RECITALS
WHEREAS, Distributor desires to grant Reseller the right, and Reseller desires to acquire the right, to be a non-exclusive reseller for the promotion and resale of Sage Services in the Territory.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1. Definitions:
Affiliates shall mean any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
Agreed Purpose shall have the meaning given in clause 19.2.
Agreement shall mean this Reseller Agreement including all Schedules, Annexes and any other documents incorporated by reference.
Anti-Bribery Requirements shall mean all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
Brand Guidelines shall mean the global brand guidelines issued by Sage and/or Distributor to Reseller (and as amended by Sage and/or Distributor from time to time).
Confidential Information shall mean any information which is disclosed pursuant to or in connection with this Agreement (whether orally, in writing and whether or not such information is expressly stated to be confidential) or which otherwise comes into the hands of a party which is either proprietary to a party or would be confidential by operation of law, or which is expressly stated by the disclosing party to be confidential or sensitive information including business and technical information (including source code, technical and development specifications, APIs, documents, drawings, schematics depicting code and coding or business logic use to develop code), Customer information, Prospect information, business plans, the terms of this Agreement and the like.
Conflict of Interest shall mean a situation where Reseller has competing interest, products or loyalties which could impact their ability to act objectively and fairly in their capacity as a reseller under this Agreement.
Control shall mean direct or indirect ownership or control of more than 50% of the voting interests in the Reseller.
Controller; processor; data subject; personal data; process, processes or processing shall mean as set out in the Data Protection Legislation in force at the time.
Customer shall mean a person, business or other entity located within the Territory, who has purchased or subscribed to the Sage Services for its own use and not for resale.
Customer Agreement shall mean the subscription agreement governing the use of a Sage Service by a Customer, made available to Reseller (where applicable) by Distributor, and which may be varied by Distributor in its sole discretion from time to time.
Data Protection Legislation shall mean: (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including the Data Protection Act 2018, and the General Data Protection Regulation (EU) 2016/679); and
(b) any code of practice or guidance published by the relevant data protection or supervisory authority and applicable to a party.
Effective Date shall mean the date on which this Agreement is binding on the parties.
Financial Year means mean the twelve (12) month period starting on 1 March and ending on 28 February.
Initial Term shall have the meaning a period of 1 (one) year from the Effective Date as described in clause 22.1.
Intellectual Property Rights shall mean patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mandatory Policies shall mean Sage’s and/or Distributor’s policies and codes as listed in Schedule 3, as updated and amended by notification from Sage and/or Distributor from time to time.
Prospect shall mean in terms of a potential customer, an individual, company or other organisation that is evaluating the purchase of a Sage Service, for its internal use as permitted in the Customer Agreement.
Reseller shall mean the entity whose has been appointed by the Distributor on a non-exclusive basis under this Agreement between the Distributor and such third party concerning the marketing, promotion, resale and/or support of the Sage Services.
Distributor Affiliate shall mean any individual, partnership, corporation, limited liability company, trust or other entity that controls, is controlled by or is under common control, directly or indirectly, with the Distributor.
Renewal Term shall have the meaning each successive one (1) year period from the Effective Date of this Agreement and extended in accordance with the provisions of clause 22.1.
Sage Marks shall mean any name, trademark, insignia, logo, symbol or slogan (registered or unregistered) including but not limited to the word “Sage”, which is owned or used by Sage or a Sage Affiliate now or in the future anywhere in the world.
Sage Services shall mean the Sage software services listed in Schedule 1.
Service Improvements shall have the meaning given in clause 15.1.
Shared Personal Data shall mean any personal data held by one party as controller, which is provided to the other party as a controller under this Agreement.
Term shall mean a 12 month period commencing on the Effective Date or any anniversary of the Effective Date (as described in clause 22.1) plus the Wind-Down Period.
Territory means SADC (excluding South Africa and Zimbabwe), West Africa and East Africa.
Wind-Down Period shall have the meaning given in clause 23.5.
1.2. In this Agreement headings are inserted for ease of reference only and shall not affect the construction or meaning of the terms of this Agreement.
1.3. Any phrase introduced by the terms “include”, “including”, “for example” or any similar expression will be construed as illustrative, not exhaustive and shall not limit the sense of the words prior to such term.
1.4. Use of the singular shall be treated as including the plural and vice versa.
1.5. References to persons shall include bodies or persons whether corporate or incorporate.
1.6. References to clauses and Schedules are references to clauses and schedules of and to this Agreement, and references to paragraphs are, unless otherwise stated, references to paragraphs of the Schedules in which the reference appears.
1.7. References to a statute or statutory provision include, unless the context requires otherwise, a reference to that statute or statutory provision as from time to time amended, modified, extended, re-enacted, consolidated and all statutory instruments, orders, by-laws, directions and notices made pursuant to it made before or after the date of this Agreement.
This Agreement shall commence on the Effective Date and shall continue, unless terminated in accordance with clause 22 or as provided for elsewhere within this Agreement, for the Term.
3.1. Distributor appoints Reseller as its non-exclusive Reseller to promote, market, resell and support the Sage Services in the Territory on the terms of this Agreement, and Reseller accepts the appointment on those terms.
3.2. Distributor reserves the right at any time and without notice to Reseller to:
3.2.1. directly market, promote, sell, license, merchandise, trade or otherwise deal in any Sage Services, or other software or services (whether owned by Sage or otherwise), within or outside of the Territory, in any manner which Distributor may deem appropriate; and/or
3.2.2. appoint other reseller partners, licensors, dealers, licencees, sales representatives, merchandisers, brokers, agents or other intermediaries, either within or outside the Territory, in any manner which Distributor may deem appropriate; and/or
Reseller shall not be entitled to any compensation in the event that Distributor exercises its rights under this clause 3.2. Unless with written consent from Distributor or otherwise permitted by law, Reseller shall not be allowed to promote, market, resell and/or support the Sage Services to customers outside of the Territory.
3.3. In the event Distributor wishes to expand the Territories set out in this Agreement, it shall notify the Reseller and should the parties agree to expand the Territories, they will execute a separate addendum in the form and/or format as determined by Distributor to effect the said changes. For the avoidance of doubt, the Territories shall not be expanded until such time as a written addendum has been properly executed by an authorised signatory of each of the parties.
3.4. Demonstration Copies
3.4.1. Where applicable, Reseller can use demonstration copies (or demonstration/evaluation credentials as applicable) of the Sage Services in the Territory to:
3.4.1.1. perform demonstration of the Sage Services to a Prospect or potential Customers to whom Reseller may resell the Sage Services to;
3.4.1.2. provide the necessary training for its employees; and
3.4.1.3. where applicable, provide after sales support to Customers as required by the Distributor from time to time.
3.5. Trial of the Sage Service
3.5.1. During the Term, a Prospect may from time to time request from Reseller, a free trial of the Sage Service. Reseller (subject to Distributor’s prior approval) shall only provide a time bound trial version (or temporary credentials as applicable) to the Prospect subject to the provisions of the Customer Agreement or such other terms and conditions applicable to the trial version (as may be issued by Distributor) and shall take all steps necessary to ensure the Prospect has agreed to the Customer Agreement (and other terms and conditions as applicable). Reseller shall not charge a license or other fee for the use of the trial version and shall ensure that all use of trial versions (or trial credentials) ceases immediately upon the end of the trial period. The duration for any free trial of the Sage Service shall not exceed ninety (90) days unless otherwise agreed by Distributor in its sole discretion.
3.6. Authorised Sage Reseller
3.6.1. Reseller shall be entitled to describe itself as an “AUTHORISED SAGE RESELLER” of the Sage Services but shall not represent itself as an agent of Sage and/or Distributor for any purpose, nor pledge Sage’s and/or Distributor’s credit or give any condition or warranty or make any representation on Sage’s and/or Distributor’s behalf or commit Sage and/or Distributor to any contracts.
3.6.2. Further, Reseller shall not without Distributor’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Sage Services which are inconsistent with those contained in the promotional material supplied by Distributor (including, without limitation, the Customer Agreement) or otherwise incur any liability on behalf of Distributor howsoever arising.
3.7. Reseller’s appointment under this clause 3 only grants to Reseller a license to resell Sage Services, and does not transfer any right, title or interest to any such Sage Services to Reseller or its Customers.
3.8. Reseller Appointment
3.8.1. Distributor appointment of the Reseller to market, promote, resell or support the Sage Services is subject to prior written approval. Reseller consents to Sage and/or Distributor carrying out adequate and reasonable due diligence on the Reseller. Such checks shall include those set out in the checklist as provided in Schedule 4. Distributor reserves the right to perform the due diligence checks at least annually (or earlier if Distributor becomes aware of a change in a Reseller’s circumstances) on the Reseller throughout their relationship with Distributor.
3.8.2. Reseller shall perform adequate and reasonable due diligence on all Prospects in accordance with Schedule 4, and shall report to Distributor all due diligence which has conducted in terms thereof.
3.9. Reseller shall ensure that it enters into an agreement which contain terms which provide at least the same level of protection to Distributor as set out in this Agreement prior to permitting a Customer to use the Sage Services. In particular, Reseller shall ensure that the following provisions are flowed down mutatis mutandis in its own agreement with its Customer: clauses 3.12, 5.3, 6, 12, 16, 17, 18, 19, 20, 21 and 22 (the “Flow-down Obligations”).
3.10. Reseller shall be responsible for the performance and obligations of its Customers and shall be directly liable for any breach of the terms by such Customer. The Reseller acknowledges and agrees that Distributor shall be entitled to suspend or terminate the supply of Sage Services to the Reseller and/or Customer in respect of any Reseller(s) and/or Customers who (i) have not entered into its own agreement with the Customer containing terms which provide at least the same level of protection to Distributor as set out in this Agreement and the Flow-down Obligations; or (ii) have failed to comply with any of the Flow-down Obligations, after having provided the Reseller with 7 (seven) days’ written notice to remedy such failure.
3.11. Notwithstanding the foregoing, Reseller shall in all circumstances be responsible for the observance and performance by Customer of the Flow- down Obligations within its own agreement with its Customer and shall in all circumstances be directly liable to Distributor for any breach by Customers of any of the Flow-down Obligations.
3.12. Step in Rights
3.12.1. Distributor reserves the right to step into any arrangement between Reseller and Customers to provide the Sage Service, if Distributor can reasonably show and after consultation with the Reseller, that Reseller:
3.12.1.1. is in breach of this Agreement and has failed to remedy such breach within 7 (seven) days of written notice; or
3.12.1.2. does not have the ability, experience or qualification to fulfil its duties under this Agreement or resell, promote or market the Sage Services to Distributor’s satisfaction; or
3.12.1.3. has brought Distributor, a Distributor Affiliate, the Sage Services or any other Sage product or service into disrepute or has adversely affected Distributor’s or a Distributor’s Affiliate’s reputation in any way.
3.13. Where Distributor invokes its step-in rights under clause 3.12, Distributor may take such steps as are reasonable (in its sole discretion), including but not limited to, the following:
3.13.1. Linking Customers to an alternative reseller; and
3.13.2. Establishing a direct relationship with Customers (as appropriate).
4.1. Distributor may from time to time offer to include additional products or services to the Sage Services by giving notice to Reseller in writing of their inclusion within Schedule 1.
4.2. Distributor may, in its sole and absolute discretion, suspend, cease to market, change, or withdraw any Sage Service at any time, and such Sage Service shall be considered to have been removed from Schedule 1 after 30 (thirty) days’ notice from Sage to Reseller and the Reseller shall immediately cease any marketing, promotion and resale (and if requested, support) of such Sage Service within 30 (thirty) days’ of such notice. Such withdrawal shall not affect any order placed prior to the effective date of change which will be honoured by Distributor.
4.3. Distributor may, in its sole and absolute discretion and without any liability to Reseller, make changes to the specifications, composition and characteristics of the Sage Services from time to time. Distributor will inform Reseller of such changes as soon as reasonably practicable. Distributor acknowledges and agrees that any changes to the specifications, composition and characteristics of the Sage Services will not apply to active subscriptions already in place
5.1. Reseller shall be responsible for the entire implementation of the Sage Services, starting with (where applicable) scoping, functional analysis, responding to Customer requests for information, installation of the solution, parameter-setting, Customer training as well as commercial and technical support on a Level 1 basis, for the Customer.
5.2. Reseller shall maintain an adequate organisation for marketing, sales, support and professional services as may be reasonably necessary in order to advertise, distribute and support the Sage Services throughout the Territory, and Reseller shall establish the following roles (or similar roles) in order to perform its obligations under this Agreement:
5.2.1. business development managers to recruit new Customers and to engage and support existing Customers;
5.2.2. pre-sales consultants to assist the Customer in pre-sales activities; and
5.2.3. marketing managers to deliver sales opportunities to Customers.
5.3. Localisation add-ons
5.3.1. Subject to agreement with Reseller, Distributor may request Reseller to develop a translation and/or localisation of the Sage Services for a Territory or Territories. Any such services or requirements shall be subject to a separate set of terms and conditions as agreed to between the Parties in writing.
6.1. During the term of this Agreement, Reseller undertakes not to:
6.1.1. purchase the Sage Services from any person other than Distributor; or
6.1.2. distribute the Sage Services other than as set out in this Agreement.
6.2. Reseller undertakes and agrees with Distributor to:
6.2.1. use its best endeavours to promote, market and resell the Sage Services, including building a customer channel for the sale of Sage Services to Customers;
6.2.2. take out and maintain valid and sufficient business insurance in respect of its business against loss or damage of the kinds customarily insured by businesses with similar operations;
6.2.3. ensure that before using the Sage Services, Customers are aware of their obligation to ensure that all Customers have signed a Customer Agreement in such a way to make it validly incorporated and legally binding, and shall promptly notify Customers of any changes to the relevant Customer Agreement;
6.2.4. inform the Customers, that under no circumstances, may they amend or vary the terms of the Customer Agreement;
6.2.5. co-operate with Distributor in all matters relating to this Agreement and the distribution of the Sage Services;
6.2.6. inform each of its Customers about the Sage Services and encourage them to participate in the purchase of the Sage Services;
6.2.7. not correct or authorise any third party to correct or modify any potential defect of Sage Services without Distributor’s prior written authorisation and subject to a separate written agreement;
6.2.8. not loan, lease, transfer, or otherwise make available the Sage Services, its related documentation, or source code available to any third party, except as otherwise specifically provided for in this Agreement;
6.2.9. not allow any third party to use the Sage Services without an undertaking to pay the relevant fees;
6.2.10. not decompile the Sage Services;
6.2.11. not adapt, modify, transform or arrange the Sage Services, their related documentation or source code (other than in accordance with applicable law);
6.2.12. in carrying out its obligations as a partner of Distributor, act in the best interests of Distributor;
6.2.13. at all times fully cooperate with Distributor (including by providing all information and assistance requested by Distributor in a timely manner and in accordance with any reasonable timescales set by Distributor) in the performance by Distributor of any due diligence checks and any form of investigation by Distributor (from time to time) upon (i) Reseller, its Affiliates and any other connected entities or businesses of the Reseller; and/or (ii) any persons connected with Reseller, its Affiliates and any other connected entities or businesses of Reseller (including, without limitation, any of their respective equity holders, officers, persons with material influence over such entities or businesses or their respective senior management). Such due diligence may be of the nature of those set out in Schedule 4;
6.2.14. take all reasonable steps to ensure that Reseller’s Affiliates and any other connected entities or businesses of Reseller; and/or (ii) any persons connected with Reseller, its affiliates and any other connected entities or businesses of Reseller (including, without limitation, any of their respective equity holders, officers, persons with material influence over such entities or businesses or their respective senior management) assist Reseller comply with its obligations under clause 6.2.13 above;
6.2.15. within fourteen (14) days of a written request from Distributor at any time, provide such information as is reasonably requested by Distributor about Reseller’s processes and controls to support compliance with this Agreement; and
6.2.16. inform Distributor immediately of any changes in ownership or Control of Reseller and of any change in its organisation (including changes to any equity holders, officers, its senior management or persons with material influence over the Reseller) or method of doing business which might: (i) materially affect the performance of Reseller’s duties in this Agreement; or (ii) result in a legal compliance issue for Distributor; or (iii) result in a breach of Sage’s and/or Distributor’s policies.
7.1. Distributor undertakes:
7.1.1. to provide such information and support as may be reasonably requested by Reseller to enable it properly and efficiently to discharge its duties under this Agreement; and
7.1.2. to provide the necessary on-going training to the Reseller, in order to assist in the resale of the Sage Services. All non-certification training costs including deliverables shall be borne by Reseller.
8.1. Reseller may place orders for a Sage Service only in accordance with the specific ordering procedure for such Sage Service as may be informed to Reseller by Distributor, including whether such Sage Service should be ordered by the use of a purchase order or through Distributor’s online ordering portal. No contract or obligation for the supply of the Sage Service shall arise between the parties unless and until an order has been accepted by Distributor as described in this Agreement.
8.2. It is a condition of this Agreement that at the time of placing each order for the Sage Services, Reseller provides Distributor with a written (or electronic) order confirmation from the applicable Customer. Reseller will use any form of order confirmation that Distributor may reasonably mandate from time to time during the term of this Agreement.
8.3. Distributor reserves the right to refuse to accept an order in its sole and absolute discretion, including (but not limited to) in the following circumstances:
8.3.1. Reseller fails to provide Distributor with Customer’s order confirmation;
8.3.2. if Distributor has insufficient availability to meet Reseller’s order;
8.3.3. if the Sage Service ordered has been withdrawn;
8.3.4. if the order is not based on the then current price list applicable to Reseller;
8.3.5. if Distributor has reasonable belief that the Sage Service will be used other than in accordance with this Agreement or used by Resellers or a Customer other than in accordance with the applicable Customer Agreement or to the detriment of Distributor’s business;
8.3.6. if Reseller or any of its Customers has failed, refused or neglected to comply with Distributor’s legal policy requirements, including (but not limited to) the compliance with the provisions of clause 18;
8.3.7. where Reseller has withdrawn its credit facility and has not paid for its order upfront with cleared funds, in the event where Distributor deems that there is a credit risk and requires upfront payment;
8.3.8. if Reseller has, save for any validly disputed payments, not made any payment due to Distributor (whether under this Agreement or otherwise) when due, and such payment is still outstanding after 7 (seven) days of written notice.
8.4. Distributor shall use reasonable endeavours to inform Reseller in the event an order is refused, within a reasonable time after receipt of such order, and will refund to Reseller any sums already paid by the Reseller to Sage in respect of that order.
8.5. Distributor acknowledges and agrees that the Customer Agreement will be accepted by the Customer directly with Sage at the time of activation of the license key.
9.1. The prices to be paid by Reseller to Distributor for Sage Services are to be Distributor’s list prices (the “Price List”), and as amended by Distributor from time to time.
9.2. From time to time Distributor may offer additional special promotions, discount rates and alternative discount rates for new releases. The related fees for such offerings (where not included in the Price List) shall be published by Distributor from time to time in the relevant publication.
9.3. Distributor reserves the right to amend the Price List and payment terms (including individual credit terms) from time to time in Distributor’s sole and absolute discretion. For the avoidance of doubt, any amendments to the Price List shall not affect the price of any Sage Services for which Distributor has already accepted an order in accordance this Agreement.
9.4. Payment for the Sage Services ordered by Reseller shall be paid in accordance with the Reseller’s credit application as accepted by Distributor, alternatively, on a cash on delivery basis. Payments shall be made in the Currency applicable to the Territory which may include Naira, Namibian Dollar, Pula, Rand or US Dollar by the payment methods described in such order confirmation or invoice, unless otherwise agreed between Distributor and Reseller in writing.
9.5. Overdue amounts shall accrue interest at a rate of two per cent (2%) per annum above the prevailing prime interest rate in South Africa from time to time, from the due date until the date of actual payment, and interest shall accrue before as well as after any formal judgment or award (if any) and any part payment. Reseller shall reimburse Distributor for any costs (including third party costs as invoiced by the relevant third-party provider) Distributor may incur in recovering outstanding sums from Reseller due to Distributor.
9.6. Payments made to Distributor shall be free of exchange, without deduction or demand, exclusive of all other duties including, without limitation, import duties, freight, insurance and all other expenses, levies, duties and taxes. If any payment by Reseller is subject to such tax, Reseller shall increase the amount of any payment in order to ensure that Distributor receives the same amount it would have received as if such payment was not subject to such tax.
9.7. Reseller 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 Distributor.
9.8. Distributor shall be entitled to charge to Reseller the relevant Goods and Services Tax, Value Added Tax and any other similar taxes, duties, or levies or other deductions or withholdings, in accordance with applicable law.
9.9. Each party will timely provide the other with any documents and information as may be required under, or to comply with, applicable tax laws and regulations in relation to services rendered and/or payments made under this Agreement.
9.10. Any and all expenses, costs and charges incurred by the Reseller in the performance of its obligations under this Agreement shall be paid by the Reseller unless Distributor has expressly agreed beforehand in writing to pay such expenses, costs and charges.
10.1. Reseller shall be free to determine its own pricing applicable to Customers to whom the Sage Services are distributed to.
11.1. Reseller shall commit to a minimum order value (representative of a minimum value) of the Sage Services for each Financial Year, calculated based on the list price (the “Annual Financial Target”), pro-rated accordingly in the event of an incomplete Financial Year.
11.2. In the event that Reseller is unable to meet the Annual Financial Target in a certain Financial Year, Sage shall review Reseller’s performance, and shall have the option, to either:
11.2.1. terminate this Agreement with immediate notice; or
11.2.2. discuss and agree with the Reseller on a reseller improvement plan.
11.3. Distributor shall determine and notify Reseller in writing of the Annual Financial Target for each Financial Year.
11.4. For the avoidance of doubt, Distributor shall have the absolute right to add to, vary, supplement or amend any key performance indicator (including the Annual Financial Target) at the end of each Financial Year for the proceeding Financial Year. Any addition, variation, supplement or amendment shall be agreed to in writing by the parties and shall be deemed to be incorporated into this Agreement and shall be binding on the parties as part of this Agreement.
12.1. Reseller shall:
12.1.1. comply strictly with the Brand Guidelines;
12.1.2. be responsible for (and shall observe all reasonable directions and instructions given to it by Sage and/or Distributor in respect of) the advertising and promotion of the Sage Services provided that the use by the Reseller of any advertising materials and promotional literature containing the Sage Marks or other references to Sage Services shall be subject to the prior written consent of Sage and/or Distributor and certain advertising and promotional activities may, where agreed in writing, be funded by Distributor;
12.1.3. not make any written statement as to the quality or manufacture of Sage Services without the prior written approval of Distributor;
12.1.4. provide the Sage Services and/or any Sage/Distributor produced marketing materials which relate to the Sage Services without modification or adaption, and retaining the Sage Services’ and/or marketing materials’ existing Sage/Distributor branding which Reseller will not remove, alter or otherwise interfere with, without the prior written consent of Sage and/or Distributor and then only in the manner and to the extent permitted by Sage and/or Distributor;
12.1.5. conduct its business in a manner that reflects favourably at all times on Sage and Distributor and the good name, goodwill and reputation of Sage and Distributor and not enter into any contract or engage in any practice that is or may be detrimental to the interests of Sage and Distributor in Sage Services; and
12.1.6. avoid deceptive, misleading or unethical practices that are, or might be, detrimental to Sage, Sage 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 Sage and Distributor or Sage Services.
13.1. Reseller shall, upon request of Distributor, and in any event within ten (10) days of such request provide Distributor with:
13.1.1. records of orders of Sage Services by Customers, orders placed by Reseller with Distributor, and any other information relating to the sale and service of the Sage Services as Distributor may require from time to time;
13.1.2. records of all enquiries, quotations, transactions and proceedings relating to the Sage Services, including any point-of-sales reports, sales pipeline and sales forecast reports;
13.1.3. financial information relevant to its resale of the Sage Services, including any balance sheets or income statements for the relevant financial year; and
13.1.4. any updates in relation to its activities, market conditions, state of competition in a Territory, and any other information which may be relevant to the resale of the Sage Services.
13.2. Reseller shall inform Distributor immediately upon becoming aware of, by written notification of:
13.2.1. any breach of the Customer Agreement by Customers which it becomes aware of; and
13.2.2. any legal proceedings (or threatened legal proceedings) in relation to the Sage Services that it becomes aware of.
13.3. Reseller shall ensure that all authorised representatives of Distributor (or their duly appointed agents) have access to the premises of Reseller at all reasonable times subject to prior notice for the purposes of fulfilling its obligations to Distributor under this clause 15. Distributor shall ensure that while its authorised representatives (or their duly appointed agents) have access to the Reseller’s premises, that such representatives do not disrupt the ordinary course of business of the Reseller.
14.1. During the Term and for a period of three (3) years thereafter, Distributor shall have access to, and Reseller shall maintain any books, documents, records, papers and other materials of Reseller related to this Agreement.
14.2. Reseller agrees to permit Distributor and/or Sage, on reasonable notice during normal business hours, to access and take copies of records and documentation held at Distributor’s premises and to meet with its personnel to audit its compliance with its obligations under the Agreement. Reseller agrees to provide all reasonable assistance to the conduct of such audits.
14.3. In the event that there are any discrepancies found as a result of such audit, Reseller shall take all measures necessary to rectify such discrepancies and Distributor shall be entitled to conduct a second audit at any date thirty (30) days following the first audit to confirm that such discrepancies have been rectified.
14.4. If such discrepancies are not rectified by the second audit, or, it is discovered at any point in time that such discrepancies are illegal or in violation of any applicable laws, Distributor shall have the right to terminate this Agreement immediately.
14.5. The cost(s) of audits shall be borne by Distributor, where the audit identifies a shortfall exceeding five per cent (5%) in respect of any period to which the inspection relates between the amount actually paid by the Reseller and the amount to be paid by the Reseller, in which event the Reseller will pay the amount of the shortfall, within fourteen (14) days of the date of Distributor’s invoice for such shortfall.
14.6. The Flow-down Obligations set out at clause 3.9 shall include an express obligation upon Reseller to ensure that it obtains contractual audit rights directly in favour of Distributor (and its audit- appointed third party representatives) within the Customer Agreement that it appoints on terms as favourable as set out in this clause 16 and clause 18.8. Accordingly, Distributor shall ensure that third party rights (as they relate to Distributor’s audits pursuant to this Agreement) are not excluded from Customer Contracts in respect of such audit rights.
15.1. Any developments, improvements or add-ons will be subject to the independent software reseller agreement for the Sage Services, including but not limited to any reports, manuals, media, lists, and other programming documentation, developments and adaptations of the Sage Services (the “Service Improvements”) as may be made by Reseller shall become the property of Distributor and/or Sage:
15.1.1. if in relation to and language, translation, or localisation services of the Sage Services in the Territory, upon validation by Distributor; and
15.1.2. if in relation to anything else, upon such Service Improvement being developed.
15.2. Reseller agrees that it shall provide and deliver to Distributor such Service Improvements upon Distributor’s request.
16.1. Reseller shall be responsible for obtaining:
16.1.1. any import licenses or permits necessary for the entry of Sage Services, or their delivery to Reseller, and Reseller shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Sage Services; and
16.1.2. any trade licenses or permits necessary to allow Reseller to conduct business as a distributor of Sage Services throughout the entire Territory, and Reseller shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the resale of Sage Services.
16.2. Reseller acknowledges that Sage is ultimately owned by a UK listed company which operates on a global basis. As such, each of the Sage group of companies (including Sage) must operate in compliance with all laws applicable to The Sage Group plc (as well as the laws applicable to the individual Sage subsidiary) and in an ethical manner.
16.3. In performing its obligations under this Agreement, Reseller shall comply with the Mandatory Policies and, operate in accordance with any other internal Sage and/or Distributor policies (including participation in any training offered to Reseller or its personnel by Distributor from time to time on the same) applicable to the performance by Reseller of its obligations under this Agreement.
Anti-bribery.
16.4. Each party warrants that it will and will procure that persons associated with it including its Affiliates will:
16.4.1. comply with the Anti-Bribery Requirements;
16.4.2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
16.4.3. not do, or omit to do, any act that may lead Distributor and/or Sage to be in breach of any of the Anti-Bribery Requirements;
16.4.4. promptly report to Distributor any request or demand for any undue financial or other advantage received by it in connection with this Agreement;
16.4.5. have and maintain in place throughout this Agreement its own policies and procedures to ensure compliance with the Anti-Bribery Requirements and clause 16.4.2, and will enforce them where appropriate;
16.4.6. ensure that any person associated with the Reseller who is performing services in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Reseller in this clause 16 (the “Relevant Terms”). The Reseller shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to Distributor for any breach by such persons of any of the Relevant Terms; and
16.4.7. if requested, provide Distributor with reasonable assistance to enable Distributor to perform any activity required by any relevant government or agency in any relevant jurisdiction for the purpose of compliance with any of the Anti-Bribery Requirements.
16.5. Each party indemnifies the other party, including each party’s Affiliates against any losses, liabilities, damages, costs, expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis)) and all other reasonable professional costs and expenses) suffered or incurred by, or awarded against, a party and its Affiliates, arising out of or in connection with any breach or negligent performance by the other party of this clause 16.
16.6. Reseller will promptly notify Distributor if, at any time during the Term of this Agreement its circumstances, knowledge or awareness changes such that it would not be able to repeat the warranties set out in clause 16.4 at the relevant time.
16.7. Reseller shall keep at its normal place of business detailed, accurate and up to date records, books or account and such other necessary documentation to provide compliance with the Anti- Bribery Requirements and showing all payments made by Reseller in connection with this Agreement and the steps taken by Reseller to comply with the Anti-Bribery Requirements and clause 16.4.2 from the date of this Agreement for a minimum period of three (3) years. Reseller shall ensure that such records and books of accounts are sufficient to enable Distributor to verify Reseller’s compliance with its obligations under this clause 16.
16.8. Reseller shall permit Distributor and its third party representatives, on reasonable notice during normal business hours, but without notice in case of any reasonably suspected breach of this clause 16 to access and take copies of Reseller’s records and any other information held at Reseller’s premises and to meet with Reseller’s personnel to audit Reseller’s compliance with its obligations under this clause 16. Such audit rights shall continue for twenty four (24) months after termination of this Agreement. Reseller shall give all necessary assistance to the conduct of such audits during the Term and for a period of twenty four (24) months after termination of this Agreement.
16.9. Reseller warrants and represents that:
16.9.1. neither Reseller nor any of Reseller’s team, officers, employees or other persons associated with it:
16.9.1.1. has been convicted of any offence involving bribery or corruption fraud or dishonesty;
16.9.1.2. having made reasonable enquiries, so far as it is aware has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Bribery Requirements; or
16.9.1.3. has been or is listed by any government agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programs or other governments contracts;
16.9.2. none of the officers or employees of Reseller or any person associated with it or any other person who is performing services in connection with this Agreement is a foreign public official; and
16.9.3. no foreign public official owns a direct or indirect interest in Reseller, or any person associated with it or any other person for whom Reseller is responsible under clause 16.9.2 and no public official has any legal or beneficial interest in any payments made by Reseller under this Agreement.
16.10. The warranties in clauses 16.4 and 16.9 will apply mutatis mutandis to both parties.
16.11. Breach of this clause 16 shall be deemed a breach not capable of remedy under clause 22.2.
16.12. If either party terminates this Agreement for breach of this clause 16, the other party shall not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination.
16.13. Regardless of any other provision in this Agreement, neither party shall not be obliged to do, or omit to do, any act which would, in its reasonable opinion, put it in breach of any of the Anti-Bribery Requirements.
Sanctions.
16.14. Reseller shall ensure it has access to the current list of Restricted Territories (as defined below) and shall not, and shall not permit Customers to, at any time conduct any business concerning or otherwise facilitate use of the Sage Services in any of the Restricted Territories set out in:
16.14.1. Tier 1 of Schedule 7, Part A under any circumstances; and
16.14.2. Tier 2 of Schedule 7, Part B without the prior written consent of Distributor.
16.15. Distributor’s policy relating to Restricted Territories may change from time to time and it is Reseller’s obligation to ensure that it (and its Customers) operates in compliance with the most up to date version of the list.
16.16. Reseller hereby confirms that:
16.16.1. It shall, at all times during the term of this Agreement, conduct its business and comply with all sanction laws, regulations and regimes imposed by relevant authorities including but not limited to the Office of Foreign Assets Control (OFAC), UN, UK and EU sanctions, and shall not export or allow the export or re-export any of Sage Services to such countries, or to any person or entity listed on a “Denied Persons List” in violation of any such restrictions, laws or regulations.
16.16.2. Neither it, nor any of its affiliates are listed on any national, international or governmental sanctions list (including, without limitation, any list issued by the United Nations, the UK, the European Union, the United States Treasury Department or any other international body or national government with jurisdiction in respect of this Agreement);
16.16.3. It has and shall maintain throughout the duration of this Agreement appropriate procedures and controls in place to ensure and be able to demonstrate Reseller’s compliance with this clause 16.16.
16.17. If Reseller becomes aware that it is in breach of clause 16.16 then it will notify Distributor in writing immediately upon becoming aware of such breach.
16.18. Where prior consent has been provided by Distributor for the use of or other access to the Sage Services, but a Territory subsequently becomes a Restricted Territory, to the extent it deems necessary, Distributor may immediately suspend marketing, promotion, resale, support, use of or access to the Sage Services purchased by the Reseller and/or Customer, whereupon Distributor shall promptly notify the Reseller of such infringing Reseller and/or Customers suspension and investigate the breach; or terminate the applicable Customer Agreement(s) immediately upon written notice.
16.19. In the event that Distributor has grounds to suspect that Reseller or any Customer (engaged by Reseller) is marketing, promoting, reselling, supporting using or accessing the Sage Services within any Restricted Territory (as updated from time to time), then Reseller shall provide Distributor with full cooperation and assistance to Distributor in respect of any enquiry it may make of the Reseller in respect of the same.
16.20. For the purpose of this Agreement, “Restricted Territories” shall mean the list of restricted territories that Distributor is prohibited or restricted from trading in, in accordance with sanctions laws or otherwise in accordance with Distributor’s own policies (including its Mandatory Policies), which may be updated from time to time. The current list is set out at Schedule 7, Part A and Part B.
Conflict of Interest.
16.21. Reseller shall ensure that no Conflict of Interest arises between the interests of Distributor and/or Sage and the interests of Reseller. Reseller shall notify Distributor in writing as soon as is practically possible of any potential Conflict of Interest and shall follow Distributor’s reasonable instructions to avoid or end any Conflict of Interest.
17.1. Unless otherwise agreed between the parties, all Intellectual Property Rights in and to Sage Services belong, and shall belong, to Distributor and/or Sage or their licensors.
17.2. Reseller shall, at the expense of Distributor, take all such steps as Distributor may reasonably require to assist Distributor in maintaining the validity and enforceability of the Intellectual Property Rights of Distributor and/or Sage during the term of this Agreement.
17.3. Without prejudice to the right of Reseller or any third party to challenge the validity of any Intellectual Property Rights of Distributor, Reseller 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 Distributor and/or Sage 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.
17.4. Reseller shall not:
17.4.1. copy Sage Services or any part of any of them except to the extent and for the purposes expressly permitted by this Agreement; or
17.4.2. modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in Sage Services (other than as expressly permitted by applicable law). Reseller is granted no rights under this Agreement except as expressly stated and Distributor and/or its licensor expressly reserves all Intellectual Property Rights and its other rights in and to Sage Services.
17.5. Sage Marks. Distributor grants to Reseller a non-exclusive, revocable, personal license (subject to the terms and conditions of this Agreement and during its term and solely for the purposes of performing Reseller’s obligations under this Agreement) to use the Sage Marks on or in relation to the Sage Services for the purpose of the promotion, marketing, advertisement, resale and support of the Sage Services.
17.6. Reseller shall ensure that each reference to, and use of, any of the Sage Marks by Reseller is compliant with Brand Guidelines or in a manner pre-approved from time to time by Distributor.
17.7. Reseller shall not:
17.7.1. use any of the Sage Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Sage and/or Distributor therein;
17.7.2. use in relation to Sage Services any trademarks other than the Sage Marks without obtaining the prior written consent of Sage and/or Distributor;
17.7.3. use any trademarks or trade names so resembling any Sage Mark as to be likely to cause confusion or deception; or
17.7.4. register or use any Sage Mark, or any words, logo, device or any other branding which is similar to or mimics any Sage Mark, including as a product name, a business or trading name or as a domain name. Unless Distributor has given Reseller prior written consent, Distributor may not use or register any Sage Mark:
17.7.4.1. in connection with any mobile app, web site, electronic platform or similar technology owned, controlled or operated by Reseller, including as a meta-tag;
17.7.4.2. on any web site, mobile app social media or similar or other electronic service, platform or other technology (including electronic marketing campaigns and auction web sites) operated, owned or controlled by another person; or
17.7.4.3. in connection with promotional activities undertaken by another person (even if they are carried out on its behalf or under its control), including as a key word, or as an on-line identity.
17.8. Other than the licenses expressly granted under this Agreement, neither party grants any license of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, Reseller shall have no rights in respect of any trade names or trademarks used by Distributor and/or Sage in relation to Sage Services or their associated goodwill, and Reseller hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Distributor and/or Sage (as the case may be).
17.9. At the request of Distributor, Reseller shall do or procure to be done all such further acts and things (including the execution of documents) as Distributor shall reasonably require to give Distributor and/or Sage the full benefit of this Agreement.
17.10. Infringement. Reseller shall promptly give notice in writing to Distributor in the event that it becomes aware of:
17.10.1. any infringement or suspected infringement of the Sage Marks or any other Intellectual Property Rights in or relating to Sage Services; and
17.10.2. any claim that any Sage Service or the manufacture, use, sale or other disposal of any Sage Service, whether or not under the Sage Marks, infringes the rights of any third party.
17.11. In the case of any matter falling within clause 17.10.1:
17.11.1. Distributor shall, in its absolute discretion, determine what action if any shall be taken in respect of the matter; and
17.11.2. Distributor shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
17.11.3. Distributor 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.
17.12. In the case of any matter falling within clause 17.10.2:
17.12.1. Distributor shall defend Reseller, its officers, directors and employees against any claims that the marketing, advertising or resale of Sage Services in accordance with this Agreement infringes any Intellectual Property Right and shall indemnify Reseller for and against any damages, losses, costs and expenses (including reasonable legal costs and expenses) or other liabilities incurred by Reseller as a result of such claim, provided that:
17.12.1.1. Distributor is given prompt notice of such claim;
17.12.1.2. Reseller provides reasonable co-operation to Distributor in the defence and settlement of such claim, at Distributor’s expense; and
17.12.1.3. Distributor is given sole authority to defend or settle the claim.
17.12.2. In the defence or settlement of the claim, Distributor may obtain for Reseller the right to continue distributing Sage Services in the manner contemplated by this Agreement, replace or modify Sage Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement forthwith by notice in writing and without liability to Reseller. Distributor shall not in any circumstances have any liability if the alleged infringement is based on:
17.12.2.1. a modification of Sage Services by anyone other than Distributor and/or Sage; or
17.12.2.2. Reseller’s marketing, advertising, resale or use of Sage Services in a manner contrary to the instructions given to Reseller by Distributor; or
17.12.2.3. Reseller’s marketing, advertising, resale or use of Sage Services after notice of the alleged or actual infringement from Distributor or any appropriate authority; or
17.12.2.4. use or combination of Sage Services with Reseller products or services in circumstances where, but for such combination, no infringement would have occurred.
17.12.3. The foregoing states the Reseller’s sole and exclusive rights and remedies, and Distributor’s entire obligations and liability, in the case of any matter falling under clause 17.10.2.
18.1. The parties will treat and maintain as confidential all Confidential Information of the other party whether it is marked as such or not. A party (the “disclosing party”) may need to disclose its Confidential Information to the other party (the “receiving party”) and in instances where it is strictly necessary for the receiving party to disclose such Confidential Information to its employees, sub- contractors, advisors and Affiliates (and in the case of Distributor to any Distributor within the Distributor’s group of companies) in order to fulfil its obligations under this Agreement, it may do so provided that:
18.1.1. such employees, sub-contractors, advisors and Affiliates are made aware prior to disclosure of the proprietary and/or confidential nature of the Confidential Information disclosed to them and they agree in writing to comply with the provisions of confidentiality in this clause18;
18.1.2. the receiving party establishes and maintains adequate security measures to safeguard the Confidential Information from unauthorised access or use; and
18.1.3. the receiving party remains liable to the disclosing party for any breach of this Agreement by its employees, sub-contractors and advisors.
18.2. The restrictions referred to in clause 18.1 shall not apply to any Confidential Information disclosed to a party to the extent that such Confidential Information:
18.2.1. is already known to the receiving party (unless as a result of an act or omission of the receiving party); or
18.2.2. is in or comes into the public domain otherwise than as a result of any breach of this Agreement; or
18.2.3. is independently developed by the receiving party without use of or access to the Confidential Information; or
18.2.4. is divulged to the receiving party by a third party which is not under any obligation of confidentiality in respect of such Confidential Information; or
18.2.5. is expressly stated by the disclosing party not to be subject to the obligation of confidentiality; or
18.2.6. is required to be disclosed pursuant to a judicial or other lawful statutory or regulatory obligation.
19.1. Both parties agree to comply with all applicable Data Protection Legislation. Any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
19.2. Shared Personal Data. Each party acknowledges that there may be circumstances where one party (referred to in this clause 19 as the “Data Discloser”) may disclose to the other party (referred to in this clause as the “Data Recipient”) Shared Personal Data collected by the Data Discloser. The parties consider this data sharing necessary for the purposes of each party performing its obligations under this Agreement, and each party agrees to only process Shared Personal Data for the purposes of performing its obligations under or in connection with this Agreement (“Agreed Purpose”).
19.3. The parties acknowledge that in respect of the Shared Personal Data that is processed pursuant to the Agreed Purpose, each party acts in the capacity of an independent controller.
19.4. The Shared Personal Data may include, but is not limited to, the following categories of personal data:
19.4.1. Name:
19.4.2. Contact details:
19.4.3. Address:
19.5. Particular obligations relating to data sharing
Each party shall:
19.5.1. ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Data Recipient;
19.5.2. comply with the information requirements in Article 14 of the General Data Protection Regulation (EU) 2016/679) insofar as they apply to the Shared Personal Data and any additional legal and regulatory information requirements concerning personally identifiable information in any Territory;
19.5.3. process the Shared Personal Data only for the Agreed Purpose; and
19.5.4. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
19.6. Transfers of personal data to third countries. Where personal data are transferred between the parties from a Member State of the European Economic Area (“EEA”) or Switzerland to a country or recipient that is: (a) not recognised as providing adequate levels of protection for personal data pursuant to the General Data Protection Regulation (EU) 2016/679); and (b) not otherwise covered by a suitable framework recognised by relevant authorities as providing an adequate level of protection for personal data, the parties agree that such transfers will be governed by the Standard Contractual Clauses for transfers of personal data to controllers outside the EEA (as attached hereto at Schedule 6). The parties shall ensure that all other transfers of personal data comply with all other applicable Data Protection Laws.
19.7. In the event that the UK leaves the EU, where personal data are transferred between the parties from the UK, the parties agree they shall, where necessary, enter into such other arrangements deemed to provide appropriate safeguards for the transfer of personal data outside the UK by the UK government in order to give full effect to this Agreement.
19.8. Indemnity. Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties, legal costs and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of this clause 21 by the indemnifying party.
19.9. Except as expressly provided otherwise, this Agreement does not transfer ownership of, or create any licenses (implied or otherwise), in any Intellectual Property Rights in any Personal Data.
19.10. The provisions of this clause 19 will survive expiry or termination of the Agreement.
20.1. Reseller represents and warrants that:
20.1.1. it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it;
20.1.2. it shall perform its obligations under this Agreement with the highest degree of professionalism and expertise; and
20.1.3. it will perform its obligations under this Agreement in compliance with all applicable laws, rules, industry regulations, standards and codes of practice; any breach by Reseller of this clause 20.1.3 will be deemed to be a material breach of this Agreement by Reseller.
20.2. Distributor represents and warrants that it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it.
21.1. Neither party will exclude or limit their liability for:
21.1.1. fraud (including fraudulent misrepresentation);
21.1.2. death or personal injury arising from a party’s negligence; or
21.1.3. any other matter which may not be excluded by law.
21.2. Subject to clauses 21.1 and 21.5, neither party shall be liable to the other for:
21.2.1. loss of profits, revenues or contracts, lost savings, business interruption, lost funding, loss of goodwill or reputation, wasted expenditure or loss or corruption of data, in each case whether arising directly or indirectly and whether it is known, foreseen or foreseeable; or
21.2.2. indirect, incidental, special, punitive or consequential loss or damage, whether it is known, foreseen or foreseeable.
21.3. Subject to clauses 21.1, 21.2 and 21.5, each party’s liability to the other party under or in connection with this Agreement arising from any tortious act or omission including negligence, breach of contract or statutory duty, or any other liability, shall not exceed the total amount paid or payable to Distributor by Reseller in accordance with this Agreement.
21.4. Nothing in this Agreement shall limit or exclude either party’s liability for any breach by it of its obligations under clauses 16.4 to 16.21 or under any indemnity given by a party in this Agreement.
21.5. Each of the limitations and exclusions set out in this clause 21 is to be construed as a separate limitation or exclusion, applying and surviving even if for any reason one or other of the limitations or exclusions is held to be inapplicable or unreasonable in any circumstances, so that if either party becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out in this Agreement.
22.1. Term. Subject to clauses 22.2, 22.3 and 22.4, if a party does not want to extend this Agreement beyond the Initial Term for a subsequent Renewal Term then that party must provide the other party with at least 3 months’ written notice of its wish to terminate the Agreement on the last day of the Initial Term, in which case this Agreement will terminate on the last day of the Initial Term. If no such notice is served, this Agreement shall automatically continue for successive Renewal Terms, unless either party serves at least 3 months’ written notice of its intention not to renew this Agreement, in which case this Agreement will terminate on the last day of the applicable Renewal Term.
22.2. Termination for Breach. In the event that either party breaches any provision of this Agreement and where the breach is capable of remedy, fails to remedy the breach within thirty (30) days after receipt of written notice from the non-breaching party, the non-breaching party may in its sole discretion and subject to any post-termination obligations, terminate this Agreement immediately by giving written notice to the breaching party. Where a breach is not capable of remedy or is a material breach, the non-breaching party may in its sole discretion and subject to any post-termination obligations, terminate this Agreement on written notice to the breaching party with immediate effect. In particular, a material breach shall include, but is not limited to, the following clauses: 3.3, 3.4, 10, 12, 15, 16.1.3, 20.4 and Schedule 4.
22.3. Termination for Insolvency. In the event that a party ceases to exist, ceases to trade, becomes bankrupt, goes into liquidation, suffers or makes any winding up petition, makes an appointment with its creditors, has an administrator, administrative receiver or other receiver appointed, benefits from a statutory moratorium of its debts, or if a party is affected by any similar circumstances in any applicable jurisdiction then, subject to any post-termination obligations, the party not affected by the circumstances described in this clause 22.3 may in its sole discretion terminate this Agreement immediately by written notice to the other party.
22.4. Other Termination Rights. Subject to any post-termination obligations, either party may terminate this Agreement in accordance with any other clause which by its express provisions allow a party to terminate this Agreement.
22.5. Change of Control. Distributor may terminate this Agreement with immediate effect on written notice to Reseller if there is a change of Control.
22.6. No Prejudice. Termination of this Agreement shall be without prejudice to any other right or remedy available to the terminating party.
22.7. Distributor’s Right to Terminate. Without prejudice to any other rights or remedies to which Distributor may be entitled, Distributor may terminate this Agreement with immediate effect on written notice and without liability to Reseller if:
22.7.1. Reseller commits a breach of its obligations under any of clauses 3.3, 3.9, 6.2.13, 6.2.14 or 14;
22.7.2. Reseller has failed to make payment of any outstanding amounts due to Distributor under this Agreement within thirty (30) days after the due date of such payment;
22.7.3. Reseller has been proven to be dealing dishonestly with Distributor, in relation to any of its obligations owed to Distributor under this Agreement;
22.7.4. there is a change of Control of Reseller; or
22.7.5. Reseller purports to assign any of its rights or obligations under this Agreement.
Upon termination or expiry of this Agreement for any reason:
23.1.1. Customers will be able to continue to use the Sage Services for the duration of the Customer Agreements (other than where this would be in contravention of clause 16 or as otherwise expressly provided for under this Agreement);
23.1.2. Distributor may elect that Reseller enters into a Wind Down Period as described below in clause 23.5.
23.1.3. subject to the foregoing provisions of this clause 23.1, Reseller shall:
23.1.3.1. cease the use of the Sage Marks and other Intellectual Property Rights of Distributor and/or Sage and shall, at Distributor’s election, remove, return and/or destroy the same within three days from the effective date of termination;
23.1.3.2. cease promoting, marketing, distributing, reselling, accessing and/or using the Sage Services or describing or holding itself out as connected with Distributor and/or Sage;
23.1.3.3. discontinue the use of all Sage Services;
23.1.3.4. cooperate with Distributor at all times to ensure the effective transfer of customers to Distributor and/or Distributor’s Partners (as necessary);
23.1.3.5. pay Distributor all amounts that are owing or have become due and payable under this Agreement;
23.1.3.6. destroy and/or return to Distributor (at Distributor’s election) all of Distributor’s materials and other documentation which Reseller obtained from Distributor in relation to or as a result of this Agreement, including any Confidential Information; and
23.1.3.7. upon Distributor’s request, provide reasonable support and assistance (without charge), without delay, for the orderly handover of Customers to Distributor (at Distributor’s option). Such reasonable support shall include the provision of all account and other information reasonably required by Distributor to serve such Customers and Partners during their handover and following termination of this Agreement.
23.2. Termination of this Agreement will not affect any accrued rights or liabilities of either party or the coming into force or continuance in force of any provision of the Agreement which is expressly or by implication intended to come into force or continue in force on or after termination.
23.3. Termination of this Agreement shall not of itself give rise to any liability on the part of Distributor to pay any compensation to Reseller for loss of profits or goodwill, to reimburse Reseller for any costs relating to or resulting from such termination, or for any other loss or damage.
23.4. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
23.5. Wind Down Period.
23.5.1. At Distributor’s option, the parties shall enter into a “Wind Down Period” after this Agreement expires or is terminated. The term of the Wind Down Period shall begin on the date of such termination or expiration and, at Distributor’s sole option, continue for a period of up to 3 months. During the Wind Down Period, and subject to Distributor’s written consent, Reseller shall have the right to continue distribution of the Sage Services pursuant to clause 3 and/or provide support to Customers pursuant to clause 10, subject to Distributor’s continued compliance with this Agreement.
23.5.2. Distributor’s rights during a Wind-Down Period remain at all times subject to termination pursuant to clauses 22.2 (Termination for Breach) and 22.3 (Termination for Insolvency).
24.1. Each party acknowledges that the other party has invested significantly, both financially and in terms of management time and effort in recruiting and retaining skilled personnel. As such, the parties for itself and on behalf of its Affiliates, agrees that it shall not, and shall procure that no Affiliate of either party shall (except with the prior written consent of the other party):
24.1.1. Solicit or entice away, or attempt to solicit or entice aware, from the employment or service of the other party or any of the other party’s Affiliate, the services of any Restricted Person of either party; or
24.1.2. Employ or engage or otherwise facilitate the employment or engagement of any Restricted Person.
24.2. The parties shall be bound by clause 24.1 during the term of this Agreement and for a period of 12 months after termination or expiry of this Agreement.
24.3. For the purposes of this clause 24, “Restricted Person” shall mean any firm, company or person employed or engaged by a party or any party’s Affiliate during the term of this Agreement and who has been engaged with the other party or the management of the other party or this Agreement.
24.4. If a party commits a breach of this clause 24 (“the Guilty party”), the other party (‘the Innocent party”) shall, upon demand to the Guilty Party, pay the Innocent Party or the relevant Innocent party’s affiliate a sum equal to 50% of one year’s basic salary or annual fee that was payable by the Innocent Party of the relevant Innocent party’s affiliate to the Restricted Person, plus the recruitment costs incurred by the Innocent party or the relevant Innocent party’s affiliate in replacing such person. In addition, such breach will be considered a material breach of this Agreement and the Innocent party may terminate this Agreement immediately upon written notice.
24.5. This clause 24 shall survive termination or expiry of this Agreement for a further period of 12 (twelve) months.
24.6. The covenants contained within this clause 24 are intended for the benefit of, and shall be enforceable to the fullest extent permitted by law by, the Innocent party and the Innocent’s party’s affiliate and shall apply to actions carried out by the Guilty Party (or any affiliate of the Guilty Party) in any capacity (including shareholder, director, principal, consultant, officer, agent or otherwise) whether directly or indirectly, on its own behalf or on behalf of, or jointly with, any other person.
25.1. Notices. Any notice required to be given by a party under this Agreement will be in writing and will be sent by either hand or email to the party required to receive the notice at the address for that party as stated at the beginning of this Agreement (or any new details the parties may subsequently notify to each other).
25.2. Entire Agreement. This Agreement and all exhibits, schedules and attachments constitutes the whole agreement between Sage and Distributor and supersedes all previous agreements between them relating to its subject matter. Distributor and Reseller each acknowledge that in entering into this Agreement, no reliance has been placed on and neither party will have any rights or remedies in respect of any statement, representation, assurance or warranty other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude the liability of either Distributor or Reseller for fraudulent misrepresentation.
25.3. Amendment. No variation of or amendment to this Agreement shall be effective unless it is in writing and signed by authorised representatives of Distributor and Reseller.
25.4. Waiver. A waiver (whether express or implied) by either party of any of the provisions of this Agreement shall not constitute a continuing waiver and that waiver shall not prevent either party from enforcing any of the provisions of this Agreement.
25.5. Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 25.5 shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25.6. Force Majeure. Neither party will be liable to the other for any failure to perform or for any delay in performance under this Agreement to the extent such non-performance or delay is caused by any circumstances beyond a party’s reasonable control including: fire, war, civil commotion, any act of central or local government, any industrial disputes, any act of terrorism, act of God, lockouts and strikes of any third party.
25.7. Successors and Assigns. Neither party shall assign or transfer (by operation of law, change of control or otherwise) its rights or obligations under this Agreement to a third party, without the prior written consent of the other party. Notwithstanding the foregoing, Distributor may assign or transfer this Agreement to any Distributor Affiliate at any time, on written notice to the Distributor.
25.8. Relationship of Parties. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in clause 3.
25.9. Third Party Rights. Except as expressly stated in this Agreement, nothing in this Agreement shall confer on any third party any right or benefit. The parties agree that this Agreement may be varied or rescinded without the consent of any third party.
25.10. Insurance. Reseller shall during the Term of this Agreement procure and ensure that insurances are maintained (in this clause the “Insurances”) with reputable insurers to cover its own risks and liabilities and those of its personnel under this Agreement (including without limit, insurance against loss, damage or third party liability of the kinds customarily insured by businesses with similar operations). Reseller shall if requested at any time by Distributor provide Distributor with evidence of such Insurances in a form and manner satisfactory to Distributor, such evidence to be provided within five (5) working days of such request. If Reseller is unable to provide Distributor with evidence of its Insurances to Distributor’s satisfaction during the Term of this Agreement, Distributor is entitled to suspend and/or terminate this Agreement with immediate effect without liability to Reseller.
25.11. Dispute Resolution. Should a dispute or other disagreement arise between Distributor and Reseller the parties agree to raise the matter internally to senior managers for resolution. If such senior managers are unable to resolve the matter within thirty (30) days of being requested to do so, each party will then each escalate the matter to a director or equivalent with authority to resolve that dispute. The directors will attempt to resolve the matter within a further period of thirty (30) days. If such directors are unable to resolve the matter within the thirty (30) day period of being requested to do, each party will then escalate the matter to, in the case of Distributor, Vice President or equivalent and, in the case of Reseller, Managing Director or equivalent. If the Vice President of Distributor (or equivalent) and the Managing Director (or equivalent) of Reseller are unable to resolve the dispute within a further fifteen (15) days, the parties reserve the right to resolve the dispute or disagreement in accordance with clause 25.12.
25.12. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute in accordance with this clause 25 and at all times Distributor and Reseller will act reasonably and in good faith to settle the dispute or disagreement. Nothing in this clause 25.12 shall operate so as to prevent a party from applying to any court of competent jurisdiction for injunctive relief at any time.
25.13. Rights of Third Parties. Sage shall be entitled to enforce any rights granted to it in terms of this Agreement and such provisions shall constitute a stipulatio alteri in favour of Sage and capable of acceptance and enforcement by Sage at any time.
25.14. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual dispute or claims) shall be governed by and construed in accordance with South African law and the parties submit to the exclusive jurisdiction of the South Gauteng High Court.
(i) This Agreement shall apply to the following Sage Services:
Small segment:
Sage 50cloud Accounting
Sage Pastel Payroll
Sage Business Cloud Payroll
Sage Business Accounting
For the avoidance of doubt, Sage Services do not apply to software implementation services.
(ii) ISV Partner Applications (current):
Sage Enterprise Intelligence (Tangerine)
Norming Software
Pacific Technologies
TEMA
Greytrix
Sage Inventory Advisor (Net Stock)
Auto Simply
Orchid
AccTech
Granite
Ivend
Docuvision
DataLinx
Systronics
MIMSYS
Modulo
Voxtron
Mobipro
UBA(Service Center)
(iii) Any other software or services that Distributor may add to this Agreement from time to time on written notice to Reseller.
Pricing and Discount Structure
1. Unless otherwise stated or agreed in writing by Distributor’s authorised representative, the price that Reseller is to pay Distributor for any order placed by Reseller for Sage Services shall be those prices set out in the then current Price List minus the Discount.
2. The Discount that the Reseller is entitled to for each order placed shall be based upon the particular tier allocated to the Reseller by Distributor.
3. As at the Effective Date, Distributor will work with the Reseller to allocate tiers to the Reseller based upon forecasted orders, such tier allocations may be reallocated by Distributor periodically (in its absolute discretion) based upon actual orders placed by an the Reseller and upon notice of such reallocation to Reseller.
4. The tier allocated by Distributor to the Reseller shall determine the Discount percentage (%) that the Reseller is entitled to for each order that it places for the applicable Sage Services.
5. Tier allocation shall be consistent with Distributor’s standard tier allocation structure and procedures under Distributor’s own partner program.
6. The Discounts that the Reseller shall be entitled to for orders placed (as set out in the table above) shall be subject to review and change by Distributor (in its sole discretion) from time to time and any such changes shall be effective upon 30 days written notice communication to Reseller.
7. It is Reseller’s responsibility to ensure that it is in possession of and understands the prices contained within the then current Price List at the time of placing any order.
8. Independent Software Vendor Partner (“ISV Partner’s):
a. ISV Partner Application means the ISV Partner’s software and/or services listed in Schedule 1 ii;
b. Certified Solution Fees means the Certified Solution Fees that Distributor shall pay ISV Partner for Orders of the Certified Solution; and
c. The Reseller shall be entitled to a Discount on the ISV Partner Application after Distributor has paid the Certified Solution Fees.
9. For the avoidance of doubt, Reseller shall be free to determine its own pricing applicable to Customers to whom the Sage Services are resold.
(Updated from time to time – consult portal)
Partner Code of Conduct
Brand Guidelines
As a minimum, each of the following levels of due diligence should be performed on each Customer by Reseller:
LEVEL 1
1. Business, individual and ownership verification and trading verification
a) Reseller should obtain information to verify the identity of the Customer; and its directors and officers and beneficial owners owning 25% or more of the Customers (including registration number, address and any other corporate or individual details).
b) In all cases information obtained about ultimate beneficial owners should undergo independent validation. Ultimate beneficial owners are those ultimately owning 25% or more of the Customer.
Ensure that each Customer holds and is operating under an appropriate valid trading license where appropriate.
2. Financial/credit checks
Appropriate independent due diligence should be performed to validate the financial strength of each Customer to minimise credit risk.
3. Know your customer
a) Appropriate background checks on the Prospect of your Customer; and
b) ensure that each Customer submits a completed EULA (End User License Agreement).
LEVEL 2
4. Adverse media search
Independent due diligence should be undertaken to identify any instances of violations of laws, or regulations (for example those in relation to bribery, corruption, modern slavery and sanctions) or any other unethical behavior by the Customer.
5. Sanctions checks
Independent due diligence checks should be undertaken to ensure that the its officers and its beneficial owners and the country in which it is located are not subject to sanctions as well as Sage’s Sanctions Policy (as referenced at Schedule 3).(including as a minimum UK, EU, OFAC or UN)
LEVEL 3
Escalation and enhanced due diligence
Upon becoming aware, the Reseller shall immediately carry out additional enhanced due diligence on Customers where:
(i) any of the due diligence results under levels 1 – 4 above produce adverse findings, or
(ii) Customers are resident and/or operating in High Risk Territories, being defined as those countries with a score of 56 or below on the CPI index at any given time.
From time to time Sage may offer to Distributor, Resellers or Customers, Sage’s then current standard support services under a separate written agreement.
Reseller acknowledges and shall to the best of its ability, ensure that Customers are informed that in the absence of any separate agreement for the provision of any support services by Sage and/or Distributor, Sage and/or Distributor has no obligation to provide any support services in connection with Sage Services.
For purposes of this Agreement, support services do not include support for third party programs or services.
Standard Contractual clauses (Controller to Controller, set II)
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers) (2004/915/EC)
Between
| [ ]
[ ] |
(name) |
| (address and country of establishment) | |
| (hereinafter the data exporter) |
and
| [ ]
[ ] |
(name) |
| (address and country of establishment) | |
| (hereinafter the data importer) |
each a party; together the parties.
Definitions
For the purposes of the clauses:
(a) “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject”, and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
(b) “the data exporter” shall mean the controller who transfers the personal data;
(c) “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for, further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
(d) “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.
1. Obligations of the data exporter
The data exporter warrants and undertakes that:
(a) The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
(b) It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
(c) It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
(d) It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
(e) It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause 3, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
2. Obligations of the data importer
The data importer warrants and undertakes that:
(a) It will have in place appropriate technical and organisational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
(b) It will have in place procedures so that any third party it authorises to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorised or required by law or regulation to have access to the personal data.
(c) It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
(d) It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
(e) It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause 1(e).
(f) At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause 3 (which may include insurance coverage).
(g) Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
(h) It will process the personal data, at its option, in accordance with:
(i) the data protection laws of the country in which the data exporter is established, or
(ii) the relevant provisions of any Commission decision pursuant to Article 25(6) of Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorisation or decision and is based in a country to which such an authorisation or decision pertains, but is not covered by such authorisation or decision for the purposes of the transfer(s) of the personal data, or
(iii) the data processing principles set forth in Annex A.
Data importer to indicate which option it selects:
The data importer selects option (iii)
Initials of data importer: [ ]
(i) It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
(i) the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
(ii) the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
(iii) data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
(iv) with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.
3. Liability and third party rights
(a) Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
(b) The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses: clause 1(b), clause 1(d), clause 1(e), clause 2(a), clause 2(c), clause 2(d), clause 2(e), clause 2(h), clause 2(i), clause 3(a), clause 5, clause 6(d) and clause 7 against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one (1) month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).
4. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause 2(h), which shall apply only if so selected by the data importer under that clause.
5. Resolution of disputes with data subjects or the authority
(a) In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
(b) The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
(c) Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
6. Termination
(a) In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
(b) In the event that:
(i) the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to clause 6(a);
(ii) compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
(iii) the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
(iv) a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
(v) a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs
(vi) then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by clause 6(b)(i), clause 6(b)(ii), or clause 6(b)(iv) above the data importer may also terminate these clauses.
(c) Either party may terminate these clauses if
(i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or
(ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
(d) The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause 6(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
7. Variation of these clauses
The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
8. Description of the Transfer
The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause 1(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.
Dated:
| DATA IMPORTER | DATA EXPORTER |
| Name:
Authorised signature: |
Name:
Authorised signature: |
Annex A
EU Data Processing Principles
1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to its particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g., relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause 2.
7. Data processed for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof, “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, credit worthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
(a) (i) such decisions are made by the data importer in entering into or performing a contract with the data subject; and (ii) the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to those parties; or
(b) where otherwise provided by the law of the data exporter.
Annex B
Description of the Transfer
(to be completed by the parties)
Data subjects
The personal data transferred concern the following categories of data subjects:
| [ ] |
Purposes of the transfer(s)
The transfer is made for the following purposes:
| [ ] |
Categories of data
The personal data transferred concern the following categories of data:
| [ ] |
Recipients
The personal data transferred may be disclosed only to the following recipients or categories of recipients:
| [ ] |
Sensitive data (if appropriate)
The personal data transferred concern the following categories of sensitive data:
| [ ] |
Data protection registration information of a data exporter (where applicable)
| [ ] |
Additional useful information (storage limits and other relevant information)
| [ ] |
Contact points for data protection enquiries
| [ ] |
(May be updated by Distributor and/or Sage from time to time and any update shall be provided to the Reseller)
PART A
TIER 1 RESTRICTED COUNTRIES
| Cuba | Syria |
| Iran | Territory of Crimea/Sevastopol |
| North Korea | Sudan |
PART B
TIER 2 RESTRICTED COUNTRIES
| Afghanistan | Libya |
| Angola | Lebanon |
| Belarus | Mali |
| Bosnia and Herzegovina | Myanmar |
| Burundi | Russia |
| Cambodia | Somalia |
| Chad | South Sudan |
| Democratic Republic of Congo | Tunisia |
| Egypt | Ukraine |
| Eritrea | Venezuela |
| Equatorial Guinea | Yemen |
| Guinea-Bissau | Zimbabwe |
| Iraq |
