Licence Software Resale Agreement (Microsoft)

BETWEEN

  1. HAYNE.CLOUD LIMITED, a company registered in England and Wales (Company Number 15224318) and having its registered offices at Orchard House, Pettiphers Farm, Pebworth, Stratford upon Avon, CV37 8AW. (“HAYNE”); and
  2. CUSTOMER, an entity as identified on the Customer Order.

    BACKGROUND

    1. HAYNE has been appointed by COBWEB SOLUTIONS LIMITED trading as VUZION (t/a INFINIGATE CLOUD) (Company Number 3283443) as an authorised Reseller and support provider of certain Microsoft Software products.
    2. HAYNE is willing to supply certain Microsoft Software to the Customer and the Customer is willing to acquire such Microsoft Software from HAYNE from time to time on the terms and conditions set out below.

      Terms and Conditions

      1. Definitions and Interpretations

      In this agreement the following definitions shall have the following meanings;

      “Authorised Use”
      the level at which Customer is authorised to execute or run the Microsoft Software as specified by HAYNE in the applicable Customer Order.

      “Confidential Information”
      means information (whether or not recorded in documentary form or stored on any magnetic or optical disk or memory) relating to the business, products, affairs, and finances of either party for the time being confidential to that party and trade secrets including, without limitation, technical data and knowledge relating to the business of that party or any of its business contacts.

      “Customer”
      means the entity identified on the Customer Order and any business entity deemed so by its Board including, but not limited to, any business entity that has a significant financial or controlling interest in the Customer and any business entity in which the Customer has a significant financial or controlling interest and their authorised users.

      “Customer Order”
      means the document provided to the Customer detailing the Microsoft Software, Licence Fee, and any other terms.

      “Effective Date”
      means the date the Customer signs the Customer Order.

      “Licence Fee”
      means the price of the Microsoft Software detailed in the Customer Order.

      “Provider”
      Means Microsoft, the provider of the Software.

      “Reseller”
      means HAYNE who, having executed a reseller agreement with VUZION (t/a INFINIGATE CLOUD), is entitled to promote, sell, and distribute Microsoft Software to the Customer.

      “Software”
      means the Microsoft Software specified in the Customer Order

      “Terms and Conditions”
      means the VUZION (t/a INFINIGATE CLOUD) terms and conditions of use on which the Microsoft Software is sold as set out at https://infinigate.cloud/wp-content/uploads/2021/01/Vuzion-Acceptable-Use-Policy.pdf

      2. Agreement Structure

      This Agreement includes the complete agreement between the Customer and HAYNE regarding the purchase of Microsoft Software. It replaces any prior oral or written communications between the Customer and HAYNE concerning the Microsoft Software. Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud.

      3. Microsoft Software Licensing

      • HAYNE is acting as an Indirect Reseller on behalf of VUZION (t/a INFINIGATE CLOUD). HAYNE hereby resells the Microsoft Software to the Customer.
      • HAYNE warrants that it is an authorised indirect reseller with the authority of VUZION (t/a INFINIGATE CLOUD) to resell the Microsoft Software set out in the Customer Order.

      4. Licence Fee.

      4.1   Customer shall pay HAYNE the Licence Fee within thirty (30) days of receipt of an invoice.

      4.2   HAYNE will pay and account to VUZION (t/a INFINIGATE CLOUD) for the Licence Fee on receipt of fees from Customer.

      5. Limitation of Liability

      • HAYNE’s liability in respect of the Microsoft Software supplied shall not exceed the amount that HAYNE may recover from VUZION (t/a INFINIGATE CLOUD) for the Licence Fee.
      • In no circumstances will the parties be liable to each other for any consequential, indirect, special, or incidental damages, lost profits, business, revenue, goodwill, or anticipated savings, arising out of or related to this Agreement.
      • Nothing in this Agreement shall limit or exclude the liability of either party in respect of either fraud or fraudulent misrepresentation, or death or personal injury arising from its negligence or the negligence of its employees, agents, or
      • The liabilities limited by clause 5.2 and clause 5.3 apply;
      1. to liability for negligence
      2. regardless of the form of action, whether in contract, tort, product liability, or otherwise;
      3. even if such damages were foreseeable; and
      4. even if the Customer`s remedies fail of their essential purpose.
      • If applicable laws limit the application of the provisions of this Clause HAYNE`s liability will be limited to the maximum extent permissible.
      • The limitations of liability in this Clause 5 do not apply to;
      1. Customer’s obligation to pay fees.
      2. Any claims by VUZION (t/a INFINIGATE CLOUD) or Microsoft against Customer for infringement of Microsoft`s intellectual property, including without limitation copyrights in the Software.

      6. Confidentiality

      6.1 Each party shall preserve the confidentiality of all Confidential Information of the other which it receives, keep such information secure and protected against theft, damage, loss, or unauthorised access or disclosure, and not use such information for any purpose except as contemplated by this Agreement. Moreover, each party shall ensure that such obligations are observed by its employees, officers, agents, and contractors and shall be liable for any breach of such obligations by such parties. These obligations shall survive the variation, renewal, or termination of the Agreement for a period of three years but shall not apply to information, which is already in or subsequently comes into the public domain through no fault of the recipient. At the end of the term of this Agreement, or upon the earlier termination of this Agreement, each party shall return or destroy any Confidential Information belonging to the other party and provide certification of such return or destruction.

      6.2  The parties agree that:

      • Confidential Information does not include information that: (i) is, or later becomes, publicly available through no act or default of recipient; (ii) is rightfully in the possession of the recipient prior to its disclosure to recipient by discloser; (iii) is received in good faith by the recipient from a third party, free of any obligation of confidentiality; (iv) is independently developed by the recipient without use of discloser’s Confidential Information; or (v) is approved for release by written authorisation of Discloser; and
      • A disclosure of Confidential Information which is required by law, judicial order, a government agency, regulatory authority or stock exchange shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes, provided that such recipient shall provide prompt prior written notice of such disclosure requirement thereof to discloser and permit such discloser to, within a reasonable time period, seek measures to preserve the confidentiality of its Confidential Information.

      7. Term and termination

      • This Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with this Clause 7.
      • Either party may terminate this Agreement immediately by notice in writing if:
      1. the other party is in breach of any of this Agreement and fails to remedy such breach (if capable of remedy) within a period of 30 days of written notice of the breach from the other party; or
      2. the other party has a petition presented for its winding up or for the appointment of an administrator of its undertaking or resolves to or goes into bankruptcy or liquidation (other than for the purposes of a bona fide reconstruction or amalgamation of a solvent company) or has an administrator, receiver, administrative receiver or manager appointed over its assets or undertaking or a substantial part thereof or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or is unable to pay its debts, in the case of a company, within the meaning of Section 123 of the Insolvency Act 1986 or, in the case of an individual, within the meaning of Section 268 of the Insolvency Act 1986 or upon the happening of any equivalent event under the laws of any relevant jurisdiction.

      7.3  The Customer shall be entitled to terminate this Agreement (and each Customer Order) if HAYNE fails to procure the Software as per the Customer Order under the terms of this Agreement.

      7.4 HAYNE shall be entitled to terminate this Agreement if the Customer fails to meet its obligations to pay the Licence Fee within 30 days or such other time period specified in the Customer Order.

      8. General

      • Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
      • If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
      • Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: i) neither party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of action arose; and ii) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
      • Neither Customer nor HAYNE is responsible for failure to fulfil any obligations due to causes beyond its control.
      • No right or cause of action for any third party is created by this Agreement, nor is HAYNE responsible for any third-party claims against Customer, except as permitted in Clause 5.3 above for bodily injury (including death) for which HAYNE is legally liable to that third party.
      • In entering into this Agreement, neither party is relying on any representation not specified in this Agreement, including but not limited to any representation concerning: i) the performance or function of the Software, other than as expressly warranted in by Microsoft; ii) the experiences or recommendations of other parties; or iii) any results or savings that Customer may achieve.
      • In consultation, and with the explicit written consent of the Customer, HAYNE may request that the Customer’s name and logo be used in promotional materials, customer lists or on the HAYNE websites.
      • The licence and intellectual property indemnification terms of a Customer’s other agreements with HAYNE (such as the ‘Consultancy Services Terms and Conditions’) do not apply to Software licences granted under this Agreement.

        9. Anti-Bribery

        9.1  HAYNE shall and shall procure that persons associated with it or other persons who are performing services in connection with this agreement shall:

        (a)  comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (the “Relevant Requirements”), including the Bribery Act 2010;

        (b)  comply with the Customer’s Mandatory Policies on ethics, anti-bribery, and anti-corruption in each case as the Customer may update the same from time to time (the “Relevant Policies”);

        (c)  not do, or omit to do, any act that will cause or lead the Customer to be in breach of any of the Relevant Requirements or Relevant Policies;

        (d)  promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by HAYNE in connection with the performance of this agreement; and

        (e)  have and maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and will enforce them where appropriate.

        9.2  HAYNE shall indemnify the Customer against any losses, liabilities, damages, costs (including legal fees) and expenses incurred by, or awarded against, the Customer as a result of any breach of this Clause 9 by HAYNE.

        10. Compliance with Anti-Slavery and Human Trafficking laws

        10.1  In performing its obligations under the Agreement, HAYNE shall:

        (a)  comply with all applicable anti-slavery and human trafficking laws, statutes, regulations, and codes from time to time in force including the Modern Slavery Act 2015;(b)        not engage in any activity, practice, or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice, or conduct were carried out in the UK;
        (c)  include in contracts with its direct subcontractors and suppliers provisions which are at least as onerous as those set out in this Clause 10;
        (d)  notify the Customer as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement;
        (e)  maintain a complete set of records to trace the supply chain of all Services provided to the Customer in connection with this Agreement; and permit the Customer and its third-party representatives to inspect HAYNE’s premises, records, and to meet HAYNE’s personnel to audit HAYNE’s compliance with its obligations under this Clause 10.

        10.2  HAYNE represents and warrants that it has not been convicted of any offence involving slavery and human trafficking; nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.

        11. Dispute Resolution

        11.1  The parties shall attempt, in good faith, to resolve any Dispute promptly by negotiation, which shall be conducted as follows;

        (a)  the Dispute shall be referred, by either party, first to the Customer’s Services Manager and HAYNE’s Engagement Manager for resolution.

        (b)  if the Dispute cannot be resolved by the Customer’s Service Manager and HAYNE’s Engagement Manager within ten (10) Working Days after the Dispute has been referred to them, either party may give notice to the other party in writing (“Dispute Notice”) that a Dispute has arisen; and

        (c)  within ten (10) Working Days of the date of the Dispute Notice, each party shall refer the Dispute to the Customer’s Contracts Manager and HAYNE’s Professional Services Director for resolution;

        (d)  if the Dispute cannot be resolved by the Customer’s Contracts Manager and HAYNE’s Professional Services Director within ten (10) Working Days of the Dispute being referred to them pursuant to Clause 12.1.3 then the Dispute shall be referred to the Customer’s Legal Counsel and to HAYNE’s Chief Operating Office for resolution.

        11.2  If the Customer’s Legal Counsel and HAYNE’s Chief Operating Officer are unable, or fail, to resolve the Dispute within ten (10) days of the date of the Dispute Notice, or within ten (10) days of the reference to them pursuant to Clause 12.1.4, the parties may commence or continue court proceedings in respect of such unresolved Dispute or issue.

        11.3  Nothing in this Clause 11 shall prevent either party from instigating legal proceedings where an order for an injunction, disclosure or legal precedent is required.

        11.4  Without prejudice to the Customer’s right to seek redress in court, HAYNE shall continue to provide the Services and to perform its obligations under this Agreement notwithstanding any Dispute or the implementation of the procedures set out in this Clause 11.

        12. Governing Law & Jurisdiction

        This Agreement shall be construed in accordance with English law and both parties submit to the exclusive jurisdiction of the courts of England and Wales in respect of all disputes and differences arising out of or in connection with it, to govern, interpret, and enforce all of Customer’s and HAYNE’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.