The terms on this page refer to the Reseller Program, and the terms on this page including any additional provisions that you have been advised of by the Supplier form an agreement between you and the Supplier. Please read these terms and conditions, and any additional terms that may have been provided to you, before accepting to become a Reseller of the Smart Service monitoring services.

You should print a copy of these terms and conditions for future reference.

Please note that you are not permitted to promote or sell any of the services available on the Website, unless you have entered your company details in the SMART Control Panel & accepted these terms and conditions; and your application has been accepted by the Supplier.

Please check the box next to the "I Accept" at the end of these terms and conditions to confirm that you accept the Terms and Conditions, and understand the same. Please understand that if you refuse to accept these terms and conditions, then you shall not be permitted to resell or advertise, or in any was associate or act as a reseller, of any of the services on www.smartservermonitoring.com (the “Website”)

The Supplier reserves the right to reject any application from you to become a Reseller at any time.

1. Definitions

In these terms and conditions, unless the context otherwise requires, the following terms shall have the following meanings:

2. Interpretation
1. In this Agreement unless the context otherwise requires:
1. words importing any gender include every gender;
2. words importing the singular number include the plural number and vice versa;
3. words importing persons include firms, companies and corporations and vice versa;
4. references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
5. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
6. the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;
7. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
8. any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
9. any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
2. In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in the body of this Agreement shall take precedence.
3. Appointment and Licence
1. You shall be required to fill in the Reseller Application, available on the Website or by contacting the Supplier.
2. Upon acceptance of the Resellers Application by the Supplier in writing, the Supplier shall appoint the Reseller as a non-exclusive reseller of the Services to the Reseller's Clients for the Term and the Reseller agrees to act in that capacity subject to the terms and conditions of this Agreement, and the Services Terms and Conditions.
3. Nothing in this Agreement shall prevent the Supplier from supplying the Services to other clients in the same region as the Reseller either directly or via other resellers or agents. All rights not specifically and expressly granted to the Reseller under this Agreement are reserved to the Supplier.
4. The Supplier, in consideration of the Reseller's obligations under this Agreement, grants to the Reseller a personal, non-transferable, non-exclusive right to use, sub-license, market and support the Services (including the Intellectual Property Rights therein) only to the extent strictly necessary for the Reseller to perform its obligations under this Agreement and for no other purpose whatsoever.
5. The Reseller shall have its own account and Control Panel, in which it shall register Reseller’s Clients and their servers in order to deliver the Services to the Resellers Clients.
6. The Reseller shall ensure that the Reseller’s Clients are aware of the terms and conditions upon which the Services are provided at all times, including all amendments from time to time.
7. The Reseller accepts that it shall indemnify the Supplier for any breach of the terms and conditions of the Services by the Reseller’s Clients, or the Reseller.
8. The Reseller acknowledges and accepts that it shall be bound by the Service Terms and Conditions, as he is for all intent and purposes a client of the Supplier, and hence subject to the Service Terms and Conditions.
9. The Reseller shall ensure that the Reseller’s Clients are made aware of the SMART service terms, or that these are incorporated in its own Terms and Conditions.
4. Price and Payment for the Services
1. The Reseller shall be charged the agreed rate per Client Server registration, as agreed from time to time, or as advertised at the time of the Resellers Application being accepted.
2. Fees are paid by the Reseller at the point a Client Server is registered on the Control Panel.
3. Thereafter, fees are paid annually on the anniversary of each Client Server registration. The Reseller shall be billed individually for each Client Server on such anniversary for the coming year.
4. Any delay by the Supplier to invoice the Reseller for any amount, shall not be deemed as a waiver to recover such amount.
5. Fees are non refundable in whole or in part, should the Reseller’s Client terminate the Services during a 12 month term. The Reseller is advised to make its own provision of compensation from the Reseller’s Client.
6. The Supplier reserves the right to bill the Reseller any additional charges incurred as a result of excessive use, or services that have not been included in this agreement, or envisaged by the Company.
7. The Reseller shall pay the Supplier all fees related to the number of Client Servers registered on its Control Panel, irrespective of whether the Reseller has received payment from the Reseller Client.
8. The Reseller may at its sole discretion determine the price for the Services it supplies to the Resellers Clients.
9. The fee is subject to change by the Supplier on 30 days' prior written notice to the Reseller except where the Supplier has agreed to maintain such price for the validity period of the Reseller's quote to the Reseller's Client, provided that such validity period is no longer than 30 days.
10. The Reseller shall be liable for any other agreed fees, any national, European Union, value added, sales, excise, state, local or other taxes or customs duties applicable.
11. The Reseller shall pay an interest charge on any sum outstanding to the Supplier at the rate of 4% above Barclays Bank PLC Sterling base rate on a monthly basis from the due date of payment until payment has actually been made. The Reseller shall notify the Supplier in writing within 10 days or receipt of an invoice that the invoice is in dispute.
12. The Reseller agrees that, except as stated specifically in this Agreement, its entire compensation for the resale of the Services to the Reseller's Clients shall be the margin on each transaction, being the difference between the wholesale and retail prices for the Services.
5. Intellectual Property Rights
1. The Supplier is the owner or licensee of all Intellectual Property Rights forming part of the Services and any literature or documentation (including the Marks).
2. Neither this Agreement nor any licence or sub-licence granted under this Agreement shall be construed to convey or transfer any ownership or proprietary interest in any Intellectual Property Rights in the Services, Documentation or the Marks to the Reseller or any third party.
3. The Reseller agrees not to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Services and/or Documentation or create derivative works of the same for any purpose (including error correction or any other type of maintenance) without the Supplier's prior written consent.
4. The Reseller agrees that:
1. the Services are the valuable property of the Supplier and shall be treated as confidential as described under clause 15;
2. it will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the Services in any manner to third parties save as is expressly permitted otherwise in this Agreement;
3. it will maintain true and accurate SMART client records to enable the Supplier to ensure the Reseller's compliance with the terms of this Agreement. The Reseller will permit the Supplier to have access to these Reseller's records and computer systems and to use software audit tools on the Reseller's systems that may reasonably be required in relation thereto;
4. it shall enter all Reseller’s Clients into the ‘Reseller Opportunity Log’, which it shall have shared access to upon commencement of the Agreement. Should the Reseller fail to log a prospective Reseller Client in the Reseller Opportunity Log, and that prospective Reseller Client becomes a client of the Supplier directly, the Reseller shall not be entitled to any income generated from the instruction; and
5. It shall be a customer of the Supplier and be bound by the Service Terms and Conditions, which shall apply to the Reseller for each and every Client Server, including its own servers.
5. The Reseller undertakes throughout the Term:
1. to ensure that the Reseller’s Client complies with the SMART service terms at all times, by ensuring that all Resellers Clients accept the service terms before they commence receiving the Services;
2. where there is a conflict between the Services Terms and Conditions and the Resellers own terms and conditions of sale and supply to the Reseller Client, the Services Terms and Conditions shall prevail;
3. not to cause or permit anything which may damage or endanger the Supplier's Intellectual Property Rights or the Supplier's title to them or assist or allow others to do so;
4. to notify the Supplier of any actual, threatened or suspected infringement of the Supplier's Intellectual Property Rights;
5. to notify the Supplier of any claim by any third party that the Services infringe any Intellectual Property Rights of any third party;
6. to take such reasonable action as the Supplier may direct at the expense of the Supplier in relation to such infringement;
7. to affix such notices to the Services or their packaging or advertising as the Supplier may be legally or statutorily required to do;
8. to compensate the Supplier for any use by the Reseller of the Supplier's Intellectual Property Rights otherwise than in accordance with this Agreement;
9. to indemnify the Supplier for any liability incurred to third parties for any use of the Supplier's Intellectual Property Rights otherwise than in accordance with this Agreement;
10. on the expiry or termination of this Agreement forthwith not to use the Intellectual Property Rights save for any Services already purchased under the terms of this Agreement;
11. not to tamper with the Control Panel;
12. to use the Marks (in compliance with all relevant laws and regulations) whenever any Product is referred to by the Reseller;
13. not to use any name or mark similar to or capable of being confused with the Marks nor modify any of the Marks in any way nor use the Marks or any derivation of them otherwise than is permitted by this Agreement;
14. to acknowledge that any goodwill or reputation for the Services generated by the Reseller's obligations under this agreement will belong to the Supplier and upon termination of this agreement for whatever reason the Reseller shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation; and
15. to ensure that all Reseller’s Clients have been correctly signed up to receive the Services, and that the Services are being delivered correctly.
6. Third Party Claims
1. The Supplier shall defend, at the Supplier's expense, any claim (the 'Claim'), brought against the Reseller alleging that the Services as acquired under this Agreement infringe an Intellectual Property Right of a third party. The Supplier shall pay all costs and damages awarded or agreed to in settlement of a Claim PROVIDED THAT the Reseller furnishes the Supplier with prompt written notice of the Claim and provides the Supplier with reasonable assistance and sole authority to defend or settle the Claim.
2. If in the Supplier's reasonable opinion the Services become the subject of a Claim, then the Supplier shall either obtain for the Reseller the right to continue using these Services with the prior written consent of the Reseller, modify them so it becomes non-infringing. If such remedies are not reasonably available (in the Supplier's sole opinion), then the Reseller shall return the Services and/or Documentation which are the subject of the Claim.
3. The Supplier shall have no liability for any Claim resulting from other services which were not supplied by the Supplier, or any Claim resulting from the amendment of the Services by the Reseller.
7. Supplier's Obligations and Rights
1. The Supplier agrees with the Reseller through the Term:
1. to provide and promptly update information about the Services;
2. to provide the Reseller with an electronic version of the terms and conditions related to the Services;
3. to provide training to the Reseller on the use of the Services subject to payment of any fee set by the Supplier from time to time;
2. On the Expiry Date, the Supplier agrees to extend the Term for a further period of 12 months without breaking continuity PROVIDED THAT the Reseller:
1. has properly observed and performed its obligations under this Agreement throughout the Term; and
2. has no outstanding liability to the Supplier; and
3. accepts that the terms of this Agreement shall apply to any extension of the Term (whether express or implied);
3. The Supplier may add to the Services such other services as the Supplier may in its sole discretion deem appropriate PROVIDED THAT the Reseller at the Supplier's request executes a new agreement in respect of the addition on the Supplier's standard terms current at the date of such agreement.
4. The Supplier shall be entitled for any reason to reject any order, tender or request for the Services submitted by the Reseller.
8. Reseller's Obligations
1. The Reseller shall use best endeavours to promote and market the Services (at its own cost), seek new clients, Reseller Clients, for the Services, and carry out the other duties specified in this clause using all due care and diligence and shall cultivate and maintain good relations with the Reseller's Clients and potential at all times.
2. The Reseller shall conduct (at its own cost) the promotion and marketing of the Services with all due care and diligence.
3. The Reseller shall provide support services to the Reseller's Clients in accordance with clause 9 below, and shall provide co-operation and assistance to the Supplier in the Supplier's efforts to provide Second Level Support and Maintenance.
4. The Reseller shall throughout the Term:
1. obey the Supplier's reasonable instructions in relation to the intended use of the Services;
2. advertise regularly the Services by advertising in print or in digital media copies of which should be supplied to the Supplier at the Reseller's expense upon the Supplier's request;
3. supply to the Supplier such information and support as may enable the Supplier to carry out its obligations under this Agreement;
4. ensure that the Reseller Opportunity Log is kept up to date.
5. The Reseller shall not:
1. describe itself as agent or representative of the Supplier except as expressly authorised by this Agreement, or in writing by the Supplier;
2. hold itself out, or permit any person to hold it out, as being authorised to bind the Supplier in any way nor do any act which might reasonably create the impression that it is so authorised;
3. pledge the credit of the Supplier in any way;
4. use any advertising, promotional or selling materials in relation to the Suppliers trademarks, except those supplied or approved by the Supplier;
5. engage in any conduct which in the opinion of the Supplier is prejudicial to business or the marketing of the Services generally;
6. be concerned or interested either directly or indirectly in the distribution. sale, promotion, marketing of any service which competes with the Services during the Term of this Agreement, and for a period of 12 months from termination of this Agreement;
7. make or give any promises, warranties, guarantees or representations concerning the Services other than those contained in the Licensed User Agreement; or
8. supply any Services to any third party until such third party has accepted the Suppliers terms and conditions.
6. The Reseller shall indemnify and keep indemnified the Supplier from and against any and all loss fees and costs incurred by the Supplier resulting from breach of this Agreement by the Reseller including:
1. any act or neglect or default of the Reseller's agents employees licensees or Clients; and
2. breaches resulting in any successful claim by any third party alleging libel or slander in respect of any claim in any Documentation or any other matters arising from the resale of the Services PROVIDED THAT such liability has not been incurred by the Supplier through any default on its part in carrying out the terms of this Agreement.
7. The Reseller shall pay all expenses of and incidental to performing its obligations under this Agreement.
9. Reseller's Support and Maintenance Obligations
1. The Reseller shall provide support for the Services to each Reseller Client.
2. The Reseller shall ensure that the Control Panel is at all times up to date, as the Supplier shall not be held liable for any incorrect information that results in no alert being issued
3. The Reseller shall notify the Supplier if any Problem or Software Fault is not covered by this Clause 9 and any time spent thereafter by the Supplier investigating such problems under the terms of Clause 10 will be chargeable at the Supplier's then current rate unless the Reseller gives notice to the Supplier not to pursue such investigations. The Supplier shall invoice such charges at its discretion and such charges shall be paid within 30 days from the date of said invoice.
4. The Reseller shall provide co-operation and assistance to the Supplier in the Supplier's efforts to provide Second Level Support and Maintenance. Such co-operation and assistance shall include but not be limited to:
1. a reasonable level of responsiveness to the Supplier's requirements and communications;
2. the timely transmittal and release to the Supplier of appropriate and accurate documentation and information; and
3. the prompt review and analysis of the work performed by the Supplier.
5. The making of facilities and personnel available to assist the Supplier when and to the extent as is reasonably requested.
10. Supplier’s Support and Maintenance Obligations
1. Subject to the terms of this Agreement and unless otherwise agreed in writing between the parties the Supplier shall provide Second Level Support to the Reseller during the Normal Support Hours in respect of the Services and Documentation.
2. The Supplier shall not be obliged to provide Second Level Support should the Reseller be overdue in payment of any amount to the Supplier.
3. Pursuant to clause 10.1 above, the Supplier shall endeavour to:
1. respond to Second Level issues within a reasonable time;
2. notify and make available to the Reseller any modification; update or addition to the Services
4. The Supplier shall keep the Reseller informed in advance of any new modifications, intended or planned Services which it has in development or Services which it intends to replace or discontinue and the likely time-scale for introduction, replacement or discontinuation of the same.
5. The Supplier shall be entitled to charge for any support, such charges to be agreed in advance,
11. Exclusions from Support and Maintenance
1. The Supplier shall be under no obligation to provide support in respect of:
1. problems resulting from any modifications or customisation of the Services not made by or authorised in writing by the Supplier;
2. any support other than for the proper function of the Services;
3. incorrect or unauthorised use of Services or the Control Panel;
4. any fault in any computer hardware, either belonging to the Reseller or the Resellers Client; and
5. any fault as a result of the Reseller’s Clients interrupting the Services.
12. Warranty
1. The Supplier does not warrant that the functions of the Services will meet any particular requirements or that their operation will be entirely error-free or that all program defects are capable of correction or improvement. All other warranties including any implied warranties of merchantability, satisfactory quality or fitness for purpose or ability to achieve a particular result are hereby excluded. In the absence of fraud, no oral or written information or advice given by the Supplier or its agents or licensees shall create a warranty or give rise to any other liability other than is given in this Agreement.
2. The Supplier itself does not warrant third party Services. Where the Supplier supplies third party hardware, the Supplier will pass on to the Reseller the benefit of any third party warranty which will usually be supplied by a third party manufacturer as specified in the documentation provided with the third party Services.
13. Warranty Remedies
1. In respect of the Services, the Reseller agrees that its sole remedy in respect of any non-conformance with any warranty in this Agreement is that the Supplier will remedy such non-conformance.
14. Limitation of Liability
1. Save in respect of claims for death or personal injury arising from the Supplier's negligence, in no event will the Supplier be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Supplier whether such damages were reasonably foreseeable or actually foreseen.
2. In no event shall the Supplier be liable to the Reseller for any losses whatsoever (whether lost future revenues, lost future profits, expenditure incurred to no benefit, or otherwise) suffered or incurred by the Reseller solely or substantially as a result of any termination of this Agreement, or interruption of delivery of the Services to the Reseller or the Reseller’s Clients.
3. All liability that is not expressly assumed in this Agreement is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of this clause 'the Supplier' includes its employees, sub-contractors and suppliers. The Reseller acknowledges that the Supplier's employees, sub-contractors and suppliers shall have the benefit of the limits and exclusions of liability set out in this clause in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
4. Both parties acknowledge and agree that the limitations and exclusions of liability set out in this clause are reasonable and have been agreed taking into account the commercial value of these terms and conditions to each party and the commercial standing of each party.
15. Confidentiality
1. 'Restricted Information' means any private, secret or confidential information which is disclosed by either party pursuant to or in connection with this Agreement (whether orally or in writing and whether or not such information is expressly stated to be confidential or marked as such).
2. Both parties shall at all times during the continuance of this Agreement and after its termination:
1. use their best endeavours to keep all Restricted Information confidential and accordingly not disclose any Restricted Information to any other person;
2. not use any Restricted Information for any purpose other than the performance of its obligations under this Agreement; and
3. be responsible for the activities of any properly appointed sub-contractors or subsidiaries and undertake that they will be bound to the same extent of confidentiality as this clause.
3. The provisions of clause 15.2 shall not apply to:
1. any information in the public domain otherwise than by breach of this Agreement;
2. information in the possession of the receiving party before disclosure thereof by the disclosing party;
3. information obtained without restriction from a third party; and
4. information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority.
16. Duration and Termination
1. This Agreement shall become effective on the Commencement Date shall continue in force for a term of ONE YEAR whereupon it shall renew automatically for successive annual terms unless either party gives at least 30 days notice in writing of its decision not to renew, such notice to expire on what would otherwise be the renewal date
2. The Supplier shall bill 30 days in advance of expiry of the Term, or when reasonably practical for the Supplier.
3. The Supplier shall be entitled to terminate this Agreement by giving not less than 30 days' written notice to the Reseller if majority control of the Reseller is acquired by any person or group of connected persons not having control of the Reseller as at the date of this Agreement.
4. Either party shall be entitled forthwith to terminate this Agreement by written notice to the other if:
1. that other party commits any material breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
2. an encumbrance takes possession or a receiver is appointed over any of the property or assets of that other party;
3. that other party makes any voluntary arrangement with its creditors or becomes subject to an administration order;
4. that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);
5. anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or
6. that other party ceases, or threatens to cease, to carry on business.
17. Termination Consequences

On the termination of this Agreement for any reason:

1. the Reseller shall within 30 days send to the Supplier details of all the Resellers Clients that are receiving the Services;
2. the Supplier shall take control and possession of the Reseller’s Clients for ongoing future delivery of the Services, which shall include ownership and control of the Control Panel;
3. the Reseller shall have no further access to the Control Panel, or any data within the Control Panel;
4. the Reseller shall have no claim against the Supplier for compensation for loss of reseller rights; loss of goodwill; loss of profits, or any loss, howsoever occurring.
5. clauses that are necessary for the enforcement or interpretation of this Agreement shall survive, which shall include clauses relating to confidentiality and protection of Intellectual Property Rights;
6. subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement; and
7. on termination the Reseller will cooperate in transferring the Reseller’s Clients to the Supplier, and ensuring that all Reseller’s Clients enter into Services Terms and Conditions directly with the Supplier.
18. Non Competition
1. The Reseller warrants that whilst a reseller of Services, and 6 months after the termination of this Agreement, for whatever reason, whether in whole or in part, shall not engage in business with or be in any way interested in any firm, company or organisation which engages in or carries on the business of the Supplier, whether that be by himself, or in association with any other person, company or organisation
19. Data Protection
1. The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
20. Agency, Partnership
1. This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
21. Amendments
1. This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
22. Assignment
1. This Agreement is personal to the parties and, subject to clause 22.2 below, neither this Agreement nor any rights, licences or obligations under it may be assigned by either party without the prior written approval of the other party.
2. Notwithstanding the foregoing, either party may assign this Agreement to any acquire of all or of substantially all of such party's equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a party to this Agreement. Any attempted assignment in violation of this clause will be void and without effect.
23. Entire Agreement
1. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
24. Force Majeure
1. Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 30 business days, either party may terminate this Agreement by written notice to the other party.
25. Notices
1. All notices under this Agreement shall be in writing.
2. Notices shall be deemed to have been duly given:
1. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
2. when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
4. on the tenth business day following mailing, if mailed by airmail, postage prepaid,

in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

26. Severance
1. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
27. Successors and Assignees
1. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
2. In this Agreement references to a party include references to a person:
1. who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or
2. who, as administrator, liquidator or otherwise, is entitled to exercise those rights,

and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

28. Waiver
1. No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
29. Time of the Essence
1. Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this Agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.
30. Subcontracting
1. With the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed) the Reseller may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that the Reseller shall remain liable for such performance and shall indemnify the Supplier against any loss or damage suffered by the Supplier arising from any act or omission of such agents or sub-contractors.
31. Language
1. This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.
32. Set-off
1. The Reseller shall not be entitled to set off any amount that is owned to the Supplier for any reason whatsoever, whether pursuant to these terms and conditions, or otherwise.
33. Third Parties
1. The parties confirm their intent (subject to clause 14.3) not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
34. Reservation of Rights
1. All rights not specifically and expressly granted to the Reseller by this Agreement are reserved to the Supplier.
2. The content of this contract is copyright of the Supplier.
35. Proper Law and Jurisdiction

This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law notwithstanding the conflict of law provisions and other mandatory legal provisions save that:

1. the Supplier shall have the right to sue to recover its fees in any jurisdiction in which the Reseller is operating or has assets; and
2. the Supplier shall have the right to sue for breach of its Intellectual Property Rights and other proprietary information and trade secrets (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its Intellectual Property Rights might be taking place.
2. Each party recognises that the other party's business relies upon the protection of its Intellectual Property Rights and that in the event of a breach or threatened breach of Intellectual Property Rights, the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its Intellectual Property Rights.
3. With respect to all other disputes which are not Intellectual Property Rights related pursuant to clauses 35.1 and 35.2 above and its special rules the following procedures in clauses 35.4 to 35.6 shall apply. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties ('representatives') shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
4. If the parties cannot resolve a dispute in accordance with the procedure in clause 35.3 above, then they shall with the assistance of the Centre for Effective Dispute Resolution ('CEDR'), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution ('ADR') procedure acceptable to both parties before pursuing any other remedies available to them. If either party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both parties within 60 days after it has arisen, the matter shall be settled in accordance with the procedure below.
5. If the parties cannot resolve the dispute by the procedure set out above, the parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be England.
6. Any dispute shall be determined by the High Court of Justice in England and the parties submit to the exclusive jurisdiction of that Court for such purposes.