domain names which may be listed on the Partner Portal;
Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;
Commencement Date means the date upon which the Reseller confirms their acceptance of the terms within this Agreement;
Confidential Information means all information (whether in oral, written or electronic form) relating to a party’s business which may reasonably be considered to be confidential in nature including information relating to that party’s technology, business, management, Know-how, Intellectual Property Rights, assets, finances, strategy;
Customer means a customer of the Reseller who is licensed to use the Software on the terms of the EULA;
EULA means an end user licence agreement between Becrypt and a user;
Fees means the fees listed on the Partner Portal from time to time;
Force Majeure Event means any act, event, omission or accident beyond the reasonable control of a party and that could not have been reasonably anticipated or avoided by a party (including failure or inadequacy of the computer network infrastructure (other than Becrypt’s computer network infrastructure), failure by a third party software including virus, service attacks, or other losses of network not cause by Becrypt, which prevents it from, or delays it in, performing its obligations under this Agreement;
Good Industry Practice in relation to any undertaking and any circumstances, means the exercise of that degree of care, professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or company engaged in the same type of activity under the same or similar circumstances;
Intellectual Property Rights means copyright, patents, rights in inventions, rights in Confidential Information, Know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case:
(a) whether registered or not,
(b) including any applications to protect or register such rights,
(c) including all renewals and extensions of such rights or applications,
(d) whether vested, contingent or future, and
(e) wherever existing;
IP Claim means any claim brought against the Reseller by any third party (including any claim brought against the Reseller by a Customer relating to a claim by any other third party) alleging that the use of the Software by any Customer under a EULA or by the Reseller infringes any copyright, database right or registered trade mark, registered design right or registered patent in the United Kingdom;
Know-how means inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, tests, reports, component lists, manuals, instructions, drawings and information relating to customers and suppliers (whether written or in any other form and whether confidential or not);
Month means a calendar month or part thereof;
Partner Portal means the website for Becrypt partners at “partners.becrypt.com” (or such other URL as Becrypt may advise from time to time;
Reseller’s Responsibilities means the Reseller’s obligations set out in clauses 5 and 6;
Reseller’s Rights has the meaning given in clause 3.2;
Software means the software as listed on the Partner Portal;
Update means a Software maintenance update, patch or bug-fix which does not constitute an Upgrade;
Upgrade means a version or release of the Software intended to have new or improved functionality or any other new version or release of the Software designated by Becrypt as an Upgrade;
Term has the meaning given in clause 2.1;
Territory means the United Kingdom and Ireland;
VAT means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom; and
Year means each successive period of 12 Months beginning on the Commencement Date.
1.2 Interpretation
In this Agreement:
1.2.1 a reference to this Agreement includes its schedules, appendices and annexes (if any);
1.2.2 the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement;
1.2.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5 a reference to a gender includes each other gender;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 a reference to any law or legislation is a reference to that law or legislation as amended, recast, replaced, extended, re-enacted or consolidated from time to time;
1.2.8 a reference to legislation includes all subordinate legislation made from time to time under that legislation.
2. TERM
2.1 This Agreement will begin on the Commencement Date and will terminate twelve (12) months later (the "Term") unless either party terminates the Agreement earlier in accordance with its provisions. At the end of the initial Term, this Agreement will be automatically renewed on its anniversary date for additional periods of one year each.
3. RESELLER’S APPOINTMENT AND RIGHTS
3.1 Becrypt appoints the Reseller as reseller of the Software for the Term, and the Reseller accepts this appointment, subject to the terms of this Agreement.
3.2 Becrypt grants the Reseller the right to market, promote and resell the Software to Customers in the Territory on a non-exclusive, personal and non-transferable basis (the Reseller’s Rights). All rights not specifically and expressly granted in writing to the Reseller under this Agreement are hereby expressly reserved to Becrypt. Nothing in this Agreement shall prevent Becrypt from marketing, promoting, distributing and supporting the Software to any persons within the Territory either directly or via other distributors, resellers, partners or agents.
4. DELIVERY OF SOFTWARE
4.1 Becrypt shall use its reasonable endeavours to deliver the Software to the Customer of the Reseller for use by the Customer once they have entered into a EULA with Becrypt.
4.2 Becrypt shall provide links to Updates or Upgrades to the Software to the Customers from time to time.
5. RESELLER’S RESPONSIBILITIES—CUSTOMERS
5.1 The Reseller shall ensure it does not:
5.1.1 give access to, or licence, the Software to any third party other than in accordance with the terms of the EULA and this Agreement;
5.1.2 make, give or by any act or omission give rise to any licence, promise, warranty, guarantee, indemnity, representation, agreement, arrangement or binding right, remedy or obligation (howsoever arising under any legal theory) concerning the Software;
5.1.3 provide any support, maintenance or other services in connection with the Software; or
5.1.4 amend, modify or vary any terms of any EULA with any Customer.
5.2 If a Customer has breached the terms of the EULA, the Reseller shall promptly:
5.2.1 use all reasonable endeavours to ensure such breach is promptly ceased and remedied; and
5.2.2 notify Becrypt to enable Becrypt to terminate the Customer’s access to the Software;
5.2.3 provide Becrypt with such information and assistance as Becrypt may reasonably require for the purpose of enforcing the terms of any EULA with a Customer.
6. RESELLER’S RESPONSIBILITIES—MARKETING
6.1 The Reseller shall at all times:
6.1.1 use its reasonable endeavours to market, promote and distribute the Software to Customers in accordance with the terms of this Agreement and such brand and promotional guidelines published by Becrypt from time to time;
6.1.2 use its reasonable endeavours to promote use of the Software;
6.2 The Reseller shall ensure it does not:
6.2.1 conduct its business or any dealings with third parties (including Customers) in any manner which is likely to have a negative impact on the goodwill or reputation of Becrypt; or
6.2.2 do, permit or omit to do anything which in the reasonable opinion of Becrypt is prejudicial to marketing or sales of the Software.
7. RESELLER RESOURCES AND TRAINING
7.1 The Reseller shall ensure that at all times:
7.1.1 it has sufficient and suitable equipment and facilities to perform the Reseller’s Responsibilities; and
7.1.2 all personnel engaged in the performance of the Reseller's Responsibilities shall have the appropriate qualifications, training and experience to adequately perform the Reseller's Responsibilities.
7.2 The Reseller’s personnel shall at all times throughout the provision of the Reseller’s Responsibilities and this Agreement remain the employees or subcontractors of the Reseller and shall remain under the overall control of the Reseller. The Reseller and Becrypt acknowledge and agree that the Reseller’s personnel are not, nor are they deemed to be for any purpose, employees of Becrypt.
7.3 Any services (including but not limited to training) requested by the Reseller and provided by Becrypt other than as expressly provided for under this Agreement may upon the agreement of both parties be charged to the Reseller at Becrypt’s standard charges for such services in force from time to time.
8. OTHER GENERAL OBLIGATIONS
8.1 The Reseller shall at all times:
8.1.1 comply with its warranties and obligations in clause 15;
8.1.2 without prejudice to any other obligation, comply with Becrypt’s reasonable instructions in relation to the licensing of the Software;
8.1.3 provide such information and assistance as Becrypt may reasonably require to perform Becrypt’s obligations and exercise its rights under this Agreement;
8.1.4 ensure all information provided to Becrypt is complete and accurate in all respects;
8.1.5 give Becrypt reasonable prior written notice of any information it requires in accordance with this Agreement;
8.1.6 indicate it is acting as reseller and not as author or developer of the Software in all correspondence and dealings with third parties;
8.1.7 be responsible for obtaining and maintaining all necessary export and other government approvals, permits, authorisations and authorities to allow the distribution of the Software and the exercise of the Reseller’s Rights and performance of the Reseller’s Responsibilities in accordance with all applicable laws;
8.1.8 indemnify, keep indemnified and hold harmless Becrypt from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Becrypt as a result of or in connection with any failure by the Reseller to comply with Clause 8.1.7.
8.1.9 perform its other obligations as set out in this Agreement.
8.2 The Reseller shall ensure it does not:
8.2.1 incur any liability, debt or obligation whatsoever on behalf of Becrypt; or
8.2.2 insert any other restrictions applicable to Reseller’s performance of the Agreement, eg requirements regarding the types of advertising activities that the reseller needs to undertake, such as regular inclusion of advertisements of products in catalogues/industry publications (and whether at the Reseller’s cost).
9. BECRYPT’S OBLIGATIONS
9.1 Becrypt shall provide the Reseller with:
9.1.1 information about the Software with Updates or Upgrades as may be implemented by Becrypt from time to time;
9.1.2 one copy of Documentation for the Reseller to use, reproduce and distribute solely for the purpose of the Reseller fulfilling its obligations under this Agreement;
9.1.3 such information and assistance as the Reseller may reasonably require to perform its obligations under this Agreement;
9.1.4 to the extent reasonably possible give the Reseller reasonable notice of any Updates of the Software which Becrypt intends to issue to the Reseller.
10. RECORD KEEPING AND REPORTING
10.1 The Reseller shall maintain accurate and complete accounts and records of all matters relevant to the performance of its obligations under this Agreement, including regarding:
10.1.1 enquiries from and correspondence with Customers and potential Customers;
10.1.2 all communications regarding the Software (including any calls or other communications with Customers relating to reported defects or deficiencies in any of them); and
10.1.3 the licensing of and grant of access to the Software to each Customer.
11. FEES, TAX AND EXPENSES
11.1 Reseller’s net price for the Software ordered under this Agreement will be Becrypt’s then current price list on the date Becrypt accepts Reseller’s order, less the applicable discount set forth on the Partner Portal.
11.2 All amounts payable under this Agreement are exclusive of VAT, sales and other tax or duties applicable which shall be paid in addition by the Reseller to Becrypt at the rate and in the manner prescribed by law.
12. INVOICING AND PAYMENT
12.1 Becrypt shall invoice the Reseller electronically to such email address as is notified by the Reseller in writing to Becrypt for all sums due under this Agreement.
12.2 The Reseller shall pay such sums in full and without deduction or set-off, in clear funds within 30 days from the date of invoice.
12.3 Amounts payable to Becrypt under this Agreement shall be paid into Becrypt’s designated bank account.
13. INTEREST
13.1 Where sums due are not paid in full by the due date, Becrypt may, without limiting its other rights, charge interest on such sums at 3% a year above the base rate of the Bank of England from time to time in force.
13.2 Interest shall apply from the due date for payment until actual payment in full, whether before or after judgment.
14. PRICE VARIATION
14.1 Becrypt may vary the Fees or the reseller’s discount by giving to the Reseller not less than 30 days’ prior written notice of such variation.
15. WARRANTIES
15.1 The Reseller warrants and represents to Becrypt that:
15.1.1 the Reseller has the right, power and authority to enter into this Agreement and to perform the Reseller’s Responsibilities;
15.1.2 the Reseller’s Responsibilities shall be performed:
(a) with all reasonable skill, care and diligence;
(b) in compliance with any applicable service standards and so as to meet or exceed any agreed service standards;
(c) in accordance with Good Industry Practice; and
(d) so as to conform with all applicable laws.
15.2 Becrypt warrants to the Reseller that subject to the terms of this Agreement and the Reseller’s compliance with this Agreement, the Software licensed to each Customer under a EULA shall, subject to payment by the Reseller of the Fees, operate substantially in accordance with the user guide.
15.3 If the Software licensed to a Customer fails to conform to the warranty in clause 15.2, Becrypt shall, at its option:
15.3.1 use all reasonable endeavours to correct errors in the Software within a reasonable time provided the Reseller notifies it in writing and provides sufficient information to enable Becrypt to correct the errors; or
15.3.2 require the Reseller to terminate the EULA with the Customer and terminate the Customer’s access.
15.4 The warranty in clause 16.2 is subject to the Reseller complying with its obligations under this Agreement and shall not apply to the extent that any error in the Software arises as a result of:
15.4.1 breach by any Customer of their EULA;
15.4.2 any IP Claim;
15.4.3 licensing or use of the Software other than for the purposes for which it is intended.
15.5 The Reseller acknowledges that no liability or obligation is accepted by Becrypt (howsoever arising whether under contract, tort, in negligence or otherwise) in relation to claims:
15.5.1 that the Software shall meet any Customer’s (or other person’s) individual needs, whether or not such needs have been communicated to Becrypt;
15.5.2 that the operation of the Software shall not be subject to minor errors or defects;
15.5.3 that the Software shall be compatible or interoperable with any software or with any particular hardware or equipment.
15.6 Other than as set out in this clause 15, and subject to clause 20.6, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable skill and care or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
16. USE OF BECRYPT’S MARKS
16.1 Subject to the terms of this Agreement, Becrypt grants the Reseller:
16.1.1 the right to use the title “authorised reseller” of Becrypt on its advertising and promotional materials during the Term; and
16.1.2 a non-exclusive, revocable, personal licence during the Term to use Becrypt’s Marks in Reseller’s marketing of the Software;
provided that all such use is in accordance with then current trade mark guidelines as set out in the Partner Portal and provided the Reseller shall not use Becrypt’s Marks without Becrypt’s prior written approval following receipt of appropriate proofs of the relevant advertising and promotional material.
Becrypt shall review and notify Becrypt of approval or rejection of any advertising and promotional material submitted to Becrypt by the Reseller.
16.2 Nothing in this Agreement grants the Reseller ownership or any rights in or to use Becrypt’s Marks except in accordance with the licence in clause 16.1 and the Reseller acknowledges and agrees that:
16.2.1 any goodwill or reputation generated through the Reseller’s use of Becrypt’s Marks and the Reseller’s performance of its obligations with respect to the marketing, promotion and distribution of the Software under this Agreement shall accrue to the benefit of Becrypt; and
16.2.2 the Reseller shall not at any time be entitled to claim compensation or payment in respect of such enhanced goodwill or reputation.
17. INTELLECTUAL PROPERTY RIGHTS
17.1 Except as expressly agreed in this Agreement or as set out below, no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.
17.2 The Software, Becrypt’s Marks and all Intellectual Property Rights in these (Becrypt IPR) are and shall remain the sole and exclusive property of Becrypt and its licensors. Nothing in this Agreement or any licence or sub-licence granted under it shall convey or transfer any ownership or proprietary interest in any Becrypt IPR to the Reseller or any third party.
17.3 The Reseller is not granted any rights in relation to Becrypt IPR except for those rights expressly granted in this Agreement. The rights in the Software licensed to the Reseller shall not include the right for any person (including any affiliate, sub-contractor or contractor of the Reseller) that is not a Customer in accordance with this Agreement to use or have access to the Software unless expressly agreed in writing by Becrypt.
17.4 Becrypt reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of Becrypt IPR.
17.5 In marketing and Licensing the Software, the Reseller shall take reasonable steps in accordance with Good Industry Practice to protect Becrypt IPR and shall promptly notify Becrypt of any confirmed or suspected infringement of such rights of which the Reseller becomes aware.
18. CONFIDENTIAL INFORMATION
18.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
18.2 The parties acknowledge and agree that all information relating to the Software, the Documentation and any other technical or operational specifications or data relating to the Software are all part of Becrypt’s Confidential Information.
18.3 Each party undertakes to:
18.3.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents, sub-contractors and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
18.3.2 to procure that such persons are made aware of and agree in writing to observe the obligations in this clause 18.
18.4 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
18.5 The provisions of this clause 18 shall not apply to information which:
18.5.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents, sub-contractors or contractors;
18.5.2 is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
18.5.3 is independently developed by the recipient, without access to or use of such information; or
18.5.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
18.6 The obligations under this clause shall survive the variation and expiry or termination of this Agreement for a period of five years. Each party shall establish and maintain adequate security measures to safeguard Confidential Information and data of the other party in its possession from unauthorised access, use or copying.
18.7 Nothing in this Agreement shall prevent Becrypt from retaining and utilising for any purpose (at all times during and after the Term of this Agreement):
18.7.1 any Confidential Information of Becrypt; and/or
18.7.2 any of the records and accounts referred to in clauses 10.1.
19. ANTI-BRIBERY
19.1 The Reseller shall ensure that it does not, by any act or omission, place Becrypt in breach of the Bribery Act 2010 (“Bribery Laws”). The Reseller shall comply with all applicable Bribery Laws in connection with the performance of the Reseller’s Responsibilities and this Agreement, ensure that it has in place adequate procedures to prevent any breach of this clause 19 and ensure that:
19.1.1 all of the Reseller’s personnel and all direct and indirect subcontractors, suppliers, agents and other intermediaries of the Reseller;
19.1.2 all others associated with the Reseller; and
19.1.3 each person employed by or acting for or on behalf of any of those persons referred to in this clause,
involved in performing the Reseller’s Responsibilities or with this Agreement so comply.
19.2 The Reseller shall not in connection with the performance of the Reseller’s Responsibilities and/or this Agreement make or receive any bribe (which terms shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
19.3 The Reseller shall immediately notify Becrypt as soon as it becomes aware of a breach of any of the requirements in this clause 11.
19.4 Any breach of this clause 19 by the Reseller shall be deemed a material breach of this Agreement that is not remediable and entitle Becrypt to immediately terminate this Agreement by notice under clause 22.
20. LIMITATION OF LIABILITY
20.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 20.
20.2 The parties agree that the limitations in this clause 20 are reasonable given each party’s respective commercial positions and their ability to obtain insurance in respect of the risks arising under or in connection with this Agreement.
20.3 In no event shall the aggregate liability of either party in respect of all claims, losses and damages arising under or in connection with this Agreement exceed the amount paid by the Reseller to becrypt in relation to the Software in the three calendar months immediately preceding the event giving rise to the claim.
20.4 Neither party shall be liable for any consequential, indirect or special loss.
20.5 Neither party shall be liable for any of the following (whether direct or indirect):
20.5.1 loss of profit;
20.5.2 loss of contracts;
20.5.3 loss of operation time;
20.5.4 loss of production;
20.5.5 loss of commercial opportunity;
20.5.6 loss or corruption of data;
20.5.7 loss of commercial opportunity; or
20.5.8 loss of savings, discount or rebate (whether actual or anticipated);
20.6 Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited or excluded in any way in respect of the following:
20.6.1 death or personal injury caused by negligence;
20.6.2 fraud or fraudulent misrepresentation;
20.6.3 breach of any obligation as to title implied by:
(a) section 12 of the Sale of Goods Act 1979; or
(b) section 2 of the Supply of Goods and Services Act 1982;
20.6.4 breach of section 2 of the Consumer Protection Act 1987;
20.6.5 any other losses which cannot be excluded or limited by applicable law; and
20.6.6 any obligation to pay the Fees (including any interest and expenses properly incurred).
20.7 In respect of any indemnity given by either party under this Agreement, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.
21. INSURANCE
21.1 The Reseller shall, for the duration of this Agreement, maintain appropriate insurance cover with a reputable insurance company against all relevant liabilities and indemnities that may arise under this Agreement in respect of the Reseller.
21.2 The Reseller shall provide to the Customer upon request sufficient evidence of the insurance cover that it is obliged to have and maintain under this Agreement.
22. TERMINATION
22.1 Either party may terminate this Agreement at any time by giving notice in writing to the other party if the other party:
22.1.1 commits a material breach of this Agreement and such breach is not remediable;
22.1.2 is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
22.1.3 has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue.
22.2 Any breach by the Reseller of:
22.2.1 Clause 17;
22.2.2 Clause 18;
22.2.3 Clause 19;
shall be deemed a material breach of this Agreement which is not remediable.
22.3 Becrypt may terminate this Agreement at any time by giving notice in writing to the Reseller if it:
22.3.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
22.3.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Becrypt reasonably believes that to be the case;
22.3.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
22.3.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
22.3.5 has a resolution passed for its winding up;
22.3.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
22.3.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within five Business Days of that procedure being commenced;
22.3.8 has a freezing order made against it;
22.3.9 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
22.3.10 is subject to any events or circumstances analogous to those in clauses 22.3.1 to 22.3.9 (inclusive) in any jurisdiction;
22.3.11 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 22.3.1 to 22.3.10 (inclusive) including for the avoidance of doubt, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
22.4 Becrypt may without prejudice to its other rights and remedies by notice in writing to the Reseller immediately terminate this Agreement if the Reseller undergoes a change of control that is, in Becrypt’s reasonable opinion, likely to have an adverse effect on Becrypt or the performance of the Reseller’s Responsibilities. For the purposes of this clause, “control” shall have the meaning given it under in section 1124 of the Corporation Tax Act 2010.
22.5 Termination for Convenience. Either party may terminate this Agreement for convenience at any time upon ninety (90) days’ prior written notice.
23. CONSEQUENCES OF EXPIRY OR TERMINATION
23.1 In the event of expiry or termination of this Agreement for any reason:
23.1.1 the Reseller shall immediately;
(a) stop promoting, marketing, advertising and soliciting and accepting orders for the Software [and the Documentation]; and
(b) cease to use all Becrypt’s Marks;
23.1.2 the Reseller shall thereafter not (at any time) licence (nor, extend the term of) or amend the terms of any EULA;
23.1.3 the Reseller shall immediately remove from all materials in any form which are to be provided or made accessible to any person (including websites, notices, advertisements, catalogues and documents) any reference to it being an ‘authorised reseller or authorised distributor’ of Becrypt;
23.1.4 save to the extent necessary to comply with any obligations to Customers pursuant to the EULA, the Reseller shall within seven days of such termination or expiry return to Becrypt (or, at Becrypt’s written notice, destroy) all Confidential Information of Becrypt in its possession or under its control and all copies of such information which relates to this Agreement, including returning or destroying (as appropriate):
(a) all copies of the Documentation; and
(b) all promotional material relating to the Software,
then in its possession or under its control.
23.2 Termination or expiry of this Agreement for whatever reason shall be without prejudice to the rights of the parties accrued up to the date of such termination or expiry.
23.3 The Reseller shall have no claim against Becrypt for compensation for loss of any reseller rights, loss of goodwill or similar loss following termination or expiry of this Agreement, in whole or in part, for any reason.
24. GENERAL
Notices
24.1 Any notice given by a party shall be by email:
24.1.1 in writing and in English;
24.1.2 signed by, or on behalf of, the party giving it (except for notices sent by email); and
24.1.3 by email: on receipt of a delivery receipt email from the correct address.
Announcements
24.2 No announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, the Reseller without the prior written consent of Becrypt, except as required by law, any court, any governmental, regulatory or supervisory authority or any other authority of competent jurisdiction.
Relationship
24.3 The parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
Severability
24.4 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected and the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
Assignment and Subcontracting
24.5 No party may assign, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other party's prior written consent.
Succession
24.6 This Agreement shall be binding upon, and enure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title.
Variation
24.7 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
Entire Agreement
24.8 The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement. Nothing in this Agreement purports to limit or exclude any liability for fraud.
Waiver
24.9 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
Set-off
24.10 Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
Force Majeure
24.11 A party will not be liable if delayed in or prevented from performing its obligations under this Agreement due to a Force Majeure Event, provided that it:
24.11.1 promptly notifies the other of the Force Majeure Event and its expected duration, and
24.11.2 uses reasonable endeavours to minimise the effects of that event.
24.12 If, due to Force Majeure Event, a party:
24.12.1 is unable to perform a material obligation; or
24.12.2 is delayed in or prevented from performing its obligations for a continuous period of more than thirty (30) days,
the other party may, within a further ten (10) Business Days, terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.
Counterparts
24.13 This Agreement may be signed in any number of separate counterparts, each of which when signed and dated shall be an original, and such counterparts taken together shall constitute one and the same agreement. This Agreement shall not be effective until each party has signed one counterpart.
Third Party Rights
24.14 Except as expressly provided for in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
Governing Law and Jurisdiction
24.15 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
24.16 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
UK
US