Agreement means the Trading Terms for Smoothwall Partners, comprising: (i) Part A: Partner Contract; (ii) Part B: Smoothwall Partner Programme; (iii) Part C: these Appointment Terms; (iv) Part D: Terms and Conditions of Supply; and (v) Annex – Service Level Agreement;
Appointment Date means the date upon which the appointment of the Partner is intended to commence, as set out in Part A of this Agreement;
Confidential Information means any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know‐how, personnel and suppliers of the disclosing party, including personal data, and any information recorded in writing and electronically relating to and forming part of the Products, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential;
End Users means the ultimate users of the Products and/or Services;
Force Majeure means any circumstances beyond the reasonable control of Smoothwall, including fire, flood or other extraordinarily severe weather conditions, acts of God, war, riot or armed conflict, epidemic or pandemic, acts of terrorism, raw materials or labour shortages, failure of suppliers, industrial relations difficulties, strikes, lock‐outs, failure in plant or equipment or similar matters;
Intellectual Property Rights means any and all patents, designs or trademarks (whether registered or unregistered), copyright, computer software and programs, rights in data and databases, know‐ how and/or other industrial or intellectual property rights existing anywhere in the world, whether now known or future and including any applications for any of the foregoing;
Law(s) means any law, regulation, statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party;
Loss means any and all losses, including any loss of revenue or business, loss of profit, liabilities, damages, costs (including legal costs and disbursements), expenses, claims, demands, actions or proceedings howsoever arising and suffered or incurred by Smoothwall in each case whether or not the loss arose in the ordinary course of business or was otherwise reasonably foreseeable;
NFR Products means the ‘not for resale’ products and services that Smoothwall provides to the Partner solely for use for their normal business activities in conjunction with this Agreement, such as for customer training, demonstrations and evaluation purposes;
Partner Programme means the trading programme for different types of partner operated by Smoothwall from time to time, as described in detail in Part B of the Agreement;
Product(s) means hardware and software products provided by Smoothwall under the Agreement, including all Smoothwall branded hardware provided as part of, and for use, in the provision of the Software Products, third party software, open source software and Services including information and communication technology, network components and other computing devices;
Service Level Agreement means the document setting out the agreed support and performance levels in respect of the Services, which appear as the Annex to the Agreement;
Services means such services including consultancy, delivery, installation, training, managed services, cloud/hosted services or Support Services as are provided by Smoothwall and/or the Partner (as appropriate) to the End‐User in accordance with this Agreement, as may be amended by the inclusion of additional services from time to time;
Software Products means the software internet security products provided by Smoothwall;
Support Services means the maintenance and technical support services as described in the Service Level Agreement; and
Territory means the territory in respect of which the Partner is appointed by Smoothwall, as confirmed in the Special Terms in Part A of the Agreement.
1.2. In these Appointment Terms, (unless the context requires otherwise):
(a) a reference to a statute or statutory provision is a reference to it as amended, extended or re‐ enacted from time to time;
(b) any headings are for convenience only and shall not affect the meaning of these Appointment Terms
(c) words denoting the singular shall include the plural and vice versa; and words denoting any one gender shall include all genders;
(d) words denoting persons shall include individuals, bodies corporate, unincorporated associations and partnerships.
2.2. The appointment of the Partner shall renew automatically upon the expiry of the Appointment Period, and continue indefinitely thereafter, provided that either party may terminate the appointment of the Partner at any time on giving not less than 30 days prior written notice to other, such notice to take effect on the next anniversary of the Appointment Date.
3.2. The Partner shall not without the prior written agreement of Smoothwall (and without prejudice to its ability to respond to inbound sales enquiries) undertake proactive marketing or sales of the Products or Services outside of the Territory:
(a) to countries outside of the European Economic Area (EEA), or;
(b) to countries or customer groups within the EEA that have been exclusively allocated to another partner or distributor.
3.3. The Partner understands that NFR Products may only be used for its own internal business purposes (such as customer training, demonstrations and evaluations), and must not be resold nor used to provide other commercial services to customers or associates.
3.4. The Partner acknowledges that Smoothwall has based its decision to appoint the Partner pursuant to the Agreement on the details the Partner has provided to Smoothwall, and accordingly the Partner represents, warrants and undertakes to Smoothwall that the all of the information it has provided is accurate and complete in all material respects.
3.5. No representation, claim or warranty has been made by Smoothwall, its employees, agents or representatives relating directly or indirectly to the level of income or business which the Partner is likely to earn as a result of being awarded the right to be partner for Smoothwall in accordance with the terms of this Agreement. The success of the business venture contemplated to be undertaken by the Partner by virtue of this Agreement is speculative and depends, to a large extent, upon the ability of the Partner as an independent business, as well as other factors. Smoothwall makes no representation or warranty, express or implied, as to the potential success of the business venture contemplated herein.
3.6. Any and all expenses, costs and charges incurred by the Partner in the performance of its obligations under this agreement shall be paid by the Partner, unless Smoothwall has expressly agreed in advance in writing to pay such expenses, costs and charges.
3.7. Smoothwall reserves the right to send email and potentially other communications to customers of the Partner covering topics such as technical announcements, product and service developments as well as general company news.
5.1. supply Products and Services to the Partner upon and subject to the terms of this Agreement, including the Supply Terms forming Part D of the Agreement;
5.2. provide such general sales support as Smoothwall shall determine the Partner reasonably requires and provide technical support based on the Partner Programme they join (as detailed in Part B of the Agreement); and
5.3. endeavour to inform the Partner at least three months in advance in the event Smoothwall decides at its discretion to stop supplying any of the Products and Services.
(a) The Partner shall use its best endeavours to promote, market and sell the Products and Services so as to satisfy the full potential market demand in the Territory.
(b) The Partner shall:
(i) promptly comply with such other directions and/or requirements in relation to the marketing and sale of the Products and Services which Smoothwall may from time to time notify to the Partner including without limitation those provided for in the Partner Programme;
(ii) submit all sales, technical, advertising, and promotional materials produced by the Partner for approval by Smoothwall prior to their use (and the Partner hereby assigns to Smoothwall by way of present assignment of future copyright all the rights in such materials);
(iii) maintain an active and suitably trained sales force and be fully responsible for all selling and sales support activities in the Territory;
(iv) maintain a high level of customer service; and
(v) provide an agreed after sales service for customers in relation to the Products.
The Partner shall:
(a) where required by the Partner Programme, prepare and submit sales forecasts and all reports to Smoothwall; and
(b) comply with the end user support and staff training requirements as specified in the Partner Programme.
6.3. Compliance with the laws:
The Partner shall:
(a) comply with all laws from time to time in force relating to the storage and sale of the products; and
(b) notify Smoothwall without delay of all prosecutions, indictments and other like proceedings threatened or commenced against the Partner, or its customers, by reason of any failure of the Products or Services to meet the conditions and standards required by law in the Territory.
(c) (having regard to the current statutory or other United States, United Kingdom or European Union regulations in force from time to time and, in the case of products manufactured in the United States of America or containing software or technology originating in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Partner to Smoothwall of an ultimate destination for any Products), not export or re‐export directly any Products and/or Services without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
6.4. Integrity of Products and Services:
The Partner shall not make any alteration or addition to the design, construction or specification of the Products or Services without the prior written consent of Smoothwall, or use, in relation to the Products or Services, Smoothwall;
(a) to the extent that the Products consist of or include software, the Partner shall, in all cases where it is able to do so, act as the Smoothwall’s agent to procure that End Users enter into software licences with respect to Products directly with Smoothwall;
(b) the Partner shall, in all cases where it is able to do so, be required to make End Users aware of:
(i) the Smoothwall software license
(ii) the limited hardware warranty (if Smoothwall hardware supplied)
(iii) the Smoothwall Service Level Agreement if, as in most instances, ongoing technical support is provided by Smoothwall rather than Partner
6.6. General Obligations:
(a) The Partner shall conduct its business in a manner that reflects favourably at all times on Smoothwall and the good name, goodwill and reputation of Smoothwall and not enter into any contract or engage in any practice detrimental to the interests of Smoothwall in the Products and Services.
(b) The Partner shall not:
(i) copy any product’s ‘look and feel’, design or source code or any part of any of them except to the extent and for the purposes expressly permitted by this Agreement; or
(ii) modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Products, except and only to the extent that it is expressly permitted by applicable law.
7.2. The Partner will indemnify, hold harmless, and, at Smoothwall’s election, defend Smoothwall and its affiliates from and against all claims and related demands, liabilities, damages, and attorney’s fees, that arise from:
(a) a false or unauthorised representation by the Partner related to the Products, the Services, or this Agreement, or
(b) an action or omission by the Partner in connection with the Partner’s sales or promotion of the Products or Services.
7.3. Smoothwall will give the Partner prompt written notice of any claim to which Clause 7.2 may apply, and Smoothwall may in such event, at its sole option, permit the Partner to conduct the defence of such claim. If Smoothwall confirms in writing that such claim is within the Partner’s indemnification obligation under Clause 7.2, Smoothwall will in such a case provide, at the Partner’s expense, reasonable cooperation in the defense of such claim.
(a) any of the following losses, whether direct or indirect:
(i) loss of profit;
(ii) loss of anticipated savings;
(iii) loss of anticipated contracts;
(iv) loss of business or opportunity;
(v) loss of goodwill or reputation;
(vi) loss of data; or
(b) any, special, indirect or consequential loss or damage arising out of or in connection with any act or omission of Smoothwall relating to the manufacture or supply of the Products and/or Services, their resale by the Partner or their use by any person.
8.2. Without prejudice to Clause 8.1, but subject to Clause 8.4, Smoothwall’s total aggregate liability arising under or in connection with this Agreement whether in contract, tort (including without limitation negligence), repudiation, breach of statutory duty or otherwise shall not exceed a sum equivalent to the total sums paid by the Partner to Smoothwall under this Agreement in the 12 month period immediately preceding the date of the claim. Notwithstanding the foregoing, the Partner shall use its best endeavours to mitigate any loss and/or damage arising from such claim.
8.3. The Partner acknowledges that the prices charged by Smoothwall to the Partner are on the assumption that the liability of the parties is as set out in this Agreement.
8.4. Nothing in this Clause 8 or the other provisions of this Agreement is intended to and/or shall restrict or exclude either parties’ liability for: (i) death or personal injury resulting from its negligence; (ii) any liability for fraud, fraudulent misrepresentation; or (iii) any other liability that cannot be restricted by law.
8.5. The Partner shall obtain and maintain in force for the term of this Agreement adequate and suitable insurance with a reputable insurance company to cover its potential liabilities under this Agreement (including without limitation product liability, professional indemnity, public liability and employer’s liability insurance cover) and shall supply to Smoothwall on its reasonable request, certificates to prove that it has appropriate and valid insurance.
9.2. Each party shall notify the other party if any of its staff connected with the provision or receipt of the Products or Services becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
9.3. The terms of this Agreement may not be disclosed by the Partner (other than to its legal advisors) without the prior written consent of Smoothwall.
9.4. The obligations of confidentiality under this clause 9 shall not apply to any information or material which the recipient party can prove:
(a) was already known to it prior to its receipt thereof from the disclosing party;
(b) was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the disclosing party; or
(c) was in the public domain at the time of receipt by the recipient party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this clause 9 or any obligation of confidence owed by the recipient party.
9.5. Smoothwall may refer to the Partner as being a client of Smoothwall in customer reference lists, sales presentations and in legally required communication with a public authority or any other legally required disclosure, but shall not refer to the Partner in any advertising or press release without the prior written consent of the Partner.
9.6. The provisions of this clause 9 shall remain in full force and effect notwithstanding any termination of this Agreement.
10.2. The Partner shall ensure that each reference to, and use of, any of the trademarks by the Partner is in a manner approved by Smoothwall, and accompanied by such acknowledgement that the same is a trade mark, as Smoothwall shall require.
10.3. Except as provided in this Clause 10, the Partner shall have no rights in respect of any trade names or trademarks, or the Intellectual Property Rights used by Smoothwall in relation to the Products, Services or the associated goodwill. The Partner acknowledges that, except as expressly provided in this Agreement, it shall not acquire any rights in respect thereof.
10.4. The Partner shall, at Smoothwall’s expense, take all such steps as Smoothwall may reasonably require to assist Smoothwall in maintaining the validity and enforceability of the trademarks and/or the Intellectual Property Rights during the continuance of this Agreement.
10.5. The Partner shall not register any internet domain names or trademarks relating to Smoothwall, the Products or Services, without obtaining the express prior written consent of Smoothwall.
(a) the other party fails to pay any non‐disputed amount due under this Agreement on the due date for payment, and remains in default not less than 7 days after being notified in writing to make such payment; or
(b) the other party commits a breach of any material term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 14 days of being notified in writing to do so; or
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
(d) the other party 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a partnership) has any partner who is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
(e) the other party 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(f) 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 that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(g) 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 other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1 (d) to (j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
11.2. Smoothwall shall, in addition, have the right to terminate this Agreement immediately on written notice to the Partner if: (i) Smoothwall ceases to supply all the Products and Services; or (ii) if the Partner undergoes a change of control (and for these purposes “control” means the ability of a person to direct the affairs of another whether by virtue of the ownership of shares, contract or otherwise, so change of control should be construed accordingly).
(a) the Partner’s licence to use the trademarks and Intellectual Property Rights relating to the Products and Services shall immediately cease; and
(b) the Partner shall, at the sole option and direction of Smoothwall, either return or securely destroy any confidential information of Smoothwall; and
(c) promptly return to Smoothwall, at its own expense, any NFR Products which have been provided to it by Smoothwall free of charge.
12.2. Termination of this Agreement is without prejudice to any provisions of this Agreement which are expressly or impliedly intended to survive termination, and termination shall not affect rights and remedies of the parties accrued prior to the date of termination.
12.3. The Partner shall not during any notice period and after termination of this Agreement from whatever cause:
(a) promote, market or advertise the Products and Services; or
(b) enter into any further negotiation or commitment for the sale or other disposition of the Products or Services and shall cease to hold itself out as being an authorised partner of Smoothwall in respect of the Products and Services, except for the purpose of fulfilling orders accepted by it prior to the date of termination.
12.4. The Partner shall provide such termination handover assistance as Smoothwall may require free of charge.
12.5. The Partner shall not be entitled to any claims, compensation or damages arising out of the valid termination of this Agreement in accordance with its terms, nor to any payment for goodwill which may have been established or to any similar payment notwithstanding any provision or rule of law to the contrary.
12.6. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
13.2. In any circumstances where the Partner or any of its sub‐contractors, as part of the fulfilment of its obligations under this Agreement, processes personal data as a data processor on behalf of Smoothwall the Partner shall, and shall procure that its sub‐contractors shall:
(a) act only on instructions from Smoothwall when processing personal data provided to it under this Agreement, and keep records of all such processing;
(b) comply with Smoothwall’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time by Smoothwall;
(c) at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(d) not transfer any personal data outside the European Economic Area without Smoothwall’s prior written consent; and
(e) immediately notify Smoothwall if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this agreement and provide full co‐operation and assistance in relation to any such complaint, notice or communication.
14.2. If the event of Force Majeure continues for a period in excess of three months after the date on which it began, either party may give one month’s written notice to the other Party terminating this Agreement. Neither party shall have any liability to the other in respect of termination of this agreement due to circumstances of Force Majeure, but rights and liabilities which have accrued prior to termination shall subsist.
The Partner warrants and represents that it will fully comply with all applicable laws relating to taxation, exchange controls, customs matters, anti‐corruption, anti‐trust, anti‐money laundering, trade sanctions and criminal matters. In particular, the Partner warrants and represents that:
15.1. it has in place, and shall maintain, adequate procedures designed to prevent any act of bribery (as that term is defined in the Bribery Act 2010) being committed by it, its employees, workers, contractors, agents, advisors and any other service providers (Associated Persons);
15.2. it and its Associated Persons will not, at any time, do anything which could contravene the Bribery Act 2010, or cause Smoothwall to contravene the Bribery Act 2010; and
15.3. it and its Associated Persons will comply with any anti‐bribery policies, procedures or guidelines which Smoothwall may provide from time to time.
16.2. Smoothwall may at its sole option refer any dispute between the parties for final resolution by arbitration under the London Court of International Arbitration Rules, which rules are deemed to be incorporated by reference into this Clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitration shall be English and the governing law shall be English Law.
17.2. Assignment and Sub‐Contracting ‐ Neither Party shall assign, novate, dispose of, sub‐licence, sub‐ contract or otherwise transfer this Agreement nor any or all of their rights and obligations hereunder to any third party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), save that Smoothwall may assign or transfer this Agreement or any or all of its rights and/or obligations under it to any of its associated companies and/or pursuant to a disposal by Smoothwall of any Smoothwall’s business, without the consent of the Partner.
17.3. Entire Agreement ‐ This Agreement and the documents referred to herein set out the entire agreement between the parties in relation to the subject matter hereof and supersedes any previous agreement relating to the subject matter of this Agreement, whether written or oral.
Each party acknowledges and agrees that in entering into this Agreement it places no reliance on any representation or warranty in relation to the subject matter of this Agreement other than as expressly set out in this Agreement, nor shall have any remedy in relation to the subject matter of the same save as expressly set out in this Agreement, provided always that nothing in this clause or in this Agreement shall operate to exclude or restrict any remedy or liability for fraud or fraudulent misrepresentation.
17.4. Severability ‐ If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force and the void provisions shall be replaced where necessary in accordance with the meaning and purpose of this Agreement.
17.5. Notices ‐ Any notice, consent, approval, agreement or other document required under this Agreement shall, in the absence of any express provision to the contrary shall be:
(a) in writing in the English language and shall be deemed to have been duly given if left at or sent by hand or by registered post to a party at the address set out at the beginning of this Agreement for such party or such other address as one party may from time to time designate by written notice to the other; and
(b) deemed to have been received by the other party: (i) two working days following the date of dispatch if the notice or other document is sent by registered post; or (ii) seven working days following the date of dispatch if the notice or other document is sent by registered airmail post; or (iii) simultaneously with the delivery if sent by hand.
17.6. Relationship of the parties ‐ The Partner is appointed as an independent contractor. This Agreement is not intended to create or establish, nor shall be construed as creating or establishing, any agency, legal partnership, franchise or corporate relationship between the parties, and neither party is authorised to bind the other party, contractually or otherwise, or to provide warranties or representations on behalf of the other party.
17.7. Third Party Rights ‐ An entity which is not expressly a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement and the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be expressly excluded from this Agreement.
17.8. Remedies ‐ The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies otherwise provided by law.
17.9. Waiver ‐ No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them, nor any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing.
17.10.Counterparts ‐ This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
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