Claranet Reseller/Dealer MSA

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

“Acceptable Use Policy” means Claranet’s Acceptable Use Policy, the current version of which is available on the Claranet Website, as amended from time to time;

“Additional Charges” means unforeseen costs relating to the Set Up of a Service

“Beta Trial” means the trial of a Service by a Reseller/Dealer before its official release as a Service by a Reseller/Dealer

“Change Control Form” means a form which shall be provided to the Reseller/Dealer to reflect any changes to the Services, as previously agreed between the Party’s, and shall hereby be incorporated into the terms of the Agreement. If such resultant change shall incur Fees to either the Reseller/Dealer or Claranet, then a new Order Form shall be provided to the Reseller/Dealer which does not alter the existing Terms and Conditions

“Claranet” means Claranet Limited (Company No. 03152737) of 21 Southampton Row, London WC1B 5HA

“Claranet Equipment” means any hardware, cabling, peripherals, software or any other equipment that Claranet shall provide the Reseller/Dealer as part of the Services, whether owned by Claranet or a third party supplier but specifically excludes any such equipment that has been sold to the Reseller/Dealer

“Claranet Website” means the website operated by Claranet currently at URL www.claranet.com (as such URL may change from time to time);

“Claranet Service Deliverables” means the product of the provision of the Claranet Services and any materials, equipment, software, deliverables or other items of any type developed, created or supplied (whether alone or jointly) by Claranet or any Claranet Group Company in the course of the provision of the Claranet Services;

“Claranet Services” means the services set out in the Service Description, to be provided by Claranet to the Reseller/Dealer pursuant to this Agreement;

“Commencement Date” means the date on which this agreement is signed by the parties;

means

“Connectivity Services” means DSL, Leased Line, Ethernet or any form of service provided by Claranet to the Reseller/Dealer that allows the transmission of data between two points

“Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its “Representatives”) to the other party and that party’s Representatives in connection with this agreement including any information relating to the business, affairs, Reseller/Dealers, clients and suppliers of the disclosing party (or of any Group Company of the disclosing party) and any information relating to the services, services information, know-how, designs, trade secrets or software of the disclosing party (or of any Group Company of the disclosing party);

“Control” means the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise;

“Consultancy Services” means the Service provided by Claranet whereby the Reseller/Dealer is provided with a human resource who may advise on a variety of subjects, including, but not limited to, long-term infrastructure planning and virtualisation, to suit Reseller/Dealer requirements. Consultancy will be agreed with the Reseller/Dealer, commensurate with the Services being provided by Claranet, in advance of any commencement of works.

“Dealer” a legal person that occasionally buys services from or refers buyers to Claranet.

“Fees” means the fees and charges payable by the Reseller/Dealer for the provision of the Claranet Services and all other fees and charges payable by the Reseller/Dealer to Claranet in accordance with this Agreement;

“Force Majeure Event” means any circumstances beyond the reasonable control of either party to this agreement including but not limited to adverse natural events such as fire, storm, flood and extreme weather conditions; the outbreak of hostilities, riot, civil disorder or commotion; acts of terrorism; industrial disputes or acts or defaults of any local or central government or other competent authority;

“Group Company” means any holding company or subsidiary of either party to this agreement, or any subsidiary of any such holding company (as such terms are defined in the Companies Act 2006 (as amended);

“Initial Term” means 12 months from the Services Commencement Date, or such other period as set out in the Order Terms or Specific Terms;

“Intellectual Property Rights” means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same including, without limitation, copyright, database rights, design rights, patents, trade marks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information;

“International Service”
means a service provided by Claranet to a Reseller/Dealer point outside of the United Kingdom, as set out in the Order Form and/or the Service Description, to be provided by Claranet to the Reseller/Dealer pursuant to this Agreement

“Legislation” means any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party;

“Managed Hosting” means the Claranet management of space, power and hardware on which a Reseller/Dealer would manage their own operating system and applications.

“Managed Application Hosting” means the Claranet management of space, power, hardware, operating systems, application engines and the Reseller/Dealer’s application.

“Minimum Sales Level” An agreed volume of sales within a term which must be delivered or off-set as may be agreed from time to time.

“Minimum Written Notice” means the period of written notice to be given by the Reseller/Dealer to Claranet in order to terminate the provision of any of the Claranet Services, which shall be the period of notice specified in the applicable Specific Terms or, if no period of notice is specified in the Specific Terms, [90-days];

“Order Form” means the form in a format specified by Claranet (as amended by Claranet from time to time) completed by the Reseller/Dealer and submitted to Claranet which lists the Claranet Services requested by the Reseller/Dealer;

“Order Terms” means any terms and conditions set out in the Order Form;

“Problem” means any mistake, error or defect that causes the Service Components or a System to malfunction or to fail to meet its respective specifications as detailed in the Order Form and Service Description

“Renewal Term” means the term of 12 months commencing on the expiry of the Initial Term, and each successive period of 12 months thereafter (or such other period as set out in the Specific Terms) (each being a “Renewal Term”);

“Reseller/Dealer Agreement” means an agreement with an authorised person to resell Claranet services to their own clients without prejudice to any classification that Claranet may assign to that person and the specific terms and conditions which govern the legal relationship between Claranet and a Reseller/Dealer

“Service” means a service set out in the Order Form and/or the Service Description, to be provided by Claranet to the Reseller/Dealer pursuant to this Agreement

“Services Commencement Date” means the date on which a Service or component of Service is successfully installed in accordance with the provisions of this Agreement;

“Service Deliverables”
means any materials, equipment, software, deliverables or other items of any type developed, created or supplied (whether alone or jointly) by Claranet or any Claranet Group Company in the course of the provision of the Services

“Service Description” means the description of the Claranet Services as set out in the Specific Terms and appropriate associated documentation;
“Services Term” means, in relation to each of the Claranet Services, the period from the Services Commencement Date to the expiry or termination (for any reason) of the Claranet Services pursuant to this Agreement;

“SLA” means the service level agreement applicable to the Claranet Services, as provided by Claranet to the Reseller/Dealer from time to time and/or under this Agreement;

“SOW” means the Statement Of Work, which may be provided by Claranet, if applicable, along with the confirmation of the Order

“Solution” means one or more Services, as set out in the Service Description(s) and/or applicable SOW

“Specific Terms” means those terms specific to the Claranet Services means the estimated date provided by the Reseller/Dealer to any third party for the installation of the Service

“Target Installation Date” means the estimated date provided by Claranet or any third party supplier for the installation of the Service.

“Term” means the period from the Commencement Date to the expiry or termination (for any reason) of this agreement;

“Terms and Conditions” means these terms and conditions

“Territory” means the geographical area described in Schedule 1;

“Trade Marks” means the registered or unregistered trade marks identified in Schedule 2 together with any further trade marks which Claranet may permit or procure permission for the Reseller/Dealer by express notice in writing to use in respect of the Claranet Services;

“Working Day” means 09.00 to 18.00, Monday to Friday excluding UK Public Holidays;
“Year” means the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter during the term of this agreement.

1.2 In this agreement, unless the context otherwise requires:

1.2.1 clause, schedule and paragraph headings shall not affect the interpretation of this agreement;

1.2.2 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.3 the schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement;

1.2.4 words in the singular shall include the plural and vice versa;

1.2.5 a reference to one gender shall include a reference to the other genders;

1.2.6 a reference to a statute, statutory provision or subordinate legislation is a reference to it as it is in force from time to time taking account of any amendment or re-enactment;

1.2.7 a reference to “writing” or “written” includes faxes and e-mail;

1.2.8 any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction; and

1.2.9 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Appointment

2.1 Claranet hereby appoints the Reseller/Dealer as its non-exclusive distributor to distribute and resell Claranet Services on a stand-alone basis or in combination with its own services (or the services of any third party) in the Territory, on the terms of this agreement. [The Reseller/Dealer may in addition distribute and resell any Claranet Services outside the Territory. However, where the Reseller/Dealer sells Claranet Services outside the Territory, the Reseller/Dealer acknowledges and agrees that Claranet may not be able or may elect to decline to provide some or all of the Claranet Services ordered and the Reseller/Dealer accordingly does so entirely at its own risk.]

2.2 Claranet reserves the right to promote market and sell the Claranet Services direct to Reseller/Dealers and to appoint other Reseller/Dealers in the Territory.

2.3 Claranet reserves the right to use the name of the Reseller/Dealers clients where it so decides for advertising and marketing purposes.

2.4 The Reseller/Dealer shall be entitled to describe itself as an “Authorised Reseller/Dealer” of Claranet Services but shall not represent itself nor shall Claranet accept, acknowledge or sustain any suggestion, either ostensible or otherwise, as an agent of Claranet for any purpose, nor pledge Claranet’s credit or give any condition or warranty or make any representation on Claranet’s behalf or commit Claranet to any contracts. Further, the Reseller/Dealer shall not without Claranet’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Claranet Services which are inconsistent with those contained in the promotional material supplied by Claranet or otherwise incur any liability on behalf of Claranet.

2.5 The Reseller/Dealer may resell any of the Claranet Services through a sales agent or via a sub-distributor or Reseller/Dealer.

2.6 The Reseller/Dealer’s appointment under this Clause 2 only grants to the Reseller/Dealer a right to distribute the Claranet Services, and does not transfer any right, title or interest to any such Claranet Services to the Reseller/Dealer or its Reseller/Dealers. Use of the terms “sell”, “license”, “purchase”, “licence fees” and “price” will be interpreted in accordance with this clause.

3. Reseller/Dealer’s obligations

The Reseller/Dealer undertakes and agrees with Claranet to:

3.1 use its best endeavours to promote the distribution and sale of the Claranet Services within the Territory;

3.2 ensure that its sub-distributors, Reseller/Dealers, sales agents and end Reseller/Dealers are aware of and comply with the Specific Terms applicable to the Claranet Services ordered, together with the licence provisions and other provisions set out in this Agreement which relate to the use of software and other Claranet Service Deliverables (including equipment) as part of the Claranet Services;

3.3 in each Year during the Term, purchase Claranet Services with a value of at least the Minimum Sales Level;

3.4 no later than the fifth Working Day of each calendar month (the first such month being deemed to start on the Commencement Date, the last such month being deemed to end on the date this agreement terminates for any reason) submit to Claranet by such means as Claranet may notify to the Reseller/Dealer from time to time reports in the format stipulated by Claranet from time to time showing details of:

3.4.1 all sales and installations of Claranet Services during the month concerned;

3.4.2 all outstanding orders;

3.4.3 any complaints or problems relating to any Claranet Services previously supplied to the Reseller/Dealer by Claranet; and

3.4.4 any other information relating to the performance of its obligations under this agreement Claranet may reasonably require from time to time;

3.5 within 14 days of a written request from Claranet at any time, and from time to time, provide such information as is reasonably requested by Claranet about the Reseller/Dealer’s processes and controls to support compliance with this agreement;

3.6 keep all equipment relating to or supplied to Reseller/Dealers in connection with the Claranet Services in conditions appropriate for their storage and provide appropriate security for such equipment, all at its own cost;

3.7 subject to Clause 15.3.1, inform Claranet immediately of any changes in ownership or Control of the Reseller/Dealer and of any change in its organisation or method of doing business which might affect the performance of the Reseller/Dealer’s duties in this agreement.

3.8 The Reseller/Dealer, when “white labelling” Claranet Terms and Conditions, Order Forms, Statements of Work, Service Level Agreements and any other such documentation that Claranet may provide from time, shall allow Claranet to view the terms and conditions therein to which the Reseller/Dealer is committing in order to protects its commercial position. This includes any stated metrics upon which the Reseller/Dealer is basing their service commitments to the End User.

3.9 If the Reseller/Dealer uses the Claranet “white labelling” business model, Claranet are free to accept or reject the “white label” terms and conditions and are not bound in any way, impliedly or otherwise, by the conditions therein.

3.10 Claranet are not obligated by any “white label” contract to which the Reseller/Dealer enters. The “white label” contract shall not imply any obligation on the part of Claranet for service continuity or novation. Any deeds of novation must be signed by a Claranet authorised signatory and shall form no part of any contract until and unless such deed is executed.

4. Acceptable use

4.1 The Reseller/Dealer shall ensure that its Reseller/Dealers shall use the Claranet Services strictly in accordance with the Acceptable Use Policy.

4.2 The Reseller/Dealer shall not permit any person to use the Claranet Services:

4.2.1 to send, knowingly receive, upload, download, display or use any material which:

(a) is abusive, indecent, obscene, defamatory, racist, offensive, menacing or infringing of any obligation as to confidential information or copyright or any other Intellectual Property Rights;

(b) contains unlawful security devices, viruses, worms, trojan horses or similar;

(c) contravenes any laws or regulations; or

(d) which may harm or damage the Claranet network;

4.2.2 in connection with the carrying out of fraud or other criminal offence;

4.2.3 to send unsolicited advertising or mail shots of any kind;

4.2.4 in a way which does not comply with instructions given by Claranet or its agents or contractors.

4.3 Without prejudice to its other rights and remedies, Claranet will be entitled to suspend the applicable Claranet Services [and/or terminate the Agreement] if Claranet in its sole discretion believes or has reason to believe that any Reseller/Dealer of the Reseller/Dealer is in breach of any provision of this Clause 4

5. Supply of Claranet Services

5.1 During the Term, the Reseller/Dealer may purchase Claranet Services for resale in accordance with the following procedure:

5.1.1 The Reseller/Dealer shall request the provision of Claranet Services by Claranet by submitting a completed Order Form in respect of such Claranet Services. The Order Form shall constitute a written offer by the Reseller/Dealer to enter into a legally binding contract with Claranet for the provision of such Claranet Services and such offer shall remain valid for a period of 14 days from the date that the Order Form is submitted to Claranet;

5.1.2 Claranet may accept or reject any Order Form submitted by the Reseller/Dealer in its absolute discretion at any time;

5.1.3 Claranet shall issue confirmation that it has received the Order Form. If Claranet declines to accept any Order Form submitted by the Reseller/Dealer, it shall notify the Reseller/Dealer of its decision after receiving the Order Form and as soon as reasonably practicable thereafter.

5.1.4 If Claranet agrees to accept the Order Form, it shall issue confirmation in relation to the Claranet Services requested by the Reseller/Dealer on the Order Form, together with an SLA applicable to the Claranet Services ordered. On issuing the confirmation, Claranet shall be obliged to provide and the Reseller/Dealer shall be obliged to accept the provision of the Claranet Services, subject always to the provisions of this Agreement.

5.2 Claranet is entitled [upon giving [1] months’ written notice to the Reseller/Dealer] to vary the Service Description for any of the Claranet Services or to exclude from this agreement one or more of the Claranet Services if for any reason the provision of such Claranet Services has been discontinued.

5.3 Claranet is entitled at any time to make changes to the Service Description for the Claranet Services which do not materially adversely affect the Claranet Services.

5.4 Claranet may at any time make any changes to the Specific Terms and any SLA applicable to the Claranet Services as it deems necessary from time to time to take into account operational and technical matters (including the terms on which its third party providers provide Claranet with services) and changes to any applicable laws and regulations.

5.5 Claranet shall be entitled for any reason to reject any Order Form for any Claranet Services submitted by the Reseller/Dealer and to direct the Reseller/Dealer to cease supplying any Claranet Services to a Reseller/Dealer, in which case the Reseller/Dealer shall comply with such request.

5.6 Any changes made pursuant to Clauses 5.2, 5.3 or 5.4 shall be notified to the Reseller/Dealer by posting the changes to the Claranet Website and shall be deemed to be incorporated into this Agreement and be legally binding on the parties with effect from the date such posting is made. Claranet will endeavour to give 30 days’ notice of any such changes but any failure to give such notice shall not act to prevent such changes having full contractual effect.

5.7 At any time during the Services Term, Claranet has the right to upgrade any Claranet Services provided to the Reseller/Dealer to a different level of service if, in the opinion of Claranet, the existing Claranet Services being provided are or become inappropriate or insufficient to meet the Reseller/Dealer’s end-Reseller/Dealer’s requirements and as a result Claranet considers that different Claranet Services which are more appropriate to the end Reseller/Dealer’s usage pattern or needs are required. Claranet will consult with the Reseller/Dealer if Claranet wishes to exercise its rights under this Clause. If the Reseller/Dealer agrees to change the Claranet Services in accordance with Claranet’s recommendation, Claranet shall issue a new Order Acceptance Form in respect of the upgraded Claranet Services and provision of the existing Claranet Services shall terminate. The Reseller/Dealer will be liable for the higher fees and costs associated with the upgraded Claranet Services and any termination or cancellation fees associated with the terminated Claranet Services. If the Reseller/Dealer does not agree to the upgraded Claranet Services, Claranet shall be entitled to terminate the provision of the existing Claranet Services immediately on notice in writing.

5.8 Claranet may from time to time give directions about the use of the Claranet Services to the Reseller/Dealer which Claranet thinks is reasonably necessary in the interests of safety or the quality of service to Claranet's other Reseller/Dealers. The Reseller/Dealer shall ensure that its end Reseller/Dealers comply with all such directions.

5.9 All costs and expenses incurred in connection with the relocation of any equipment shall be borne by the Reseller/Dealer.

6. Claranet’s obligations

Claranet shall:

6.1 supply the Claranet Services described in the applicable Service Description which are the subject of an Order Acceptance Form in accordance with this Agreement, the applicable SLA, Order Terms and Specific Terms. Any conflict or inconsistency between the terms of these documents shall be resolved in the following order of precedence: Order Terms, Specific Terms, SLA and this Agreement.

6.2 provide such information and support as may be reasonably requested and without undue delay by the Reseller/Dealer to enable it properly and efficiently to discharge its duties under this agreement; and

6.3 approve or reject any promotional information or material submitted by the Reseller/Dealer within 28 days of receipt, where such approval is required in accordance with the provisions of Clause 10.8.

7. Prices and payment

7.1 The Fees to be paid by the Reseller/Dealer to Claranet for the Claranet Services are as shown on the Order Form for such Claranet Services. The Fees quoted by Claranet for any Claranet Services shall only be valid for period of 14 days from the date on which the Order Form is submitted. The fee for Reseller/Dealer will, if commission/referral based, be paid monthly in arrears after the first payment is received from the referral. Claranet’s preferred method of payment is by direct debit to facilitate efficient billing processes and reduce paper usage in line with our environmental policy. Where the customer opts for non-direct debit payment, Claranet shall charge 1.25% of the total annual recurring fee for payment processing.

7.2 Save as set out in Clause 7.3 and subject to any express provisions in the Specific Terms, the Fees stated on each Order Form for the Claranet Services shall remain fixed for the Initial Term applicable to such Claranet Services. Claranet may, prior to the expiry of the Initial Period or the relevant Renewal Period (as the case may be) and on no less than 30 days’ notice in advance of the Minimum Written Notice Period, notify the Reseller/Dealer of any alteration to the Fees which will apply during the following Renewal Period. Such changes to the Fees shall take effect from the first day of the following Renewal Period.

7.3 Notwithstanding Clause 7.2, Claranet may alter the prices, or payment terms relating to, the Claranet Services at any time during the period during which such Claranet Services are being provided (including within the Initial Period) for the following reasons:

7.3.1 to take account of any increase in the costs incurred by Claranet in the provision of the Claranet Services (including any increase in the costs or charges of any third party supplier or licensor to Claranet);

7.3.2 to pass on any additional charges or fees imposed by any third party supplier or licensor to Claranet at any time.
Claranet shall notify the Reseller/Dealer in writing of any such increase and shall endeavour to give the Reseller/Dealer 30 days’ prior notice of such change.

7.4 Any and all expenses, costs and charges incurred by the Reseller/Dealer in the performance of its obligations under this agreement shall be paid by the Reseller/Dealer unless Claranet has expressly agreed beforehand in writing to pay such expenses, costs and charges.

7.5 The Fees are not refundable in any circumstances, except where expressly stated otherwise in this Agreement. If either party terminates the Claranet Services, Claranet will not refund Fees paid in advance by the Reseller/Dealer [save where the provision of the Claranet Services by Claranet or this Agreement is terminated by the Reseller/Dealer pursuant to Clause 15.2]. In addition certain cancellation and/or termination fees will be payable as set out in the Specific Terms.

7.6 The Reseller/Dealer shall pay to Claranet the Fees for the Services in the amount and on the basis specified if so specified in the Order Form(s). Where Claranet provides advanced support, custom programming or configuration, or software installation, it may charge the Reseller/Dealer additional Fees which will be calculated on a time and materials basis at Claranet's standard consultancy rates in place from time to time.

7.7 The Reseller/Dealer shall pay the full amount invoiced to it by Claranet in pounds sterling within 30 days of the date of invoice. If payment of any Fees is not made in full by the Reseller/Dealer by the due date for payment under the terms of this Agreement, Claranet may at its discretion, without prejudice to its other rights and remedies:

7.7.1 charge interest on any overdue amounts at the rate of 5% per annum above HSBC plc base rate for the time being, calculated from the date of the invoice to the date actual payment is received;

7.7.2 suspend the provision of the Claranet Services until such time as all overdue amounts (including any interest due) are paid in full.

7.8 The Reseller/Dealer shall not be entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to Claranet.

7.9 The Reseller/Dealer shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, sale, lease or other distribution of the Claranet Services.

7.10 The Reseller/Dealer will have 2 Working Days from the Services Commencement Date in which to notify Claranet of any defects in the set up or the operation of the Service. Unless the Reseller/Dealer provides such notification within that period, the Services will be deemed to have been set up correctly and to have been accepted by the Reseller/Dealer and Claranet shall be permitted to invoice the Reseller/Dealer for the [Set-up Fee and] and Fees for the Services. If Claranet notifies the Reseller/Dealer that the Services are ready for installation but the Reseller/Dealer is not ready to accept such installation, then Claranet retains the right to invoice the Reseller/Dealer for the Fees for the Services [including the Set-up Fee or Fees.

7.10.1 For the avoidance of doubt, Claranet shall invoice the Reseller/Dealer when it has delivered “Live” services notwithstanding delays by the Reseller/Dealer or third parties. In the event of Managed Delivery being chosen by the Reseller/Dealer, the Managed Delivery charge shall still apply to all those services delivered pro-rata, live or otherwise, where Claranet has delivered the Services and through the act or omission of either the Reseller/Dealer or a third party, some part thereof is not live or causes other linked and/or dependent Services to fail to go “Live”. When the remainder of the Services go “Live”, the non-billed portion of the Managed Delivery charge shall be charged on the next invoice to the Reseller/Dealer.

7.11 Fees are stated exclusive of VAT which shall be paid by the Reseller/Dealer unless otherwise stated.

7.12 If the Services being provided are Replacement Services, then the Reseller/Dealer will have 2 Working Days from the Services Commencement Date in which to notify Claranet of any defects in the installation or the operation of the Services. Unless the Reseller/Dealer provides such notification within that period, the Replacement Services will be deemed to have been set up correctly and to have been accepted by the Reseller/Dealer and Claranet shall be permitted to invoice the Reseller/Dealer for the Set-up Fee and Fees for the Replacement Services.

7.12.1 If Claranet notifies the Reseller/Dealer that the Services are ready for installation but the Reseller/Dealer is not ready to accept such installation, then Claranet retains the right to invoice the Reseller/Dealer the Fees for the Services including the Set-up Fee or Fees. All rights set out in clause 7.12.1 apply to Replacement Services equally.

7.13 If the Reseller/Dealer notifies Claranet of any defect in the installation or operation of the Services (or Replacement Services, as the case may be) within the 2 Working Day period referred to in Clause 7.10 or 7.11 above, Claranet will use its reasonable endeavours to fix such defect and the Reseller/Dealer shall provide Claranet (or its third party supplier) with reasonable assistance or access to the Premises for such purpose. Failure to provide Claranet with reasonable assistance or access to the Premises will be deemed acceptance by the Reseller/Dealer of the Services (or Replacement Services, as the case may be) and shall entitle Claranet to invoice for all applicable Fees before the defect has been rectified. The provisions of this Clause and Clauses 7.10 or 7.12 (as the case may be) shall apply to any re-installation of the Services or Replacement Services and the Service Commencement Date will be amended accordingly. Once acceptance of the Services or Replacement Services has been deemed to have been given by the Reseller/Dealer, invoicing will commence from the Service Commencement Date and the Set-up Fee and Fees shall be due and payable in accordance with this Agreement.

7.14 The Reseller/Dealer may request Managed Delivery of the Services and this Managed Delivery shall incur an additional charge as set out in the Order Form and/or Service Description.

7.15 Claranet reserves the right to apply RPI-linked annual price increases at any time during the contract duration.

8. Advertising and promotion

8.1 The Reseller/Dealer shall:

8.1.1 be responsible for the advertising and promotion of the Claranet Services provided that the use by the Reseller/Dealer of any advertising materials and promotional literature containing the Trade Marks shall be subject to the prior written consent of Claranet;

8.1.2 observe all reasonable directions and instructions given to it by Claranet in relation to the promotion and advertisement of the Claranet Services to the extent that such promotions or advertisements refer to or otherwise use the Trade Marks, and shall not make any written statement as to the quality of the Claranet Services without the prior written approval of Claranet;

8.1.3 conduct its business in a manner that reflects favourably at all times on Claranet and the good name, goodwill and reputation of Claranet and not enter into any contract or engage in any practice detrimental to the interests of Claranet in the Claranet Services; and

8.1.4 avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Claranet, the Claranet Services or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to Claranet or the Claranet Services.

8.2 Claranet shall, at the Reseller/Dealer’s reasonable request, provide to the Reseller/Dealer such quantity of sales literature and other documentation relevant to the Claranet Services which, in Claranet’s opinion, is reasonably necessary for the Reseller/Dealer to perform its obligations under this Agreement.

8.3 The Reseller/Dealer shall furnish their clients with Claranet Reseller/Dealer reference forms where so requested and shall allow Claranet to use their clients for case studies.

9. Compliance with laws and regulations

9.1 The Reseller/Dealer shall be responsible for obtaining any necessary import licences or permits necessary for the sale and delivery of the Claranet Services to the Reseller/Dealer and its Reseller/Dealers, and the Reseller/Dealer shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the sale and delivery of the Claranet Services.

9.2 The Reseller/Dealer warrants to Claranet that it has informed Claranet of all Legislation affecting the sale of the Claranet Services which are in force or any part of it (“Local Regulations”) at the date of this agreement. The Reseller/Dealer is responsible for ensuring that the Claranet Services comply with all Local Regulations.

9.3 The Reseller/Dealer shall give Claranet as much advance notice as reasonably possible of any prospective changes in the Local Regulations.

9.4 On receipt of notification from the Reseller/Dealer under Clause 9.3, Claranet shall endeavour to ensure that the Claranet Services comply with any change in the Local Regulations by the date of implementation of that change or as soon as is reasonably possible thereafter provided that such obligation shall not apply to any Local Regulations or changes in Local Regulations outside the Territory.

9.5 Nothing in this Clause 9 permits Claranet to be held liable for any legal, regulatory or technical infringement of the Reseller/Dealer in the course of the Reseller/Dealers undertakings.

10. Intellectual property rights

10.1 All right, title and interest to and all Intellectual Property Rights in the Claranet Service Deliverables remains with Claranet, the Claranet Group Companies and/or Claranet’s suppliers and licensors. The Reseller/Dealer shall not do, or omit to do, anything which may jeopardise, limit or interfere in any manner with Claranet’s rights (or the rights of its Group Companies, suppliers and/or licensors) in the Claranet Service Deliverables.

10.2 Without prejudice to Clause 10.1, where in the course of the provision of the Claranet Services, Claranet provides any Claranet Service Deliverables which are owned or licensed by any third party (which shall include any Claranet Group Company) or in which any Intellectual Property Rights are vested in a third party, the Reseller/Dealer shall (and shall ensure that its end Reseller/Dealers shall) comply in full with all licence or other agreements applicable to the use of such third party Claranet Service Deliverables (as may be amended from time to time).

10.3 If any Claranet proprietary software is provided by Claranet to Reseller/Dealer and its Reseller/Dealers as part of the Claranet Services, Claranet hereby grants a personal, non-transferable, non-exclusive licence (with the right to sub-license to its Reseller/Dealers) for the applicable Services Term to the Reseller/Dealer to use such software solely for the purposes of the receipt of use of the Claranet Services under this agreement. The Reseller/Dealer agrees to comply with any terms and conditions governing the use of such software provided to it by Claranet from time to time and to ensure its Reseller/Dealers comply with such terms and conditions.

10.4 The Reseller/Dealer shall take all such steps as Claranet may reasonably require assisting Claranet in maintaining the validity and enforceability of the Intellectual Property Rights of Claranet during the Term.

10.5 Without prejudice to the right of the Reseller/Dealer or any third party to challenge the validity of any Intellectual Property Rights of Claranet, the Reseller/Dealer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of Claranet and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

10.6 Claranet makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Claranet Services and the Trade Marks nor as to whether the same infringe on any Intellectual Property Rights of third parties.

10.7 Claranet grants to the Reseller/Dealer a non-exclusive, revocable, personal licence (subject to the terms and conditions of this agreement and during the Term and solely for the purposes of performing the Reseller/Dealer’s obligations under this agreement) to use the Trade Marks on or in relation to the Claranet Services for the purpose of the promotion, advertisement and sale of the Claranet Services.

10.8 The Reseller/Dealer shall ensure that each reference to, and use of, any of the Trade Marks by the Reseller/Dealer is in a manner approved from time to time by Claranet and accompanied by an acknowledgement in a form approved by Claranet that the same is a trade mark (or registered trade mark) of Claranet.

10.9 The Reseller/Dealer shall not:

10.9.1 use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Claranet therein;

10.9.2 use any trade marks or trade names so resembling any trade mark or trade names of Claranet as to be likely to cause confusion, deception or the risk of passing off.

10.10 Other than the licences expressly granted under this agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Reseller/Dealer shall have no rights in respect of the Trade Marks, any trade names or other trade marks used by Claranet in relation to the Claranet Services or their associated goodwill, and the Reseller/Dealer hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Claranet.

10.11 At the request of Claranet, the Reseller/Dealer shall do or procure to be done all such further acts and things (including the execution of documents) as Claranet shall require giving Claranet the full benefit of this agreement.

10.12 The Reseller/Dealer shall promptly give notice in writing to Claranet in the event that it becomes aware of:

10.12.1 any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights in or relating to the Claranet Services; and

10.12.2 any claim that any use, sale or other disposal of the Claranet Services, whether or not under the Trade Marks, infringes the rights of any third party.

10.13 Claranet shall:

10.13.1 in its absolute discretion determine what action if any shall be taken in respect of the matter; and

10.13.2 have sole control over and shall conduct any consequent action as it shall deem necessary; and

10.13.3 Claranet shall pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action;

10.14 In the defence or settlement of the claim, Claranet may obtain for the Reseller/Dealer the right to continue distributing the Claranet Services in the manner contemplated by this agreement, replace or modify Claranet Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement forthwith by notice in writing and without liability to the Reseller/Dealer. Claranet shall have no liability if the alleged infringement is based on:

10.14.1 any services provided by the Reseller/Dealer or any third party (other than the Claranet Services), whether in whole or in part;

10.14.2 a modification of the Claranet Services by anyone other than Claranet; or

10.14.3 the Reseller/Dealer’s marketing, advertising, distribution or use of the Claranet Services in a manner contrary to the instructions given to the Reseller/Dealer by Claranet; or

10.14.4 the Reseller/Dealer’s marketing, advertising, distribution or use of the Claranet Services after notice of the alleged or actual infringement from Claranet or any appropriate authority; or

10.14.5 use or combination of the Claranet Services with any services provided by the Reseller/Dealer or any third party in circumstances where, but for such combination, no infringement would have occurred.

10.15 The foregoing states the Reseller/Dealer’s sole and exclusive rights and remedies, and Claranet’s entire obligations and liability, in the case of any matter falling under Clause 10.12.2.

10.16 Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.

11. Confidentiality

11.1 Each party (the “receiving party”) shall hold and keep confidential all Confidential Information of the other party (the “disclosing party”) during the Term and thereafter, and shall not disclose any such Confidential Information to any third party without the express permission of the disclosing party. Without limitation, the terms of any SLA entered into pursuant to this agreement shall be the Confidential Information of Claranet.

11.2 Nothing in this Clause 11 shall prevent the receiving party from disclosing:

11.2.1 any Confidential Information of the disclosing party to any Group Company, consultant, subcontractor or other person provided that such disclosure is reasonably necessary for the purposes of this agreement and that the receiving party has ensured that the recipients are made aware of and comply with the provisions of this Clause 10 in relation to such Confidential Information;

11.2.2 any Confidential Information which is or becomes public knowledge other than by a breach of this Clause 11;

11.2.3 any Confidential Information which must be disclosed to any governmental or regulatory body or for any legal or judicial proceedings.

11.3 The Reseller/Dealer acknowledges that any Confidential Information obtained from or relating to Claranet or any Claranet Group Company by the Reseller/Dealer in the course of negotiating or in the performance of this agreement is and shall remain the property of Claranet or the relevant Group Company, as applicable.

11.4 Notwithstanding the provisions of this Clause 11, the Reseller/Dealer hereby agrees that Claranet may refer to the Reseller/Dealer, by company or trading name, and to the existence of this agreement in any marketing or promotional materials of Claranet or any Claranet Group Company (including the Claranet Website).

12. Protection and processing of personal data

12.1 Each party shall comply with its respective obligations under the provisions of the Data Protection Act 1998 (the “Act”) and references in this clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act.

12.2 Where the Reseller/Dealer or any of its sub-contractors, as part of the fulfilment of its obligations under this agreement, processes personal data as a data processor on behalf of Claranet acting as a data controller:

12.2.1 the Reseller/Dealer shall, and shall procure that its sub-contractors shall:

(a) act only on instructions from Claranet when processing personal data provided to it under this agreement, and keep records of all such processing;

(b) comply with Claranet’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time by Claranet;

(c) at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;

(d) not transfer any personal data outside the European Economic Area without Claranet’s prior written consent; and

(e) immediately notify Claranet (or the Reseller/Dealer, as applicable) if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this agreement, provide full co-operation and assistance in relation to any such complaint, notice or communication.

12.2.2 Claranet may from time to time serve on the Reseller/Dealer an information notice requiring the Reseller/Dealer, within such time and in such form as is specified in the information notice, to give to Claranet such information as Claranet may reasonably require relating to:

(a) compliance by the Reseller/Dealer or by its sub-contractors with the Reseller/Dealer’s obligations to Claranet under this agreement in connection with the processing of personal data; and

(b) the rights of data subjects, including but not limited to subject access rights.

12.2.3 The Reseller/Dealer shall provide to Claranet on request a copy of all personal data held by it pursuant to this agreement, in the format and on the media reasonably specified by Claranet, and shall promptly inform Claranet if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The Reseller/Dealer will restore such data at its own expense.

13. Warranties

13.1 Each party represents, warrants and undertakes that:

13.1.1 it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and

13.1.2 it shall comply with all applicable Legislation in the performance of its obligations under this agreement.

13.2 Claranet warrants to the Reseller/Dealer that the Claranet Services supplied or licensed by it under this agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the applicable part(s) of the SLA and Service Description.

13.3 Save as expressly set out in this Agreement, all conditions, warranties and representations, express or implied, statutory or otherwise (including the fitness of the Claranet Services for a particular purpose) are hereby excluded. In particular, it is the responsibility of the Reseller/Dealer, not Claranet, to ensure that the Claranet Services ordered under this Agreement, are suitable and fit for the purpose for which they were ordered.

14. Liability

14.1 The Reseller/Dealer shall indemnify and keep Claranet indemnified against any and all costs, claims, losses, liabilities, proceedings and expenses (including legal fees) which are brought or threatened against Claranet or a Claranet Group Company by any person, arising out of or in connection with the Reseller/Dealer’s (or its Reseller/Dealers’):

14.1.1 use of the Claranet Services; or

14.1.2 breach of this Agreement.

14.2 Nothing in this Agreement shall exclude or limit either party's liability for

14.2.1 death or personal injury resulting from its negligence or that of its employees, agents or subcontractors;

14.2.2 fraud or fraudulent misrepresentation; and

14.2.3 any other matter for which liability cannot be excluded or limited as a matter of law.

14.3 Subject to Clause 14.2, Claranet shall not be liable to the Reseller/Dealer for any:-

14.3.1 indirect, special or consequential loss of damage; or

14.3.2 loss of profits, business opportunities, revenue, anticipated savings; wasted expenditure, goodwill or for any loss or corruption or destruction of data.

14.4 Subject to Clause 14.2 and 14.3 Claranet's total aggregate liability in contract, tort or otherwise (including negligence) howsoever arising out of or in connection with this Agreement shall in respect of any one or more incidents not exceed the total Fees received by Claranet from the Reseller/Dealer in the calendar year in which the incident giving rise to the liability occurs.

14.5 Claranet has no control over the information transmitted to or from the Claranet Services. Claranet hereby excludes all liability of any kind for the transmission or reception of information of whatever nature through the Claranet Services.

14.6 The parties expressly agree that if any limitation or provision contained or expressly referred to in this Clause 14 is held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted. If any party becomes liable for loss or damage which would otherwise have been excluded, that liability shall be subject to the other limitations and provisions set out in this Clause 14.

14.7 In the event of any breach of Claranet’s warranty in Clause 13.2 (whether by reason of defective materials, production faults or otherwise) the Reseller/Dealer’s sole remedy and Claranet’s only obligation and liability to the Reseller/Dealer shall be for Claranet to:

14.7.1 resupply the Claranet Services in question; or

14.7.2 at Claranet’s option, repay any price paid for the Claranet Services.

15. Term and termination

15.1 This Agreement shall commence on the Commencement Date and shall continue for the period of years, unless otherwise terminated as provided in this Agreement. [The term of this Agreement shall automatically renew for yearly periods, unless either party notifies the other in writing at least 90 days prior to the end of the current Term.

15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:

15.2.1 the other party suspends, or threatens to suspend, payment of its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

15.2.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally; or

15.2.3 an order is made or resolution is passed, or a notice is issued convening a meeting for the purpose of passing a resolution, or any analogous proceedings are taken for the winding-up, administration or dissolution (other than a members’ voluntary liquidation solely for the purpose of solvent amalgamation, reconstruction, reorganisation, dissolution, merger or consolidation) of the other party; or

15.2.4 any liquidator, trustee in bankruptcy, receiver, administrative receiver, administrator or similar officer is appointed over, or in respect of, the other party or any part of its business or assets; or

15.2.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued

15.2.6 against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

15.2.7 the other party ceases, or threatens to cease, to trade.

15.3 Without prejudice to any other rights or remedies to which Claranet may be entitled, Claranet may terminate the agreement (or may terminate the provision of any of the Claranet Services) without liability to the Reseller/Dealer if:

15.3.1 the Reseller/Dealer is in material breach of this Agreement which is capable of remedy, and has failed to remedy such breach within 15 days of a written request from Claranet to do so. Any failure by the Reseller/Dealer to pay any sum due under this Agreement by the due date for payment shall, without limitation, be a material breach of this Agreement which is capable of remedy for the purposes of this Clause 15.3.1; or

15.3.2 the Reseller/Dealer is in material breach of this Agreement which is incapable of remedy. A breach of Clauses 4, 10 and 11 shall, without limitation, be a material breach of this Agreement which is incapable of remedy for the purposes of this Clause 15.3.2; or

15.3.3 the Reseller/Dealer fails in any Year to purchase Claranet Services to at least the Minimum Sales Level;

15.3.4 there is a change of Control of the Reseller/Dealer; or some change that Claranet may perceive as having a potentially negative impact on Claranet.

15.3.5 the Reseller/Dealer challenges or disputes the validity of any of Claranet’s Intellectual Property Rights; or

15.3.6 the Reseller/Dealer purports to assign any of its rights or obligations under this agreement; or

15.3.7 it becomes unlawful for Claranet (or any third party supporting the Claranet Services) to continue to provide the Claranet Services, or any third party supporting the Claranet Services is required to cease the provision of those Claranet Services by a competent regulatory authority;

15.3.8 any other third party supporting the Claranet Services ceases to provide its services to Claranet or otherwise materially changes the terms on which it provides its services to Claranet for the applicable Claranet Services, beyond the reasonable control of Claranet.

15.4 Without prejudice to any other rights or remedies to which the Reseller/Dealer may be entitled, the Reseller/Dealer may terminate the agreement without liability to Claranet if:

15.4.1 Claranet is in material breach of this Agreement which is capable of remedy, and has failed to remedy such breach within 15 days of a written request from the Reseller/Dealer to do so; or

15.4.2 Claranet is in material breach of this Agreement which is incapable of remedy.

15.5 Subject to the provisions of this Clause 15, each of the Claranet Services will commence on the Services Commencement Date and shall continue for the Initial Period. At the end of the Initial

15.6 Period, each Claranet Service will be automatically renewed for the Renewal Period, and thereafter for consecutive Renewal Periods, unless or until:

15.6.1 such Claranet Services are terminated pursuant to Clause 15.7 of this Agreement or under the Specific Terms; or

15.6.2 this Agreement is terminated,

whichever is earlier.

15.7 Either party may terminate the provision of any of the Claranet Services at the end of the Initial Period or any Renewal Period for such Services by providing not less than the Minimum Written Notice to the other party prior to the expiry of the Initial Period or the relevant Renewal Period (as the case may be).

16. Effects of termination

16.1 Upon termination or expiry of this agreement for any reason:

16.1.1 the Reseller/Dealer shall stop promoting, distributing and selling the Claranet Services and the Reseller/Dealers’ right to use the Claranet Services shall immediately cease;

16.1.2 the Reseller/Dealer shall co-operate with Claranet in ensuring that the Reseller/Dealer’s existing Reseller/Dealers are offered the opportunity to transfer to another Claranet Reseller/Dealer in a way which ensures continuity of the Claranet Services for such Reseller/Dealers which to avoid any doubt, shall include the Reseller/Dealer notifying its Reseller/Dealers by e-mail or post of such opportunity in terms acceptable to Claranet, acting reasonably. Without prejudice to the foregoing, the Reseller/Dealer shall continue to perform all its obligations under this agreement during any notice period;

16.1.3 the Reseller/Dealer shall remain liable for all outstanding obligations and Fees including any termination or cancellation fees referred to in this Agreement;

16.1.4 any equipment provided by Claranet (other than any equipment sold to the Reseller/Dealer) shall be returned to Claranet by the Reseller/Dealer;

16.1.5 the Reseller/Dealer shall promptly return to Claranet, or otherwise dispose of as Claranet may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the Reseller/Dealer and relating to Claranet’s business (other than correspondence which has passed between the parties) which the Reseller/Dealer may have in its possession or under its control;

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

16.1.7 Subject to the foregoing provisions of this Clause 16.1, all rights and licences of the Reseller/Dealer under this agreement shall terminate;
and

16.1.8 the following Clauses shall survive termination or expiry of this Agreement: 10, 11, 14, 16, 17, 19 and 20.

16.2 The termination of this agreement (or of the provision of any Claranet Services under this Agreement) shall not of itself give rise to any liability on the part of Claranet to pay any compensation to the Reseller/Dealer for loss of profits or goodwill, to reimburse the Reseller/Dealer for any costs relating to or resulting from such termination, or for any other loss or damage.

17. Notices

17.1 Any notice required to be given under or in connection with this agreement shall be served by delivering it personally, or by sending it by pre-paid first-class post, recorded delivery or registered post, or by fax or email by the Reseller/Dealer to Claranet at: [Sales Administrator], Claranet Limited, 21 Southampton Row, London WC1B 5HA, fax: +44 (0) 20 7685 8001; email legal@uk.clara.net and by Claranet to the Reseller/Dealer at [insert] (or to such other address as either party may have notified to the other party in accordance with this Clause 17.1).

17.2 A notice shall be deemed to have been received:

17.2.1 if delivered personally, at the time of delivery;

17.2.2 in delivered by post, three Working Days from the date of posting;

17.2.3 by fax or email, on the day of transmission if sent before 4.00 pm on any Working Day and otherwise at 9.00 am on the next Working Day provided that, at the time of transmission, an error-free transmission report has been received by the sender (in the case of fax) or no non-delivery message has been received by the sender (in the case of email.)

18. Force majeure

18.1 Neither party to this agreement shall be liable to the other for any delay or non-performance of its obligations under this agreement to the extent that such delay or non-performance is due to a Force Majeure Event. The Reseller/Dealer may not rely on a Force Majeure Event for any delay or non-performance of any obligation to pay Claranet under this agreement.

18.2 Either party may, during the continuance of any Force Majeure Event, terminate this agreement by written notice to the other party if a Force Majeure Event occurs that affects all or a substantial part of the Claranet Services and which continues for more than [30] Working Days.

19. Non-solicitation

Each party agrees during the term of this agreement and for a period of one (1) year following its termination, not to solicit or induce any officer, employee, agent or contractor of the other party involved with the provision of the Claranet Services or the management of this agreement or any significant part thereof, to terminate their employment or engagement with the other.

20. General

20.1 This agreement constitutes the entire agreement and understanding between the parties in respect of the matters dealt in it and supersedes any previous agreement between the parties in relation to such matters.

20.2 The Reseller/Dealer acknowledges that, in entering into this agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) except as expressly provided in this agreement. The only remedy available to the Reseller/Dealer in respect of any such statement, representation, warranty or undertaking shall be for breach of contract under the terms of this agreement. Nothing in this Clause 20.2 shall operate to exclude any liability for fraud.

20.3 A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

20.4 A waiver of any right under this agreement is only effective if it is in writing and signed by the waiving party, and it applies only to the person to whom the waiver is addressed and the circumstances for which it is given.

20.5 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

20.6 If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20.7 This agreement is personal to the Reseller/Dealer and accordingly the Reseller/Dealer shall not assign, or grant any security interest over, any of its rights or obligations under this agreement without the prior written consent of Claranet.

20.8 Save as expressly provided in this agreement, no amendment or variation of this agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties to it.

20.9 Nothing in this agreement is intended to or shall operate to create a partnership or joint venture between the parties.

20.10 This agreement is subject to the laws of England and Wales and both parties hereby submit to the exclusive jurisdiction of the English Courts.

20.11 Signed for and on behalf of:

Claranet Limited [insert]
Authorised Signature: Authorised Signature:
Name: Name:
Title: Title:
Date Date

Specification Addendum
Territory

Partner classification

Terms
In this section, we should include all information about the Agreement that concerns the issue of payments. This means that it should be clear from this section how:
(i) The partner pays us
(ii) How we pay the partner
(iii) The payment terms, if different to the MSA
(iv) Any minimum sales level/volume/term
(v) Any derogation from the Initial Term and Minimum Written Notice.
(vi) Any other derogations of any kind from the MSA and should be marked up as set out in the Addendum
Right to sell products
[Insert]

Any restrictions

Claranet Limited
Reseller/Dealer MSA Addendum

This Addendum (the “Addendum”) is dated [insert] 2010 (the “Effective Date”) and amends the Claranet Limited Business Terms and Conditions (“Agreement”) under Order Number between:

(1) Claranet Limited a company incorporated under the laws of England and Wales with registered number 03152737 and whose registered office is at 21 Southampton Row, London, WC1B 5HA (“Claranet”); and

(2) [Insert] a company incorporated under the laws of England and Wales with registered number [insert] and whose registered office is at [insert] (“Reseller/Dealer”).

Collectively Claranet and the Reseller/Dealer shall be known as the “Parties”.

Whereas:

a) The Parties have entered into the Agreement for the provision of Services to the Reseller/Dealer and wish to amend the terms below.
b) The amendments within this Addendum shall forthwith be incorporated in to the Agreement.
c) This Addendum shall be effective from the date of last signature below.

The Parties wish to include the following terms into Order Form number. For the avoidance of doubt, this addendum does not affect the terms of any Order Number other than.