Reseller Terms of Service

Version: 2.3
Effective date: 29th of May 2019

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.‘Agreement’ means these Terms of Service, the CSA, User Terms, Privacy Policy and DPA together;‘Aggregated Data’ means aggregated, anonymised data derived from You, Customers, Resellers or end users use of the Services, which does not include any personal data or Confidential Information of those parties;

      ‘Confidential Information’ means all information provided by one party to the other which is of a confidential nature except that 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 any Customer or other 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); (h) or wasted management or staff time;

      ‘Customer Data’ means all data imported into the Services for the purpose of You, Customers, Resellers or end users using the Services or facilitating use of the Services;

      ‘Customer(s)’ means businesses with an ongoing relationship as customers of You;

      ‘Effective Date’ means the date at the start of the CSA;

      ‘Insolvent’ means in relation to any party: (a) the appointment of a liquidator, provisional liquidator, administrator, administrative receiver, or receiver or similar person; (b) the entering into of a scheme of arrangement or composition with or for the benefit of creditors generally; (c) any re-organisation moratorium or other administration involving its creditors or any class of its creditors; (d) a resolution to wind i up; or (e) becoming unable to pay its debts as and when they fall due or becoming deemed to be unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986; (f) or any similar event under the law of any other jurisdiction;

      ‘Intellectual Property Rights’ means patents, registered designs, trademarks and service marks (whether registered or not), 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 application 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 Highlight provides the Services, for example a router, switch, or WiFi Controller;

      ‘Reseller’ means an organisation which has a commercial relationship with You for the purpose of reselling any products or services You provide to them;

      ‘Us’ means Highlight (SLM) Ltd;

      ‘Working Hours’ and ‘Working Days’ means Monday to Friday, inclusive, between the hours of 08:00 and 17:30 UK time, excluding UK public holidays;

      ‘You’ means the party who signs the CSA.

   2. In these Terms of Service words importing the singular include the plural and vice versa and words importing gender include any other gender.
   3. References in these Terms of Service to clauses and schedules are references to clauses and schedules of the Terms of Service.
2. Charges
   1. Charges shall be based on the prices set out in the CSA or purchase order, as applicable.
   2. We may increase Charges once at any time in each Contract Year by applying the higher of: (i) the rate of increase in the Retail Prices Index during the preceding 12-month period; or (ii) 3%. We shall notify You by email of any such increase and shall give You at least 30 days’ notice of changes.
   3. The Charges may be varied during the Term by mutual consent, for example to accommodate joint sales campaigns or allow new features to be sold.
   4. We continually enhance the Services to increase their usefulness, reliability, performance and value. Enhancements will often be included in the Services by default, at no extra charge, but We can opt to make individual enhancements and new features chargeable, in which case we will discuss this with You and if necessary update your CSA to include them. You will never be compelled to purchase a chargeable feature.
   5. Whenever any (mutually agreed) addition or alteration to the Agreement results in changes to the pricing for Highlight Cloud or Managed Services, the new Charges will be effective from the 1st day of the calendar month following the date of signing of the new agreement.
   6. The amount(s) either party is obliged to pay under the Agreement are exclusive of Value Added Tax.
3. Invoicing and payment
   1. Charges shall be invoiced and paid as set out in the CSA or purchase order, as applicable. You will pay all invoices within 30 calendar days of the date of each invoice, unless You raise a query against an invoice, in writing, prior to the due date for its payment. You will continue to pay non-queried invoices while the queried item is resolved.
   2. Where payment of any Charges is not received from You within 30 days of the due payment date, We may, without liability to You, disable Your password, account and access to all or part of the Services and We shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid. We shall be entitled to charge interest on overdue Charges at the applicable statutory rate.
   3. We reserve the right to recover any costs and reasonable legal fees We incur in recovering overdue payments.
   4. Where any sum of money is recoverable from or payable by You under the CSA, such sum may be deducted by Us from any sum then due or which at any time thereafter may become due under this Agreement or any other contract We have with You.
   5. Exercise by Us of our rights under clause 3.4 shall be without prejudice to any other rights or remedies available to Us under the Agreement, or otherwise whether at law or in equity.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. License to use the services
   1. Subject to payment of the Charges, We grant You a non-exclusive right to access the Services and make the Services available to Your end users for the Term, subject to all end users clicking acceptance of the User Terms upon their first login to the Services. If you are using this licence under a Reseller CSA, you may also make the services available to your Customers and Resellers. 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.
   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. 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.
   3. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited, as far as this can be lawfully prohibited.
5. Our obligations
   1. Certain features of the Service (including Flow support, Performance Monitoring and Application breakdown) are offered only on compatible hardware.
   2. We shall ensure that the Services function substantially as set out in the Help & Support centre at https://support.highlight.net, and are made available at a high standard of availability. If Your CSA includes availability service levels, and we fail to meet these, we will pay the service credits set out in the service levels. These service credits will be Your sole and exclusive remedy for any breach of the service levels and We shall have no further liability to You whatsoever for any breaches of the service levels.
   3. 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.
   4. We will not be liable for any failure in performance or accuracy of the Services caused by the provision of inaccurate information by You.
   5. You are responsible for correctly configuring Your domain within the Highlight Cloud platform, 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.
   6. 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 Agreement, 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.
6. Your obligations
   1. You and all end users shall agree to comply with and shall be legally bound by the User Terms.
   2. You shall be liable for any breach of the User Terms or Terms of Use by any users of the Services. We reserve the right upon giving notice to You to terminate any user’s right to access the Services if such user has breached any of the provisions of these Terms of Use or the User Terms.
   3. User logins are for designated users and cannot be shared or used by more than one user, but any user login may be reassigned to another user as needed. You will be responsible for the confidentiality and use of users’ 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.
7. License to resell services
   1. We grant You a non-exclusive, non-transferable, right to resell the Services to Your own Resellers or Customers during the term of the Agreement should you wish to do so. We maintain the right to appoint other partners to resell the Services, and we retain the right to sell Services ourselves.
   2. If you choose to resell the Services you shall negotiate, conclude and perform agreements with such Resellers and Customers for the purchase of Services in your own name and on your own account. You shall have full responsibility for concluding all sales with Resellers and Customers, and we shall not be a party to any agreement between You and any Customers or Resellers.
   3. You shall not make any representations, warranties or guarantees to any Customers or Resellers with respect to the specifications, features or capabilities of the Services that are inconsistent with the literature distributed by Us or as expressly authorised by Us in writing.
   4. You shall preserve the Highlight branding and logo in any written material You create to promote or describe the Service, and shall not remove the name of Highlight or any Highlight logos from any screen or report samples used in such material, and shall not present the Service as being created by You.
8. 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 this Agreement 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 categorised as direct or indirect) arising out of or related to this Agreement, 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 7.1 to 7.3 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 Agreement or based upon any claim for indemnity or contribution shall be limited to the total sum (excluding all taxes) paid by You to Us during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.
   5. You shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any end users, Customers, Resellers or Partners who access or use the Services as if such acts, omissions or negligence had been committed by You.
   6. The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
9. Indemnities
   1. We shall defend You against any third party claims, or actions, and demands alleging that Your use of the Services infringes or misappropriates a third party’s Intellectual Property Rights, and We will indemnify You for all reasonable legal fees incurred and other costs finally awarded against You in connection with a settlement We approve of in connection with such a claim, provided that: (i) the Services are used in accordance with the terms of the Agreement; (ii)You provide Us with prompt written notice of any claim against you; (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 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 outside of the scope of this Agreement; (ii) Use by Us, in accordance with the terms of the Agreement, of any Customer Data or Customer, Reseller or end-user provided item within the Services; or (iii) access to or use of the Services by an end user; and (iv) breach of the terms of this Agreement by a Customer, Reseller or end user.
10. Confidential information
    1. Each party shall use the Confidential Information of the other only in accordance with and for the purposes of this Agreement. 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 the Agreement. 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 these Terms of Service.
11. Intellectual property rights
    1. All Intellectual Property Rights and title in and to the Services (save to the extent these incorporate any third party owned item) shall remain with Us and/or Our licensors and subcontractors. No interest or ownership in the Services Our Intellectual Property Rights or otherwise is transferred to You, the Customer, Reseller or end users under this Agreement.
    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 end 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 associated 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 Customer Data and Your pre-existing Intellectual Property Rights and have the sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data. You grants Us a non-exclusive, licence to use Customer Data, Your Intellectual Property Rights and any third party owned item for the term of the Agreement to the extent required for Us to provide the Services and carry out our obligations under the Agreement.
    6. We collect Aggregated Data when providing the Services. You grant us a non-exclusive, transferable, royalty-free, perpetual right to use Aggregated Data. Nothing in this Agreement shall be construed as prohibiting Us from using the Aggregated Data for business and/or operating purposes, provided that We do not share Aggregated Data which reveals the identity of the You, Customers, Resellers or end users of their Confidential Information to any third party.
12. 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 by Us when You, Resellers, Customers or end 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. If a third party alleges infringement of its data protection rights, We shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
    4. Where We collect and process personal data from You, Customers, Resellers or end users of the Services, as a data controller, when providing the Services, such collection and processing shall be in accordance with the Privacy Policy.
13. Term and termination
    1. This Agreement shall start on the Effective Date and shall continue indefinitely until terminated by either party as set out below, or as otherwise permitted in the Agreement including the CSA.
    2. Either party may terminate the Agreement and Services or any part thereof: (i) by giving twelve months’ written notice at any time, (ii) immediately by giving written notice if the other party becomes Insolvent; or (iii) immediately by giving written notice if the other party commits a material breach of this Agreement and such breach is not remedied (if capable of remedy) within thirty days of a written request being made.
    3. Any termination of the Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into force on or after termination and all such clauses shall survive expiry or termination of the Agreement.
    4. Upon termination of this Agreement: (i) both parties shall without delay return to each other all and any physical equipment, goods, materials or other items belonging to the other party which is in their possession; (ii) You shall promptly Us all unpaid Charges; (iii) all licences granted under the Agreement shall terminate on the effective date of termination; and (iv) we shall at Your option, following receipt of a written request from You delete (in accordance with the terms of the DPA), or return all Customer Data stored in Our database in a common machine-readable format, free of charge, provided that such request is made within 30 days of termination.
14. Assignment
    1. No party may assign or transfer its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however, We shall be entitled to assign the Agreement 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.
15. Modifications
    1. We may change or modify the terms of this Agreement upon giving You 30 days’ notice via email. All changes shall be deemed to have been accepted by You unless You terminate the Agreement prior to the expiry of the 30-day period. Access or use of the Services after the expiry of the 30-day notice period shall constitute acceptance of any changes.
16. Resolutions of disputes
    1. The parties shall attempt in good faith to resolve any dispute or claim arising out of or relating to this Agreement (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.
17. Applicable law and jurisdiction
    1. This Agreement 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 Agreement.
18. Force majeure
    1. Excluding any payment obligations, 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.
19. Miscellaneous
    1. No waiver by either party of any breach, default or omission in the performance or observance of any part of this Agreement 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.
    2. The Agreement contains the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior agreements, representations, negotiations and discussions between the parties with respect thereto.
    3. The Agreement 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.
    4. Should a provision of this Agreement 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.
    5. A provision of or a right created under this Agreement shall not be waived or varied except in writing.
    6. In the event of any inconsistency between the content of the CSA, Terms of Service, User Terms, the DPA and the Privacy Policy, the terms of the CSA shall prevail followed by the Terms of Service, the User Terms, the DPA and then the Privacy Policy. If after the Effective Date any purchase order is signed by the parties and added to this Agreement during the term and there is a conflict between the terms of such subsequent purchase order, its attachments and the terms of the Agreement, the terms of the purchase order shall prevail.
    7. Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
20. Notices
    1. Unless expressly stated otherwise, any notice or other document required to be given under this Agreement shall be in writing and shall be deemed duly serviced if left at or sent by registered or recorded delivery post. Any such notice shall be deemed to be served by hand at the time when the same is handed to or left at the address of the party to be served and if served by post two Working Days.