EULA for Reseller Customers

Version: 1.0
Effective date: 1st of March 2025

IT IS AGREED BETWEEN THE PARTIES THAT:

1. Definitions
   1. All terms in capitals used in these Terms of Service shall have the meaning given to them in the CSA, unless defined otherwise below.
      
      “Aggregated Data” means aggregated, anonymised data derived from you, or your end-users of the Services, which does not include any personal data or Confidential Information of those parties;
      “Authorized Users” means your employees, agents, consultants, independent contractors, or clients who have been expressly authorized by you to receive a password in order to access the Services;
      “Confidential Information” means any and all information in any form whatsoever relating to the you or us, or the business, prospective business, finances, technical process, computer software (both source code and object code) and Intellectual Property Rights of you or us (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of this EULA or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information. Confidential Information shall not include any information which is: (a) known to the receiving party prior to the Effective Date and not obtained directly from the disclosing party; or (b) in the public domain at the time of receipt or disclosure or subsequently becomes so; or (c) obtained from a third party who lawfully possesses such information and which has not been obtained in breach of a duty of confidence owed by one party to the other;
      “Consequential Loss” means: (a) pure economic loss; (b) special loss; (c) losses incurred by You or a third party; (d) losses arising from business interruption; (e) loss of business revenue, goodwill or anticipated savings; (f) losses whether or not occurring in the normal course of business; (g) costs of procuring substitute goods or product(s); or (h) wasted management or staff time;
      “Data” means all data imported into the Services by you, Authorized Users for the purpose of using the Services or facilitating their use of the Services;
      “DPA” means the data processing agreement of Highlight published at: https://highlight.net/legal ;
      “EULA” means this EULA;
      “Feedback” means feedback, innovations or suggestions created by Authorized Users regarding the attributes, performance or features of the Services;
      “Intellectual Property Rights” means all copyrights, patents, utility models, trademarks, service marks, (whether registered or unregistered), copyright, inventions, designs, drawings, computer programs, database rights, know-how, technical information, generic rights, moral rights, semiconductor, topographies, business names, logos and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
      “Node” means a device (physical or virtual) for which we provide the Services, for example (but not limited to) a router, switch, SD-WAN device, WiFi Controller or any devices added in the future to be supported in the Services;
      “Parties” means You and Us;
      “Services” means the Highlight cloud services made available to you by us pursuant to this EULA;
      “Term” means the period starting on date the Services are purchased from the TP Vendor and ending on the date on which the Services are terminated by a party to this EULA, or the date on which the TP Vendor Agreement terminates or expires, whichever is the earlier;
      “you”, “your” means the customer of the TP Vendor who enters into the TP Vendor Agreement to use the Services.
   2. In this EULA words importing the singular include the plural and vice versa and words importing gender include any other gender.
   3. References in this EULA to clauses and schedules are references to clauses and schedules of the EULA.
2. Terms
   1. We agree to provide the Services to you subject to the provisions of this EULA for the Term of the TP Vendor Agreement.
3. Licence to use the Services
   1. Subject to payment of all fees due to the TP Vendor for the Services pursuant to the TP Vendor Agreement, we grant you a non-exclusive, non-transferable licence to permit Authorized Users to use the Services (including any of our associated Intellectual Property Rights and Confidential Information) from the Effective Date for the Term, for your internal business operations. Where open source software is used as part of the Services, such software use by You will be subject to the terms of the open source licences. No additional implied rights are granted beyond those specifically mentioned in this clause 3.1.
   2. Notwithstanding your statutory rights, no right to modify, adapt, or translate the Services or create derivative works from the Services is granted to you.
   3. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that you have any right to obtain source code for the software comprised within the Services. Disassembly, de-compilation or reverse engineering and other source code derivation of the software comprised within Services is prohibited, is prohibited, as far as this can be lawfully prohibited.
4. Intellectual Property Rights
   1. All Intellectual Property Rights and title in and to the Services (save to the extent these incorporate your Intellectual Property Rights or third party owned item) shall remain with us and/or our licensors and subcontractors. No interest or ownership in the Services, Intellectual Property Rights or otherwise is transferred to you under this EULA.
   2. We own all Intellectual Property Rights and title in any enhancements made to the Services, whether they are the result of our own internal development, or suggestions or requests from you or others.
   3. All feedback, suggestions or requests made by you or people in your organisation or Authorised Users belongs to us and you grant us an exclusive, transferable, royalty free, perpetual right to use any feedback, suggestions or requests made by you or people in your organisation or Authorised Users.
   4. You own all Intellectual Property Rights and title in any reports, results or other output from the Services (excluding the design, layout or any of our pre-existing Intellectual Property Rights in the output) from the date upon which any relevant material or data is created.
   5. You retain all right, title and interest in and to your data and your pre-existing Intellectual Property Rights and have the sole responsibility for the legality, reliability, integrity, accuracy and quality of all data you place into the Services. You grant us a non-exclusive, licence to use data, your Intellectual Property Rights and any third party owned item for the term of the TP Vendor Agreement to the extent required for us to provide the Services and carry out our obligations under this EULA.
   6. You are not allowed to remove any proprietary marks or copyright notices from the Services.
   7. We may take and maintain technical precautions to protect the Services from improper or unauthorized use, distribution or copying.
5. Ordering, Fees, Invoicing and Payment
   1. You shall pay all fees relating to the Services to the TP Vendor in accordance with the provisions of the TP Vendor Agreement.
6. Confidential Information
   1. Each Party may use the Confidential Information of the other Party only for the purposes of this EULA. The receiving party will take reasonable measures to prevent the unauthorized disclosure or use of Confidential Information of the disclosing party, and will limit access to the Confidential Information to those employees, affiliates and contractors who need to know such Confidential Information in connection with this EULA. Confidential Information shall not be disclosed to any other third party without the written permission of the disclosing party, unless disclosure Is required by law, any court of competent jurisdiction or any regulatory or administrative body.
   2. Nothing above will prevent either Party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in this EULA.
7. Data Protection
   1. Each Party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
   2. To the extent that personal data is processed when you or Authorized Users use the Services, the Parties acknowledge that we are a data processor and you are a data controller and the Parties shall comply with their respective obligations under applicable data protection laws and the terms of the DPA.
   3. Where we collect and processes your personal data, as a data controller, when providing the Services to you, such collection and processing shall be in accordance with our Privacy Policy published at: https://highlight.net/legal, as amended from time to time.
8. Your Obligations
   1. You and all Your end-users shall agree to comply with and shall be legally bound by the terms of this EULA.
   2. You warrant and represent that: (i) you have full corporate power and authority to enter into this EULA and to perform the obligations required hereunder; (ii) the execution and performance of your obligations under this EULA does not violate or conflict with the terms of any other agreement to which you are a party and is in accordance with any applicable laws; and (iii) you shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this EULA; (iv) you rightfully own the necessary user rights, copyrights and ancillary copyrights and permits required for you to fulfil your obligations under this EULA; and (v) you and Authorized Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this EULA. In particular you and Authorized Users shall treat any identification, password or username or other security device for use of the Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorized persons. Any breach of the above shall be immediately notified to us in writing.
   3. You shall be liable for any breach of the terms of this EULA by an Authorized User. We reserve the right upon giving notice to you to terminate any Authorized User’s right to access the Services if such user has breached any of the provisions of this EULA.
   4. You are responsible for correctly configuring your domain within the Services, and for provisioning end users with the correct privileges, and for provisioning network Nodes and features on those Nodes. This provisioning might be automated, via an API, or manually through our user interface. Where you carry out authentication using a Single Sign-On (SSO) facility, you are responsible for correctly authenticating users and assigning the correct Highlight privileges to them.
   5. You shall ensure that your network and systems comply with the relevant specification provided by us from time to time and that you are solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet.
   6. User logins are for designated users and must not be shared or used by more than one user. You will be responsible for the confidentiality and use of user’s passwords. You agree to immediately notify us if you become aware of any loss or theft or unauthorised use of any of passwords or accounts, or any other known or suspected breach of security.
9. Our Obligations
   1. We shall ensure that the Services function substantially as set out in the Help & Support centre at cloud.highlighter.net/help/, and are made available at a high standard of availability.
   2. From time to time, We will need to suspend access to the Services for maintenance or upgrade purposes. When this is necessary we will give you as much notice as possible (via email and the Services) and we will do our best to carry out maintenance outside Working Hours.
   3. We will not be liable for any failure in performance or accuracy of the Services caused by the provision of inaccurate information by you.
   4. No warranty is made regarding the results you can achieve from using the Services or that the Services will operate uninterrupted or error-free. Except as expressly stated in this EULA, we exclude all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) to the fullest extent permitted by law. This clause shall survive the termination of the TP Vendor Agreement.
10. Liability
    1. Neither Party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
    2. Neither Party shall be liable for any Consequential Loss arising out of or related to the Services of this EULA or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
    3. Neither Party shall be liable for any loss of profits (whether categorized as direct or indirect) arising out of or related to the Services or this EULA, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
    4. Subject to clauses 10.1 to 10.3 inclusive our total liability to you in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this EULA or the TP Vendor Agreement, or based upon any claim for indemnity or contribution shall be limited to the total amount (excluding all taxes) paid by you to the TP Vendor for the Services during the 12 month period prior to the date on which any such claim arose. If the duration of the TP Vendor Agreement has been less than 12 months, such shorter period shall apply.
    5. You shall be liable for any breaches of this EULA caused by the acts, omissions or negligence of any Authorized Users who access the Services as if such acts, omissions or negligence had been committed by you.
11. Indemnities
    1. We shall at our own expense, defend or at our own option settle, any claim, action or demand brought against you by a third party on the basis of an infringement of any Intellectual Property Rights by the Services (excluding any claim deriving from any data or item provide by you or an Authorised User) and pay any final judgment entered against you on such issue or any settlement thereof, provided that: (i) you notify us promptly of each such claim; (ii) the Services are used in accordance with the terms of this EULA; (iii) you allow us the right to assume control of the defence; and (iv) you cooperate with any reasonable requests to assist our defence and settlement of the matter.
    2. You shall at your own expense, defend, indemnify and hold us, our employees, sub-contractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any breaches of a third party’s Intellectual Property Rights with respect to use of the Services not in accordance with the terms of this EULA; (ii) use by us, in accordance with the terms of this EULA, of any data or content provided by you or an Authorised User within the Services; or (iii) access to or use of the Services by Authorised Users; and (iv) any breach of the terms of this EULA by you or Authorised Users.
12. Security
    1. We may suspend access to the Services, or portion thereof, at any time, if in our sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by actions of you or Authorized Users. Where possible, we shall give you 24 hours prior written notice, before suspending access to the Services, giving specific details of our reasons.
13. Termination
    1. We may terminate provision of any Services with immediate effect if: (i) you have used or permitted use of the Services in breach of this EULA; or (ii) we are prohibited under applicable law, or otherwise from providing the Services.
    2. Upon termination of this EULA and/or the TP Vendor Agreement: (i) all licences granted under this EULA shall terminate on the effective date of termination; (ii) we shall cease providing the Services to you; (iii) we shall at your option following receipt of a written request, delete (in accordance with the terms of the DPA) or return all of your personal data stored in our database in its then current format, free of charge, provided that such request is made within 30 days of termination. If you require any data to be returned in a different format we reserve the right to charge for this additional service on a time and materials basis. Notwithstanding the aforesaid, we reserve the right to delete all of your data 6 (six) months after the expiry or termination of the Services and/or the TP Vendor Agreement without giving you any prior notice of such deletion.
    3. Termination of the Services and/or the TP Vendor Agreement for whatever reason shall not affect the accrued rights of the Parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination and shall remain in force and effect.
14. Notices
    1. Unless expressly stated otherwise, any notice or other document required to be given under this EULA shall be in writing and shall be deemed duly served if either: (i) sent by registered or recorded delivery post to the Party’s trading address; or (ii) sent via email to a designated legal contact of the Party and subsequently acknowledged via email.
15. Resolution of Disputes
    1. The Parties shall attempt in good faith to resolve any dispute or claim arising out of or relating to this EULA (a “Dispute”) promptly through negotiations between their respective senior executives who have authority to settle the relevant Dispute. If a Dispute is not resolved within fourteen days of the initiation of such procedures then either party may refer the Dispute for determination to the courts of England.
16. Applicable law and jurisdiction
    1. This EULA shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this EULA.
17. Miscellaneous
    1. This EULA contains the entire agreement and understanding between the Parties with respect to the provision of the Services and supersedes all prior agreements, representations, negotiations and discussions between the Parties with respect thereto.
    2. Should a provision of this EULA be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the Parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
    3. No waiver by either Party of any breach, default or omission in the performance or observance of any part of this EULA by the other Party shall prejudice or restrict the rights or that Party or shall apply to or be deemed a waiver of similar breaches, defaults or omissions or a waiver of any other breach, default or omission hereunder.
    4. This EULA shall not be construed as either Party being an agent or employee of the other for any purpose whatsoever and neither Party shall have the right or authority to act for or to bind the other Party in any way or to make or give any representation to warranty on behalf of the other or to settle any claims by or against the other or pledge the credit of the other.
    5. Nothing contained in this EULA is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction
    6. In the event of any inconsistency between the content of this EULA (including the DPA) and the TP Vendor Agreement the provisions of this EULA shall prevail between the Parties.
    7. Neither Party shall have any liability for delay in performing or for failure to perform its obligations if the delay or failure results from anything outside the reasonable control of the defaulting party, including but not limited to: (i) an Act of God, (ii) fire, storm flood, earthquake, explosion, accident, outbreak of hostilities, riot, civil disturbance, acts of terrorism, (sabotage, quarantine restriction, epidemic, power shortage, inability to access the Internet, transportation embargo; or (iii) the act or omission of any government or authority (including refusal or revocation of any licence or consent.
    8. No Party may assign, transfer its rights under this EULA without the prior written consent of the other Party, such consent shall not be unreasonably withheld, however we shall be entitled to assign this EULA to: (i) any company in our group of companies; or (ii) any entity that purchases our shares or assets as the result of a merger, takeover or similar event.