The Terms shall only apply to the above listed services.
The Terms will apply to you (“you” or the “ Partner”) if the Partnership Agreement you have concluded with SHELT entitles you to promote, access, use and/or sell and/or introduce any of the above listed services. The Terms do not grant you any right to introduce, access, use or resell any of the above services if such right is not granted to you under the Partnership Agreement or the MMSP.
No Service may be introduced, used, provisioned or resold by the Partner or any other person otherwise than in accordance with and subject to the terms of the Partnership Agreement, the Terms and any Specific Terms and Conditions that may be applicable.
The Terms, as may be amended by SHELT from time to time, are automatically and irrevocably deemed accepted (i) by the execution by the Partner of the Partnership Agreement or the MMSP; or (ii) by the selection of the “Agreed” button by the Partner or any of its employees or representatives while using or implementing or installing any of the Services; or (iii) by the use and/or resale of the Partner or any of its employees or representatives of the Services.
By accepting the Terms you declare having the necessary powers to accept the Terms on behalf of the Partner. You are required to check any amendments to the Terms regularly. If you disagree with any part of the Terms or any updated version you are not allowed to access, use and/or resell any of the Services.
When installing or initiating any of the Services, you may be prompted to agree on the Terms or another version thereof, and/or on Specific Terms and Conditions and/or any Additional Conditions which shall be construed as an integral part of the agreement between the Parties. If you have not been prompted to agree on any of the terms and conditions, this does not mean that you are not bound by the Terms, the Specific Terms and Conditions and any Additional Conditions.
Section 1. General Disclaimer
IN NO EVENT SHALL SHELT, ANY OF ITS AFFILIATES, OR ANY OF THE PRODUCT LICENSORS (AS DEFINED BELOW) BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF THE USE OF OR INABILITY TO USE OR ACCESS ANY PLATFORM, SITE, SERVICES OR MATERIALS, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY.
FOR THE AVOIDANCE OF DOUBTS, SHELT USES THIRD-PARTY VENDOR’S SERVICES AND TOOLS. SHELT WILL NOT BE LIABLE FOR ANY DAMAGE, FROM ANY SECURITY BRIDGE OR ANY OTHER SECURITY INTRUSION OR ANY VIRUS, BUGS, OTHER MALICIOUS SOFTWARE OR HARMFUL COMPONENTS, TEMPERING, INTERRUPTION, DELAY OPERATION OR TRANSMISSION, A COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR MALFUNCTION. SHELT IS NOT LIABLE FOR ANY DAMAGE TO ANY COMPUTER, DEVICE, HARDWARE, SOFTWARE, OTHER PROPERTY ARISING OUT OF OR RELATED TO, CAUSED BY OR RESULTING IN ANY WAY FROM ACCESS TO, OR USE OF THE SERVICES.
THE PARTNER WILL ENSURE TO MAINTAIN AND REQUEST FROM THEIR CUSTOMERS TO MAINTAIN THEIR OWN BACKUP OF FILES AND DATA AND WILL PURCHASE A PRIVATE INSURANCE TO COVER THIRD-PARTY DATA LOSS.
SHELT and its suppliers or any of the Product Licensors further do not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within the Services. SHELT or any of the Product Licensors may make changes to the Services or to a Platform, at any time without any notice. SHELT or its suppliers or any of the Product Licensors make no commitment to update the Services and/or a Platform. Mention of non-SHELT products or services is for information purposes only and constitutes neither an endorsement nor a recommendation.
SHELT shall bear no responsibility whatsoever for the content of any materials provided and their translation, if any. Any and all specifications, descriptions, photographs, measurements, capacities or illustrations contained in any Documentation including catalogues, price lists, brochures, leaflets, proposals, advertising matter, publications of SHELT and/or the Product Licensors are intended to be illustrative and approximate only and shall not form part of a contract or constitute a representation, warranty or condition regarding any Products unless specifically agreed by written agreement between the Partner and SHELT and/or the Product Licensors. No employee or agent of SHELT has any authority to make any representation regarding the Services.
Section 2. Definitions and Interpretation
In this Agreement, unless the contrary intention appears:
Additional Conditions shall mean the terms and conditions of any Products Licensor regarding the access, use and sale of the Services.
Affiliates means any person or entity which, directly or indirectly, is in control of, is controlled by, or under common control with, a party to this Agreement. “Control” as used herein shall mean to possess, directly or indirectly, at least 50% of the voting rights in the legal entity controlled or the majority of the ownership interest or the right to appoint the majority of the members of the managing or controlling organ of the entity controlled;
Agreement shall mean the present the Terms (and any updated version thereto) the Partnership Agreement and any Specific Terms and Conditions (if any);
Applicable Law means any law, regulation, decree, permit, license or other restriction or requirement issued by any competent public authority where the Services or a portion thereof are being provided from or delivered to;
Background IP means pre-existing or independently developed Intellectual Property Rights that is directly or indirectly owned, controlled by a Party, which that Party in its discretion, makes available for the purposes of this Agreement;
Business Day means any day other than a Saturday, a Sunday and any public holiday in Cyprus and or the countries from where the Services or a portion thereof are delivered from and delivered to;
Commencement Date means the date specified in the Partnership Agreement;
Confidential Information means the information of or relating to SHELT and/or to its Product Licensors (whether or not in a material form and whether or not disclosed or learned prior to the date of this Agreement) that by its nature is confidential, is designated as confidential and/or which the Partner knows or reasonably ought to know is confidential and includes:
a) the sources, codes, design, specifications and content of the Services;
b) information relating to the suppliers, personnel, policies, clientele or business strategies of SHELT or Product Licensors;
c) information relating to the terms upon which the Services are to be, resold, marketed, hosted, supported and/or used, and provided, pursuant to this Agreement;
d) information which relates to corporate matters, personnel, contracts, financials, intellectual properties, legal matters, client’s identity, marketing plans, business opportunities, research, development, know-how, whether related to SHELT or to Product Licensors including confidential information disclosed by third parties and provided that such Confidential Information shall not include information that (A) is now or subsequently becomes generally available to the public through no fault or breach on the part of the Partner; (B) Partner can demonstrate to have had rightfully in its possession prior to disclosure to Partner by SHELT; (C) is independently developed by Partner without the use of any Confidential Information; or (D) Partner rightfully obtains from a third party who has the right to transfer or disclose it;
Customer means any party that enters into a Customer Contract with the Reseller or with SHELT further to the introduction made by the Reseller to SHELT;
Customer Contract means a written agreement to be signed between the Reseller and the Customer or between SHELT and the Customer introduced to SHELT by the Partner, pursuant to which SHELT shall provide Services or part of them to the Customer;
Data Protection Legislation means the Australian Data Protection Act 2018 as amended from time to time, the General Data Protection Regulations (EU) 2016/679 (“GDPR”), and all applicable laws and regulations relating to the processing of Personal Data and data privacy issued, or to be issued, by any competent public authority where the Services or a portion thereof are being provided from or delivered to;
Fee means the amounts set in the Offer issued by SHELT for each Customer while the Partner is acting as Reseller pursuant to the Partnership Agreement;
Force Majeure means a circumstance beyond the reasonable control of a Party in any country from where the Services or a portion thereof is provided from or delivered to and which results in the Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
a) any internet or connection failure or any other issue whatsoever is their origin or cause hindering SHELT from performing the Services; or
b) acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires, pandemics and any natural disaster; or
c) acts of war, acts of public enemies, terrorism, whether declared or not, rights, civil commotion, malicious damage, sabotage and revolution, civil disturbance, labor dispute, lockout, lack of essential commodities, internet failures, lack of necessary equipment or adequate transport facilities or any regulations or laws or specific acts or decisions of any authority;
Harmful Code means any back door, time bomb, trojan horse, worm, drop dead device, virus or other computer software routine intended or designed to:
a) permit access to or use of any computer systems by any person not authorised to do so; or
b) disable, damage, erase, disrupt or impair the normal operation of any systems.
Intellectual Property Rights means any copyright, trade mark, design, patent, semiconductor or circuit layout rights and IP rights owned by SHELT or by the Platform or by the Product Licensor and licensed by the latter to SHELT;
Introducer means the Partner when acting as an Introducer of Customers to SHELT pursuant to the Terms and the Partnership Agreement;
License Agreement means the agreement entered into by and between SHELT Global Ltd (or any entity of the SHELT group as the case may be) and a Product Licensor pursuant to which SHELT Global Ltd has been appointed by a Product Licensor as a reseller of a range of services in various countries;
Offer means the offer issued by SHELT before the Reseller enters into a Customer Contract with the Customer. The Offer sets the price that must be invoiced by the Reseller to the Customer for the duration of the Customer Contract.
Open Source Software means software that, as a condition of its use, requires that such software, any developments to such software or any other software with which such software is combined or distributed be:
a) disclosed or distributed in source code or object code form;
b) licensed to the general public for development or other purposes; or
Party shall have the same meaning as defined in the Partnership Agreement;
Parties means the parties to the Partnership Agreement;
Partner shall have the same meaning as defined in the Partnership Agreement. Any reference to Partner shall generally mean the Partner whether acting as a Reseller under the Partnership Agreement or as an Introducer under the Partnership Agreement.;
Personal Data has the same meaning as in any of the Data Protection Legislation;
Platform means any platform (if any) based on which a Service is provided;
Product Licensor means any OEM licensor and/or developer and/or owner of products or Services offered and delivered by SHELT;
Regulatory Authority means any governmental or quasi-governmental agency directly or indirectly regulating the supply of services of the type contemplated by this Agreement in the Territory;
Reseller or youor MSSP shall mean the Partner when acting as a reseller of the Services to a Customer pursuant the Terms and the Partnership Agreement;
Partnership Agreement means the Partnership Agreement entered into by and between SHELT and the Partner;
Services mean the services listed in the Partnership Agreement;
Setup means the setup of the Services by SHELT to the Customer further to a request expressly made by the Reseller;
Setup Fee means the Fee payable by the Reseller to SHELT, for the Setup of a Service included in the Offer issued by SHELT with respect to each Customer;
SHELT means the legal entity that entered into the Partnership Agreement or the MMSP with the Partner. SHELT will also mean any company to which SHELT may assign its rights and obligations under the Agreement, if any.
Software means a software required to enable integration into the Partner and/or a Customer’s systems in order to permit them to interoperate with the Services, including Application Programming Interfaces (APIs) and Software Developer Kits (SDKs) as specified in the Documentation;
Specific Terms and Conditions means the terms and conditions applicable to the use and resale of a specific Service which may be made available to the Partner in due course;
Term means the Term as defined in the Partnership Agreement;
Territory means the geographical area specified in the Partnership Agreement;
Trade Marks means all names, logos, trademarks of SHELT and/or the Product Licensors, as the case may be, relating to the Services from time to time, and any other branding materials in the Services or any Documentation;
User means the Partner acting as a user of Services and any of its Customers.
In this Agreement, unless the contrary intention appears:
a) the Section headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
b) words in the singular number include the plural and vice versa;
c) words importing a gender include any other gender;
d) a reference to a person includes a body, whether corporate or otherwise;
e) a reference to a Section is a reference to a Section or sub Section of this Agreement;
f) a reference to a sub Section is a reference to a sub Section of the Section in which that reference is made;
g) a reference to Reseller is a reference to the Partner in his capacity as a reseller;
h) a reference to Introducer is a reference to the Partner in his capacity as an Introducer;
i) a reference to a Party is a reference to SHELT or the Partner individually;
j) a reference to the Parties is a reference to SHELT and the Partner cumulatively;
k) a reference to a statute, law or regulation shall be construed as a reference to that provision as amended, waived, re-enacted or otherwise modified from time to time;
l) the term “including” will always be deemed to mean “including, without limitation”;
m) a reference to “you” is a reference to the Partner;
n) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
o) a reference to a Schedule includes a reference to any part of that Schedule which is not physically annexed to this Agreement, but which is incorporated by reference;
p) monetary references are references to USD (United States Dollars) currency; and
q) when a thing is required to be done or money required to be paid under this Agreement on a day which is not a Business Day, the thing shall be done, and the money shall be paid on the immediately preceding Business Day.
Section 3. Appointment
3.1 The Parties agree that depending on each Customer, the Partner shall either act as:
3.1.1 a Reseller having the non-exclusive right to market, promote and resell the Services in the Territory as per the terms of the Partnership Agreement and the Terms; or
3.1.2 an Introducer to SHELT of a Customer operating in the Territory; such introduction must be made as per the terms of the Partnership Agreement and the Terms.
3.2 The Parties agree that the capacity in which the Partner shall act with respect to each Customer shall be defined, in writing, by mutual agreement between the Parties prior to contracting with the Customer. Unless otherwise defined in writing between the Parties for a specific Customer, the Partner shall be deemed to act as a Reseller.
3.3 When acting as a Reseller the Partner’s rights to access, use and resell the Services in the Territory are set forth in the Partnership Agreement, the Terms and the Documentation (if any).
3.4 Unless specified otherwise in the Partnership Agreement, when acting as a Reseller, the Partner is granted the non-exclusive right to do the following within the Territory:
‣ market and promote the Services;
‣ execute Customer Contracts with Customers for the use of the Services; and
‣ provide Services to Customers, when applicable.
3.5 Whether acting as an Introducer or a Reseller, the Partner shall act as an independent business entity with regards to both SHELT and the Customers. Neither SHELT nor the Partner are employees or agents of the other, and neither Party has any power or authority whatsoever, whether directly or indirectly or through its representatives, employees or agents, to bind the other to any agreement with any person except as specified in this Agreement. This Section 3.3 shall survive the termination of the Agreement for any reason whatsoever.
3.6 When directly using the Services, the Partner shall be considered as a Customer and shall have the same obligations as a Customer in addition to its obligations and duties as Partner.
Section 4. Relationship with Customers
4.1 Reseller shall deploy all efforts to conclude Customer Contracts with its customers. Reseller shall continuously offer, advertise, demonstrate and otherwise promote the sale of Services in the Territory with a view to continuously increasing the number of Customers. It shall employ the highest level of professionalism while providing the Services.
4.2 Before pricing a Customer Contract and entering into such contract, the Reseller shall request from SHELT an Offer with respect to the Customer. The Offer shall set the price that must be invoiced by the Reseller to the Customer for the duration of the Customer Contract. The Reseller shall issue an invoice to the Customer for the amounts set in the Offer. Unless otherwise agreed in writing between SHELT and the Reseller, the Reseller shall not add any mark-up or margin of fee whatsoever to the Offer.
4.3 The Reseller shall provide SHELT with a quarterly report of its projected Customer base growth, in order to enable SHELT and any related third party to plan resource allocations for the provision of Services and to be able to manage potential conflicts between other resellers of SHELT and/or of any Product Licensor (if any)in the Territory.
4.4 Customer Contracts relating to the Services shall be directly entered into by and between the Reseller and the Customer. The Services shall be provided to the Customer as described in Section 6 below.
4.5 The Reseller shall be solely in charge of drafting the terms and conditions of the Customer Contract. Nonetheless, Reseller shall ensure that all Customer Contracts:
‣ permit the Reseller to suspend the provision of the Services and the Customer’s access to the Services, in certain circumstances as described in this Agreement;
‣ do not impose any liability whatsoever on SHELT nor any Product Licensor; and
‣ permit the Reseller to automatically terminate the Customer Contract for convenience without incurring any liability in accordance with the Terms.
4.6 The Reseller acknowledges that the Customer shall not be granted the right to access the Services (or any part of it) or its functionality (other than for demonstration or evaluation purposes, strictly on a temporary basis), unless and until the said person or entity has duly executed a Customer Contract.
4.7 In the event SHELT directs the Reseller in writing to suspend or terminate any of its Customers Contract for any of the reasons mentioned in Section18.4 below, the Reseller will then automatically terminate the said Customer Contract and SHELT shall in no event bear any liability whatsoever in relation to the said termination.
Section 5. Non-Exclusivity
5.1 No exclusive right is granted by SHELT to the Partner.
5.2 SHELT may, at its sole discretion, appoint other Partners or other introducers, resellers, distributors, local partners, referrers to assist in the marketing, promotion, distribution and sale of the Services in the Territory.
5.3 SHELT may, at its sole discretion, resell any of the Services to customers in the Territory including customers of the Partner in the Territory.
5.4 The Partner shall not solicit any customer who is already a customer of SHELT or of any existing reseller of a Service, or of a Partner or Introducer.
5.5 This Section 5.4 shall survive the termination of the Agreement for any reason whatsoever.
Section 6. Provisioning of the Services
6.1 Subject to applicable legislation, SHELT may provide the Services from anywhere in the world and may, at any time, transfer the provision of the Services from one location to another.
6.2 Reseller is responsible for the use of any username, password or other forms of identification that allows access to the Services (collectively “ User ID”) for accessing the Services (if any), and in maintaining the confidentiality of the User ID. Reseller shall immediately notify SHELT should it lose or misplace or suspect any abuse (actual or attempted) of the User ID.
6.3 Reseller shall maintain appropriate security policies and procedures to ensure proper use of the User ID.
6.4 Reseller shall be responsible, at its sole cost and expense, for securing and maintaining its own internet access, facilities, hardware and software required for accessing the Services, whenever required.
Section 7. Setup
When required to do so by SHELT, the Reseller shall provide all the necessary resources including allocating a qualified member (or more as it may reasonably be required) of its staff for:
‣ the provisioning and Setup of the Services;
‣ checking the configuration, ensuring the follow up and performance of any maintenance task; and
‣ the provisioning of the level of support as agreed between the Reseller and SHELT.
Section 8. Marketing Materials and Support
8.1 SHELT may, at its sole discretion, provide to the Partner free of charge, in digital form, a marketing support and a training in relation to the Services. Partner may choose not to accept said support.
8.2 If the Partner wishes to receive any further marketing or support services, the Parties shall meet and agree in writing on the nature, scope and costs of the additional services.
8.3 The Partner grants SHELT the right to use the Partner’s trademarks and logos in SHELT marketing and promotional materials.
8.4 From time to time during the Term, the Parties may issue joint media releases concerning the Services, and jointly conduct ad hoc marketing or promotional campaigns in respect of the Services. In that event, the Parties shall meet and agree in good faith in writing on the contents of such releases or campaigns.
Section 9. Audit of Records
Partner shall maintain clear, accurate and relevant records containing all data reasonably required in order to verify Partner’s compliance with the Partnership Agreement and the Terms. SHELT shall have the right, at least once per calendar year upon at least two (2) days prior notice, to direct its independent auditors to audit and analyze any relevant record of Partner. If the result of such audit indicates that payment is due, Partner shall make such payment promptly in addition to any interests for late payment accrued as of the date the payment was due. At the request of SHELT and at the Partner’s expense, the latter shall provide to SHELT (or its designated representative) the unrestricted access to all records pursuant to this Section 9. This Section 9 shall survive the termination of the Agreement for any reason whatsoever, for a period of five (5) years.
Section 10. Territory
10.1 The Partner shall not introduce, promote or sell the Services or provide the Services outside the Territory without SHELT’s prior written approval. The Partner is not in breach of this Section 10.1 merely because:
‣ it is marketing the Services by way of media or the internet; or
‣ Customers’ use of the Services causes exposure of the Services outside the Territory.
10.2 During the Term, the Partner shall not:
10.2.1 market and/or distribute, in the Territory, directly or indirectly, any service that by nature is competing or similar to the Services or any of the products and/or services offered by SHELT listed in the Introduction Section, whether the Partner has been granted the right to distribute said products/services or not;
10.2.2 Introduce customers, in the Territory, to a direct or indirect competitor to SHELT, to any entity that by the nature of its activity is competing or has a similar business to SHELT or who sells products and/or services similar to those offered by SHELT, whether the Partner has been granted the right to distribute said products/services or not.
10.3 During the Term, the Partner shall promptly refer to SHELT any enquiries made by a potential customer interested to use or resell the Services outside the Territory.
Section 11. Intellectual Property Rights
11.1 Each of SHELT (or the Product Licensors as the case may be) and the Partner shall retain ownership of all its Background IP, including any modifications or improvements to such Background IP arising during the performance of that Party’s obligations under this Agreement.
11.2 Nothing in this Agreement will affect the ownership of the Background IP of SHELT (or of the Product Licensors as the case may be) and the Partner.
11.3 The Partner acknowledges and agrees that all Intellectual Property Rights related to and arising out of the Services (including any modifications or improvements to the Services or the Software arising during the performance of the Partnership Agreement or any Customer Contract) belong exclusively to and remain the property of its developer and/or, as the case may be, the Product Licensor.
11.4 Whenever reasonably possible, SHELT shall notify the Partner whenever any changes are made to the Services (including alterations to the Software or the Documentation, and the creation of any updates or new releases) whenever the Product Licensor notifies it of the same. The Partner shall automatically abide by those changes.
11.5 The Partner undertakes, under any circumstances, not to decompile or reverse-engineer the Services or the Software or assist or procure any person or entity to decompile or reverse-engineer the Services or the Software or provide information to any person or entity about de-compilation of the Services or the Software for any purpose whatsoever.
11.6 The Partner undertakes not to embed any part of the software forming part of the Services (including the Software) into any other product or software, without SHELT’s prior written consent and instructions.
11.7 Irrespective of Section 14 below, the Partner irrevocably agrees and undertakes to indemnify SHELT and its Product Licensor as the case maybe and hold them harmless against any action to the extent that such action is based on a claim that the Partner’s Background IP infringed the intellectual property right of a third party. SHELT shall:
‣ notify the Partner if infringement is alleged,
‣ make no admission without the Partner’s consent, and
‣ assist the Partner at its expense to conduct all negotiations and litigation.
11.8 The Partner understands and agrees that neither SHELT nor the Product Licensors have an obligation to indemnify, defend or hold the Partner or a Customer or any third party harmless from or against any claims, losses, liabilities, damages, costs and expenses, judgments or settlement amounts arising out of or in connection with the actual or alleged infringement of a third party’s intellectual property rights.
11.9 When making proposals and agreements with foreign governments which involve any of the Services, Partner will take all reasonable steps to ensure that SHELT and the Product Licensors’ (as the case may be) proprietary rights in such Services receive the maximum protection available from such foreign government for commercial computer software and related documentation.
11.10 This Section 11 shall survive the termination of the Agreement for any reason whatsoever.
Section 12. Partner’s Obligations
A- Partner’s Obligations as Introducer
12.1 When the Partner acts as an Introducer to SHELT, of Customers operating in the Territory, it must
12.1.1. market and promote the Services;
12.1.2. inform SHELT of any customer which shows a potential interest to access and use the Services in the Territory,
12.1.3. send all the details of the Customer to SHELT and introduce the latter to the potential Customer without (i) engaging in any negotiations whatsoever on behalf of SHELT and (ii) providing to the potential Customer any information which may be useful or related to the negotiations,
12.1.4. whenever requested by SHELT, participate in the discussions between SHELT and the potential Customer and follow up with the Customer based on the terms and conditions expressly set by SHELT,
12.1.5. provide SHELT with all the necessary support to enable the latter to conclude Customer Contract with the potential Customer,
12.1.6. support SHELT in its commercial relationship with the Customer as requested in writing by SHELT, and
12.1.7. not interfere in the execution and/or performance of the Customer Contract unless expressly requested by SHELT, in writing.
12.2. SHELT shall at its discretion accept or reject any potential Customer introduced by the Introducer.
12.3. The Introducer shall be responsible for any expenses it incurs regarding the introduction services it renders.
12.4. The Introducer acknowledges that in the event SHELT enters into a Customer Contract with a Customer, introduced to SHELT by the Introducer, after a period of six months that follows the expiration or termination of the Partnership Agreement for any reason whatsoever, no Fee whatsoever shall be due to the Introducer.
B- Partner’s Obligations as Reseller
12.5. When acting as a Reseller, the Partner shall perform its obligations set forth in the Partnership Agreement, in the Specific Terms and Conditions (if any) and Additional Conditions (if any), and:
12.5.1. use reasonable endeavors to market and promote the Services throughout the Territory and procure the execution of Customer Contracts;
12.5.2. pay to SHELT the amounts that are due to SHELT for each Customer in accordance with the Partnership Agreement;
12.5.3. maintain at its own expense a sufficient number of appropriately qualified and trained sales and service personnel with the degree of care and skill required to carry out any of its obligations under this Agreement, including but not limited to promotion, sale, installation (if applicable) and after-sale customer service relating to the Services;
12.5.4. comply with any key performance indicator and/or any minimum sales requirements as set in the Partnership Agreement;
12.5.5. provide and maintain appropriate security procedures, methodologies and protocols in respect of the Services, in accordance with the Documentation and any applicable Data Protection Law;
12.5.6. not to remove, deface or obscure any copyright notices or other proprietary notices or legends from any materials provided by SHELT, and/or the Product Licensor under the Partnership Agreement and the Terms, and shall use all reasonable endeavors to ensure that all copies of the Services contain such copyright notices or other proprietary notices or legends;
12.5.7. conduct all of its business in its own name and not in the name of SHELT, nor any of the Product Licensors;
12.5.8. act honestly, and in good faith at all times to SHELT, in respect of the Partnership Agreement or the MMSP, the Terms and the provision of the Services;
12.5.9. comply with, and take reasonable steps to enforce the terms of the Partnership Agreement and the Terms and any Customer Contract;
12.5.10. immediately comply with any measure and decision adopted by SHELT further to a decision or measure adopted by any of the Product Licensors;
12.5.11. comply with all Applicable Laws in the Territory applicable in the marketing, promotion, support and provision of the Services; and
12.5.12. take all reasonable steps to ensure that the permitted use of the Services by its Customers complies with all Applicable Laws.
12.5.13. bear any and all expenses incurred during the performance of its obligations herein including for marketing, promoting and reselling the Services.
C- General obligations
12.6. Partner agrees that any key performance indicators (“KPI”) and/or Sales Targets set forth in the Partnership Agreement are reasonable in view of the market potential of the Territory and acknowledges that all KPIs and/or Sales Targets have been established as the result of a mutual examination of the market potential and after negotiations between the Parties.
12.7. If Partner fails to achieve a stated KPI and/or the Sales Targets for a specific Service, SHELT shall have the right to remove such Service from the scope of this Agreement.
12.8. If Partner fails to achieve more than two KPIs related to more than two Services in one contractual year, or the Sales Targets for a specific year, SHELT shall have the right to terminate the Partnership Agreement by giving to the Partner a two months prior notice without the need for any judicial or arbitral proceedings and without the need to pay to the Partner any compensation or indemnification for an early termination.
12.9. The Partner shall be insured in respect of any potential liability, loss or damage arising at common law or under any statute in respect of claims for property damage, personal injury, public liability and professional indemnity relevant to the performance of its obligations pursuant to the Partnership Agreement and the Terms. The Partner shall produce evidence on demand of the insurance effected and maintained for the duration of this Agreement in accordance with this Section. Any failure by the Partner to provide for the insurance or the necessary evidence when requested by SHELT shall be considered as a material breach of this Agreement.
12.10. Partner shall provide SHELT with all technical data and all other information SHELT may reasonably request from time to time to allow SHELT to supply the Services to the Partner and/or Customer. All information the Partner supplies will be complete, accurate and given in good faith. Such information will be treated as Confidential Information under the Terms.
12.11. Partner recognizes that any information sent to and from Partner may pass through a Platform and accordingly, Partner agrees and undertakes to use the said Platform for legitimate and lawful business purposes only.
12.12. For the avoidance of doubt, any breach by Partner of this Section 12 will constitute a material breach of the Terms and in addition to SHELT’s rights of termination set out in Section 18 below, SHELT may, at any time and at SHELT’s sole option, suspend all or part of the Service immediately and until the breach is remedied.
Section 13. SHELT’s Obligations
13.1 SHELT shall act honestly and in good faith at all times towards the Partner, in compliance with the Partnership Agreement.
13.2 Subject to the Reseller’s compliance with the payment terms set forth in the Partnership Agreement, SHELT shall:
a) provide the Setup whenever agreed upon between the Parties in the Partnership Agreement and in accordance with terms set forth in the Partnership Agreement; and
b) provide the Service Availability and Support Services as shall be set forth in the Partnership Agreement.
Section 14. Warranties and Liability
14.1 The Partner warrants that it has the authority to enter into the Partnership Agreement and the Terms, and that the execution and performance of the Partnership Agreement and the Terms does not contravene any agreement by which it is bound. The Partner further warrants that there are no actions, claims, proceedings, demands or investigations pending or threatened against it or by it of which may have a material effect on the subject matter of the Partnership Agreement and the Terms.
14.2 The Partner confirms being informed that part or all of the Services (as the case may be) are licensed to SHELT by Product Licensors and understands that the Partnership Agreement the Terms and the provision of services is directly linked to the License Agreement. Therefore, the Partner further understands that SHELT’s ability to fulfil its contractual obligations under the Partnership Agreement and the Terms is limited to its rights in the License Agreement or by a Product Licensor.
14.3 The Partner agrees that SHELT will not be held liable in any event for any exemplary, indirect, punitive, special, incidental or consequential damages (including without limitation for loss of profits, revenue, business, goodwill, use, data, or other economic advantage) of any kind in connection with or arising out of any Harmful Code that may be found in or linked to any of the Services, and even if SHELT has been previously advised of the possibility of such damage.
14.4 The Partner agrees that SHELT will not be held liable in any event for any exemplary, indirect, punitive, special, incidental or consequential damages (including without limitation for loss of profits, revenue, business, goodwill, use, data, or other economic advantage) of any kind in connection with or arising out any Open Source component of any of the Services, and even if SHELT has been previously advised of the possibility of such damage.
14.5 The Partner agrees that SHELT will not be held liable in the event it is unable to provide the Services or fulfil any of its contractual obligations as a result of (i) the termination and/or interruption of the License Agreement for whatsoever reason, or (ii) the interruption of the provision of the Services by any of its Product Licensors for whatsoever reason.
14.6 The Partner warrants and represents to SHELT that:
a) it will not engage in any conduct that is deceptive, misleading or unethical in the marketing, promotion, implementation, support, or provision of any Services in respect of the Services; and
b) all information supplied by it, is and will be, in all material respects, true and correct, and that it will promptly inform SHELT in writing, giving details of any changes in such information.
14.7 Except for any warranties expressly set out in the Partnership Agreement and the Terms, to the extent permitted by the law, SHELT expressly excludes all conditions and warranties whether express or implied, statutory or otherwise.
14.8 In no event will SHELT be liable towards the Partner, and/or Customer and/or any third party for any exemplary, indirect, punitive, special, incidental or consequential damages of any kind or any loss of data in connection with or arising out of the Partnership Agreement and/or the Terms (including without limitation for loss of profits, revenue, business, goodwill, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if SHELT has been previously advised of the possibility of such damage.
14.9 In no event shall SHELT be liable towards the Partner, in respect of any and all claims arising under or pursuant to the Partnership Agreement and the Terms, whatsoever arising and on any ground whatsoever.
14.10 SHELT’s liability arising out of or in connection with the Partnership Agreement, and/or the Terms (whether in contract, equity, negligence, tort or for breach of statute or otherwise) shall be reduced by the extent, if any, to which the wrongful act or omission of the Partner or any third party contributed to the loss.
14.7 The Partner shall indemnify SHELT from any liability that SHELT might incur towards any of its Product Licensors due to the action, inaction or negligence of the Partner and/or a Customer.
14.8 Partner when acting as Reseller agrees to indemnify SHELT against and hold SHELT harmless from any and all claims, actions, losses, costs and expenses SHELT may incur as a result of:
a) any breach by the Partner and/or Customer of any Section of this Agreement or any Additional Condition;
b) any third-party claim in relation to information passing through the Service to or from Partner or any Customer;
c) any third-party claim in relation to Partner’s services;
d) any third-party claim in relation to Partner’s material misrepresentations relating to SHELT;
e) any third-party claim in relation to the interception of communications by the Services; and
f) any third-party claim in relation to the Partner and/or Customer’s use of the Service in breach of any laws and specially but not limited to any Data Protection Legislation.
14.1 Partner when acting as Introducer agrees to indemnify SHELT against and hold SHELT harmless from any and all claims, actions, losses, costs and expenses SHELT may incur as a result of:
a) any breach by the Partner of any Section of this Agreement;
b) any third-party claim in relation to information passing through the Service to or from Partner; and
c) any third-party claim in relation to Partner’s material misrepresentations relating to SHELT;
14.2 The Partner must promptly notify SHELT in writing of any claim, in relation to the Services giving SHELT sole control of any such action or proceedings and such assistance as it may reasonably require to settle and/or defend such action or proceedings (at Partner’s reasonable expense). Any award of costs, expenses and/or damages shall belong to SHELT. In such event, Partner shall:
a) notify SHELT in writing promptly upon learning of any claim or suit for which indemnification may be sought;
b) shall have the right to participate in such defense or settlement with its own counsel and at its sole expense, but SHELT shall have control of the defense or settlement; and
c) shall reasonably cooperate with the defense.
14.3 Partner agrees to indemnify SHELT and/or its Product Licensor as the case maybe and hold it/them harmless against any and all claims, actions, losses, costs and reasonable expenses SHELT and/or its Product Licensor as the case maybe, may incur as a result of:
a) any breach by Partner and or Customers of the Agreement;
b) any third party claim in relation to information passing through the Services to or from Partner and/or Customer;
c) any third party claim in relation to the interception of communications by the Services; and
d) any third party claim in relation to the Partner and/or Customer’s use of the Services in breach of Data Protection Legislation.
14.4 This Section shall survive the termination of the Partnership Agreement and/or the Terms for any reason whatsoever.
Section 15. Regulatory Matters
15.1 SHELT and the Partner each acknowledges that from time to time, the Services or the operation of the Services, in the Territory may adversely be affected by:
a) a determination by any Regulatory Authority, including a decision by a Regulatory Authority not to grant, or to vary any license, approval or regulatory relief previously granted which is necessary for the operation of the Services in the Territory on terms reasonably acceptable to SHELT; or
b) a determination by a court of law.
15.2 Consequently, the Parties shall:
a) use their best endeavors to give the other as much advance notice as possible of the occurrence, or likely occurrence, of any of the events set out in Section15.1.(a “Regulatory Event”);
b) negotiate in good faith to determine whether the Regulatory Event has or will have any effect on this Agreement and the steps that the Parties should take to minimize that effect; and
c) take any action necessary to comply with an obligation arising as a consequence of the Regulatory Event.
15.3 Despite any other provision of this Agreement, SHELT and/or the Product Licensors reserve the right to make any changes in the specifications of the Services, without notice to Partner, which are required in order to conform to any statutory or other legal or regulatory requirements or which do not materially affect the provisioning of the Services.
15.4 Despite any other provision of this Agreement, SHELT may, at its sole discretion, suspend or terminate its operations or Services or suspend or automatically terminate the Partnership Agreement without the need for any judicial or arbitral proceeding and without incurring any liability whatsoever, whenever a Regulatory Authority has taken action that in the opinion of SHELT (and/or any of its Product Licensors as the case may be) would adversely affect the operation of the Services in any way.
15.5 If SHELT gives the Partner notice pursuant to Section 15.3, the Partner shall promptly give a corresponding notice to all of its Customers.
Section 16. Non-Disclosure of Confidential Information
16.1 The Partner shall not, without the prior written approval of SHELT, disclose SHELT’s Confidential Information, or use SHELT’s Confidential Information (other than for the purposes of performing the Partnership Agreement and/or the Terms).
16.2 The Partner shall not be in breach of Section 16.1 in circumstances where:
a) the Confidential Information is or becomes public knowledge other than by breach of any obligation of confidentiality;
b) the Partner is legally compelled to disclose the other Party’s Confidential Information;
c) the disclosure is only to those of its employees, subcontractors or agents who:
i. have a need to know (and only to the extent that each has a need to know); and
ii. have made a written undertaking to keep confidential that Confidential Information.
16.3 The Partner shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Partnership Agreement and/or the Terms and any of its Customers do not make public or disclose the other Party’s Confidential Information, or use that Confidential Information for any purpose other than to perform the Partnership Agreement and/or the Terms.
16.4 The Partner shall arrange for its employees, agents or sub-contractors engaged in the performance of the Partnership Agreement and/or the Terms and for any of its Customers to execute a suitable confidentiality deed.
16.5 The Partner shall on demand return to SHELT any documents supplied by SHELT to the Reseller in connection with this Agreement.
16.6 Despite any other provision of this Section, the Partner may disclose the terms of the Partnership Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants on a strictly confidential basis. The Partner shall be liable for any breach of the obligations in this Section by its employees, subcontractors, agents, related companies, solicitors, auditors, insurers, Customers or accountants.
16.8 The Partner acknowledges that damages may not be a sufficient remedy for breach of this Section and that SHELT has the right to seek injunctive relief, as it may see fit, to restrain a breach or an anticipated breach by Partner and/or its Customers.
16.9 This Section shall survive termination of the Partnership Agreement and/or the Terms for a period of five (5) years thereafter.
Section 17. Trade Marks and License
17.1 The Partner shall not introduce, offer, promote, sell, distribute, market, support, provide or license the Services under or by reference to any name or trade mark other than the Trade Marks, without SHELT’s prior written consent.
17.2 SHELT grants the Partner a non-exclusive right to use the Trade Marks (as amended from time to time by SHELT and/or the Product Licensor as the case may be), for the purposes of promoting the Services in the Territory during the Term, provided that:
a) the Partner’s use of the Trade Marks is subject to SHELT’s and its Product Licensors’ then current trademark policies and procedures, as notified in writing from time to time; and
b) the Partner acknowledges and agrees that any use of the Trade Marks is solely as a licensee from the original owner of the Trade Marks, and that any goodwill arising from the Partner’s use of the Trade Marks will be solely for the benefit of the original owner of the said Trade Marks.
17.3 If requested by SHELT, the Partner will cooperate with SHELT and/or any of its Product Licensors as the case maybe in any application by SHELT and/or any of its Product Licensors as the case may be to register any of the Trade Marks.
17.4 The Partner must promptly notify SHELT in writing of any IP claim, giving SHELT sole control of any such action or proceedings and such assistance as it may reasonably require to settle and/or defend such action or proceedings (at Partner’s reasonable expense). Any award of costs, expenses and/or damages shall belong to SHELT. In such event, SHELT shall, at its option:
a) procure for Partner the right to continue to use the Service;
b) make the Service available without infringing so far as SHELT is aware of any third-party intellectual property rights; or
c) terminate the Partnership Agreement upon written notice to Partner provided, however, that SHELT would refund to Partner a pro rata refund of prepaid Fees, if any, that relate to the period after termination.
The option selected by SHELT shall be the sole remedy to which the Partner would be entitled to under the Agreement.
Section 18. Term and Termination
18.1 Unless terminated earlier as stated in the Agreement, the Term shall start from the Commencement Date and continue in force up to the end of the Term set forth in the Partnership Agreement.
18.2 SHELT is entitled for convenience to automatically (i) suspend the provision of the Services to the Partner(and/or to any of its Customers) and/or (ii) terminate the Partnership Agreement, without the need for any judicial or arbitral proceeding, by giving to the Partner a /2/ (two) weeks prior notice. SHELT shall have no liability to pay any whatsoever compensation or indemnification for such early termination.
18.3 SHELT is entitled to automatically (i) terminate the Partnership Agreement and/or (ii) suspend and/or stop the provision of the Services (to Partner and/or to Customers), without the need for any judicial or arbitral proceeding and SHELT shall have no liability to pay any whatsoever compensation or indemnification for such early termination if a Customer:
a) fails to comply with any obligation that the Reseller has imposed or should have imposed on him pursuant to the Partnership Agreement and/or the Terms or under its Customer Contract or contained in the Documentation; or
b) uses, attempts to use, or allows (whether through action or inaction) any person to use or attempt to use the Services in contravention of any Applicable Law, or in a manner that may adversely affect the operation or security of the Services or any transaction conducted using the Services; or
c) uses, attempts to use, or allows (whether through action or inaction) any person to decompile or reverse-engineer the Services or the Software or assist or procure any person to decompile or reverse-engineer the Services or the Software or provide information to any person about de-compilation of the Services or the Software for any purpose; or
d) if the actions or inactions of the Reseller and/or the Customer are considered, at the discretion of SHELT, as a threat to SHELT or to the Services or as being beyond the normal usage of the Services.
18.4 Irrespective of any other terms, the Partnership Agreement and/or the Terms, SHELT may terminate the Partnership Agreement immediately by notice in writing without the need for any judicial or arbitral proceeding, and SHELT shall have no liability to pay any whatsoever compensation or indemnification for such early termination if the Partner:
a) is in breach of any of its obligations as per the terms of the Partnership Agreement or the Terms and such breach is not remedied by the Partner within seven (7) days of receiving a written notice from SHELT; or
b) fails to meet any KPI and/or sales targets as set forth under Section 12.8 above; or
c) uses, attempts to use, or allows (whether through action or inaction) any person to use or attempt to use the Services in contravention of any Applicable Law, or in a manner that may adversely affect the operation or security of the Services or any transaction conducted using the Services; or
d) uses, attempts to use, or allows (whether through action or inaction) any person to decompile or reverse-engineer the Services or the Software or assist or procure any person to decompile or reverse-engineer the Services or the Software or provide information to any person about de-compilation of the Services or the Software for any purpose; or
e) becomes insolvent, takes any step leading to its cessation as a going concern, fails to pay its debts as they become due, or ceases business operations continuously for longer than twenty five (25) days; or
f) enters into or resolves to enter into a scheme of arrangement, deed of company arrangement or composition with, or makes an assignment for the benefit of all or any class of its creditors or it proposes a re-organization, moratorium or other administration; or
g) has a receiver, or receiver and manager appointed over all or any parts of its undertaking, assets or income; or
h) any proceedings are commenced by, for, or against Partner under any bankruptcy, insolvency, or debtor’s relief law and such proceeding is not dismissed within forty (40) calendar days of its commencement; or
i) is liquidated or dissolved; or
j) is declared bankruptcy or an analogous event happens in any other jurisdiction; or
k) ceases or threatens to cease conducting its business in the normal manner (other than as a result of a sale of its business to a permitted assignee).
18.5 Irrespective of other terms in this Agreement, SHELT may terminate this Agreement immediately by notice in writing without the need for any judicial or arbitral proceeding if the License Agreement is terminated for any reason whatsoever and/or if the Product Licensor as the case may be, stops providing any of the Services or part of the Services. SHELT shall have no liability to pay any whatsoever compensation or indemnification for such early termination.
18.6 Irrespective of other terms in this Agreement, in the event of termination or suspension of this Agreement for whatsoever reason, Reseller shall not be entitled to be reimbursed of any sums already paid to SHELT and accordingly, under no circumstances SHELT shall have any obligation under any ground to pay back to the Reseller any amount received from Reseller.
18.7 The termination of this Agreement, for any reason whatsoever, shall be without prejudice to SHELT’s rights accrued prior to the termination of this Agreement. In the event this Agreement is terminated in accordance with this Agreement and especially further to Sections 18.4, 18.5 and18.6, SHELT cannot be held liable for any damage whatsoever resulting from such termination.
18.8 This Section shall survive the termination of the Agreement for any reason whatsoever.
Section 19. Force Majeure
19.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
19.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended. However, the affected Party shall take reasonable steps to remove the Force Majeure as soon as reasonably possible, or to minimize its duration or effect.
19.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds forty five (45) days, either Party may either continue to suspend or immediately terminate the Agreement on providing notice in writing to the other Party.
19.4 The Parties have agreed that SHELT’s inability to fulfill its contractual obligations as a result of (i) the termination and/or interruption of the Partnership Agreement for whatsoever reason, or (ii) any internet or connection failure or any other issue whatsoever is their origin or cause hindering SHELT from performing the Services, or (iii)the interruption of the provision of the Services by any of the Product Licensors for whatsoever reason, shall be construed as well as a Force Majeure and SHELT shall not be liable for any delay or failure to perform its obligations.
Section 20. Governing Law
20.1 The Agreement and any other further written agreement between the Parties shall be governed by and construed under the laws of France.
20.2 All disputes arising out of or in connection with the present Terms or of the Partnership Agreement shall be finally settled by means of arbitration under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with the said Rules. The seat of the proceedings shall be in Geneva, Switzerland and the language of the proceedings shall be the English language.
20.3 SHELT shall have the right at any time to apply to any court of law for injunctive relief as it may see fit.
Section 21. Severability
If any term or provision of the Partnership Agreement and/or the Terms is found by any arbitral tribunal or court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of the Partnership Agreement and/or the Terms, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties herein set forth.
Section 22. General Provisions
22.1 Assignment and Subcontracting
a) SHELT may assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Partnership Agreement and/or the Terms to any of its Affiliates, without the need for the prior consent of the Partner.
b) SHELT may subcontract the execution of the Services or part thereof to a third party.
c) The Partner may not under any circumstances, transfer, assign, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Partnership Agreement to any of its Affiliates or third parties, without SHELT’s prior written consent.
22.2 Set – Off
a) SHELT shall be entitled to set-off any payment due to Partner (if any) with any payment due by Partner to SHELT pursuant to the Partnership Agreement. SHELT shall send to the Partner a notice following any set-off.
b) Partner shall not be entitled to set-off any payment due by Partner to SHELT with any payment due to Partner by SHELT for any reason whatsoever.
Each Party shall pay its own costs in relation to:
a) the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
b) the performance of any action by that Party in compliance with any liability arising, out of the Partnership Agreement and/or the Terms.
a) Any notice to or by a Party under the Partnership Agreement and/or the Terms shall be in writing and signed by the sender or, if a corporate party, an authorized officer of the sender.
b) Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient specified in the Partnership Agreement or most recently notified by the recipient to the sender.
c) Any notice is effective for the purposes of the Partnership Agreement and/or the Terms upon delivery to the recipient.
d) If SHELT gives the Partner notice pursuant to the Partnership Agreement and/or the Terms, the Partner, if applicable, shall promptly give a corresponding notice to all of its Customers.
22.5 Data Privacy and Regulation of Investigatory Powers
Partner acknowledges that information that may be processed in the course of performing the Services may contain personal information of individuals and associated metadata and that the processing of such information may therefore involve the processing of personal information. With respect to any and all data, including, but not limited to, third party data, personal information and associated metadata that may be obtained by SHELT and/or by a Product Licensor, as the case may be, pursuant to Partner r Customer’s use of the Services (collectively, the “Data”), Partner shall take all necessary and appropriate technical and organizational measures to ensure that it, and all its employees and customers, are aware that their personal information may be accessed, collected, stored and/or processed as part of the Services and that they have given their express consent to such processing as well as complied with their responsibilities under applicable Data Protection Legislation. Partner understands and agrees that SHELT and/or its subcontractors and/or the Product Licensor, as the case may be, are not the controller(s) of the Data that may be processed by SHELT and/or any of its subcontractors and/or the Product Licensor, as the case may be, and that SHELT would only be performing the Services on behalf of Partner.
a) SHELT reserves the right to modify and change the Terms and Conditions, from time to time, in accordance with SHELT’s arrangements with its hardware or software vendors or as it may deem fit and at its sole discretion.
b) SHELT will use reasonable efforts to notify Partner of any material changes to the Terms before they become applicable, but it is the sole and exclusive responsibility of the Partner to ensure that it is familiar with the most current set of the Terms including any Additional Conditions and/or any Specific Terms and Conditions.
a) expresses and incorporates the entire agreement between the Parties in relation to its subject matter, and all the terms of that agreement; and
b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement, whether written or oral, by or between the Parties in relation to that subject matter or any term of that agreement and any conflicting terms and conditions on Partner’s order shall be null and void.
22.8 Additional Conditions and Specific Terms and Conditions
a) The Partner undertakes to abide by any Additional Conditions at its own costs and shall indemnify and hold SHELT harmless from any and all direct or indirect liability SHELT might incur due to the Partner’s failure to abide by the Additional Conditions.
b) The Partner acknowledges being informed that the use and resale of part or all the Services may be subject to Specific Terms and Conditions and confirms that the said Specific Terms and Conditions shall apply as well and be deemed as an integral part of this Agreement only with regards to the provisions of the related Service.
c) Any breach or violation by the Partner to any Additional Condition and/or Specific Terms and Conditions (if applicable) shall be construed as a material breach of this Agreement. Any breach or violation of the Additional Conditions and the Specific Terms and Conditions entitles SHELT in addition to all available legal and contractual remedies, to terminate this Agreement without the need of any judicial or arbitral proceedings and without being liable towards the Partner or any of its Affiliates or towards the Customers for any reason whatsoever.
22.9 Order of prevalence
The order of prevalence for a specific Service between the Partnership Agreement, the Terms, the Specific Terms and Conditions and the Additional Conditions shall be as follows:
i. the Partnership Agreement
ii. the Terms
iii. the Specific Terms and Conditions (if any)
iv. the Additional Conditions (if any).
Any failure by any Party to exercise any right under the Partnership Agreement and/or the Terms does not operate as a waiver and the single or partial exercise of any right by that Party does not preclude any other or further exercise of that or any other right by that Party.
The Partner expressly acknowledges and agrees to be bound by and execute the content of the Documentation and the Terms and Conditions as may be amended by SHELT at its sole discretion from time to time.
22.12 Compliance with Laws; Export (whenever applicable)
a) Partner acknowledges that the Services and any technical data related thereto may be licensed or sold subject to and controlled by the export laws of the United States (“US”) including its Export Administration Regulations, the European Union (“EU”) and/or countries within the European Free Trade Area (“EFTA”) (collectively the “Export Control Laws”) and Partner hereby agrees not to export, re-export or otherwise distribute the Services, in violation of any Export Control Laws. Partner agrees to advise its Customers that the Services are subject to and controlled by such Export Control Laws and that the US government and/or the member states of the EU and EFTA may require licensing or other authorizations prior to export.
b) Partner warrants that it will not sell or resell or export or re-export any part of the Services with knowledge that they will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons, or in a facility engaged in such activities, unless Partner has obtained prior written approval from the appropriate department of the US Government. Partner further warrants that it will not sell or resell or export or re-export, directly or indirectly, any Services to embargoed countries or sell or resell Services to companies or individuals listed on the Denied Persons List published by the US Department of Commerce or any similar list.
c) It is Partner’s sole and exclusive responsibility to obtain any and all appropriate approvals from the US government and/or member states of the EU and EFTA prior to exporting such Services, or any technical data related thereto, from the United Kingdom. SHELT shall not be responsible for any costs, liabilities or damages resulting from Partner’s failure to obtain any such required authorization. Partner understands that the Export Control Laws may change from time to time. It is Partner’s sole and exclusive responsibility to obtain guidance of counsel or other appropriate channels to ensure its compliance with these laws.
d) Partner warrants that it will not take any action or permit or authorize any action which will render SHELT liable for a violation of the US Foreign Corrupt Practices Act (the “Act”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or SHELT in obtaining or retaining business and (i) will not violate or cause SHELT to violate such Act in connection with the sale and distribution of the Services; and (ii) will notify SHELT in writing if any of its owners, partners, principals, and officers are or become officials, officers or representatives of any government or political party or candidate for political office.
e) Partner shall comply with EU Directives 2002/95/EC (Restriction on Hazardous Substances and 2002/96/EC dated January 27, 2003 (Waste Electrical and Electronic Equipment) (“WEEE”) generally and as instated within each country into which Services are imported, exported or otherwise distributed by Partner, such obligation which shall include registering as a “producer” under applicable WEEE legislation.
f) Partner shall indemnify, defend and hold SHELT harmless from any violation or alleged violation by Partner of the terms of this Section. Upon SHELT’s request, Partner agrees to confirm, in writing, its compliance with applicable Export Control Laws and the Act.
During the Term of this Agreement and for a period of twelve (12) months following the date of the termination or expiration of the Agreement, Partner shall not solicit or induce any employee of SHELT involved in the marketing, promotion, sale or distribution of Services to leave their employment or terminate or breach their contract for services with SHELT as the case may be, and Partner shall not appoint, engage, contract or employ such employee to provide services to Partner. In the event Partner should breach this Section, Partner agrees to pay SHELT, by way of liquidated damages, a lump sum representing the employee’s annual salary (including benefits) and Partner hereby agrees that such sum is a genuine and reasonable estimate of SHELT’s loss.
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