Please read this Reseller Agreement (the "Agreement") carefully before accessing or using the Transpond Services ("Services") provided through our website at https://transpond.io ("Website").

The Website is operated by Transpond Limited, a private limited company registered in England with company number 11234241 whose registered office is Level 1, 20 Dale Street, Manchester, M1 1EZ, UK ("we" or "us" or "our"). Our VAT number is 325273024. This Agreement applies to all Agencies who resell the Service.

By clicking on the accept buttons relating to this Agreement, the Data Processing Agreement and the Privacy Policy, you agree to be legally bound by the terms of the Agreement, Data Processing Agreement and Privacy Policy as they may be modified and posted on our Website from time to time. In this Agreement, "you" refers to the entity you represent (the "Agency").

If you do not agree with the terms of this Agreement, Data Processing Agreement and Privacy Policy, you may not become a reseller or order any Services.

You or Your Customers must not use this service if you are based in the following sanctioned jurisdictions; Cuba, Iran, North Korea, Syria, Russia and the regions of Crimea, Zaporizhzhia, Kherson, Donetsk and Luhansk, or are not otherwise prohibited from using the Platform under the laws and regulations of the United States, or any other applicable jurisdiction.

The Company and the Agency are referred to herein individually as a "Party" and collectively as the "Parties".

Recitals

WHEREAS, the Company provides certain online marketing products and services (the "Services").

WHEREAS, the Agency markets, sells and/or licenses products and services to its end-user customers (the "Customers").

WHEREAS, the Agency wishes to market, sublicense and provide the Services to its Customers and the Company wishes to appoint the Agency as a non-exclusive reseller of the Services pursuant to the terms and conditions of this Agreement.

The Parties agree as follows.

1. Scope of Agreement
   • 1.1: Direct Sale/ Sublicense of Services by Agency. The Agency purchases licenses to access the Services from the Company and shall resell such licenses to the Services to Customers.
2. Term and Termination
   • 2.1: Term. The term of this Agreement shall commence on signup (the “Effective Date”) and continue for a period of one (1) month or twelve (12) months, (the “Initial Term”) as set out in the reseller order form, (“Order Form”). Thereafter, this Agreement will automatically renew for successive one (1) month or twelve (12) month terms, (each a “Renewal Term”), as set out in the Order Form. The Initial Terms and all Renewal Terms together are the (“Term”), unless either Party gives the other written notice of termination at least thirty (30) days before the end of the Initial Term or a Renewal Term. Such termination notice shall be effective on the expiry of the Initial Term or the current Renewal Term.
   • 2.2: Termination. Either Party may terminate this Agreement immediately upon giving written notice if: (i) either Party ceases to do business for any reason; (ii) either party has a receiver or administrator appointed over all or part of its assets; (iii) either Party becomes subject to any bankruptcy, insolvency, reorganization, liquidation or other similar proceedings in any jurisdiction; (iv) the ownership or the shareholder structure of either Party changes (“Acquisition”); or (v) there is any other attempted assignment of this Agreement by either Party without prior written approval of the non-assigning Party. In the event of termination of this Agreement by either Party under clauses (i), (ii), or (iii) , either Party may: (a) declare all amounts payable under this Agreement immediately due and payable; (b) proceed to enforce performance and/or recover damages; and /or (c) terminate this Agreement.
   • 2.3: Termination for Breach. Either Party may terminate this Agreement upon giving thirty (30) days prior written notice to the other Party in the event of a material breach of this Agreement by the other Party, if the defaulting Party fails to cure such breach within the thirty (30) days following notice of such breach from the non-defaulting Party. Without limiting the generality of the foregoing, each of the Parties expressly agrees that: (i) the failure to make any payment due under this Agreement; (ii) the Agency's failure to provide support services; (iii) the Agency's misrepresentation of the Services or the Company's brand or products; or (iv) the Agency's breaches of any applicable laws ; shall constitute a material breach of this Agreement.
   • 2.4: Effects of Termination. (i) Any expiration or termination of this Agreement shall not modify any rights or obligations of a Party which arose prior to such expiration or termination; (ii) the Agency must return all copies of the Services, source code, documents, materials and confidential information of the Company, whether in electronic form or hardcopy as well as other objects that it has received within the context of this Agreement to the Company; (iii) the Company may agree with the Agency to continue to provide access to the Services for existing Customers of the Agency for a period of up to one year following termination, to ensure that such Customers are able to continue to use the Services, subject to the Agency continuing to pay the Company all fees due under this Agreement in relation to such Customers; (iv) the Parties can agree to transfer Customer agreements to the Company and the Company shall then provide the Services to the Customer directly at the Company's then current prices and pursuant to the Company's then current Terms and Conditions, published at https://transpond.io/Terms, in return for receiving payment of all fees directly from the Customer; and (v) the Agency shall cease the use of any Company trademark, domain name, logo or trade name in connection with the promotion or advertising of the Services, and shall immediately eliminate from all its literature, business stationery, publications, notices and advertisements all representations of the Agency's appointment hereunder.
3. Appointment
   • 3.1: The Company grants the Agency a non-exclusive, worldwide right during the Term to: market the Services to potential Customers; (ii) to sell the Services to Customers; and (iii) provide first level support services to Customers; as set out in the terms of this Agreement, and subject to the Terms and Conditions.
   • 3.2: The prices that the Agency shall pay the Company for each purchase of Services for resale to a Customer shall be those set out in the current reseller price list of the Company on the date of each purchase (the “Price List”) unless agreed otherwise in an Order Form.
   • 3.3: The Agency acknowledges that: (i) its appointment under this Agreement is non-exclusive and non-transferable; (ii) the Company maintains the right to appoint other resellers directly or indirectly, to sell, promote, market license or support the Services worldwide; and (the Company retains the right to sell, promote, market, license or support the Services itself or through its group companies and affiliates worldwide.
   • 3.4: The Agency shall negotiate, conclude and perform agreements with Customers for the purchase of Services in its own name and on its own account. The Agency shall have full responsibility for concluding sales of the Services with Customers (“Sales”) and for providing first level support services to Customers.
   • 3.5: The Agency is not permitted to contact, refer or conclude Sales with any, named customers that Company notifies the Agency of in writing during the Term from time to time, (“Excluded Customers”).
   • 3.6: Nothing in this Agreement shall prevent the Agency from selling Services together with or in conjunction with the Agency's own products and services, including but not limited to the right of the Agency to sell Services as part of a larger project or as a part of an entire company website, provided however that: (i) there is no transfer whatsoever of either title or intellectual property rights or other similar rights of any sort attached to the Services; and (ii) the Company shall remain the exclusive and sole owner of all such rights.
   • 3.7: The Agency shall indemnify the Company in full for any infringement of section 3.6 above.
4. Agency's Obligations
   The Agency shall:
   • 4.1: Maintain at all times the facilities, resources, inventory, personnel and experience to market and/or sublicense the Services. In particular the Agency shall have at least one person representing the Agency at all times during the Term.
   • 4.2: Be responsible for and use its best efforts to market and/or sublicense the Services in a manner which reflects favourably upon the Services and upon the good name, goodwill and reputation of the Company.
   • 4.3: Look after the business relationship with Customers which shall include, providing first level support and maintenance of the Services as set out in this Agreement.
   • 4.4: Act in the best interests of the Company and with the due diligence of any ordinary businessman and trader.
   • 4.5: Market and/or sublicense the Services to Customers and not permit Services to be further sublicensed or sold without the express written consent of the Company.
   • 4.6: Not make any representations or warranties with respect to the Services that are inconsistent with those made by the Company in its published literature for the Services or which are false or misleading.
   • 4.7: Conclude Sales in its own name with Customers using the Agency's own local terms and conditions and price lists.
   • 4.8: The Agreement executed with each Customer for a Sale shall: (i) contain terms and conditions substantially similar to, and no less protective of the Company's rights than, those contained in the Terms and Conditions; and (ii) all Customers shall agree to comply with the provisions of the authorised user policy (“AUP”) published at: https://transpond.io/acceptableuse.
   • 4.9: Only request access from the Company for its registered and paying Customers.
   • 4.10: Not private label or brand the Services with any third party’s name, logo, or trademark other than the Agency’s.
   • 4.11: Ensure that business secrets that have been revealed or made known to it are not forwarded to third parties or otherwise published or made known to third parties. Furthermore, the Agency agrees not to use such business secrets for its own benefit. This obligation shall survive termination of this Agreement and be effective for a period of 5 years following termination.
   • 4.12: Comply with any instructions and/or guidelines provided by the Company.
   • 4.13: Keep Customer's data up to date and record such details carefully.
   • 4.14: Attend, as requested by the Company, a reasonable number of Services training or other training seminars which may be periodically offered by the Company, at the Company's sole discretion, at no charge and at locations designated by the Company. The Agency shall be responsible for any and all travel and other expenses and/or costs incurred by the Agency's personnel with respect to such seminars.
   • 4.15: Train and maintain its staff at its own expense to be conversant with the technical language and functionalities of the Services and shall develop sufficient knowledge of the industry, the Services and of products competitive with the Services so as to be able to explain the benefits and functions of the Services to Customers.
   • 4.16: Advertise and promote the Services in an appropriate manner. The Agency shall not use the Company’s brand in any marketing activity without first obtaining the prior written approval of the Company. The Company shall not be required to provide any advertising or trade show support to the Agency.
   • 4.17: Pay the Company all sums owed under this Agreement for the provision of the Services.
   • 4.18: Cover all of its own expenses incurred pursuant to this Agreement.
   • 4.19: Comply with all applicable international, national, state/provincial, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Services.
   • 4.20: Promptly inform the Company if any dispute arises between the Agency and a Customer in respect of the Services and comply with all reasonable instructions of the Company in relation thereto.
5. Company's Obligations
   The Company shall:
   • 5.1: Grant the Agency the non-exclusive, non-transferable right to conclude Sales of Services to Customers worldwide in accordance with the terms of this Agreement and subject to the provisions of the Terms and Conditions and AUP. Any reference to “Customer” in the Terms and Conditions or AUP shall be deemed to be a reference to the Agency.
   • 5.2: The Company shall provide the Agency, at no charge, with a reasonable supply of Services' literature, marketing information, user documentation and manuals in the English language. At its own expense and with the Company's prior written approval, the Agency may translate such documentation into other languages and reproduce and distribute such translations solely for its Customers' internal use. The Agency shall ensure that all applicable Company notices (including copyright notices) are included in such translations and shall return all documentation upon the termination of this Agreement. Upon Company's request, the Agency agrees to provide copies of all such translations to the Company and grants the Company a non-exclusive, perpetual, transferable license to use the translations with regard to the Services.
   • 5.3: Subject to the terms of this Agreement and for demonstration purposes grants the Agency a non-exclusive and non-transferable right to access and use the Services for the Term of this Agreement.
   • 5.4: Host the Services (where applicable) in accordance with the Terms and Conditions.
   • 5.5: Provide second level support to the Agency on behalf of Customers as set out in this Agreement. The Company shall only provide support directly to Customers if the Parties enter into a separate written support and maintenance agreement and the Agency pays the Company additional fees for such additional professional services.
   • 5.6: Provide support and assistance reasonably required by the Agency to fulfil its obligations under this Agreement to the best of its abilities.
   • 5.7: Promptly inform the Agency if the Company has submitted a quote to a Customer or a company with the Customer's group or the Customer is an Excluded Customer.
   • 5.8: Ensure that neither the Company nor any of its partners shall contact Customers or potential new customers in connection with selling or promoting the Services for a period of 30 days after receiving a completed Order Form.
   • 5.9: Forward all documents and materials that the Agency reasonably requests in order to comply with its obligations under the Agreement, free of charge. No title or ownership in such documents and materials shall pass to the Agency and they shall continue to be owned by the Company.
6. Intellectual Property Rights
   • 6.1: Solely during the Term of this Agreement, and in furtherance of the purposes and subject to the terms of this Agreement, the Company grants the Agency the non-exclusive, non-transferable, limited right to use and display the Company's trademarks, trade names, logos, and/or other insignia (collectively, “Trademarks”) solely in connection with Agency's marketing, sale, promotion and/or sublicense of the Services and for no other purpose, provided that the Company may, in its sole discretion, revise at any time and from time to time such Trademarks. Such Trademarks cannot be sublicensed. The Agency shall not delete or alter any Trademarks which are affixed to the Services or related documentation. The Agency shall refrain from any other direct or indirect use or registration of Trademarks or similar marks. Upon termination of this Agreement, the Agency shall take all actions necessary to transfer and assign to the Company any right, title or interest in and to any Trademarks and shall immediately cease to use any and all Trademarks.
   • 6.2: The Agency acknowledges the value of the goodwill associated with the Trademarks and agrees that the Trademarks are the sole and exclusive property of the Company. The Agency agrees that it shall not assert any claim of ownership to the Trademarks or otherwise interfere with the Company's sole and exclusive rights to the Trademarks. All goodwill from use of the Trademarks by the Agency shall inure to the benefit of the Company and the Agency shall not take any action in derogation of any of the rights of the Company in the Trademarks, including but not limited to, challenging or assisting others to challenge the Trademarks or any registration thereof. The Agency shall not, during the Term or after termination of this Agreement, use, register or attempt to register with any agency or in any jurisdiction any of the Trademarks or any mark confusingly similar therewith. The Agency shall market, sublicense, and support the Services only under the Trademarks, and not under any other trademark or logo. The Agency agrees not to use the Trademarks with respect to any products or materials not provided by the Company, or in any way that mightsuggest that the Company and the Agency are not separate and distinct entities. The Agency shall provide the company access to and/or hard copies of all proposed uses of the Company's Trademarks prior to such usage being made public, for the Company prior review and approval. The Company shall have the right to modify or alter the way in which the Trademarks appear, in accordance with the terms of this Agreement. In connection therewith, the Agency agrees that it shall modify to the Company's satisfaction or cease the use of any Trademark to which the Company, in its sole discretion, may object.
   • 6.3: The Company does not grant and the Agency acknowledges that it shall have no right, license or interest in any of the copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world, (“IPRs”). The Agency acknowledges the exclusive right of the Company in and to all IPRs in the Services and all other materials covered by this Agreement. No title to or ownership of the IPRs contained in the Services or any part of the Services or the Company's confidential information is transferred to the Agency. The Company acknowledges that the Services as well as all enhancements, updates, modifications, local versions or any derivatives thereof, and all IPRs and proprietary rights therein shall remain the Company's property.
   • 6.4: The Company grants the Agency a non-exclusive, non-transferable license to use its IPRs in the Services solely for the purposes of Sales of the Services pursuant to terms of this Agreement during the Term.
   • 6.5: The Agency may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to the Company. The Parties agree that such Feedback shall be given voluntarily, and the Agency acknowledges and agrees that the Company shall own all right, title and interest in and to the Feedback, all developments based upon such Feedback and all IPRs in and to the foregoing. The Agency hereby assigns and does agree to assign to the Company all right, title and interest it may have in and to the Feedback and shall cooperate with the Company as reasonably necessary in order to give full effect to such assignment.
7. Fees, Prices and Discounts
   • 7.1: During the Term of this Agreement, the Agency may purchase licenses to the Services from the Company at the applicable fees and prices set forth in the Price List, or as set out in an Order Form, less any applicable discounts. All fees and prices are exclusive of all taxes and other charges, including but not limited to, shipping, handling, insurance, sales, use, value-added or other similar taxes, duties or assessments.
   • 7.2: The Company may modify the prices or discounts for any Services under this Agreement at any time upon giving thirty (30) days prior written notice to the Agency.
   • 7.3: All Order Forms accepted by the Company before the effective date of any price or fee modification shall be at the price or fee in effect prior to such modification. Thereafter, all Order Forms accepted by the Company shall be at such modified price or fee.
8. Invoicing and Payment
   • 8.1: The Company shall invoice the Agency for the Services ordered by the Agency at the prices and on the dates set out in the Order Form. VAT or local sales tax shall be added if, and as far as, the Company is obliged to pay VAT, local sales tax or withholding taxes according to local applicable tax laws.
   • 8.2: All invoices are payable by the Agency within seven (7) days of the date of each invoice. All amounts invoiced are payable in the currency stated in the Order Form. The Agency agrees to provide the Company any financial information from time to time as may be reasonably requested by the Company.
   • 8.3: Except for taxes based on the Company's net income, the Agency shall pay any applicable sales, use, value-added or other similar taxes, duties or assessments, or amounts levied in lieu of such taxes, now or later imposed. Any claim for exemption by the Agency shall be effective only after the Company's receipt of all proper exemption forms.
   • 8.4: The Company shall be entitled to charge interest on any payment overdue by 7 days at the statutory rate and shall be entitled to such reasonable costs as it incurs in the collection of such overdue payments.
9. Orders
   • 9.1: Orders. All orders of Services by the Agency from the Company shall be made using the Order Form set out in Schedule 1 of this Agreement which shall specify the quantity and description of the Services, any applicable discounts, and name of the Customer.
   • 9.2: Order Procedures. All Order Forms submitted by the Agency are subject to acceptance by the Company and Company shall have no liability for non-acceptance of, or failure or delay in accepting any Order Form. The Company shall acknowledge each Order Form, pursuant to this section within ten (10) business days of its receipt and specify delivery dates for access to the Services in accordance with its then-current lead times. The Company shall use reasonable efforts to meet proposed delivery dates for access to the Services but shall not be liable for any delivery delays. For the avoidance of doubt, no purchase order, acknowledgment form, or other document or communication shall amend the terms of this Agreement.
   • 9.3: The Company reserves the right to discontinue the manufacture, license or sale of any or all Services at any time, and to refuse any orders for such discontinued Services without any liability whatsoever to the Agency or any other third party. The Company shall give the Agency at least ninety (90) days advance notice of any intention to discontinue Services. No such refusal or delay in delivery shall be deemed a termination or breach of this Agreement.
10. License of Services.
    • 10.1: Subject to the terms of this Agreement, the Company grants to the Agency a non-exclusive, non-transferable right to access and use the Services during the Term, in object code form only, solely for internal business purposes and solely in conjunction with the addition of the Agency's software applications, services and solutions approved by the Company, to perform the following activities: market the Services, demonstrate the Services to Customers, and provide first level support to Customers. Such Services provided by the Company shall not be resold, licensed or sublicensed to any third party, except as specifically provided herein or in an Order Form. Except as otherwise permitted above, the Agency's internal use of any Services licensed hereunder shall be subject to the Terms and Conditions.
    • 10.2: The Agency acknowledges that the Services and their structure, organization, and source code constitute valuable trade secrets of the Company and its suppliers. Except as expressly permitted in this Agreement, the Agency agrees that it shall not, and shall not permit any third party, to: (i) modify, adapt, alter, translate, or create derivative works from the Services or the documentation; (ii) merge the Services with other goods or services; (iii) sublicense, or export (except as provided herein) the Services to any third party; (iv) sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Services or the documentation to any third party; (v) solicit sales of, sell, distribute, sublicense or otherwise transfer the Services; (vi) solicit sales of, sell, distribute, sublicense or otherwise transfer the Services to any person or entity that is not an end-user; (vii) engage any third parties to solicit sales of, sell, distribute, sublicense or otherwise transfer the Services; (viii) solicit sales of, sell, distribute, sublicense or otherwise transfer the Services to customers whom the Agency knows, or has reason to believe, intend to resell the Services; (ix) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services, provided, however, that if reproduction of the Services and translation of their form are necessary to obtain the information required to achieve the interoperability of the Services with other programs, the Agency shall inform the Company in writing accordingly and the Company shall notify the Agency within thirty (30) days from receipt of such request that the Agency will perform the work in order to achieve such interoperability and assess a reasonable charge for such work to the Agency, or authorize the Agency to undertake those actions, but only to the extent required to achieve the interoperability of the Services with other programs; (x) remove or alter any copyright notices or other notices included in the Services; (xi) use the Services to conduct any competitive benchmarking tests or analysis; (xii) copy, frame or mirror any part or content of the Services; (xiii) use the Services to store or transmit malicious code, infringing, libellous, or otherwise unlawful or tortious material or to store or transmit material in violation of third party privacy rights; (xiv) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (xv) attempt to gain unauthorized access to the Services or its related systems or networks; (xvi) access the Services in order to build a competitive product or service; or (xvii) otherwise use or copy the Services except as expressly permitted. Without the limiting the foregoing, the restrictions on use of the Services set forth in this section shall apply to any Services supplied to the Company by its suppliers. The Agency shall be fully responsible to the Company and its suppliers for compliance by the Agency's employees, agents and consultants with the foregoing license restrictions and all other terms of this Agreement. The Company and the Agency shall mutually agree upon additional terms, conditions and charges with respect to any localization of the Services.
    • 10.3: In the event the Agency sub-licenses the Services to the Agency's Customers, the Company grants the Agency the non-exclusive, non-transferable right, revocable right subject to the terms of this Agreement, to sublicense access to the Services to its Customers for their internal use only by means of a written, non-exclusive, non-transferable, revocable license agreement between the Agency and such Customer in a form substantially similar to the Terms and Conditions. Such license agreement must be signed by each Customer before the Services are made accessible to such Customer. The Agency shall promptly send a copy of each license agreement executed by a Customer to the Company. The Agency shall make all reasonable efforts to ensure enforcement of such license agreements and in the event of a breach, the Agency shall promptly notify the Company of such breach and will institute legal action against such Customer if requested by the Company.
11. Records and Audit
    • 11.1: If requested. within thirty (30) days after the end of each calendar month during the Term of this Agreement, the Agency shall provide written reports on the license and/or sublicense of the Services for the prior month including, without limitation, identity of Customers and the quantity of Services.
12. Warranties
    • 12.1: Each Party warrants and represents that: (i) It has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) The execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a Party and is in accordance with any applicable laws; and (iii) It shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
    • 12.2: The Company warrants to the Agency that it has the right to licence the Services.
    • 12.3: Except as expressly stated in this Agreement, all warranties and conditions, whether expressed or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.
13. Confidentiality.
    • 13.1: Each Party agree to keep secret and not to disclose any confidential information of the other Party (including without limitation the terms of this Agreement) acquired hereunder or in connection herewith except as authorised in writing by the disclosing Party and shall keep and shall require its officers, directors, and employees to keep confidential such information. Confidential information shall include but not be limited to all IPRs, trade secrets, know-how, technical, operating, financial and other information relating to the business, Services, prices, customers and suppliers of each Party.
    • 13.2: The provisions of any non-disclosure agreement entered into by the Parties prior to the Effective Date of this Agreement shall apply in addition to this section 13.
    • 13.3: The obligation to keep such information confidential shall continue in effect after the expiration or termination of this Agreement.
14. Indemnity
    • 14.1: The Company shall defend at its own expense any action against the Agency brought by a third party to the extent that the action is based upon a claim that the Services infringe any IPRs of a third party, and the Company will pay those costs and damages finally awarded against the Agency in any such action that are specifically attributable to such claim or those costs and damages agreed to in a settlement of such action. The foregoing obligations are conditioned on the Agency: (i) notifying the Company promptly in writing of such action; (ii) promptly giving the Company sole control of the defence thereof and any related settlement negotiations; and (iii) assisting and fully cooperating, at the Company's reasonable request and expense in such defence.
    • 14.2: If the Services become, or in the Company's opinion are likely to become, the subject of an infringement claim, the Company may, at its sole discretion and expense, either: (i) procure for the Agency the right to continue using the Services; (ii) replace or modify the Services so that they become non-infringing; or (iii) terminate this Agreement, in whole or in part, as appropriate, upon written notice to the Agency and refund the Agency the prices and/or fees paid for such Services upon such termination, computed according to a sixty (60) month straight-line amortization schedule beginning on the Effective Date. Notwithstanding the foregoing, the Company will have no obligation under this section or otherwise with respect to any infringement claim based upon (a) any use of the Services not in accordance with this Agreement; (b) any use of the Services in combination with equipment, software, or data not supplied by the Company if such infringement would have been avoided but for the combination with other equipment, software or data; (c) any use of any release of the Services other than the most current release made available to the Agency; (d) any modification of the Services by any person other than the Company or its authorized agents or subcontractors; or (e) the Agency's continued distribution of the Services subsequent to receipt of notice of any claimed infringement.
    • 14.3: The Agency agrees to indemnify and hold the Company harmless from any claims, suits, proceedings, losses, liabilities, damages, costs and expenses (inclusive of reasonable legal fees) arising from: (i) the Agency's use or distribution of Services (except to the extent this is covered by the Company's indemnification of the Agency pursuant to section 14.1); (ii) any breach of this Agreement by the Agency (including, without limitation, any representation, warranty, or covenant of the Agency hereunder); (iii) the marketing, sale, license, sublicense and/or support and related activities pursuant to this Agreement with respect to the Services provided to Customer by the Agency; (iv) the failure of the Agency to comply with all applicable laws, rules, and/or regulations regarding the Services; and/or (v) the negligence, misrepresentation, or error or omission on the part of the Agency or any employee, agent or representative of the Agency. Without limiting the generality of the foregoing, the Agency shall be solely responsible for, and shall indemnify and hold the Company harmless from, any claims based upon warranties or representations made by the Agency or the Agency's employees or agents which differ from or are inconsistent with those made by the Company in this Agreement. The Company shall have the right to participate, at its expense, in the defence of any claim covered under this section 14.3 with legal counsel of its own choosing.
15. Export Controls
    • 15.1: The Agency acknowledges that if the export of the Services is subject to regulation by the United States and United Nations which prohibits export or diversion of the Services to certain countries and entities. The Agency shall not export or re-export, directly or indirectly, any of the Services to any prohibited or restricted countries or entities. The Agency further agrees not to distribute or supply the Services to any person if the Agency has reason to believe that such person intends to export, re-export or otherwise transfer the Services to, or use the Services in any of such countries or for the benefit of such entities. The Agency agrees to seek written assurances from its Customers as may from time to time be requested by the Company. Without limiting the foregoing, the Agency shall not commit any act which would, directly or indirectly, violate any United States, United Nations or local law, regulation, treaty or agreement relating to the export or re-export of the Services. At its expense, the Agency shall obtain any government consents, authorizations, or licenses required for the Agency to exercise its rights and to discharge its obligations under this Agreement.
16. Limitation of Liability
    • 16.1: Neither party excludes or limits its liability to the other for: (i) fraud; (ii) death or personal injury caused by their negligent act or omission; (iii) wilful misconduct; or (iv) any claim that cannot be excluded or limited under applicable law.
    • 16.2: Subject to clause 16.1 and, to the maximum extent permitted by law, the Company shall have no liability for any loss resulting from: (i) third party content or user content; (ii) Company content, and in particular from the accuracy, completeness or current status of Company content; (iii) reliance on information contained or functionality provided on, or through the Services; (iv) inability to gain access to the Services or any part of it, or access is interrupted or partial, or functions with errors, at any time; (v) any failure by the Company to perform, or delay in performing, any obligations, whether or not the Agency gives prior notice, if and to the extent that the failure or delay is caused by Force Majeure and the time for performance of any obligation, the performance of which is so affected, will be extended accordingly; or (vi) any breach of the AUP.
    • 16.3: The Company shall not be liable to the Agency (whether in contract, tort (including negligence), breach of statutory duty or otherwise) misrepresentation or however arising out of or in connection with this Agreement or for the use of the Services for any loss of profits (whether categorised as direct or indirect), loss of business opportunity, loss of goodwill, loss of anticipated savings or benefits, or for any type of indirect, special or consequential loss, even if that loss or damage was reasonably foreseeable or the relevant party was aware of the possibility of that loss or damage arising.
    • 16.4: Subject to clauses 16.1 to 16.3, the Company's total liability in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising directly or indirectly under this Agreement or based upon any claim for indemnity or contribution shall be limited to the amount paid by the Agency to the Company for the Services included in an applicable Order Form(s) to which claims relate in the 12 month period immediately prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.
    • 16.5: The Agency shall not raise any claim arising out of or in connection with this Agreement more than one year after the date of the act or omission alleged to have caused the loss claimed.
    • 16.6: The Agency shall be liable for any breaches of this Agreement, in particular for breaches of the AUP, caused by the acts, omissions or negligence of any Customers or their users who access or use the Services as if such acts, omissions or negligence had been committed by the Agency itself.
    • 16.7: Where any sales tax or similar tax is applicable to a Customer, the Company shall have no liability whatsoever to the Agency for the correct invoicing of such tax, even when the Agency uses the invoicing template provided within the Services. The Agency hereby acknowledges its sole responsibility for sending compliant tax invoices to Customers.
    • 16.8: The Company shall have no liability whatsoever for any hardware or software used in connection with the Services, which it does not own or sub-licence or directly control.
    • 16.9: The Parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
17. Data Protection
    • 17.1: Each Party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
    • 17.2: To the extent that personal data is processed when the Agency or its Customers use the Services, the Parties acknowledge that Company is a data processor and the Agency is a data controller and the Parties shall comply with their respective obligations under applicable data protection law and the terms of the data protection agreement, (“DPA”) published at https://transpond.io/reseller_dpa.
    • 17.3: If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party's rights from continuing.
    • 17.4: Where the Company collects and processes personal data of the Agency or its Customers, as a data controller, when providing the Services to the Agency or Customers, such collection and processing shall be in accordance with Company's privacy policy, published at: https://transpond.io/Privacy, (“Privacy Policy”).
18. General.
    • 18.1: Non-Exclusive. The rights granted to the Parties under this Agreement are non-exclusive.
    • 18.2: Assignment. Neither Party shall have the right to assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of the other Party. For purposes of this Agreement, an Acquisition of the Agency shall constitute an assignment of this Agreement by the Agency. Notwithstanding the forgoing, the Company may assign this Agreement and its rights and obligations hereunder (whether by operation of law, contract, or otherwise) without the Agency's prior consent: (i) to any individual or business entity controlling, controlled by or under common control with the Company; (ii) in the event of a merger, consolidation or the sale of all or substantially all of the Company's assets or stock; and (iii) the Company may assign the right solely to monies due or becoming due for financing purposes. Any purported assignment in breach of this section shall be null and void and a breach of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.
    • 18.3: Independent Contractor. The Agency shall conduct its business under this Agreement as an independent contractor and this Agreement creates no relationship of employer and employee, principal and agent, joint venture or any similar relationship. The Agency shall not have, and shall not represent that it has, any power, right or authority to bind the Company, or to assume or create any obligation or responsibility, express or implied, on behalf of the Company.
    • 18.4: Notice. All notices under this Agreement must be in writing. Notices will be deemed given when: (i) delivered personally; (ii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) two (2) business days after deposit with a commercial overnight carrier, with written verification of receipt; provided that a notice of address change shall only be effective upon receipt.
    • 18.5: Governing Law. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties shall submit to the exclusive jurisdiction of the English courts.
    • 18.6: Severability. Should one or more of the provisions of this Agreement be deemed to be invalid, illegal or unenforceable, the remaining clauses shall remain unaffected. The Parties shall then agree to substitute the invalid clause by a clause that is legally and economically as far as possible comparable to the invalid clause.
    • 18.7: Counterparts and Headings. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose. The English language version of this Agreement shall be definitive and shall control over any translation.
    • 18.8: Force Majeure. Both Parties shall not be liable to the other for any loss, injury, delay (except for any payment obligations) for expenses or damages arising out of any cause or event not within its reasonable control including, but not limited to: riots, wars or hostilities between any nations; acts of terrorism; Acts of God, fires, storms, floods or earthquakes; strikes, labour disputes, epidemics, pandemics, quarantine, vendor delays, or shortages or curtailments of raw materials, labour, power or other utility services including access to telecommunications facilities and the Internet; governmental restrictions or trade disputes; manufacturing delays; or other contingencies, (“Force Majeure”). However, if such circumstances persist for more than 30 (thirty) days, the non-defaulting Party may terminate this Agreement.
    • 18.9: Entire Agreement. Excluding any non-disclosure entered into between the Parties prior to the Effective Date, this Agreement and any documents referred to in in constitutes the entire agreement and understanding between the Parties and supersedes all prior and contemporaneous agreements, negotiations, discussions, representations and understandings between the Parties. The Agency acknowledges that it has not relied upon any promise, representation or statement of the Company except as expressly set out herein.
    • 18.10: Prevails clause. In the event of any inconsistency between the content of the terms of this Agreement an Order Form, the Terms and Conditions, the AUP, the DPA and the Privacy Policy, the main terms of this Agreement shall prevail followed by the Order Form, the Terms and Conditions, the AUP, the DPA and then the Privacy Policy.
    • 18.11: Amendments. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each Party.
    • 18.12: No Waiver. No failure or delay of either Party in exercising any right or remedy under this Agreement shall operate as a waiver of such right or remedy.
    • 18.13: No Third Party Rights. Unless expressly stated in this Agreement, nothing contained in this Agreement is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise and the Contracts (Rights of Third Parties) Act 1999 is hereby specifically excluded.
    • 18.14Costs. Each Party shall pay its own legal, accountancy and other costs arising out of and in connection with this Agreement.

Schedule 1

ORDER FORM

THIS ORDER FORM is made between:

MPZMail Limited a company registered in England and Wales with company number 11234241 with its registered offices at Level 1, 20 Dale Street, Manchester, M1 1EZ, England, (the "Company"),

and

the reseller, (the "Agency").

Term and Customer

Fees, Invoicing and Payment

The following Fees are payable for access and use of the Services by the agency for the Customers during the Term of this Order Form:

The Agency acknowledges that this Order Form is entered into subject to the terms of the Agreement entered into between the Agency and the Company from the Effective Date including its schedules and all documents referred to therein.