Partner Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply throughout all parts of this Agreement.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person’s legal and personal representatives, successors or permitted assigns].

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

2. APPOINTMENT OF PARTNER

2.1 By this Agreement Mailsphere appoints the Partner on a non-exclusive basis to promote the Services and solicit customers for the Services, and the Partner agrees to act in that capacity, subject to the terms of this Agreement.

2.2 The Parties acknowledge and confirm that the Services do not comprise any goods, and that in particular the supply of Services to any person by Mailsphere is affected by the grant of a licence to that person by Mailsphere or its licensor, which does not involve title to any goods transferring to such person.

2.3 Mailsphere may from time to time by written notice require the Partner not to, and if so required the Partner shall not, solicit orders for the Services from particular customers or prospective customers in the Territory for any reason in the absolute discretion of Mailsphere.

3. THE PARTNER’S OBLIGATIONS

3.1 The Partner shall use its best endeavours to promote and market the Services in the Territory, but the Partner shall not be entitled to sell or to enter into any negotiations or contracts for the sale of the Services on behalf of Mailsphere, or to bind Mailsphere in any way.

3.2 The Partner shall conduct the promotion and marketing of the Services in the Territory with all due care and diligence and shall cultivate and maintain good relations with customers and potential customers in the Territory in accordance with sound commercial principles.

3.3 The Partner shall and shall procure that any representatives make themselves available, at all reasonable times and upon reasonable notice, to Mailsphere for the purposes of consultation and advice relating to this agreement and the Services and to attend such meetings as Mailsphere shall reasonably request.

3.4 The Partner shall work in close co-operation with Mailsphere’s technical support and consultants.

3.5 The Partner shall enter into contracts with its customers solely on the Terms and Conditions (acknowledging at all times that the prices at which the Partner resells the services are at its absolute discretion).

3.6 The Partner shall in relation to the Services describe itself as “Authorised Partner” for Mailsphere, not hold itself out, or permit any person to hold it out, as being authorised to bind Mailsphere in any way, and not do any act which might create the impression that it is so authorised.

3.7 The Partner shall from time to time keep Mailsphere informed of the Partner’s promotional and marketing activities in respect of the Services.

3.8 The Partner shall promptly inform Mailsphere of any complaint or after-sales enquiry concerning the Services which is received by the Partner; and other matter likely to be relevant in relation to the sale, use or development of the Services.

3.9 The Partner shall not:

3.9.1 pledge the credit of Mailsphere in any way;

3.9.2 use any advertising, promotional or selling materials in relation to the Services except those supplied or approved by Mailsphere;

3.9.3 engage in any conduct which in the opinion of Mailsphere is prejudicial to Mailsphere’s business or the marketing of the Services generally; or

3.9.4 be concerned or interested either directly or indirectly in the sale, development, promotion, marketing or importation into the Territory of any services which compete with the Services; or

3.9.5 allow the Customer’s email systems to act as an open relay, receive bulk email, send spam or compromise the security of the Services (without limitation to hacking attempts, denial of service attacks, mail bonds or other malicious activity which is either directed at or originating from the Customer’s domains). Mailsphere retains the right at any time to test compliance with this Clause 3.9.5. If at any time the Customer’s systems are found to be in breach of this Clause 3.9.5, Mailsphere shall inform the Partner and reserves the right to withhold provision of or suspend all or part of the Service to the Customer immediately and until the problem has been resolved. In such an event, Mailsphere will promptly inform the Partner and shall work with the Partner to resolve such issues, reinstating Services to the Customer at the earliest opportunity.

4. SALE OF THE SERVICES

4.1 For all supplies of the Services through the Partner in the Territory:

4.1.1 the supply shall be made by the Partner on the Terms and Conditions;

4.1.2 Mailsphere shall provide to the Partner copies of the Terms and Conditions as varied from time to time;

4.1.3 the Partner shall bring the Terms and Conditions to the notice of all Customers and prospective customers for the Services in the Territory;

4.1.4 the Partner shall not make or give any promises, warranties, guarantees or representations concerning the Services other than those contained in the Terms and Conditions.

4.2 For each sale made by the Partner in accordance with this Agreement, Mailsphere shall sell the Services to the Partner at a discount off Mailsphere’s then current list price as set out in the Partner Commercials.

4.3 Mailsphere shall invoice the Partner at a frequency and in a currency as set out in the Partner Commercials. The Partner shall be liable for all bad debts and for the avoidance of doubt the  Partner shall not be entitled to withhold or delay payment of any sum due on the grounds that it has not recovered sums due to it on resale of the Services.

4.4 Each Order shall be deemed to incorporate the terms and conditions of this Agreement. Any additional terms and conditions sent by the Partner to Mailsphere whether as part of, annexed to, or enclosed with an Order, or contained within any other correspondence relating to an Order, shall be deemed void. The Partner shall be bound by all Orders submitted to Mailsphere.

4.5 Within each Order the Partner shall provide full details of the price agreed with the Customer, and the identity and contact details of the Customer, but shall not be required to adhere to any prices recommended by Mailsphere. The Partner shall provide Mailsphere with any further information relating to the Customer as Mailsphere shall request, to enable Mailsphere to fulfil its obligations under this Agreement, and to enable the Customer to be properly registered and licensed on the Mailsphere system and the Partner shall act promptly on all instructions from Mailsphere relating to the supply of the Services to the Customer, including but not limited to all issues relating to support, exception reporting, disaster recovery, upgrades and migration.

4.6 It shall be at Mailsphere’s discretion whether it shall or shall not accept an Order. Any Order that is accepted by Mailsphere pursuant to this Clause 4.6 shall be notified to the Partner by Mailsphere.

5. INTELLECTUAL PROPERTY

5.1 Nothing in this agreement shall give the Partner any rights in respect of any trade names or trademarks used by Mailsphere in relation to the Services or of the goodwill associated with them, and the Partner acknowledges that, except as expressly provided in this agreement, it shall not acquire any rights in respect of any trade names or trade marks and that all such rights and goodwill are, and shall remain, vested in Mailsphere.

5.2 The Partner shall promptly and fully notify Mailsphere of any actual, threatened or suspected infringement in the Territory of any Intellectual Property of Mailsphere which comes to the Partner’s notice, and of any claim by any third party so coming to its notice that the supply of the Services into the Territory, or their supply in the Territory, infringes any rights of any other person, and the Partner shall at the request and expense of Mailsphere do all such things as may be reasonably required to assist Mailsphere in taking or resisting any proceedings in relation to any such infringement or claim.

5.3 The Partner shall not use any trademarks or trade names in the Territory so resembling the trademarks or trade names of Mailsphere or its suppliers as to be likely to cause confusion or deception.

5.4 At the expense of Mailsphere the Partner shall take all such steps as Mailsphere may reasonably require to assist Mailsphere in maintaining the validity and enforceability of the Intellectual Property of Mailsphere during the continuance of this Agreement.

5.5 The Partner shall not use any trade names or trademarks of Mailsphere except as explicitly set out in this Agreement or as otherwise agreed in writing between the Parties.

5.6 The Partner shall not use any trade names or trademarks of Mailsphere on any web site without the consent of Mailsphere.

6. MAILSPHERE’S OBLIGATIONS

6.1 In order to fulfil its obligations in managing the Services, Mailsphere may at any time amend the Services and any Documentation (not including the Terms and Conditions) relating thereto for any reason including but not limited to legal, safety, business or technical considerations.

6.2 Subject to applicable legislation, Mailsphere may provider the Services from any installations forming part of the Services anywhere in the world and may, at any time, transfer the provision of the Services from one installation to another.

6.3 Mailsphere shall:

6.3.1 promptly supply the Partner with such software, catalogues, advertising, promotional and selling materials, literature and information as Mailsphere shall reasonably determine is necessary for the Sales to comply with its obligations under this Agreement;

6.3.2 supply up to date copies of any standard price lists which it has for the supply of the Services in the Territory;

6.3.3 provide demonstration software and services as Mailsphere shall reasonably determine from time to time.

7. SUPPORT

7.1 The Partner shall establish and operate systems and procedures sufficient in the reasonable opinion of Mailsphere to provide support to its Customers as defined in Clauses 1, 2 and 3 of the Service Level Agreements to: take and log all support all and requests for help and/or assistance from Customers and provide assistance as appropriate; determine whether the call requires escalation to Mailsphere, and if so, refer the call to Mailsphere; and act as the interface with the Customer.

7.2 The Partner shall use all reasonable endeavours to successfully qualify any support calls to establish whether any reported fault is specific to the Services. The Partner shall check the Customer configuration and gather all possible relevant technical information prior to referring any call to Mailsphere.

7.3 Mailsphere shall provide support to the Partner from time to time as defined in the Service Level Agreements.

7.4 Partner agrees that Mailsphere may charge Partner at Mailsphere’s current rates to provide this first line support should the Partner fail to comply with the undertakings in this Clause 7.

8. CONFIDENTIALITY

8.1 Except as provided by Clauses 8.2 and 8.3, the Partner shall at all times during the continuance of this Agreement and after its termination:

8.1.1 use its best endeavours to keep all Confidential Information confidential and accordingly not to disclose any Confidential Information to any other person; and

8.1.2 not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement.

8.2 Any Confidential Information may be disclosed by the Partner to:

8.2.1 any Customers or prospective customers;

8.2.2 any governmental or other authority or regulatory body; or

8.2.3 any employees of the Partner or of any of the aforementioned persons, to such extent only as is necessary for the purposes contemplated by this agreement, or as is required by law and subject in each case to the Partner using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.

8.3 Any Confidential Information may be used by the Partner for any purpose, or disclosed by the Partner to any other person, to the extent only that:

8.3.1 it is on the date of this Agreement, or becomes, public knowledge through no fault of the Partner (provided that in doing so the Partner shall not disclose any Restricted Information which is not public knowledge); or

8.3.2 it can be shown by the Partner, to the reasonable satisfaction of Mailsphere, to have been known to the Partner prior to its being disclosed by Mailsphere to the Partner.

9. DURATION AND TERMINATION

9.1 This Agreement shall come into force on the Effective Date and, subject as provided elsewhere in this Agreement, shall continue in force for a period of 3 years thereafter and shall automatically renew year on year thereafter unless or until terminated by either Party giving to the other not less than 1 month’s written notice to expire at the end of such period.

9.2 If at any time control (as defined in section 840 of the Income and Corporation Taxes Act 1988) of the Partner is acquired by any person or group of connected persons (as defined in section 839 of that Act) not having control of the Partner at the Effective Date, the Partner shall forthwith give written notice to Mailsphere identifying that person or group of connected persons and Mailsphere shall be entitled, by giving not less than 3 months’ written notice to the Partner within 28 days after the notice from the Partner was given, to terminate this Agreement.

9.3 Either Party shall be entitled forthwith to terminate this Agreement by written notice to the other if:

9.3.1 the other Party commits any breach of any of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;

9.3.2 an encumbrancer takes possession or a receiver is appointed over any of the property or assets of the other Party;

9.3.3 the other Party makes any voluntary arrangement with its creditors or becomes subject to an administration order;

9.3.4 the other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this agreement);

9.3.5 anything which, under the law of any jurisdiction, is analogous to any of the acts or events specified in Clauses 9.3.2, 9.3.3 or 9.3.4;

9.3.6 the other Party ceases, or threatens to cease, to carry on business; or

9.3.7 in the circumstances contemplated by Clause 12 there is no agreement reached by the Parties within 30 days after discussions for that purpose began or ought to have begun.

9.4 Mailsphere reserves the right having given the Partner 14 days’ prior written notice to terminate this Agreement immediately and cease the provision of the Services to the Partner’s Customers in cases of late or non-payment of invoices by the Partner.

9.5 For the purposes of Clause 9.3.1, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

9.6 Any waiver by either Party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision of this Agreement.

9.7 The rights to terminate this Agreement given by this Clause 9 shall be without prejudice to any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

10. CONSEQUENCES OF TERMINATION

10.1 Upon the termination of this Agreement for any reason:

10.1.1 the Partner shall within 30 days send to Mailsphere, or otherwise dispose of in accordance with the directions of Mailsphere, all samples of the Documentation and all advertising, promotional or sales material relating to the Services then in the possession of the Partner;

10.1.2 the Partner shall cease to promote, market, advertise or solicit customers for the Services;

10.1.3 the provisions of Clauses 5, 8, 10, 11, 18, 17 and 20 shall continue in force in accordance with their terms;

10.1.4 the Partner shall have no claim against Mailsphere for compensation for loss of agency rights, loss of goodwill or any similar loss; and

10.1.5 subject as otherwise provided in this Agreement and to any rights or obligations which have accrued prior to termination, neither Party shall have any further obligation to the other under this Agreement.

10.2 Upon termination of this Agreement tfor reasons other than material breach or default on the part of the Partner, Mailsphere may in its sole discretion, upon written request from the Partner, continue to provide the Services on the terms herein to any existing Customer of the Partner having a Customer Agreement with the Partner which remains effective beyond the date of termination of this Agreement.

10.3 The costs incurred by the Partner in complying with clause 10.1.1 shall, where the termination is by the Partner under clause 9.3, be for the account of Mailsphere and, in any other case, be for the account of the Partner.

11. LIMITATION OF LIABILITY

11.1 Except where arising from a breach of this Agreement, neither Party shall have any liability to the other for any loss or damage whatsoever arising out of or in connection with this Agreement whether arising in contract, tort (including negligence and breach of statutory duty) or otherwise. Subject to Clause 11.3 Mailsphere’s total aggregate liability to the Partner in connection with this Agreement in any one calendar year shall not exceed 20% of the amount received by Mailsphere (excluding VAT) from the Partner under this Agreement in such calendar year.

11.2 Neither Party shall, in any event, be liable or responsible to the other for any indirect, incidental, special or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused whether arising under contract, tort (including negligence and breach of statutory duty) or otherwise, including without limitation, loss of documentation, loss or corruption of data, loss of profits or of contracts, remedial costs, loss of operation or staff time, costs of obtaining substitute goods or services and loss of goodwill or anticipated savings, even if it has been advised of the possibility.

11.3 The express warranties given in this Agreement are in lieu of all warranties, conditions, terms, representations, undertakings and obligations (express or implied) imposed by statute, common law or otherwise all of which are hereby excluded to the maximum extent permitted by law.

11.4 The above exclusions and limitations shall apply to the fullest extent permissible at law but neither Party excludes or limits liability for death or personal injury caused by its negligence or that of its employees or agents and for which it is responsible, or for fraud or wilful deceit.

11.5 The Parties hereto acknowledge that the exclusions set out above are fair and reasonable in all the circumstances and that

11.5.1 this Agreement has been the subject of full and open negotiation between the Parties;

11.5.2 The Partner has had the opportunity to negotiate the terms of this agreement, and in particular the terms contained in this Clause 11;

11.5.3 this Agreement has been freely negotiated and is not the standard terms of business of Mailsphere; and

11.5.4 the exclusions and limitations of liability set out above are reasonable notwithstanding that they may have the effect of protecting Mailsphere from losses for which it may be insured (and the Parties acknowledge that there are sound commercial reasons for so doing, such as maintaining a good insurance claims record)

11.6 No indemnity in this Agreement shall be effective to the extent that it has the effect of excluding or restricting liability as set out in Clause 11.4.

12. FORCE MAJEURE

Mailsphere shall have no liability to the Partner under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Mailsphere or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Partner is notified of such an event and its expected duration.

13. WAIVER

13.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

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

14. SEVERANCE

14.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

14.2 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.

15. ENTIRE AGREEMENT

15.1 This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement, supersedes all previous agreements and understandings between the Parties with respect thereto, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

15.2 Each Party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are by this Agreement excluded to the fullest extent permitted by law.

16. ASSIGNMENT

16.1 Partner shall not, without the prior written consent of Mailsphere, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

16.2 Mailsphere may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, and Mailsphere shall be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under this Agreement through any other company which at the relevant time is its holding company or subsidiary (as defined by section 736 of the Companies Act 1985) or the subsidiary of any such holding company and any act or omission of any such company shall for the purposes of this Agreement be deemed to be the act or omission of Mailsphere.

16.3 The Partner shall not without the prior written consent of Mailsphere employ sub-Partners; if (with or without such consent) it does so, every act or omission of the sub-Partner shall for the purposes of this Agreement be deemed to be the act or omission of the Partner.

17. NO PARTNERSHIP OR AGENCY

Nothing in this Agreement shall create, or be deemed to create, an agency or the relationship of employer and employee between the Parties.

18. THIRD PARTY RIGHTS

Nothing in this Agreement is intended to confer on a person any right to enforce any term of this Agreement which that person would not have had but for the Contract (Rights of Third Parties) Act 1999.

19. PRESS RELEASES

Partner agrees that Mailsphere may create a case study and issue a press release within 180 days of execution of this Agreement concerning Partner’s relationship with Mailsphere. Prior to the distribution of such case study and press release, Partner will be offered the opportunity to review such documents, and Mailsphere will incorporate all revisions reasonably requested by Partner. Final versions of such documents will not be publicly distributed by Mailsphere without Partner’s consent, which consent shall not be unreasonably withheld or delayed. Partner further consents to the use of Partner’s name in Mailsphere marketing and sales materials.

20. NOTICES AND SERVICE

20.1 Any notice or other information required or authorised by this agreement to be given by either Party to the other may be given by hand or sent (by first class pre-paid post, cable, facsimile transmission, e-mail or comparable means of communication) to the other Party at the address referred to in Clause 20.4.

20.2 Any notice or other information given by post pursuant to Clause 20.1 which is not returned to the sender as undelivered shall be deemed to have been given on the fourth day after the envelope containing the same was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.

20.3 Any notice or other information sent by facsimile transmission, e-mail or comparable means of communication shall be deemed to have been duly sent on the date of transmission, provided that a confirming copy is sent by first class pre-paid post to the other Party at the address referred to in Clause 20.4 within 24 hours after transmission.

20.4 Service of any legal proceedings concerning or arising out of this agreement shall be effected by causing the same to be delivered to the Company Secretary of the Party to be served at its principal place of business (in the case of Mailsphere) or its registered office (in the case of the Partner), or to such other address as may from time to time be notified in writing by the Party concerned.

21. GOVERNING LAW AND JURISDICTION

21.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

21.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).