Terms and Conditions for the Resale of SOTI Products & Services

1 INTERPRETATION

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.

Confidential Information means all confidential and sensitive information disclosed by one party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

Customer Data: means the data provided in connection with an Order.

Data Protection Legislation: means EU General Data Protection Regulation 2016 (GDPR) the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time and where applicable the guidance and codes of practice issued by the United Kingdom’s Information Commissioner.

Data Select: means Westcoast Limited trading as Data Select incorporated and registered in England and Wales with company number 01816587;

End Customer: is the final purchaser and/or licensee of a Product and who uses it 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.

EULA: the end user licence agreement(s) applicable to any Product and incorporated by reference the current version(s) of which is/are available at https://www.soti.net/about/legal/ (or such other URL/weblink as notified by the Product Provider from time to time) as that/those end user licence agreement(s) may be amended from time to time by the Product Provider in its sole and absolute discretion.

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.

Good Industry Practice means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances.

Instance means a single deployment of the Software, as identified by a license key.

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.

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.

Price means the price chargeable by Data Select to the Reseller for the Products from time to time as provided for in these Terms & Conditions.

Product Provider: means SOTI 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.

Relevant Requirements: has the meaning set out in clause 9.1.1;

Reseller: means you, the person placing the Order with Data Select;

Service(s) means the support and maintenance services with respect to the Product.

Territory: means the United Kingdom or such other territory agreed by Data Select in relation to a specific Order;

Trade Marks: means any logos, brand names, domains, trademarks, service marks and trade names licensed or owned by Data Select, the Product Provider or their respective Affiliates.

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 e-mail.

1.9 References to clauses are to the clauses of these Terms & Conditions.

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 APPOINTMENT

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 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 of Data Select for any purpose, nor pledge Data Select’s credit nor give any condition or warranty or make any representation on Data Select’s behalf nor commit Data Select to any contracts. Further, the Reseller shall not without Data Select’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 (including, without limitation, the EULA) or its licensor of the relevant Product or otherwise incur any liability on behalf of Data Select 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 as set out in these Terms & Conditions.

3.5 The Reseller’s appointment under clause 3.1 only grants to the Reseller a licence to resell the Products, 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 within the Territory in accordance with these Terms & Conditions;

4.1.2 not solicit Orders for Products, advertise the Products, or maintain any branch for marketing the Products outside the Territory;

4.1.3 comply with all applicable laws in respect of the exercise of its rights and performance of its obligations under these Terms & Conditions;

4.1.4 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;

4.1.5 ensure that End Users of the Products are aware of and accept the terms and conditions of the EULA before using the Products;

4.1.6 refrain from amending or varying the terms of the EULA;

4.1.7 employ a sufficient number of competent and qualified personnel to ensure the proper fulfilment of the Reseller’s obligations under these Terms & Conditions;

4.1.8 maintain sufficient facilities and procedures to carry out its obligations under these Terms & Conditions and to ensure that the Products are transmitted securely;

4.1.9 comply with all relevant practices, standards and procedures as outlined within these Terms & Conditions, comply with any and all of Product Provider’s authorised reseller/MSP program requirements in effect from time to time, and conduct its activities in accordance with Good Industry Practice;

4.1.10 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. During and after the term of these Terms & Conditions, Reseller shall take all reasonable efforts not to take any action which may harm the reputation of Data Select, the Product Provider or their Affiliates, or which would reasonably be expected to lead to unwanted or unfavourable publicity. Reseller agrees to forebear from making, causing to be made, publishing, ratifying or endorsing any and all disparaging remarks, derogatory statements or comments made regarding Data Select, the Product Provider or their Affiliates, or the Products;

4.1.11 promptly report to Data Select any complaints, problems or claims relating to the Products and/or their support that Reseller is made aware of to enable Data Select to request that the Product Provider issue out any patches or corrections to the Product as the Product Provider deems appropriate;

4.1.12 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;

4.1.13 keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to its i) purchases of the Products and ii) its sales of the Products to End Customers. Reseller shall keep such records for a period of at least three (3) years and allow Data Select and/or the Product Provider (or their respective nominees, including without limitation its accountants or auditors), on reasonable notice, to inspect, audit and copy these records during normal business hours on Business Days; and

4.1.14 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 that it (i) will not and (ii) shall inform its End Customers they are not permitted to:

4.2.1 copy, modify, manufacture, enhance, upgrade, 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; or

4.2.2 reverse engineer, disassemble, decompile, translate, adapt, extend or modify the Products or any part of the Products (or attempt to do any of the foregoing);

4.2.3 use the Products other than for the permitted purpose as set out in the relevant EULA;

4.2.4 access all or any part of the Products in order to build a product or service which competes with the Products.

5 ORDER PROCESS

5.1 Unless indicated as otherwise, quotes for Products will be valid for thirty (30) calendar days from the date the quote was issued. An extension of validity may be granted by Data Select in writing at its sole and exclusive discretion.

5.2 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.

5.3 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 5.4 below. Once an Order has been accepted by Data Select it shall be final and binding upon both parties and subject to these Terms & Conditions.

5.4 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:

5.4.1 Data Select issues a written Order acknowledgement to the Reseller;

5.4.2 Data Select (or the relevant Product Provider) provides a license key for the Products to the Reseller or End Customer; or

5.4.3 Data Select delivers the Products pre-installed on relevant equipment to the Reseller or End Customer.

5.5 Services for all Products within the same deployed Instance must terminate on the same date. For Orders where additional Product is being purchased for an existing Instance, the End Customer may, at its option, either: i) pro-rate the default Service period of the additional Product to terminate simultaneously with the existing Products associated with the deployed Instance; or ii) pay to extend the Service period of the existing Products associated with the deployed instance to co-terminate with the Service period of the additional Product being purchased. In addition to the aforementioned conditions, a deployed Instance must have a valid and active Service period for existing Product before Reseller may purchase additional Product associated with the deployed Instance.

5.6 If the Product fails to perform in accordance with Product specifications, the End Customer shall promptly advise the Product Provider of the defect within thirty (30) calendar days of purchase and/or installation and shall assist the Product Provider in identifying and correcting the defect. Upon the End Customer promptly advising the Product Provider of the defect, the Product Provider shall, within a reasonable timeframe, identify and correct the defect in accordance with the Product Provider’s standard service level agreement. In the event that the Product fails to meet the Product specifications within the timeframes established by the Product Provider’s standard service level agreement, the End Customer may terminate the license for the Product and the Data Select shall be obliged to refund or apply credit to the Reseller’s account the fees received by Data Select for Products or Services not delivered to or enjoyed by the End Customer. The issuance of refund or credit shall remain in Data Select’s sole and exclusive discretion.

6 DATA SELECT’S UNDERTAKINGS

6.1 Data Select undertakes to provide such information and support as may be reasonably requested by the Reseller to enable it properly and efficiently to discharge its duties under any Order and these Terms & Conditions.

6.2 Upon written request and subject to these Terms & Conditions, Data Select will provide Reseller a non-transferable (except to Affiliates), non-sublicensable, non-exclusive license to demonstrate Product to End Customers. Any such access to a free trial period and/or demonstration environment for the Reseller will be at no cost to Reseller. Trial license availability is subject to the End Customers to accepting the terms of use for the Product and are limited to thirty (30) days, and twenty (20) devices, unless agreed otherwise between the Reseller, Data Select and the Product Provider.

6.3 As soon as is reasonably practicable, inform the Reseller of the Product Provider’s intention to withdraw, discontinue, modify or replace any of the Products

7 PRICES AND PAYMENT

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 as amended by Data Select from time to time.

7.2 Data Select shall have the right to adjust its MSRP Prices (as an increase or decrease) at its sole and exclusive discretion, no more than once every six (6) months, upon thirty (30) days’ advance written notice to the Reseller, after which such price increases shall take immediate effect. MSRP Prices shall be SOTI’s standard Prices (before any allowed discounts or rebates) at the time that the Reseller orders the Products. All Orders received by Data Select prior to the effective date of any price adjustment shall be processed by Data Select at the price in effect at the time of Order. All quotes issued by Data Select prior to the effective date of any price adjustment shall remain in effect until the expiration date of the quote.

7.3 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.

7.4 Data Select will invoice the Reseller in relation to an Order at any time after that Order’s acceptance.

7.5 Unless otherwise agreed by Data Select in writing, the Reseller shall pay the full amount invoiced to it by Data Select in pounds sterling within 30 days of the date of invoice.

7.6 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).

7.7 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.

7.8 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 using reasonable endeavours to advertise and promote the Products in the Territory in accordance with these Terms & Conditions and obtaining the prior written consent of Data Select to use any advertising materials and promotional literature containing the Trade Marks or other references to Products;

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 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 and the Product Provider in the Products; 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.

8.2 Reseller acknowledges and agrees that Data Select, the Product Provider and its Affiliates own all rights, title, and interest in and to the Trade Marks. Reseller will not attempt to register any of these Trade Marks, alone or as part of its own service marks, trade marks, or trade names within any other governmental entity. Except as expressly authorized by Data Select in writing, Reseller shall not use the Trade Marks or any similar licensed property as, or as part of, a trademark, service mark, trade name, fictitious name, company or corporate name, or internet domain name anywhere in the world. In connection with its use of the Trade Marks, Reseller will not in any manner represent that it has any ownership right in the Trade Marks, and Reseller acknowledges that all use of the Trade Marks by the Reseller shall inure to the benefit of Data Select, the Product Provider and its Affiliates.

9 ANTI-BRIBERY

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 by: a) all of that party’s personnel; (b) all others associated with that party; and (c) all of that party’s subcontractors;

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 promptly notify Data Select as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 9;

9.1.6 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

9.1.7 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 23.1 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 irredeemable, 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, including any enhancement thereto, are the sole and exclusive property of Data Select, the Product Provider or their Affiliates or licensors (as applicable).

10.2 The Reseller shall not remove, alter, deface, modify or destroy any form of copyright, Trade Mark, patent number, 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).

10.5 The Reseller shall:

10.5.1 not use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Data Select, the Product Provider or their respective Affiliates (as applicable) therein;

10.5.2 not use any Intellectual Property Rights owned by Data Select, the Product Provider or its Affiliates or any Trademark as, or as part of, any corporate, domain or business name without obtaining the prior written consent of the relevant party;

10.5.3 not use or register any trade marks, design, domain name, logo or trade names which is identical or similar to any Intellectual Property Rights so resembling those of Data Select, the Product Provider or their Affiliates as to be likely to cause confusion or deception; or

10.5.4 distribute and sell the Products only under the Trademarks, and not use on or in relation to the Products in the Territory any trademark other than the Trademarks.

10.6 Other than the licences expressly granted under these Terms & Conditions, neither party 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.

10.8 The Reseller shall ensure that none of the Trade Marks of Data Select, the Product Provider or its Affiliates (or any variation thereof), appears in any portion of Reseller’s name or names under which Reseller may do business.

10.9 Data Select reserves all rights to revoke any limited rights that Reseller may have under this clause 10 at any given time without notice.

11 CONFIDENTIALITY

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 this information using the same degree of care as it uses to protect its own Confidential Information, but not less than a reasonable degree of care and shall not disclose such information to any third party or outside the scope of these Terms & Conditions without the prior written consent of the Discloser.

11.3 The Recipient may disclose Confidential Information to its employees, contractors and agents on a “need to know basis” following them signing confidentiality agreements with the Recipient containing protections no less stringent than those herein.

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, cancellation or expiry of these Terms & Conditions/the relationship of the parties.

11.7 Upon the termination or expiration of these Terms & Conditions/the relationship of the parties, the Recipient shall promptly return any Confidential Information provided by the Discloser and permanently destroy any backups or copies, including any Confidential Information which may have been disclosed during the term of these Terms & Conditions/the relationship of the parties.

12 PROTECTION AND PROCESSING OF PERSONAL DATA

12.1 Customer Data shall be collected by Data Select and collected and hosted by the Product Provider in order to process Orders. For the avoidance of doubt, neither Data Select nor Resellers have physical access to any data processed by the Products themselves and the Product Provider will be responsible to the End Customer in respect of the processing of any such data in accordance with the EULA.

12.2 Each party shall comply with their respective obligations under the Data Protection Legislation. The Reseller acknowledges that it may process certain contact information relating to the employees, agents or contractors of End Customers or of End Users for the purposes of communicating with such purposes in connection with the sale and support of Products.

12.3 Where the Reseller or any of its sub-contractors, as part of the fulfilment of its obligations under each Order and on behalf of Data Select as a controller, the Reseller shall:

12.3.1 process the Personal Data, subject to clause 12.3.5, only for the duration of the relevant subscription or licence of the Product;

12.3.2 process the Personal Data only to the extent necessary for the purposes of performing its obligations under these Terms & Conditions or the EULA and otherwise in accordance the documented instructions of Data Select, the Product Provider and in accordance with applicable laws. If the Reseller considers that any of Data Select’s instructions infringe Data Protection Legislation, the Reseller shall notify the Data Select immediately;

12.3.3 ensure that all persons authorised by it to process the Personal Data are subject to appropriate duties of confidentiality;

12.3.4 have at all times during the term of the relevant subscription or licence appropriate technical and organisational measures in place to protect any Personal Data against unauthorised or unlawful processing and against accidental loss, alteration, destruction or damage;

12.3.5 cease processing the Personal Data immediately upon the termination or expiry of a subscription or licence or, if sooner, on cessation of the contractual activity to which it relates and, at the Data Select’s election, delete or return all Personal Data to Data Select, and delete all existing copies unless applicable law requires their retention;

12.3.6 make available to the Data Select all information reasonably necessary to demonstrate compliance with the obligations set out in this clause, and allow for and contribute to audits, including inspections, conducted by the Data Select, the Product Provider or their respective representatives;

12.3.7 at the earliest opportunity and in any event within 24 hours after having become aware, notify Data Select of any unauthorised or unlawful processing of any of the Personal Data to which this clause applies and of any loss or destruction or other damage and shall take such steps consistent with good industry practice to mitigate the detrimental effects of any such incident on the Data Subjects and fully co-operate with Data Select and the Product Provider in dealing with such incident and its consequences;

12.3.8 co-operate as requested by Data Select to enable Data Select to comply with any exercise of rights by a Data Subject under the Data Protection Legislation in respect of Personal Data processed by the Reseller under these Terms & Conditions and / or comply with any assessment, enquiry, notice or investigation by the relevant supervisory authority which shall include the prompt provision of all Personal Data requested by Data Select; and

12.3.9 assist Data Select in ensuring its compliance with Data Protection Legislation with the obligations in respect of security of Personal Data, notifications of breaches of Data Protection Legislation to supervisory authorities, communications of breaches of Data Protection Legislation to Data Subjects, the carrying out of data protection impact assessments and any consultations with supervisory authorities.

12.4 The Reseller shall not engage sub-processors of the Personal Data in relation to the performance of its obligations under these Terms & Conditions without Data Select’s prior approval.

12.5 The Reseller shall not process the Personal Data in any country outside the United Kingdom without Data Select’s prior written consent and provided that:

12.5.1 the Reseller has ensured that there are appropriate safeguards in relation to the transfer and processing in accordance with Data Protection Legislation and as determined by Data Select;

12.5.2 the Data Subject has enforceable rights and effective legal remedies;

12.5.3 the Reseller complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

12.5.4 the Reseller complies with Data Select’s reasonable instructions.

12.6 The Reseller acknowledges that Data Select is under certain record keeping obligations under the Data Protection Legislation, and agrees to provide Data Select with all reasonable assistance and information required by Data Select to satisfy such record keeping obligations.

12.7 In this clause 12, “Controller”, “Processor”, “Data Subject”, “Personal Data” and “process” and shall each have the meanings given in the applicable Data Protection Legislation.

13 WARRANTIES

Each party represents, warrants and undertakes that:

13.1 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

13.2 it shall comply with all applicable Legislation in the performance of its obligations under any Order and these Terms & Conditions.

14 INDEMNITIES

14.1 The Reseller shall defend Data Select including its staff, officers, directors, partners, agents and controlling persons from and against any and all third party claims (Claims) or End Customer claims and indemnify and hold harmless Data Select 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 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 revenue, sales or business; or

15.4.3 wasted expenditure; or

15.4.4 loss of agreements or contracts; or

15.4.5 depletion of goodwill or similar losses; or

15.4.6 loss of anticipated savings; or

15.4.7 loss of goods; or

15.4.8 loss of use; or

15.4.9 loss or corruption of data or information; or

15.4.10 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

15.5 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 aggregate amount actually paid by the Reseller to Data Select pursuant to all Orders in the 12 months preceding the date on which the claim arose.

16 TERM AND TERMINATION

16.1 Subject to the remaining provisions of this clause, each Order shall terminate on the contract end date as specified on that Order.

16.2 Without affecting any other right or remedy available to it, Data Select may terminate each and every Order 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 commits a series of breaches which together may reasonably be considered to constitute a material breach of these Terms & Conditions; or

16.2.4 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

16.2.5 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

16.2.6 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

16.2.7 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

16.2.8 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

16.2.9 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

16.2.10 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

16.2.11 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 16.2.4 to 16.2.10) (inclusive); or

16.2.12 Reseller suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

16.2.13 there is a change of control of the Reseller ; or

16.2.14 the Reseller challenges or disputes the validity of any Intellectual Property Rights in or to the Products; or

16.2.15 the Reseller purports to assign any of its rights or obligations pursuant to an Order or these Terms & Conditions; or

16.2.16 the Reseller brings the reputation of Data Select or the Product Provider into disrepute or does anything likely to cause harm to their reputation

17 EFFECTS OF TERMINATION

17.1 Upon cancellation, termination or expiry of an Order for any reason:

17.1.1 the Reseller shall (at its sole cost) return (or at Data Select’s option, destroy) all media (subject to clause 17.1.2) on which Products are held;

17.1.2 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; and

17.1.3 the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced;

17.1.4 subject to the foregoing provisions of this clause 17.1, all rights and licences of the Reseller under these Terms & Conditions shall terminate;

17.1.5 Reseller shall certify to Data Select that any and all Product within Reseller’s possession or control and subject to these Terms & Conditions have been destroyed or removed from Reseller’s equipment;

17.1.6 each party shall return or (at the other’s request) securely destroy all Confidential Information and other property of the other then in its possession or control and shall certify in writing that this has been done;

17.1.7 the Reseller shall provide Data Select with an up-to-date list of active End Customers who have purchased the Products directly from Reseller, if any, and any other information that Data Select may reasonably require in order to ensure that the Product Provider is able to continue to support the Products.

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.

17.3 Both parties will continue to deliver under, and in accordance with, any agreement for Product entered into with any End Customer prior to the effective date of such expiration or termination. These Terms & Conditions will continue to apply to the extent applicable to the parties’ performance under any outstanding Product agreement. The Product Provider will continue to deliver support for Product to End Customers holding valid licenses on the condition that Data Select has been given payment in full for said Product.

18 FORCE MAJEURE

Except for payment obligations for Products delivered, neither party shall be liable for any delays or other non-performance resulting from circumstances or an event of circumstances beyond its reasonable control that are not due to the negligence or misconduct of the party claiming relief under this clause 18, including, without limitation, fire or other casualty; act of God; war, terrorism or other violence; any law, order or requirement of any governmental agency or authority; or other causes beyond the reasonable control of such party, provided that such party has informed the other party of such force majeure event promptly upon the occurrence thereof (including a reasonable estimate of the additional time required for performance to the extent determinable) and such party uses reasonable commercial efforts to effect the required performance as soon as reasonably practicable.

19 WAIVER

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. A waiver of any term, provision, condition or breach of these Terms & Conditions shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

20 SEVERANCE

20.1 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).

20.2 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.

21 ENTIRE AGREEMENT

21.1 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.

21.2 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.

21.3 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.

21.4 Nothing in this clause shall limit or exclude any liability for fraud.

22 VARIATION

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).

23 ASSIGNMENT

23.1 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.

23.2 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.

24 NO PARTNERSHIP OR AGENCY

24.1 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.

24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

25 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.

26 RIGHTS AND REMEDIES

26.1 The rights and remedies provided under these Terms & Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

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

27 NOTICES

27.1 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 first-class 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 27.

27.2 Any notice shall be deemed to have been received:

27.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or

27.2.2 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.

27.3 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.

28 WARRANTY, LIMITATION OF LIABILITY

The Reseller shall not make any warranty commitment beyond the limited warranty provided with the Product and shall hold of Data Select, the Product Provider and its Affiliates harmless from any warranty made by Reseller which goes beyond the limited warranty.

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.

30 JURISDICTION

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).

Last updated: 24 May 2023