TEKSMART Trade-in and Recycling Programme Agreement Terms and Conditions
TEKSMART Trade-in and Recycling Programme Agreement Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the context requires otherwise:
Affiliate means any person or entity that is directly or indirectly controlling, controlled by or under common control with a Party to this Agreement.
Agreement means the Front Sheet, these terms and conditions and any schedules, appendices and documents attached hereto or referred to herein, as amended or varied from time to time.
Business Day means Monday through Friday (inclusive) excluding public holidays in the Territory.
Commencement Date means the date both Parties have signed the Front Sheet.
Confidential Information means information (in any form or media) which:
(a) is End-User Data;
(b) is by its nature confidential, including information comprised in or relating to intellectual property, data, drawings, specifications and other written information, samples and the like ;
(c) is designated by a Party, acting reasonably, to be confidential; or
(d) by the nature of the information, the recipient Party knows or ought reasonably to know is confidential.
Data Select Contact means Data Select contact set out in Front Sheet.
Dispute as defined in clause 17.
End User means Reseller’s customer who is interested in selling or trading in the Product.
End-User Data means any data, applications or information inserted into, installed on or otherwise stored on a Product by an individual end-user of the Product or through an individual end-user’s use of a Product prior to TEKSMART acquiring the Product including all customer proprietary information and other sensitive personal information.
Force Majeure means any delay or default caused by conditions beyond a Party’s control including, but not limited to, acts of God, natural disasters (including earthquakes, floods, fire and plague), terrorism, wars, riots or other major upheaval, government restrictions (including the denial or cancellation of any export or other necessary license), performance failures of parties outside the control of the contracting Party and/or any other cause beyond the reasonable control of the Party whose performance is affected.
Front Sheet: means the page or pages to which these terms and conditions are appended (by reference or otherwise) and which identifies Reseller, the Territory and other specific aspects of this Agreement with Reseller and which both Parties shall sign confirming their acceptance of this Agreement
Grade means a grade of a Product based on the grading guide developed by TEKSMART and set out in the Trade-in Portal.
Identification as defined in clause 6(a)(i).
Initial Term as defined in clause 2.1.
Insolvency Event means in relation to a Party, the happening of any of the following events:
(a) a court order is made that the Party be put in liquidation, or that the Party is declared bankrupt;
(b) a court order is made appointing a liquidator or provisional liquidator in respect of the Party, or a liquidator or provisional liquidator is appointed, whether or not under an order;
(c) a receiver, receiver and manager, administrator, voluntary administrator or official or statutory manager is appointed in respect of the Party or the assets or undertaking of the Party or any material part of those assets or that undertaking;
(d) the Party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(e) the Party resolves to go into liquidation, or otherwise dissolve itself, or gives notice of its intention to do so; or
(f) the Party is, or states that it is, unable to pay its debts as and when they become due and payable or is insolvent within the meaning of the Insolvency Act 1986; or anything analogous to the matters set out in (a) to (f) above in any jurisdiction in which the affected Party is based.
Intellectual Property Rights means all patents, rights to inventions, utility models, designs, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world; including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights owned, used, or intended to be used, by a Party.
Manufacturer means the company or group of companies that is the manufacturer of the Products.
Manufacturer Content means trademarks, service marks, logos, product names, trade names, domain names, marketing materials or other distinctive signs owned by or licensed to Manufacturer, or its equivalent in local languages
Materials means material in any form, including documents, reports, products, equipment, processes, information, data, software, software tools and software development methodologies.
Personal Information means personal information about an individual, within the meaning of Data pursuant to the Data Protection Act 2018 (as amended).
Price means the price payable by Data Select to Reseller where applicable, for each Product graded and received by TEKSMART as set out in the Price List and as determined by TEKSMART in accordance with this Agreement.
Price List means the list of Products and associated Prices in the currency as stated on the Front Sheet by TEKSMART in accordance with the process set out in clause 5.1.
Products means list of products included in the Trade-In Programme and enclosed in Schedule- I.
Renewal Term as defined in clause 2.2.
Reseller Contact means the Reseller contact set out in the Front Sheet.
Term means the Initial Term and any Renewal Term (if applicable).
Tax means any tax, sales Tax, Value Added Tax, withholding tax, charge, rate, duty or impost imposed by any authority at any time (other than a tax imposed on the overall net income of a Party).
TEKSMART means Teksmart Horizon Limited (registered in Ireland under company number 662884).
TEKSMART Assessment means an assessment carried out by TEKSMART on each Product to confirm the appropriate Price and Grade of each Product through the process set out in clause 5.3.
TEKSMART’s Warehouse means any warehouse location informed by TEKSMART to Data Select and the Reseller.
TEKSMART Trademarks has the same meaning given to that term in clause 16(c)(i).
Territory as identified in the Front Sheet.
Trade-In means the physical trade-in of Products via the Trade-In Portal under the Trade-In Programme.
Trade-In Portal means the customised online trade in portal created and hosted by TEKSMART, for use by Data Select and Resellers’ staff, enabling Reseller to sell Products to TEKSMART.
Trade-In Programme means a programme of services delivered by TEKSMART and facilitated through the Trade-In Portal for the purchase of second hand Products ultimately by TEKSMART and as more particularly described in the services and process flow document set out under Schedule II.
In this Agreement, unless the context requires otherwise:
(a) terms and expressions defined in either the Front Sheet, these terms and conditions or any other document shall apply throughout this Agreement.
(b) headings are for convenience only and do not affect the interpretation of this Agreement;
(c) words importing the singular include the plural and vice versa;
(d) a reference to anything (including, but not limited to, any right) includes a part of that thing;
(e) specifying anything in this Agreement after the words “include” or “for example” or similar expressions does not limit what else is included unless there is express wording to the contrary;
(f) a reference to a right includes a power, authority, discretion, benefit or remedy conferred on a Party by this Agreement or any applicable Law;
(g) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency;
(h) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this Agreement;
(i) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, whether passed by the same or another government agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(j) Data Select and Reseller are collectively referred to as “Parties” and individually referred to as “Party”;
(k) a reference to a Party includes that Party’s successors and permitted assigns; and
(l) no rule of construction applies to the disadvantage of a Party solely because that Party was responsible for the preparation of this Agreement or any part of it.
2.1 Initial Term
This Agreement commences on the Commencement Date and continues in full force and effect for 24 months unless it is terminated early or renewed in accordance with the terms of this Agreement (the “Initial Term”).
2.2 Renewal Term
Subject to clause 15 (Termination), this Agreement shall automatically renew and continue in full force and effect for further subsequent periods of 12 (twelve) months (each a Renewal Term) on the expiry of the Initial Term or previous Renewal Term unless either Party provides to the other Party 12 (Twelve) months’ written notice prior to the expiration of the Initial Term or any Renewal Term terminating this Agreement at the end of the relevant term.
In consideration of the mutual obligations made between the Parties pursuant to this Agreement, Reseller appoints Data Select to be its non-exclusive partner in the Trade-In Programme offered by TEKSMART via the Trade-In Portal and App.
4. TRADE-IN PROGRAM
4.1 TEKSMART Obligations
In providing the Trade-In Programme, TEKSMART:
(a) will create and host the Trade-In Portal for use by Data Select’s and the Reseller’s staff to assist Data Select and Reseller to offer Trade-In prices for Product intended for Trade-In from the End User;
(b) will maintain the Trade-In Portal with current Products and Prices, which are updated in accordance with this Agreement;
(c) will arrange for receipt of the Products in accordance with clause 7.1;
(d) will purchase Products from Data Select in accordance with the terms of this Agreement;
(e) may provide relevant training material on the Trade-In Portal and the operational mechanics of the Trade-In Programme from time to time at no additional cost to Data Select or the Reseller;
(f) will communicate any non compliance or misuse by Data Select or the Reseller of any Manufacturer Content to Manufacturer, and instruct Data Select to cease (or procure the cessation of) such non compliance or misuse of the Manufacturer Content and actively engage in Data Select’s and, through Data Select, its Reseller’s compliance with Manufacturer’s merchandising and marketing guidelines and policies; and
(g) without limiting any other provision of this Agreement, provide the Trade-In Programme at all times in accordance with “best industry practice” (meaning in relation to any activity or requirement relevant to the Trade-In Programme, the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of such activity or requirement under the same or similar circumstances and conditions).
4.2 Reseller obligations
Under the Trade-In Programme, Reseller:
(a) subject to TEKSMART fulfilling its obligations under clause 4.1, will facilitate training of required personnel on the Trade-In Portal and the operational mechanics of the Trade-In Programme;
(b) will encourage End Users to provide to TEKSMART all such documents/papers/invoices or agreed online equivalent to prove that TEKSMART can recycle the Product from its customers. Any Products received by TEKSMART without the associated online Trade-In documents shall be rejected and returned to the Reseller.
4.3 Data Select obligations
Under the Trade-In Programme, Data Select:
(a) subject to TEKSMART fulfilling its obligations under clause 4.1, will make available the Trade-In Portal to Reseller.
(b) will purchase Products from Reseller in accordance with the terms of this Agreement; and
(c) shall enter into an agreement with TEKSMART that include all relevant TEKSMART obligations as set forth in this Agreement.
5. PRICING, GRADING AND REPORTING
(a) TEKSMART shall provide the Price List to Data Select and Reseller via the Trade-In Portal, which will be used by Data Select for recompensing Reseller for the relevant Trade-In.
(b) TEKSMART may by written notice to both Data Select and Reseller update the Price List from time to time to reflect the Prices determined by it. The updated Price List shall apply to all subsequent purchases of Products by Data Select and shall be valid until the Price List is subsequently updated by TEKSMART. Updates to the Price List notified by TEKSMART will be appropriately and promptly reflected in the Trade-In Portal by TEKSMART.
(c) Reseller agrees that it shall accept without objection the Prices set forth on the Price List provided by TEKSMART for the relevant Trade-In.
(a) The Price List provided by TEKSMART to Data Select and Reseller shall include the applicable Price for each Grade of each Product.
(b) The grading guide set out in the Trade-in Portal may by written notice to both Data Select and the Reseller be amended by TEKSMART from time to time. Amendments to the Trade-in grading guide notified by TEKSMART will be appropriately and promptly reflected in the Trade-In Portal by TEKSMART as necessary.
(c) Where Products are collected by the Reseller from its customers and stored in its premises, the Reseller shall conduct a high-level damage assessment of the Products, determine the likely Grade of each Product in accordance with grading guide set out in the Trade-in and provide an indicative price to the End User which shall at all times be subject to TEKSMART’s Assessment Portal.
(d) Notwithstanding clause 5.2(c), TEKSMART’s assessment with respect to grading of the Product and consequent applicable pricing for the purpose of payment under clause 8.2 shall be final.
5.3 TEKSMART Assessment
(a) TEKSMART shall complete a TEKSMART Assessment of each Product which was received from the Reseller or the End User (as applicable) under the Trade-In Programme.
(b) TEKSMART shall using good industry practice perform such assessment at TEKSMART’s Warehouse and complete and inform Data Select and the Reseller of the TEKSMART Assessment of a Product within 3 (three) Business Days of the receipt of that Product by TEKSMART from the Reseller or the End User (as applicable).
(c) The purpose of carrying out the assessment in this clause 5.3 is for TEKSMART:
(i) to verify that the Product received from the Reseller or the End User (as applicable) accords with the Price List which was valid at the time of the Trade-In relating to that Product;
(ii) to verify that the Product received from the Reseller or the End User (as applicable) matches the Product information supplied via the Trade-In Portal;
(iii) to verify, where applicable, that the Reseller has assigned the correct Grade to the relevant Product and communicated the correct indicative price to the End User;
(iv) to verify that TEKSMART has received through the Trade-In Portal the Reseller’s Identification;
(v) to verify that the Product information supplied by the Reseller is complete and in accordance with the terms of this Agreement.
6. SECOND HAND TRADING REQUIREMENTS
(a) Teksmart acknowledges and agrees for each Product it receives from the Reseller or the End-User (as applicable) under this Trade-In Programme, it will:
(i) view and verify the End Users identity as outlined on the Trade-In Portal and validate ‘Readiness for Trade-In’ as outlined in the Trade-In Portal;
(ii) take all other reasonable care and caution that the Product delivered to TEKSMART under the Trade-in Programme is genuine and is bought from the persons having right to sell these Products ultimately to TEKSMART.
(b) Under the Agreement,
(i) Reseller agrees not to undertake repair of any Manufacturer branded Trade-Ins or Manufacturer branded used Products.
(ii) Reseller shall not refurbish or attempt to refurbish any branded Trade-Ins or branded Used Products to generate a refurbished Device.
(iii) Reseller shall not reuse, harvest, mix, commingle or otherwise utilize components from any branded Trade-In or branded used Product.
7. RECEIPT OF PRODUCTS
7.1 Receipt of Products
(a) TEKSMART, in accordance with TEKSMART’s delivery protocol (as advised to Data Select and the Reseller from time to time) or such other arrangement as may be agreed between the Parties in writing) shall receive the Products the Reseller has collected from its customers or which have been sent by the End User directly to its “Grading and Recycling Centre” in Glosssop (or where otherwise notified in writing ), address as defined.
(b) Where the Reseller collects Products from its customers and stores them in its premises prior to onward delivery to TEKSMART, the Reseller shall ensure that each of the Products received by TEKSMART complies with the information confirmed on the online portal. For the avoidance of doubt, TEKSMART shall return any Products received that have not complied with the confirmed online portal information and neither TEKSMART nor Data Select will be obliged to pay the Price for the non-complying Product.
(c) TEKSMART shall, for the avoidance of doubt and unless otherwise agreed by Data Select and Reseller in writing, be responsible for the cost of all freight and other transport costs associated with the return to Reseller or the End User of the non-complying Products.
(a) TEKSMART shall provide Data Select and the Reseller access to the CRM portal which provides details by customer of all Trade-Ins, setting out details of the value of the Trade-In offered to the applicable Reseller, which is subject to the TEKSMART Assessment in accordance with this Agreement. Where any other amount is payable to Data Select or Reseller pursuant to this Agreement, Data Select or Reseller may invoice such amounts as and when they occur.
(b) The Price and all other amounts relating to payment by a Party to another Party under this Agreement are in the currency set out in the Front Sheet and does not include any Taxes unless otherwise stated which, where legally payable, shall be paid in addition .
8.2 Payment terms
(a) Data Select will pay all amounts from the payment file on the portal as outlined in clause 8.1 to Reseller within 30 (Thirty) days of the acceptance of pricing provided by Teksmart through the portal to the applicable Reseller, by credit to the Reseller’s existing trading account with Data Select.
(b) For purposes of better clarity, it is agreed by and between the Parties that any payment obligation for Data Select will only be confirmed upon TEKSMART confirmation and agreement of grading assessment as provided in Clause 5.2 above and not otherwise.
9. END USER DATA
Following receipt of the Products from the Reseller, TEKSMART shall, without accessing End User Data, wipe any End-User Data from those Products by returning the Products to factory default settings (or as otherwise specified by the manufacturer of the Products for the removal of data).
10. TITLE AND RISK
(a) Title to a Trade-In Product shall not pass to Data Select until Reseller receives payment in full for such Product in accordance with the terms of this Agreement.
(b) Risk of damage, deterioration or loss of or to the Products from any cause whatsoever will pass to Data Select upon TEKSMART’s receipt of the Products in accordance with clause 7.1.
(a) only process, use or disclose Personal Information collected in the course of this Agreement as required for the purpose of fulfilling its specific functions, activities and obligations under this Agreement ;
(b) in the course of fulfilling its obligations under this Agreement, comply with all the applicable relevant data protection legislation;
(c) except as provided in clause l l(a) or as required by law, not disclose without the written permission of the data controller any Personal Information obtained in connection with this Agreement;
(d) take all reasonable steps to prevent the misuse or loss of and unauthorised use, modification, access and disclosure of Personal Information;
(e) ensure that only employees or agents who are authorised to fulfil the obligations of this Agreement and who need to have access to any Personal Information have access to the particular Personal Information;
(f) upon completion of its obligations under this Agreement, return to the data controller, all copies of the Personal Information or any record of the Personal Information. TEKSMART may, in accordance with the data controller’s directions in writing, destroy the Personal Information (and any copies thereof) and any record of the Personal Information; and
(g) notify the data controller immediately if at any time it has breached, believes it may have breached, or is aware that it is alleged to have breached, its privacy and security obligations under this Agreement and at law, or becomes aware that a disclosure of Personal Information may be required by law.
(a) Each Party will keep confidential all Confidential Information of the other Party. This confidentiality obligation will not apply to information:
(i) which is already in the public domain (other than through a breach of a confidentiality obligation);
(ii) which a recipient Party has created (whether alone or jointly with any person) independently of the other Party’s Confidential Information; or
(iii) which a recipient Party is required to disclose to comply with any Law or under the rules of a stock exchange provided that the disclosing Party is given a reasonable opportunity to prevent the disclosure (including by making representation to a court or other body as to why the information should not be disclosed).
(b) A recipient Party may disclose the Confidential Information of the disclosing Party to the recipient Party’s Affiliates and to such of their agents, advisors, auditors, consultants, employees, officers, representatives who have a specific need to have access to the Confidential Information in connection with this Agreement provided that those persons are put on notice of and agree to be bound by the confidentiality provisions of this clause 12.
(c) If a recipient Party is required to disclose Confidential Information under clause 12(a)(iii) the recipient Party shall only disclose the minimum amount necessary to comply with the Law or the rules of the stock exchange.
13. REPRESENTATIONS AND WARRANTIES
In addition to all the statutory representation and warranties, express or implied, including but not limited to the provisions of Sales of Goods Act 1979 by the Reseller; Each Party represents and warrants to the other Party that:
(a) it has the right, power and authority to enter into this Agreement and carry out its obligations under this Agreement;
(b) it will comply with all necessary laws and regulations in performance of its obligations under this Agreement;
(c) it will maintain a comprehensive business insurance policy, and other pertinent insurance, adequate to cover against any reasonably anticipated loss, liability or expense arising out of or in connection with such Party’s performance of this Agreement; and
(d) it has the necessary personnel, resources and expertise to enable it to perform its obligations under this Agreement.
14.1 Limitation of liability
The Parties agree that:
(a) the maximum aggregate liability of either Party under this Agreement (whether arising from contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise) will be limited to value of transactions carried out between Data Select and Reseller under this Agreement in the last 12 months preceding the event or £5,000,000 (whichever is the greater); and
(b) neither Party will under any circumstances be liable for any indirect or consequential loss or damage including loss of profit or revenue, business interruption, or loss of production even if a Party has been advised of the possibility of such loss or damage.
(c) the limitations and exclusions of liability described in clauses 14. l(a) and 14.l(b) shall not apply to or limit the liability of either Party where such liability arises as a result of, is in respect of, or otherwise relates to:
(i) death or personal injury caused by that Party’s negligence;
(ii) the implied warranties and or conditions in sections 12 to 15 of the Sale of Goods Act 1979;
(iii) breach of section 2 of the Consumer Protection Act 1987 or the provisions of the Consumer Rights act 2015;
(iv) any fraud, dishonesty, misrepresentation, gross negligence, intentional wrongful act, omission of or wilful default of the Party or any of its employees, agents, or contractors;
(v ) any liability which cannot be excluded or limited by law;
(vi) any breach by it or any of its employees, agents or contractors of clause 12 (confidentiality).
(a) Either Party may immediately terminate this Agreement at any time by written notice to the other Party if the other Party:
(i) breaches a material term of this Agreement and where the breach is capable of remedy, fails to remedy the breach within 30 (thirty) days of being provided written notice of the breach by the terminating Party;
(ii) breaches a material term of this Agreement which is not capable of remedy; or
(iii) suffers an Insolvency Event; or
(iv) the other Party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(b) Expiry or termination of this Agreement does not affect a Party’s accrued rights and obligations at the time of expiry or termination nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such expiry or termination. Each Party must also at its own expense deliver to the other Party, or at the option of the other Party, destroy all documents in any form which contain Confidential Information of the other Party and Reseller must at its own expense deliver to TEKSMART, or at the option of TEKSMART or Data Select, destroy all TEKSMART Materials.
(c) Either Party may immediately terminate this Agreement at any time by written notice to the other where its has proof or has reasonable grounds to believe that the other Party is engaging in or is a victim of unlawful activities, including but not restricted to, fraudulent transactions, counterfeit or grey imported products or other misrepresentations that may compromise or invalidate the aims or intentions of the Trade-In Program;
(d) Either Party may terminate this Agreement at any time with at least 90 (ninety) days’ written notice to the other Party for any other reason.
16. INTELLECTUAL PROPERTY
(a) Reseller acknowledges that nothing in this Agreement transfers to Reseller any Intellectual Property Rights in and to the TEKSMART Materials and the Reseller’s rights to use and access such Intellectual Property Rights is derived solely from this Agreement. Such rights are limited to the operation and the use of the Intellectual Property Rights in accordance with this Agreement.
(b) Reseller acknowledges that nothing in this Agreement allows Reseller to use or display the name of “Manufacturer” in connection with this program without prior approval of Manufacturer in this regard.
(c) Except where authorised in writing by TEKSMART, the Reseller shall not:
(i) use TEKSMART’s trade name, trademarks, logos or design (including without limitation the trade name “TEKSMART”) (collectively, the “TEKSMART Trademarks”);
(ii) alter, remove or tamper with any trademarks, numbers or other means of identification used in relation to performing its obligations under this Agreement; and
(iii) use any of the TEKSMART Trademarks in any way which might prejudice their distinctiveness or validity or the goodwill of TEKSMART therein.
(d) The Reseller shall promptly and fully notify TEKSMART of any actual, threatened or suspected infringement in the Territory of the TEKSMART Materials and TEKSMART Trademarks which comes to the Reseller’s notice.
(e) Data Select hereby grants Reseller a non-exclusive, royalty-free, sub-licensable sublicence to use in the Territory any Intellectual Property Rights in and to the TEKSMART Materials (including, for the avoidance of doubt, in the Trade-In Portal and CRM portal) for the purposes of and to the extent necessary to receive and obtain the full benefit of TEKSMART’s services and perform its obligations under this Agreement.
17. DISPUTE RESOLUTION
If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Agreement, the Parties shall follow the procedure set out in this clause:
(a) Either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. The parties appointed representatives shall attempt in good faith to resolve the Dispute;
(b) if the parties appointed representatives are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to senior officers of the Parties who shall attempt in good faith to resolve it; and
(c) if the senior officers of the Parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them then either party may then either party may proceed with any other available remedy.
Notwithstanding the fore going, either party may seek interim or other equitable relief necessary (including an injunction) to prevent irreparable harm.
If there is any inconsistency between the documents comprising this Agreement, the following order of precedence will apply (with the document referred to in clause 18.1(a) having the highest priority):
(a) the Front Sheet;
(b) these terms and conditions;
(c) schedules to this Agreement; and
(d) any document referred to in this Agreement.
(a) Except as provided at law or in equity or elsewhere in this Agreement, none of the provisions of this Agreement may be varied, waived, discharged or released, except with the prior written consent of the Parties.
(b) No documentation, correspondence, verbal agreement or conversation will form part of, affect or modify any aspect of this Agreement unless accepted and confirmed by Reseller and Data Select in writing.
18.3 Force Majeure
A Party is not liable for non-performance of this Agreement, if the performance is rendered impossible or delayed by Force Majeure affecting such Party. In the case of a Force Majeure, the Party relying on Force Majeure shall immediately notify the other Party in writing and furnish all the relevant information thereto and shall cooperate in minimising the impact of such Force Majeure.
18.4 Independent Contractor
The Parties agree that they are an independent contractor to each other. For the avoidance of doubt, nothing in this Agreement creates the relationship of partner or agent (within the legal meaning of this term) and neither Party shall represent itself, and shall ensure that its employees do not represent themselves as being joint venturers or partners of the other.
18.5 Entire agreement
This Agreement sets out the entire understanding between the Parties with respect to the subject-matter contained in it. To the extent permitted by Law, all prior verbal and written agreements, representations, warranties, explanations and commitments expressed or implied, affecting that subject matter are superseded by this Agreement and have no effect.
If a provision of this Agreement is held to be illegal, invalid, void, voidable or unenforceable by a court of Law, that provision shall be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down the provision in accordance with this clause, that provision will be severed without affecting the validity or enforceability of the remaining part of that provision or the other provisions of this Agreement.
A single or partial exercise or waiver of a right relating to this Agreement does not prevent a further exercise of that right or the exercise of any other right.
Neither Party shall assign, pledge or transfer its interest in this Agreement (or any part of it) without obtaining the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign its interest in this Agreement to an Affiliate and Data Select may subject to the prior written consent of Reseller utilise subcontractors to fulfil its obligations under this Agreement provided Data Select remains fully liable for all subcontracted obligations.
18.9 Governing Law & Jurisdiction
This Agreement is to be governed by and construed in accordance with the laws of England and Wales and the Parties submit to the exclusive jurisdiction of the courts of England in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
Except where otherwise prescribed by this Agreement, any notice must be:
(a) in writing addressed to Reseller Contact if sent by Data Select or to Data Select Contact if sent by Reseller; and
(b) delivered by hand, dispatched by courier or dispatched by registered mail, facsimile transmission, or other electronic means and such notice shall be deemed to have been received:
(i) on the day delivered if delivered by hand;
(ii) on the day of dispatch if dispatched by facsimile transmission or other electronic means; and
(iii) 2 (two) Business Days from dispatch if dispatched by registered mail or courier.
18.11 Compliance with Laws
Both Parties shall comply with all applicable laws, regulations and standards of all jurisdictions applicable to such Party’s performance under this Agreement. Specifically, both Parties will refrain from activities and have procedures in place to prevent activities that are illegal, unethical or which might bring either Party or the Products into disrepute, or which might constitute or represent a serious conflict of interest, or which might give the appearance of impropriety. This includes all applicable domestic and international: anti-corruption laws and regulations prohibiting the payment of commercial or private bribes, to secure any improper commercial advantage. Both Parties shall not make any payment to induce officials to perform routine functions they are otherwise obligated to perform, also known as “facilitating payments.” Furthermore, both Parties shall refrain from making any payment to any person in a manner which would constitute or have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage.
Any term by its nature intended to survive termination of this Agreement will do so.
This Agreement and all documents referred to in this Agreement may be executed in any number of counterparts and delivered by hand, dispatched by courier or dispatched by registered mail, facsimile transmission, or other electronic means and shall be as effective as executing and delivering this Agreement and all documents referred to in this Agreement in the presence of the Parties. Each such counterpart shall be deemed to be an original, and all such counterparts shall constitute one agreement.
Last updated: 24 August 2022