(1) These Terms & Conditions apply to participants in the BullGuard® Reseller Revenue Share Programme (the "Programme").
(2) In these Terms & Conditions, "Company", "we", "us", and "our" means BullGuard Limited a company registered in England under number 04392368 whose registered office is at 823 SALISBURY HOUSE, 29 FINSBURY CIRCUS, LONDON, UNITED KINGDOM, EC2M 5QQ.
(3) In these Terms & Conditions, "Reseller", "you" and "your" means the individual or organisation that is applying to become a participant in the Programme and who will accept these Terms & Conditions upon joining the same.
(4) By accepting these Terms & Conditions you agree to be bound by them and shall enter into a binding agreement with us (the "Agreement").
1. Definitions and Interpretation
1.1 In these Terms & Conditions the following terms shall have the following meanings:
"Business Day" means any working day that is not a bank or public holiday;
"Commencement Date" means the date of your enrolment in the Programme and acceptance of these Terms and Conditions;
"Commission Rate" means the percentage of commission paid on net sales revenue set out from time to time in these Terms and Conditions. The Commission Rate will be as advised during the registration process and may be changed by Company upon 60 days' notice to you;
"Confidential Information" means all business, technical, financial or other information created or exchanged between the Parties in the course of fulfilling their obligations under the Agreement;
"Current Term" means the Term that the Parties may be in at any given time;
"Intellectual Property Rights" means any rights subsisting in a copyright work, trade mark, patent or design and shall be construed in accordance with the Copyright Designs and Patents Act 1988, Trade Marks Act 1994 and Patents Act 1977;
"Registered Email Address" means the email address of the Company as provided in the Reseller Lounge or the email address of the Reseller as provided in your Registration Data;
"Registration Data" means the information provided by the Reseller when registering for enrolment in the Programme;
"Term" means the term of the Agreement, as defined in Clause 12 of these Terms & Conditions, during which you shall participate in the Programme.
2. Enrolment in the Programme
2.1 By enrolling in the Programme you agree that the Registration Data, you provided is accurate and complete and that you shall inform us of any changes in your Registration Data.
2.2 Participation in the programme is conditional on you purchasing a minimum of ten (10) licences for BullGuard products, and activating an average of five (5) licences for BullGuard Products per month as measured over each twelve (12) month period during the Term, measured from the Commencement Date.
3. Company / Reseller Relationship
3.1 Nothing in these Terms & Conditions shall constitute, or be deemed to create, a partnership between the Parties; nor, except as expressly provided, shall it designate, or be deemed to designate, any Party the agent of any other Party for any purpose.
3.2 Subject to any express provisions to the contrary in these Terms & Conditions, you shall have no right or authority to and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on our behalf or bind us in any way.
4. Display of Company Information
4.1 As a Reseller, you are free to display pricing information relating to our products. It is your responsibility to keep such information up-to-date through your own efforts; we will not provide pricing information updates to you.
4.2 We reserve the right to alter pricing at any time in accordance with our own policies.
5. Reseller Sales Reporting
5.1 We endeavour to track the following elements of all sales:
5.1.2 volume; and
5.1.3 revenue generated.
5.2 Reports are available in the Reseller Lounge. We reserve the right to alter the form and content of such reports without notice, and give no guarantee that information relating to any sales will always be available.
6. Trade Marks
6.1 Upon your entry into the Programme, we shall grant to you a non-exclusive, non-transferrable, royalty free licence to use our trade marks, such trade marks being detailed in Schedule 1 to the Agreement and at www.bullguard.com (our "Trade Marks"), solely to use in relation to the sale of our products.
6.2 You may use our Trade Marks only to the extent required to establish links and perform your obligations as a Reseller under these Terms & Conditions.
6.3 In the event that you wish to use our Trade Marks for any purposes outside of these Terms & Conditions you must not do so without our prior written consent.
6.4 By accepting these Terms & Conditions you hereby agree that:
6.4.1 our Trade Marks shall remain the property of BullGuard Limited unless and until we assign those marks to a third party;
6.4.2 nothing in these Terms & Conditions shall be deemed to confer any ownership rights in our Trade Marks on you; and
6.4.3 you shall not contest the validity of our trade marks.
6.4.4 You will use the BullGuard trademark in strict conformity with BullGuard's guidelines for trademark usage, as adopted by BullGuard from time to time. The current version may be found at http://www.bullguard.com/press/product-images.aspx .
7. Intellectual Property
7.1 Unless otherwise expressly indicated, we are the sole and exclusive owners of all Intellectual Property Rights ("IPRs") in our website and our products including, but not limited to: all code, text, sound, video, graphics, photographs and other images that form a part of our website site. We shall also be the sole and exclusive owners of all IPRs which may subsist in any supporting documentation which shall include, but not be limited to, site plans, maps, design sketches and other preparatory material.
7.2 We shall be the sole and exclusive owners of all IPRs which may subsist in all future updates, additions and alterations to our website, or our products, such material including any supporting documentation.
7.3 Unless otherwise expressly indicated, all IPRs in product images and descriptions belong to the manufacturers or distributors of such products as may be applicable.
8. Reseller Warranties and Indemnity
8.1 In accepting these Terms & Conditions you hereby warrant and acknowledge that:
8.1.1 All necessary authorities, consents and approvals have been obtained in respect of your obligations under these Terms & Conditions and will remain valid and effective throughout the Term;
8.1.2 Your obligations under these Terms & Conditions shall constitute legal, valid and binding obligations on you. Such obligations shall be direct, unconditional and general obligations; and
8.1.3 You will not refer to us in any way in any unsolicited bulk email campaigns or other spamming practices that you may conduct.
8.1.4 You understand that we may modify these terms and conditions by providing you with 60 days' notice of the change.
8.2 You agree that you will sell BullGuard products in conformity with the licence for such products. Thus, for example, softbox products will only be sold in original packaging to persons or companies that intend to bundle the product with a computer system. A computer system is a device on which our software can be installed such as a desktop computer, laptop, notebook, tablet or Smartphone. ESD licence keys must only be used for pre-install applications in computer systems. They cannot and must not be sold as stand-alone product.
9. Revenue Share
9.1 During the Term, and subject to the provisions of clause 2.2 being met, you shall be entitled to a revenue share of the net purchase price (excluding VAT and all transaction costs) of each online order (being a subscription renewal made during the term of this Agreement through BullGuard's online shop at www.bullguard.com, by a BullGuard customer, for any BullGuard product sold by you to that customer). The relevant percentage of the revenue share shall be advised to you by BullGuard annually in advance. We shall calculate and pay any such revenue share to you within 45 days of the end of each calendar quarter. Any revenue share entitlement under this clause will cease upon termination of this Agreement, but without prejudice to any such payments which have accrued (but not yet been paid) up to the date of termination.
10.1 We make no warranty or representation that our website, the Programme, or any products sold through the Programme will meet your requirements or those of your customers, that they will be of satisfactory quality, that they will be fit for a particular purpose, that they will not infringe the rights of third parties, that they will be compatible with all systems, that they will be secure and that all information provided will be accurate.
10.2 We make no guarantee of any specific results from the use of our website or from enrolment in the Programme.
10.3 We make no guarantee that our website shall remain functional and accessible to all users of the internet.
11.1 We shall not be liable to you for any indirect or consequential loss that you may suffer even if such loss is reasonably foreseeable or if we have been advised of the possibility of such loss being incurred.
11.2 Our entire liability to you in respect of any breach of our contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to £100.
11.3 Notwithstanding any other provision in these Terms & Conditions, our liability to you for death or injury resulting from our own negligence or that of our employees, agents or sub-contractors shall not be limited.
12. Term and Termination
12.1 This Agreement shall come into force and become binding on the Commencement Date and shall continue in force for a period of One Year from that date (the "Initial Term"). Following the Initial Term, your enrolment in the Programme shall be renewed automatically for successive periods of One Year (each a "Renewal Term") unless and until terminated in accordance with this Clause 12.
12.2 Either Party may terminate the Agreement by giving 10 Business Days' prior written notice to the other:
12.2.1 at any time where the other Party has committed a material breach of these Terms & Conditions and such breach has remained unremedied 5 Business Days after receiving written notice of that breach; or
12.2.2 if the other Party enters into liquidation whether compulsory or voluntary (except for the purposes of bona fide reconstruction or amalgamation with the prior written approval of the other Party), or compounds with or makes any arrangement with its creditors or makes a general assignment for the benefit of its creditors, or if it has a receiver, manager, administrative receiver or administrator appointed over the whole or substantially the whole of its undertaking or assets, or if it ceases or threatens to cease to carry on its business, or makes any material change in its business, or if it suffers any analogous process under any foreign law.
12.3 Either Party may request the termination of the Agreement at the end of the Current Term for any reason provided that written notice is given at least 20 Business Days before the end of the Current Term.
12.4 Upon the termination of the Agreement for any reason, you shall remove the links established under these Terms & Conditions.
12.5 Upon the termination of the Agreement for any reason, all licenses granted shall also terminate.
12.6 In the event that we terminate the Agreement in accordance with Sub-clause 12.2.1, any Commission owed to you at that time shall be forfeited.
13.1 Each Party (a "Receiving Party") shall keep the Confidential Information belonging to the other Party (a "Supplying Party") confidential and secret and shall not use or disclose or make the Confidential Information available, directly or indirectly, to any person other than its officers and employees who need the Confidential Information to enable the Receiving Party to perform its obligations under these Terms & Conditions and provided that such officers and employees are also obliged to keep such Confidential Information confidential and secret. The foregoing obligations shall not apply to any information acquired by the Receiving Party which:
13.1.1 at the time of its acquisition was in the public domain; or
13.1.2 at a later date comes into the public domain through no fault of the Receiving Party.
13.2 Each Party hereby agrees and undertakes:
13.2.1 that all Confidential Information shall be and shall remain at all times the sole and exclusive property of the Supplying Party;
13.2.2 that its right to use Confidential Information shall wholly cease upon the termination of the Agreement; and
13.2.3 to return to the Supplying Party on termination of the Agreement all material embodying Confidential Information (including information stored on digital media) or any part thereof and all copies thereof.
14. Force Majeure
Neither Party to these Terms & Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to, power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
15. Force Majeure
The Parties agree that, in the event that one or more of the provisions of these Terms & Conditions is found to be unlawful, invalid, or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms & Conditions. The remainder of the Terms & Conditions shall be valid and enforceable.
Unless otherwise stated in these Terms & Conditions, the Parties agree that all notices to be served under the Agreement shall be in writing and may be sent by email to the other Party's Registered Email Address.
17. Entire Agreement
17.1 These Terms & Conditions shall embody and set forth the entire agreement and understanding between the Parties and shall supersede all prior oral or written agreements, understandings or arrangements relating to the Programme or the relationship between the Parties. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in these Terms & Conditions, save for any representation made fraudulently.
17.2 Unless otherwise expressly provided elsewhere in these Terms & Conditions, the Agreement may be varied only by a document signed by both of the Parties.
18.1 No Waiver
The Parties shall agree that no failure by either Party to enforce the performance of any provision in these Terms & Conditions shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Terms & Conditions. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The relationship between the Parties shall be and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.
You may not assign any or all of your rights or obligations under these Terms & Conditions or the Agreement without our prior written consent, such consent not to be unreasonably withheld.
19. Law and Jurisdiction
19.1 These Terms & Conditions and the Agreement shall be governed by the laws of England and Wales.
19.2 Any dispute between the Parties relating to the Agreement shall be fall within the jurisdiction of the courts of England and Wales.
Last updated: May 2014