Google Android Enterprise Essentials Terms and Conditions
Terms and Conditions for the Resale of Google Android Enterprise Essentials Products & Services
1.1 The definitions and rules of interpretation in this clause apply in these Terms & Conditions.
Affiliate: means any person, corporation, partnership, trust, or other entity, existing or which has yet to exist, that, directly or indirectly, legally or beneficially, owns, is/subsequently becomes owned by, or is/subsequently becomes under common ownership with the subject entity or the subject entity’s ultimate parent. For purposes of the foregoing, “own”, “owned”, or “ownership” means holding ownership of, or the right to vote, fifty percent (50%) or more of the voting stock or ownership interest entitled to elect a board of directors or a comparable managing authority.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Customer Agreement: means an agreement between Reseller and each End Customer under which Reseller distributes and resells the Products to the End Customer.
Customer Data: means the data provided in connection with an order including, without limitation, End Customer name, address, contact information, licence type, IMEI (or MAC Address), mobile device models and related information, OS version and order details.
Data Select: means Westcoast Limited T/A Data Select incorporated and registered in England and Wales with company number 03662640.
Data Select Agreement: means the ‘Android Enterprise License and Distribution Agreement’ between Google Ireland Limited and Data Select Limited dated 15 January 2021 (as may be amended from time to time).
Directive: means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data.
End Customer: is the final purchaser and/or licensee of a Product purchased or otherwise obtained from the Reseller and who uses such Product for its own use and not for, but not limited to, resale, remarketing or distribution. In the event where the Reseller hosts the Product, the Reseller is considered to be the End Customer.
End User: means, as applicable, the (i) End Customer, (ii) an individual employee of the End Customer who uses the Products, or (iii) any user authorised by the End Customer to use Products.
European Data Protection Legislation: means, as applicable: (a) any national provisions adopted under the Directive; (b) the Federal Data Protection Act of 19 June 1992 (Switzerland); (c) the EU GDPR or the UK GDPR; and/or (d) any other data protection or privacy legislation in force in the EEA, the UK or Switzerland.
EU GDPR: means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
Google Android Enterprise Data Processing and Security Terms: means the terms available at https://www.android.com/enterprise/data-protection/terms/ (as the content at such URL and the URL itself may be updated or modified by the Product Provider from time to time).
Google Reseller Terms: means those terms of service that govern use of certain Products and that must be passed through to each End Customer by Reseller as further specified in a Product Schedule (as such terms may be amended from time to time by the Product Provider in its sole and absolute discretion).
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Legislation: any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
Non-European Data Protection Legislation: means any applicable data protection and privacy legislation, guidelines and industry standards, other than the European Data Protection Legislation.
Order: means an order for Products, in such form as Data Select shall in its absolute discretion determine from time to time, submitted by the Reseller in accordance with clause 5.
Permitted Use: the purpose of exercising or performing its rights and obligations under these Terms & Conditions.
Product Provider: means Google Ireland Limited.
Products: means the Product Provider’s products and services which are offered by Data Select to the Reseller for re-sale (as those products may be amended from time to time) as more specifically detailed in the Order and in the Annex 2 (Product Schedules).
Product Schedules: means the product schedules included in Annex 2 of these Terms & Conditions that state specific additional terms related to particular Products.
Relevant Requirements: has the meaning set out in clause 9.1.1.
Reseller: means you, the person placing the Order with Data Select.
Terms & Conditions: means these terms and conditions including its Annexes.
Territory: means the United Kingdom or such other territory agreed in writing by Data Select in relation to a specific Order.
Trade Marks: means the trade marks or logos, registered or unregistered of Data Select, the Product Provider or their respective Affiliates.
UK GDPR: means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018 (as amended), if in force.
1.2 Clause headings shall not affect the interpretation of these Terms & Conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
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 re-enacted from time to time.
1.8 A reference to writing or written includes faxes and e-mail.
1.9 References to clauses are to the clauses of these Terms & Conditions.
1.10 In the event of any conflict or ambiguity as between the clauses in the Terms & Conditions and the Annexes, the terms in the Annexes shall prevail.
2. Basis of contract
By placing an Order the Reseller irrevocably and unconditionally accepts these Terms & Conditions in full and without exception. These Terms & Conditions are the only conditions upon which Data Select is prepared to deal with the Reseller in respect of the resale of Products and they shall govern all Orders to the entire exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in the Reseller’s quotation, acknowledgement or confirmation of order, specification or similar document will form part of these Terms & Conditions and the Reseller hereby waives irrevocably any right which it otherwise might have to rely on such terms and conditions.
3.1 The Reseller acknowledges and accepts its appointment by Data Select as Data Select’s non-exclusive reseller to resell the Products in the Territory on the terms of these Terms & Conditions.
3.2 For so long as the Reseller is purchasing Products from Data Select and for a period of twelve months thereafter, the Reseller undertakes not to:
3.2.1 purchase Products from any person other than Data Select; or
3.2.2 develop for re-sale or distribution any software which competes in whole or in part with any one or more Products.
3.3 The Reseller shall not represent itself as an agent or acting on behalf of Data Select or the Product Provider for any purpose, nor pledge Data Select’s or the Product Provider’s credit nor give any condition or warranty or make any representation on Data Select’s or the Product Provider’s behalf nor commit Data Select or the Product Provider to any contracts. Further, the Reseller shall not without Data Select’s or the Product Provider’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Products which are inconsistent with those contained in the promotional material supplied by Data Select or its licensor of the relevant Product or otherwise incur any liability on behalf of Data Select or the Product Provider howsoever arising.
3.4 The Reseller shall not sell any Products through a sales agent or to a sub-distributor or reseller without the express written permission of Data Select. Where Data Select agrees to any such appointment, the 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 Data Select and the Product Provider as set out in these Terms & Conditions.
3.5 The Reseller’s appointment under clause 3.1 only grants to the Reseller a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to resell the Products to End Customers in the Territory subject to these Terms & Conditions, and does not transfer any right, title or interest to any such Products to the Reseller or its customers or an End User.
4. Reseller’s undertakings
4.1 The Reseller undertakes and agrees with Data Select to:
4.1.1 use its best endeavours to promote the marketing and re-sale of the Products;
4.1.2 comply with all applicable laws in respect of the exercise of its rights and performance of its obligations under these Terms & Conditions;
4.1.3 be responsible for obtaining any necessary import licences or permits necessary for the entry of the Products, or their delivery, and the Reseller shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of Products;
4.1.4 ensure that all End Customers will comply with the Customer Agreement and the applicable Google Reseller Terms;
4.1.5 comply, and ensure all End Customers comply, with any restrictions in respect of the use and distribution of the Products as set out in the relevant Product Schedule;
4.1.6 ensure that it informs all End Customers that access to and use of the Products is based on an annual or longer subscription (or other duration as agreed with Data Select) and that it will provide at least thirty (30) days’ advance notice to End Customers that the applicable subscription for a given Product will expire, unless the subscription is renewed by payment of the applicable price;
4.1.7 provide reasonable assistance to migrate any affected End Customers as requested by the relevant End Customer if the following occurs and the End Customer wishes to purchase the relevant Product from another company permitted by the Product Provider to distribute that same Product:
220.127.116.11 Data Select or the Reseller is no longer authorised to distribute a certain Product under the terms of the Data Select Agreement, including after termination of said agreement;
18.104.22.168 the Customer Agreement between Reseller and the End Customer terminates or expires for any reason and is not renewed.
4.1.8 employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Reseller’s obligations under these Terms & Conditions;
4.1.9 not make unethical and inaccurate representation of Data Select’s, the Product Provider’s or their Affiliates’ name, corporate image, Trade Marks, goodwill, Products and their associated services;
4.1.10 within 10 days of a written request from Data Select at any time, and from time to time, provide such information as is reasonably requested by Data Select or the Product Provider about the Reseller’s processes and controls to support compliance with these Terms & Conditions;
4.1.11 keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the Products and allow Data Select and/or the Product Provider (or their respective nominees, including without limitation its accountants or auditors), on reasonable notice, access to all accounts and records relating to the Products for the purpose of inspection. Data Select’s and/or the Product Provider’s costs of such inspection will be borne by Data Select and/or the Product Provider (as applicable) unless it shows a shortfall exceeding 5% in respect of any period to which the inspection relates between the amount actually paid by the Reseller and the amount due to be paid by the Reseller, in which event (without affecting or prejudicing any other rights Data Select or the Product Provider may have) the Reseller will pay in full Data Select’s and/or the Product Provider’s costs (as applicable) (which for the avoidance of doubt will include any reasonable costs of their respective nominees in carrying out the inspection) and the amount of the shortfall, within 14 days of the date of Data Select’s or the Product Provider’s invoice for such costs and/or shortfall; and
4.1.12 inform Data Select immediately of any changes in ownership or control of the Reseller and of any change in its organisation or method of doing business which might affect the performance of the Reseller’s duties pursuant to any Order and/or these Terms & Conditions.
4.2 The Reseller undertakes and agrees with Data Select to:
4.2.1 include, or notify all End Customers of, the Google Reseller Terms in its Customer Agreement as further specified in the applicable Product Schedule.
4.2.2 include any other terms as prescribed by Data Select in these Terms & Conditions (including the relevant Product Schedule) for inclusion in the Customer Agreement, in its Customer Agreements;
4.2.3 (i) keep copies of all of its Customer Agreements; and (ii) track and keep records of all online acceptances of Customer Agreements.
4.2.4 enforce each of its Customer Agreements with at least the same degree of diligence used by Reseller to enforce similar agreements for its own products, but in no event less than a reasonable degree of diligence.
4.3 The Reseller undertakes and agrees with Data Select and the Product Provider that it will not, and will not authorise any third party to, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
4.3.1 copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products (as applicable) in any form or media or by any means;
4.3.2 reverse engineer, disassemble, decompile, translate or modify the Products or any part of the Products (or attempt to do any of the foregoing) without the prior permission in writing from Data Select and the Product Provider;
4.3.3 use the Products other than for the Permitted Use; or
4.3.4 access all or any part of the Products in order to build a product or service which competes with the Products.
4.4 The Reseller shall promptly notify Data Select of any problems encountered regarding the function or operation of the Products, and shall inform Data Select of any resolution or suggestions to address such problems or to otherwise modify, redesign or improve the Products (“Feedback”). Data Select shall be entitled but not obliged to share such Feedback with the Product Provider. As between the Reseller, Data Select and the Product Provider, all Feedback is the exclusive property of the Product Provider, and the Reseller, to the extent it is able to, hereby assigns to the Product Provider all Feedback (including without limitation any patent, copyright, trade secret, or proprietary or intellectual property rights therein), at no cost to Data Select or the Product Provider. For the purpose of this clause, Feedback shall mean any and all oral and written test results, error data, reports or other information, feedback or materials made or provided by the Reseller, End Customers or any employee or agent of the Reseller to Data Select, the Product Provider or the Product Provider’s designates, to the extent relating to the Products, and other products of the Product Provider (released or unreleased) or any other Confidential Information disclosed to the Reseller by Data Select or the Product Provider hereunder, including without limitation reports regarding the performance of the Product, feedback on Product features and usability.
4.5 The Reseller acknowledges and agrees that the Product Provider may, in its sole discretion and without notice, determine to: (a) cease sales of any Products in part or in whole or support for new End Customers of any Products or (b) change any features of the Products.
4.6 The Reseller shall inform End Customers promptly after having been notified of any update, upgrade, new version or discontinuation of the Product.
4.7 The Reseller has the responsibility to provide the first line of contact and support for their direct End Customer. This involves undertaking at least ‘Level 1’ triage of issues and support in relation to the use of the Product.
5 Order process
5.1 Each Order or acceptance of a quotation for Products by the Reseller shall be deemed to be an offer by the Reseller subject to these Terms & Conditions. The Reseller shall ensure that its Order is complete and accurate.
5.2 Orders from Reseller may be submitted electronically to the email address designated and notified by Data Select for such purposes and any such submission shall constitute an Order for the purposes of these Terms & Conditions. No Order shall be binding on Data Select until accepted as set forth in clause 5.3 below. With respect to an electronically submitted Order, Reseller agrees to be bound by such electronic Order if it originated at Reseller’s business facility or by any of Reseller’s employees or other authorised agents.
5.3 Data Select has the unilateral right to accept or decline any Order placed by Reseller in its absolute discretion. The Order shall not be binding on Data Select unless and until the earlier to occur of the following:
5.3.1 Data Select issues a written Order acknowledgement to the Reseller;
5.3.2 Data Select (or the relevant Product Provider) provides a license key for the Products to the Reseller or End Customer; or
5.3.3 Data Select delivers the Products pre-installed on relevant equipment to the Reseller or End Customer.
5.4 The Reseller acknowledges that its Order shall be used by Data Select and the Product Provider for any and all billing and collection matters with respect to the ordered Product regardless of actual activation of the Products.
5.5 The Reseller acknowledges and agrees that Data Select will register each End Customer in a manner as specified by the Product Provider from time to time as necessary for activation and subscription or licence activation tracking. For the purpose of activation, the Reseller will collect from End Customers and End Users the Customer Data. The Reseller shall (a) ensure that the End Customer and End User has given explicit consent to the processing of the Customer Data as set out in, and for the purposes of, these Terms & Conditions and the Order and for the purposes of improving Products (or has established another lawful basis for such processing under European Data Protection Legislation and Non-European Data Protection Legislation (as applicable)) (b) comply with its obligations clauses 12.2 and 12.3 in respect of any Customer Data that is personal data collected for the purpose of activation, and (c) indemnify and hold harmless Data Select and the Product Provider from all costs, losses and expenses, including reasonable legal fees and expenses, arising out of its breach of this clause 5.5.
6. Data Select’s undertakings
Data Select undertakes to provide such information and support as may be reasonably required to enable the Reseller properly and efficiently to discharge its duties under any Order and these Terms & Conditions.
7. Prices and payments
7.1 The prices to be paid by the Reseller to Data Select for Products are to be as set out in the Order, or if not specified in an Order, the list prices as supplied by Data Select to Reseller from time to time and as amended by Data Select from time to time.
7.2 Any and all expenses, costs and charges incurred by the Reseller in the performance of its obligations under each Order and these Terms & Conditions shall be paid by the Reseller unless Data Select has expressly agreed beforehand in writing to pay such expenses, costs and charges.
7.3 Data Select will invoice the Reseller in relation to an Order at any time after that Order’s acceptance.
7.4 Unless otherwise set out in an Order or agreed by Data Select pursuant to the terms of any trade credit account granted to the Reseller, the Reseller shall pay the full amount invoiced to it by Data Select in pounds sterling within 30 days of the date of invoice or such period as is otherwise agreed in writing between the parties.
7.5 All amounts due pursuant to an Order or under these Terms & Conditions shall be paid by the Reseller to Data Select in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.6 The 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 purchase, importation, sale, lease or other distribution of the Products.
7.7 If the Reseller fails to make any payment due to Data Select pursuant to an Order or these Terms & Conditions by the due date for payment, then, without limiting Data Select’s remedies under clause 16, the Reseller shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Reseller shall pay the interest together with the overdue amount.
8. Advertising and promotion
8.1 The Reseller shall:
8.1.1 be responsible for the advertising and promotion of the Products provided that the use by the Reseller of any advertising materials and promotional literature containing the Trade Marks or other references to Products shall be subject to the prior written consent of Data Select;
8.1.2 observe all directions and instructions given to it by Data Select in relation to the promotion and advertisement of the Products to the extent that such promotions or advertisements refer to Products or otherwise use the Trade Marks, and shall not make any written statement as to the quality of Products without the prior written approval of Data Select;
8.1.3 conduct its business in a manner that reflects favourably at all times on Data Select and the Product Provider and the good name, goodwill and reputation of Data Select and the Product Provider and not enter into any contract or engage in any practice detrimental to the interests of Data Select or the Product Provider; and
8.1.4 avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Data Select, the Product Provider, Products or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to Data Select, the Product Provider or Products.
9.1 The Reseller shall:
9.1.1 comply 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);
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;
9.1.3 shall maintain in place at all times its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 9.1.2, and will enforce them where appropriate;
9.1.4 promptly report to Data Select any request or demand for any undue financial or other advantage of any kind received by the Reseller in connection with the performance of an Order and/or these Terms & Conditions;
9.1.5 immediately notify Data Select (in writing) if a foreign public official becomes an officer or employee of the Reseller and/or acquires a direct or indirect interest in the Reseller (and the Reseller warrants on a continuing basis that it has no foreign public officials as officers or employees and/or direct or indirect owners); and
9.1.6 at Data Select’s request provide evidence of compliance with this clause 9 by the Reseller and all persons associated with it and all other persons for whom the Reseller is responsible under clause 9.1.3 as Data Select may reasonably request.
9.2 Without prejudice to clause 24.1 the Reseller shall ensure that any person associated with the Reseller who is performing services in connection with the Products and these Terms & Conditions does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Reseller in this clause 9 (Relevant Terms). The Reseller shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to Data Select for any breach by such persons of any of the Relevant Terms howsoever arising.
9.3 Breach of this clause 9 shall be deemed a material breach, which is irremediable, under clause 16.2.2.
9.4 For the purpose of this clause 9, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 9 a person associated with the Reseller includes but is not limited to any subcontractor of the Reseller.
10. Intellectual property rights
10.1 Except as otherwise set out in these Terms & Conditions, no express or implied right is granted to Reseller regarding the Products, the technical and sales literature relating to the Products, software and the Trade Marks, and Reseller acknowledges that all Intellectual Property Rights in and to the Products, the technical and sales literature relating to the Products, software and the Trade Marks are the sole property of Data Select, the Product Provider or their Affiliates or licensors (as applicable).
10.2 The Reseller shall not remove, alter, modify or destroy any form of copyright, trade mark, logo, confidentiality notice or any other intellectual property right owned by the Product Provider from the Products or from related packaging or documentation.
10.3 Without prejudice to the right of the Reseller or any third party to challenge the validity of any Intellectual Property Rights of Data Select or the Product Provider or their respective Affiliates or licensors (as applicable), the 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 Data Select or the Product Provider or their respective Affiliates or licensors (as applicable) (as the case may be 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 The Reseller shall ensure that each reference to, and use of, any of the Trade Marks by the Reseller is in a manner approved from time to time by Data Select and accompanied by an acknowledgement in a form approved by Data Select that the same is a trade mark (or registered trade mark) of Data Select, the Product Provider or their respective Affiliates (as applicable) or their licensors (as the case may be).
10.5 The Reseller shall not:
10.5.1 use any Trade Mark in a manner that may disparage, diminish or tarnish the image of that Trade Mark or the reputation of Data Select, the Product Provider or their respective products or services (including the Products) or those of their respective licensors;
10.5.2 use any Trade Mark in any way which might prejudice its distinctiveness or validity or the goodwill of Data Select, the Product Provider, their respective Affiliates or their licensors (as applicable) therein;
10.5.3 use any trade marks other than the Trade Marks in relation to the Products without obtaining the prior written consent of Data Select; or
10.5.4 use any trade marks or trade names so resembling any trade mark or trade names of Data Select, the Product Provider, their Affiliates or their respective licensors as to be likely to cause confusion or deception.
10.6 Other than the licences expressly granted under these Terms & Conditions, neither Data Select nor the Product Provider grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in these Terms & Conditions, the Reseller shall have no rights in respect of any trade names or trade marks used by Data Select, the Product Provider or their respective Affiliates or licensors (as applicable) in relation to Products or their associated goodwill, and the Reseller hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Data Select, the Product Provider or their respective Affiliates or licensors (as applicable).
10.7 The Reseller shall promptly give notice in writing to Data Select in the event that it becomes aware of:
10.7.1 any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights in or relating to Products; and
10.7.2 any claim that any Product or the manufacture, use, sale or other disposal of any Product, whether or not under the Trade Marks, infringes the rights of any third party.
11.1 Neither party shall disclose any information received from the disclosing party (Discloser) that is identified orally or in writing as being confidential or proprietary in nature or used in a context where the receiving party (Recipient) should have reasonably understood that the information should be treated as confidential or proprietary, whether or not the words “confidential” or “proprietary” are used. Confidential or proprietary information includes, but is not limited to, technical, financial or commercial information, trade secrets, know-how, patents or patent pending filings, business plans, projections, marketing plans, product plans and costs, methods of operation, schematics, studies, proposal strategy, specifications, drawings, photographs, models, mock-ups, designs, test results, research, process and fabrication information, programming code, computer software, software tools and descriptions of functions and features of software, source code, computer hardware designs and all other related materials that contain or reflect in whole or in part any such information or materials. Before providing the Recipient with confidential or proprietary information the Discloser may require the Recipient to sign a non-disclosure agreement.
11.2 The Recipient shall protect the information referred to in clause 11.1 using the same degree of care as it uses to protect its own sensitive business information, but not less than a reasonable degree of care and shall not disclose such information to any third party without the prior written consent of the Discloser.
11.3 The Recipient may disclose confidential information to its employees on a “need to know basis”.
11.4 The obligations in this clause 11 shall not apply to confidential information:
11.4.1 which is in the public domain at the time of disclosure or becomes part of the public domain after disclosure otherwise than through a breach of this clause 11;
11.4.2 for which the Recipient can provide evidence that it was in its lawful possession prior to disclosure to it by the Discloser;
11.4.3 information independently developed by a party outside the scope of an Order/these Terms & Conditions without use of any of the other party’s confidential information; and/or
11.4.4 which is required to be circulated by governmental or judicial order or applicable law. Prior to disclosure, the Recipient shall provide notice to the Discloser of the information so as to permit the Discloser to take such actions to protect its information as it deems appropriate.
11.5 In the event the Recipient becomes legally compelled to disclose any confidential or proprietary information of the Discloser, the Recipient will provide the Discloser with prompt written notice so that the Discloser may seek a protective order or other appropriate remedy or waive compliance with the provisions of this clause 11. In the event that a protective order or other remedy is not obtained, or the Discloser waives compliance with the provisions of this clause 11, the Recipient will furnish only that confidential or proprietary information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the confidential or proprietary information so disclosed.
11.6 This clause 11 shall survive termination of these Terms & Conditions/the relationship of the parties.
12. Reseller privacy compliance
12.1 Google Android Enterprise Data Processing and Security Terms. Reseller will, and will ensure that each End Customer will, ensure that it has and will maintain a lawful basis to instruct the Product Provider to permit the processing of customer data under the Data Select Agreement and the Google Android Enterprise Data Processing and Security Terms.
12.2 Processing on Behalf of End Customers. If NonEuropean Data Protection Legislation or European Data Protection Legislation applies to Reseller’s processing of any personal data on behalf of any End Customer (including where that Customer is a controller under European Data Protection Legislation), Reseller acknowledges that it will be subject to the obligations imposed on it with respect to such processing under the Non-European Data Protection Legislation or European Data Protection Legislation or both, as applicable.
12.3 Default requirements for Processing on Behalf of End Customers. Without prejudice to any obligations of Reseller under clause 12.2 (Processing on behalf of End Customers):
12.3.1 Reseller will not process such data without first implementing appropriate terms in the applicable Customer Agreement for protection of such data and, unless otherwise agreed in an applicable Customer Agreement, Reseller will comply with Part A of Annex 1 (Data Processing Terms for Processing on Behalf of End Customers); and
12.3.2 if the European Data Protection Legislation applies to processing as processor of any personal data on behalf of any End Customer as controller, Reseller will ensure that the applicable Customer Agreement complies with Part B of Annex 1 (Data Processing Terms for Processing on Behalf of End Customers).
12.4 Interpretation. The terms “processing”, “personal data”, “processor” and “controller” as used in this clause 12 have the meanings given in the European Data Protection Legislation.
12.5 Product Provider’s Communications with Customers.
12.5.1 Mandatory Communications. Reseller agrees to provide Product Provider with contact details for each End Customer, and to ensure it has and will maintain a lawful basis to allow Product Provider to use such details to communicate directly with End Customers for the following purposes:
22.214.171.124 for purposes related to the provisioning of the Product(s) to End Customers’ accounts, including in relation to any Product updates or security incidents;
126.96.36.199 as required to ensure End Customers are notified of available options to maintain continuity in Product provisioning; and
188.8.131.52 to conduct customer service and satisfaction surveys.
12.5.2 Product Provider Product Information. Reseller will use reasonable endeavours to procure the appropriate consents from End Customers or their representatives or both, to allow Product Provider to use the End Customer details provided under 12.5.1 to inform End Customers about new or additional Product Provider products related to the Product(s) End Customers are using.
13.1 Each party represents, warrants and undertakes that:
13.1.1 it has full capacity and authority and all necessary consents to enter into and perform its obligations set out in these Terms & Conditions and to grant the rights and licences referred to in these Terms & Conditions; and
13.1.2 it shall comply with all applicable Legislation in the performance of its obligations under any Order and these Terms & Conditions.
14.1 The Reseller shall defend Data Select and the Product Provider including their respective staff, officers, directors, partners and controlling persons from and against any and all third party claims (Claims) and indemnify and hold harmless the Data Select and the Product Provider from all expenses, including reasonable legal fees and expenses, in connection with, arising out of, or relating to:
14.1.1 the Reseller’s alleged or actual negligent acts or omissions, wilful misconduct or fraud in connection with an Order and/or these Terms & Conditions; or
14.1.2 the Reseller’s alleged or actual breach of any Legislation.
15. Limitation of liability
15.1 The following provisions set out the entire financial liability of Data Select (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Reseller in respect of:
15.1.1 each and every Order and any breach of these Terms & Conditions howsoever arising; and
15.1.2 any representation, misrepresentation (whether innocent or negligent) statement or tortious act or omission (including without limitation negligence) arising under or in connection with each and every Order and any breach of these Terms & Conditions.
15.2 Except as expressly and specifically provided in these Terms & Conditions, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from these Terms & Conditions.
15.3 Nothing in these Terms & Conditions excludes the liability of Data Select:
15.3.1 for death or personal injury caused by Data Select’s negligence; or
15.3.2 for fraud or fraudulent misrepresentation; or
15.3.3 any other matter liability for which cannot lawfully be excluded or limited.
15.4 Other than in relation to any liability under clause 14 and subject to clause 15.3, Data Select shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
15.4.1 loss of profits; or
15.4.2 loss of business; or
15.4.3 depletion of goodwill or similar losses; or
15.4.4 loss of anticipated savings; or
15.4.5 loss of goods; or
15.4.6 loss of use; or
15.4.7 loss or corruption of data or information; or
15.4.8 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
15.5 Other than in relation to any liability under clause 14 and subject to clause 15.3, Data Select’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of an Order and/or these Terms & Conditions shall in all circumstances be limited to the greater of:
15.5.1 £5,000 (five thousand pounds sterling); and
15.5.2 the aggregate amount actually paid by the Reseller to Data Select pursuant to the relevant Order in the 12 months preceding the date on which the claim arose.
16. Term and termination
16.1 Notwithstanding the completion of the Order and the sale of Products, the obligations of the parties in respect of the relevant Product shall continue until the expiry or earlier termination of the subscription or licence period for the relevant Product that is the subject of the Order, on which date the agreement comprised of these Terms & Conditions shall automatically terminate.
16.2 Without affecting any other right or remedy available to it, Data Select may terminate each and every Order or these Terms & Conditions with immediate effect, and without liability to Reseller, by giving written notice to Reseller if:
16.2.1 Reseller fails to pay any amount due to Data Select on its due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or
16.2.2 Reseller commits a material breach of any other term of these Terms & Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
16.2.3 Reseller suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
16.2.4 Reseller commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
16.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Reseller; or
16.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Reseller; or
16.2.7 the holder of a qualifying floating charge over the assets of the Reseller has become entitled to appoint or has appointed an administrative receiver; or
16.2.8 a person becomes entitled to appoint a receiver over the assets of the Reseller or a receiver is appointed over the assets of the Reseller; or
16.2.9 a creditor or encumbrancer of the Reseller 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 the Reseller’s assets and such attachment or process is not discharged within 14 days; or
16.2.10 any event occurs, or proceeding is taken, with respect to the Reseller in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 16.2.3 to 16.2.9 (inclusive); or
16.2.11 Reseller suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
16.2.12 there is a change of control of the Reseller; or
16.2.13 the Reseller challenges or disputes the validity of any Intellectual Property Rights in or to the Products; or
16.2.14 the Reseller purports to assign any of its rights or obligations pursuant to an Order or these Terms & Conditions;
16.2.15 the Reseller fails to complete any validation process or subsequent trainings required by the Product Provider;
16.2.16 the Product Provider requires that Data Select terminate the involvement of the Reseller pursuant to the terms of the Data Select Agreement; or
16.2.17 the Data Select Agreement expires or is terminated (in whole or in part) for any reason.
17. Effects of termination
17.1 Upon termination or expiry of these Terms & Conditions for any reason and subject to any applicable “wind down” provisions that may apply to a particular Product under the Product Schedules:
17.1.1 all payments owed by one party to the other (including all amounts owed for the full original committed subscription or licence period even if the termination date is earlier than the committed order end date) become immediately due and payable;
17.1.2 the Reseller shall (at its sole cost) return (or at Data Select’s option, destroy) all media (subject to clause 17.1.3) on which Products are held;
17.1.3 the Reseller shall promptly return to Data Select, or otherwise dispose of as Data Select may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Reseller and relating to Data Select’s or the Product Provider’s business (other than correspondence which has passed between the parties) which the Reseller may have in its possession or under its control;
17.1.4 the parties shall have no further obligations or rights under these Terms & Conditions, without prejudice to those which have accrued to either party prior to termination or expiry save that clauses 1, 11, Error! Reference source not found., 13, 14, 15, 17 and 20 to 30 (inclusive) together with those other clauses the survival of which is necessary for the interpretation or enforcement of these Terms & Conditions or which by their nature can be reasonably interpreted as surviving the expiry or termination of these Terms & Conditions, shall continue to have effect after such expiry or termination; and
17.1.5 subject to the foregoing provisions of this clause 17.1, all rights and licences of the Reseller under these Terms & Conditions shall terminate.
17.2 The termination of an Order, these Terms & Conditions and/or the relationship between the parties shall not of itself give rise to any liability on the part of Data Select to pay any compensation to the Reseller for loss of profits or goodwill, to reimburse the Reseller for any costs relating to or resulting from such termination, or for any other loss or damage.
18. Compliance with laws
18.1 The Reseller shall comply at all times, at its own expense, with the provisions of all applicable federal, state, county and local laws, ordinances, regulations and codes, including procurement of any required permits or certificates in connection with the sale of Products. The Reseller acknowledges that the Products and technical information relating to them may be subject to U.S. and non-U.S. export laws and regulations and it shall not and shall not offer to, distribute or sell Products to any person or entity restricted by such laws and regulations without first obtaining all required licenses or other governmental approvals and complying with all applicable export control laws.
18.2 In the event the Reseller becomes aware of any Product that (i) poses a health or safety issue, which could reasonably be considered to create a substantial risk of injury to the public; or (ii) violates any applicable law, the Reseller shall immediately notify Data Select in writing, which writing shall include all information known by the Reseller in respect of such issue or violation, and in each case the Reseller acknowledges and agrees that Data Select is obliged and entitled to pass such information to the Product Provider.
19. Force majeure
Neither party shall in any circumstances be in breach of the terms of an Order and/or these Terms & Conditions nor liable for delay in performing, or failure to perform, any of its obligations an Order and/or these Terms & Conditions if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Reseller or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or nonperformance continues for two months, the party not affected may terminate the relevant Order(s) and/or these Terms & Conditions by giving 30 days written notice to the other party.
No failure or delay by a party to exercise any right or remedy provided under these Terms & Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.1 If any provision or part-provision of an Order and/or these Terms & Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of an Order and/or these Terms & Conditions (as the case may be).
21.2 If any provision or part-provision of an Order and/or these Terms & Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
22.1 These Terms & Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into an Order and these Terms & Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in that Order/these Terms & Conditions.
22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms & Conditions.
22.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of an Order and/or these Terms & Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24.1 The Reseller shall not, without the prior written consent of Data Select, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under an Order and/or these Terms & Conditions.
24.2 Data Select 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 these Term & Conditions and/or any Order.
25. No partnership or agency
25.1 Nothing in these Terms & Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
25.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
26. Third-party rights
Save in relation to the Product Provider who may enforce these Terms & Conditions as if it were a party to them/and any Order, no one other than a party to these Terms & Conditions, their successors and permitted assignees, shall have any right to enforce any of its terms. These Terms & Conditions may be amended without the consent of any party other than Data Select.
27. Rights and remedies
The rights and remedies provided under these Terms & Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
28.1 Any notice given to a party under or in connection with these Terms & Conditions shall be in writing and shall be delivered by hand or by pre-paid firstclass post or other next working day delivery service to that party’s registered office for the relevant time being or to such other address as that party shall notify to the other in accordance with this clause 28.
28.2 Any notice shall be deemed to have been received:
28.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
28.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
28.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
29. Governing law
These Terms & Conditions and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England.
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 these Terms & Conditions, their subject matter or their formation (including non-contractual disputes or claims). ANNEX 1 – DATA PROCESSING TERMS FOR PROCESSING ON BEHALF OF END CUSTOMERS PART A Reseller will do the following, at a minimum, with the respect to all personal data that it processes on an End Customer’s behalf:
(a) comply with, and only act on, instructions from or on behalf of that End Customer regarding the processing of that personal data;
(b) not process that personal data for any purpose other than for the performance of its obligations under the Customer Agreement;
(c) ensure that appropriate technical and organisational measures are taken to avoid unauthorised or unlawful processing of that data and against loss or destruction of, or damage to, that personal data;
(d) ensure the reliability of, and be responsible for, all of its employees, agents and contractors who will have access to that personal data;
(e) not, by any act or omission, place that End Customer in breach of Non-European Data Protection Legislation;
(f) inform that End Customer immediately of any suspected or confirmed data protection breaches or unauthorised or unlawful processing, loss, or destruction of, or damage to, that personal data; and
(g) ensure that any third party subcontractor engaged by it to process that personal data on behalf of End Customer only uses and accesses that data in accordance with the Customer Agreement and is bound by written obligations requiring it to provide at least the level of data protection required under this Part A.
Reseller will ensure that the applicable Customer Agreement commits it to do the following:
(i) only process personal data in relation to which the End Customer is the data controller in accordance with written instructions from or on behalf of that End Customer, unless European or National Law to which it is subject requires other processing of that personal data, in which case it will inform the End Customer (unless that law prohibits Reseller from doing so on important grounds of public interest);
(ii) not process that personal data for any purpose other than for the performance of its obligations under the Customer Agreement;
(iii) ensure that appropriate technical and organisational measures are taken to avoid unauthorised or unlawful processing of that data and against loss or destruction of, or damage to, that personal data;
(iv) ensure all of its employees, agents and contractors who will have access to that personal data have committed themselves to confidentiality or are otherwise under an appropriate obligation of confidentiality;
(v) not, by any act or omission, place that End Customer in breach of the European Data Protection Legislation;
(vi) inform that End Customer promptly and without undue delay of any data protection breaches or unauthorised or unlawful processing, loss, or destruction of, or damage to, that personal data;
(vii) obtain prior consent to engage any third party subcontractor to process that personal data on behalf of the End Customer, and ensure such third party subcontractor only uses and accesses that data in accordance with the terms of the Customer Agreement and is bound by written obligations requiring it to provide at least the level of data protection required under this Part B;
(viii) taking into account the nature of the processing, assist the End Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the End Customer’s obligations under the European Data Protection Legislation to respond to requests for exercising the data subject’s rights;
(ix) assist the End Customer in ensuring compliance with any applicable obligations under the European Data Protection Legislation related to security; breach notification; data protection impact assessments and prior consultation with the supervisory authorities, taking into account the nature of processing and the information available to it;
(x) at the choice of the End Customer, delete or return all the personal data to End Customer after the end of the provision of the Services, and delete existing copies unless prohibited from doing so by applicable European or National Law;
(xi) as from 25 May 2018, make available to the End Customer all information necessary to demonstrate its compliance with the obligations imposed by the Customer Agreement in respect of the personal data and allow for and contribute to audits, including inspections, conducted by End Customer or another auditor mandated by End Customer; and
(xii) not process, or cause to be processed, that personal data outside the European Economic Area, Switzerland or the UK unless Reseller adopts a compliance solution that enables the lawful transfer of personal data to a third country in accordance with European Data Protection Legislations.
Interpretation. The terms “processing”, “personal data”, “processor” and “controller” as used in this Part B have the meanings given in the European Data Protection Legislation. The term “European or National Law” as used in this Part B means, as applicable: (a) EU or EU Member State law (if the EU GDPR applies to the processing of the relevant personal data); and/or (b) the law of the UK or a part of the UK (if the UK GDPR applies to the processing of the relevant personal data).
Annex 2 – product schedules
Product schedule for Android Enterprise Essentials (AEE)
1. Additional license product restrictions
In addition to the license product restrictions in clause 4.3, Reseller also agrees that it will not, and will not authorise any third party to misuse location tracking and lock device features, an example of which includes using these features in ways that would not be reasonably expected by End Users or that is prohibited by the Product Provider in its AEE service documentation, to be provided, and as may be updated from time to time, by the Product Provider.
2. Reseller privacy compliance
3. Google validation process for resellers
Reseller must pass any and all validation process administered and monitored by the Product Provider as requested from time to time. Reseller must also complete trainings available at http://androidenterprise.training promptly as requested from time to time. Should Reseller fail to complete any such validation process or subsequent trainings, Reseller shall lose its ability to distribute AEE and Reseller will be responsible for assisting End Customers with corrective efforts.
4. Google reseller terms for inclusion in customer agreements
At a minimum, Reseller will include the following terms in all Customer Agreements:
(a) Customer will use the Account Management Portal solely for the purpose of creating and managing Customer accounts, enrolling to and managing devices on the AEE, and accessing any administrative and / or operational actions supported by AEE.
(b) Customer may not use AEE features in violation of applicable law, or to encourage or promote illegal activity or violation of third party rights. Additionally, Customer may not violate any other terms of service with Google (or its Affiliates).
(c) Customer may not misuse location tracking and lock device features, such as using these features in ways that would not be reasonably expected by End Users.
(d) Customer will ensure it has a lawful basis to instruct Google regarding the processing of Customer Data (as defined in the Google Android Enterprise Data Processing and Security Terms) under the Agreement and Product Schedule.
(e) Customer will ensure that it has a lawful basis to permit the installation, on End User devices, of applicable device configuration and administration applications required to enable and support AEE.
(f) Google is not liable or responsible to Customer and its End Users for issues with AEE.
(g) Company must work in good faith with Customer(s) to resolve initial troubleshooting and provide Customer support. After which, if Company is unable to resolve Customer issues, Company may escalate to Google for assistance. Google has no obligation to provide support to Customers.
(h) Customer agrees that Google has no obligation to provide Customer with advance notice of any changes in any Product(s).
(i) If Google determines that Customer has violated any of its rights and obligations provided in this Section above, Google reserves the right to suspend Customer’s access to AEE without notice to, and without incurring any liability to Company or Customer.
(j) Any other terms that Google may notify Company of as needing to be included in Customer Agreements for which Google will provide Company with reasonable advance notice.
5. Additional wind down reseller requirements
Following a termination of these Terms & Conditions or all Orders, in addition to Reseller’s obligations in clause 17, Reseller shall also comply with the following additional wind down requirements specific to AEE:
(a) Reseller will notify all End Customers 90 days prior to end of Reseller offering AEE,
(b) Reseller will make available to Data Select and Product Provider a plan of transition,
(c) Data Select or Product Provider may provide Reseller with suggested companies to transition End Customers to,
(d) Reseller will make available to Data Select and Product Provider any and all information on End Customers to facilitate transition of services, and
(e) Product Provider at any time may re-assign End Customers to other companies should Product Provider deem that Data Select and Reseller cannot successfully transition End Customers during the defined wind down period.