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Reseller Terms & Conditions

Sets out what Glow and the Reseller agree to in working together.

Get Glow Limited (CRN 12352436) of 32 Park Cross Street, Leeds, LS1 2QH (“Glow”, “us”, “we”) is the developer and owner of the Glow application, allowing websites to be modified internally using the Glow application via the internet and for the purpose of supplying the application to your clients under your brand.

By clicking to accept these terms and conditions (“Conditions”) you agree to use Glow’s white labelling services and support services subject to these Conditions which will bind you and your employees, agents and independent contractors.

In these terms we will call you “the Reseller”.  We call your clients the “End User”.

Interpretation

The following definitions and rules of interpretation apply to these Conditions.

Acceptable Use Policy

The Acceptable Use Policy of Glow, set out here.

Application

The Software application known as ‘Glow’ as described on our website, created and developed by Glow, including both source code and object code.

Reseller Content

All text, information, data, software, executable code, images, audio or video material, in whatever medium or form, inputted by the Reseller for the purpose of using the Services or facilitating the End-User’s use of the Services including all End-User content.

Confidential Information

Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5 or clause 9.6.

Contract

The contract for Services between Glow and the Reseller subject to these Conditions.

Control

The beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

Data Protection Legislation

The UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

Effective date

The date the Reseller clicks to accept these Conditions.

End User

Any person the Reseller permits access to use the Application.

End-User Account

The account held and maintained with Reseller by any End-User as a prerequisite to accessing and using the Application.

Excluded fields of use

  • a) any medical device, whether or not regulated by any national or regional medical or healthcare regulatory body];
  • b) those fields of use in relation to which the use of the Services, or the suspension of them (wholly or in part), has the potential to cause or contribute to death or personal injury;

Healthcare Legislation

Any laws, regulations or mandatory codes applied or enforced by any national or regional medical or healthcare regulatory body.

Heightened cybersecurity requirements

Any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, [industry schemes] and sanctions, which are applicable to either Reseller or an End User (but not Glow) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148)), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Intellectual Property Rights

Patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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, rights in computer software, 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, and Intellectual Property Rights include, without limitation, any Marks.

Marks

  • a) any trade marks, trade names, service marks, trade dress, logos, URLs and domain names;
  • b) any identifying slogans and symbols;
  • c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b); and
  • d) the “look and feel”,

of a party to these Conditions, whether or not registered.

Open-Source Software

Any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (set out at opensource.org ) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at gnu.org), or anything similar, included or used in, or in the development of, the Services or the Software, or with which the Services or the Software is compiled or to which it is linked.

Privacy & Security Policy

Glow’s privacy and security policy set out here.

Security event

  • a) any unauthorised third party access to the Services; or
  • b) any use of the Services by the Reseller, or End User that is in breach of the Acceptable Use Policy and has the potential to materially impact the Services or use of the Services by Glow, the Reseller or any End Users; or
  • c) any Vulnerability or Virus introduced into the Services by (or facilitated through) the Reseller or an End User

Services

The subscription services provided by Glow to the Reseller under these conditions.

Software

The software applications and tools provided by Glow as part of the Services, including any updates Glow may make to such applications and online tools from time to time.

Subscription fees

The subscription fees payable by Reseller to Glow for the User Subscriptions.

Subscription term

Means the term of the Contract.

Support

The support to be provided to Reseller under clause 3.3.

Support services policy

Glow’s policy for providing support in relation to the Services.

UK Data Protection Legislation

All applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

User subscriptions

The user subscriptions purchased by Reseller pursuant to clause 7  which entitles End-Users to access and use the Services in accordance with these Conditions.

Virus

Any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability

A weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1.1 Clause, schedule and paragraph headings shall not affect the interpretation of these Conditions.

1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 References to Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meaning assigned to those terms in the Data Protection Legislation.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.

1.6 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.

1.7 A reference to writing or written includes email.

1.8 If there is an inconsistency between any of the provisions of these Conditions and the terms and conditions located at any URL, the provisions of these Conditions shall prevail.

1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Glow account and user licence and subscriptions

2.1 The Reseller may, from time to time during any Subscription Term, purchase additional User Subscriptions and Glow shall grant access to the Services to such additional End-Users in accordance with these Conditions.

2.2 If Glow approves the Reseller’s request to purchase additional User Subscriptions, the Reseller shall pay to Glow the relevant Subscription Fees for such additional User Subscriptions in accordance with Clause 7.

2.3 Subject to the Reseller purchasing the User Subscriptions in accordance with clause 7, the restrictions set out in this clause 2 and any other terms and conditions below, Glow hereby grants to the Reseller a non-exclusive, non-transferable right during the Subscription Term to:

  • 2.3.1 to provide the Services, solely as integrated into the Application, to End-Users and to permit those Services to be used in association with the Reseller’s Marks;
  • 2.3.2 permit End Users to use the Application in accordance with these Conditions; and
  • 2.3.3 promote the Application to prospective and actual End Users, under the Reseller’s Marks, subject to clause 8.3 and clause 10

2.4 In relation to End-Users, the Reseller undertakes that:

  • 2.4.1 the maximum number of End-Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
  • 2.4.2 each End-User shall keep a secure password for their use of the Services, that such password shall be changed no less frequently than annually and that each End-User shall keep their password confidential;
  • 2.4.3 it shall disable any End-User’s access to the Services promptly upon termination or suspension of such End-User’s contract with the Reseller;
  • 2.4.4 it shall maintain a written, up-to-date list of current End-Users and provide such list to Glow within five days of Glow’s written request at any time or times; and
  • 2.4.5 it shall permit Glow to access End-User’s login information and passwords

2.5 The Reseller shall comply with the Acceptable Use Policy in relation to the Applications and Reseller Content and shall ensure End-Users comply with such policy.

2.6 If the Reseller becomes aware that the Application or Reseller Content or an End-User’s use of the Application breaches the Acceptable Use Policy, the Reseller shall:

  • 2.6.1 remove the relevant Reseller Content; and
  • 2.6.2 if relevant, suspend the relevant End-User Account and that End-User’s access to the Application and Reseller Content.

2.7 If the Reseller is in breach of clause 2.5 or clause 2.6, Glow may (but shall not be obliged to) remove the relevant Reseller Content and:

  • 2.7.1 disable the Reseller’s or the relevant End-User’s access to the Application or any material that breaches the Acceptable Use Policy; and
  • 2.7.2 disable the Reseller’s account and the relevant End-User Account, for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights and without prior notice to the Reseller or the relevant End-User.

2.8 Whenever Glow reasonably suspects that there has been a breach of the Acceptable Use Policy, Reseller shall permit Glow to audit the Application and Reseller Content to ensure compliance with the Acceptable Use Policy by the Reseller and the End Users. Such right to audit shall be exercised at the Reseller’s expense, with reasonable prior notice and in such a manner as not to substantially interfere with the Reseller’s normal conduct of business. For clarity, the parties acknowledge that Glow is not obliged to carry out any such audit.

2.9 Notwithstanding any other provision in these Conditions, if there is a Security Event, Glow may, without liability or prejudice to its other rights and without prior notice to the Reseller or any End-User, remove the relevant Reseller Content and disable the Reseller’s account, any End-User Account and the Application until the relevant Security Event has been resolved. Glow shall give the Reseller written notice as soon as is reasonably practicable of the nature of the relevant Security Event.

2.10 The Reseller shall not:

  • 2.10.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
    • 2.10.1.1 except to the extent expressly permitted under these Conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application in any form or media or by any means; or
    • 2.10.1.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application;
  • 2.10.2 access all or any part of the Services in order to build a product or service which competes with the Services;
  • 2.10.3 subject to clause 13.9, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except for the provision of Services to End Users to the extent necessary to enable them to use the Application and access the Services;
  • 2.10.4 attempt to obtain, or assist third parties in obtaining access to the Services, other than as provided under this clause 2; or
  • 2.10.5 introduce, or permit the introduction of, any Virus or Vulnerability into the Services.

2.11 The Reseller shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, in the event of any such unauthorised access or use, promptly notify Glow.

2.12 The rights provided under this clause 2 are granted to the Reseller only and shall not be considered granted to any subsidiary or holding company of Reseller.

2.13 No Intellectual Property Rights of Glow are licensed to the Reseller otherwise than as set out in these Conditions. For the avoidance of doubt, the Reseller is not permitted for any purpose to use any Marks (registered or unregistered) or any branding of Glow when marketing or making the Application available to End-Users.

2.14 Any Open-Source Software provided by Glow may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in clause 11.2.3. Such terms and conditions shall govern such use to the extent that they expressly supersede these Conditions.

3. Services

3.1 Glow shall, during the Subscription Term:

  • 3.1.1 provide the Services to the Reseller on and subject to these Conditions; and
  • 3.1.2 enable End Users to connect via the internet to the Application and to use the Services

3.2 Glow warrants that it will provide the Services in accordance with the service levels set out here.

3.3 Glow will, as part of the Services and at no additional cost to Reseller, provide End Users with Support as set out here. Glow may amend the Support Services Policy in its sole and absolute discretion from time to time.

3.4 From time to time Glow may make new features, functionality, applications or tools available in respect of the Services, whose use may be subject to the Reseller’s acceptance of further terms and conditions, and shall give the Reseller prompt written notice of material modifications to the Services and any such new features, functionality, applications or tools.

4. Reseller Content, Marks and data protection

4.1 Reseller (or its End-Users) shall own all Intellectual Property Rights in the Reseller Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Reseller Content.

4.2 The Reseller hereby grants to Glow a non-exclusive, non-transferable right during the Subscription Term to carry out any acts that would otherwise be restricted by any of Reseller’s Intellectual Property Rights in Reseller Content and the Application for the sole purpose of enabling Glow to provide the Services to the End Users in accordance with these Conditions.

4.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

4.4 The parties acknowledge that:

  • 4.4.1 if Glow processes any personal data on the Reseller’s behalf when performing its obligations under these Conditions, the Reseller is the controller and Glow is the processor for the purposes of the Data Protection Legislation, and
  • 4.4.2 personal data may be transferred or stored outside the European Economic Area or the country where the Reseller or the End Users are located in order to carry out the Services and Glow’s other obligations under these Conditions.

4.5 Without prejudice to the generality of clause 4.3, the Reseller will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Glow for the duration and purposes of the Contract so that Glow may lawfully use, process and transfer the personal data in accordance with these Conditions on the Reseller’s behalf and, without limitation, the Reseller shall ensure that all End Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all Reseller Content by Reseller or Glow in accordance with these Conditions.

4.6 Without prejudice to the generality of clause 4.3, Glow shall, in relation to any personal data processed in connection with the performance by Glow of its obligations under these Conditions:

  • 4.6.1 process that personal data only in accordance with the laws of any member of the European Union or by the laws of UK Data Protection Legislation and any other law that applies in the UK to process personal data (Applicable Laws);
  • 4.6.2 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, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
  • 4.6.3 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
    • 4.6.3.1 the Reseller or Glow has provided appropriate safeguards in relation to the transfer;
    • 4.6.3.2 the data subject has enforceable rights and effective legal remedies;
    • 4.6.3.3 Glow complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
    • 4.6.3.4 Glow complies with reasonable instructions notified to it in advance by the Reseller with respect to the processing of the personal data;
  • 4.6.4 assist the Reseller, at the Reseller’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  • 4.6.5 notify the Reseller without undue delay on becoming aware of a personal data breach;
  • 4.6.6 at the written direction of the Reseller, delete or return personal data and copies thereof to the Reseller on termination of the Contract unless required by Applicable Law to store the personal data; and
  • 4.6.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Reseller if, in the opinion of Glow, an instruction infringes Data Protection Legislation.

4.7 The Reseller consents to Glow appointing an internet payment gateway as a third-party processor of personal data under these Conditions. Glow confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business which Glow confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Reseller and Glow, Glow shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.

4.8 Either party may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.

5. Glow’s obligations

5.1 Glow undertakes that the Services will be performed with reasonable skill and care.

5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Glow’s instructions, or modification or alteration of the Services by any party other than Glow or Glow’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Glow will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Reseller with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Reseller’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, Glow:

  • 5.2.1 does not warrant that:
    • 5.2.1.1 the Reseller’s use of the Services will be uninterrupted or error-free; or
    • 5.2.1.2 the Services will meet the Reseller’s or any End-User’s requirements; or
    • 5.2.1.3 the Services will be free from Viruses and Vulnerabilities; and
  • 5.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Reseller acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.3 The Contract shall not prevent Glow from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.

5.4 Glow warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.

5.5 Unless agreed in writing Glow shall not disclose its identity during the course of providing the Services to End Users.

6. Reseller’s obligations

6.1 The Reseller shall provide Glow with all necessary co-operation in relation to the Services and all necessary access to such information as may be required by Glow.

6.2 In order to provide the Services;

  • 6.2.1 without affecting its other obligations under these Conditions, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under these Conditions;
  • 6.2.2 carry out all other Reseller responsibilities in a timely and efficient manner. In the event of any delays in the Reseller’s provision of such assistance as agreed by the parties, Glow may adjust any agreed timetable or delivery schedule as reasonably necessary;
  • 6.2.3 ensure that the End Users use the Services in accordance with these Conditions and shall be responsible for breach of these Conditions caused or contributed to by any acts or omissions on the part of any End-User;
  • 6.2.4 obtain and shall maintain all necessary licences, consents, and permissions necessary for Glow, its contractors and agents to perform their obligations under these Conditions, including provision of the Services;
  • 6.2.5 ensure that its network and systems comply with the relevant specifications provided by Glow from time to time;
  • 6.2.6 be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Glow’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Reseller’s or any End-User’s network connections or telecommunications links or caused by the internet;
  • 6.2.7 as between the parties, be responsible for responding to all third party requests concerning the use of the Services by any End-User; and
  • 6.2.8 not access the Services in a manner intended to avoid incurring Subscription Fees.

7. Charges and payment

7.1 The Reseller shall pay the Subscription Fees to Glow for the User Subscriptions in accordance with this clause 7 and as set out here.

7.2 The Reseller shall on the Effective Date provide to Glow valid, up-to-date and complete debit or credit card details via the payment gateway and Glow shall take payment:

  • 7.2.1 on the Effective Date for the Subscription Fees payable in respect of the first month of the Subscription Term, for User Subscriptions signed up to use the Application; and
  • 7.2.2 monthly on the same date of the month thereafter; and
  • 7.2.3 on the date when additional End Users are signed up to use the Application and on the same date monthly thereafter.

7.3 If Glow has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of Glow:

  • 7.3.1 Glow may, without liability to the Reseller, disable the Reseller’s account and password and the Reseller’s access and all End-User Accounts and passwords and End Users’ access, to all or part of the Services and Glow shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
  • 7.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Glow’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.4 All Subscription Fees and amounts stated or referred to in these Conditions:

  • 7.4.1 shall be payable in pounds sterling;
  • 7.4.2 are, subject to clause 11.4.2, non-cancellable and non-refundable;
  • 7.4.3 are exclusive of value added tax, which shall be added to Reseller’s invoice(s) at the appropriate rate.

7.5 Glow shall be entitled to increase the Subscription Fees payable pursuant to this clause 7 by notice to the Reseller via the Service Level Agreement.

8. Proprietary Rights

8.1 The Reseller acknowledges and agrees that Glow and/or its licensors own all Intellectual Property Rights in the Application and the Services. Except as expressly stated in these Conditions, Glow does not grant the Reseller any rights to, or in any Intellectual Property Rights or any other rights or licences in respect of the Application, the Services, or Glow’s Marks.

8.2 Glow confirms that it has all the rights in relation to the Application and the Services that are necessary to grant all the rights it purports to grant under these Conditions. 

8.3 If the Reseller wishes to display Glow’s Marks in relation to its use of the Services, Reseller shall obtain a written licence from Glow.

8.4 All uses of a party’s Marks under clause 4.3 or clause 8.3 (as the case may be), including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in those Marks.

9. Confidentiality and compliance with policies

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Conditions. A party’s Confidential Information shall not be deemed to include information that:

  • 9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
  • 9.1.2 was in the other party’s lawful possession before the disclosure;
  • 9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
  • 9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
  • 9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

9.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.

9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (and also, in the case of Reseller only, by the End Users) in breach of these Conditions.

9.4 Glow shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, except any third party subcontracted by Glow to perform services related to maintenance and back-up of Reseller Content.

9.5 The parties acknowledge that:

  • 9.5.1 Glow’s Confidential Information includes details of the Services, and the results of any performance tests of the Services; and
  • 9.5.2 Reseller’s Confidential Information includes the Reseller Content.

9.6 The above provisions of this clause 9 shall survive termination of the Contract, however arising.

10. Indemnity

10.1 The Reseller shall defend, indemnify and hold harmless Glow against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:

  • 10.1.1 the Reseller Content;
  • 10.1.2 Reseller’s Marks; or
  • 10.1.3 Reseller’s or any End-User’s use of the Services

10.2 Glow shall defend the Reseller, its officers, directors and employees against any claim that the use of any of the Services by the Reseller or an End-User in accordance with these Conditions infringes copyright, trade mark, database right or right of confidentiality, and shall indemnify the Reseller for any amounts finally awarded against the Reseller in judgment or settlement of such claims, provided that this indemnity does not apply to the extent that any such claim is based on the use of any Open-Source Software.

10.3 The obligations of the Reseller and Glow under clause 10.1 and clause 10.2 respectively are conditional on:

  • 10.3.1 the indemnifying party being given prompt notice of any relevant claim;
  • 10.3.2 the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and
  • 10.3.3 the indemnifying party being given sole authority to defend or settle such claim.

10.4 Except as specifically provided in these Conditions, the enforcement and protection of a party’s Intellectual Property Rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.

10.5 In the defence or settlement of any claim, Glow may procure the right for the Reseller to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on two days’ notice to Reseller without any additional liability or obligation to pay liquidated damages or other additional costs to the Reseller.

10.6 In no event shall Glow, its employees, agents and subcontractors be liable to the Reseller to the extent that the alleged infringement is based on:

  • 10.6.1 a modification of the Services by anyone other than Glow;
  • 10.6.2 the use of the Services by the Reseller or any End-User in combination with any Reseller Content;
  • 10.6.3 the use of the Services by the  Reseller or any End-User in a manner contrary to the instructions given to the Reseller by Glow; or
  • 10.6.4 the use of the Services by Reseller or any End-User after notice to the Reseller of the alleged or actual infringement from Glow or any appropriate authority.

10.7 The foregoing and clause 11.4.2 state Reseller’s sole and exclusive rights and remedies, and Glow’s (including Glow’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

11. Limitation of liability

11.1 This clause 11 sets out the entire financial liability of Glow (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Reseller or any End User:

  • 11.1.1 arising under or in connection with the Contract;
  • 11.1.2 in respect of any use made by the Reseller or any End-User of the Services or any part of them; and
  • 11.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Services.

11.2 Except as expressly and specifically provided in these Conditions:

  • 11.2.1 the Reseller assumes sole responsibility for results obtained from the use of the Services by the Reseller or any End-User, and for conclusions drawn from such use. Glow shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Glow by Reseller or any End-User in connection with the Services, or any actions taken by Glow at the Reseller’s direction;
  • 11.2.2 Glow makes no warranty or representation that the Services comply with any Healthcare Legislation or Heightened Cybersecurity Requirements and the Reseller assumes sole responsibility and liability for compliance with the same;
  • 11.2.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions;
  • 11.2.4 the Services are provided to Reseller and the End Users on an “as is” basis; and
  • 11.2.5 neither the Application nor the Services, are designed, made or intended for any of the Excluded Fields of Use.

11.3 Nothing in  these Conditions excludes the liability of Glow:

  • 11.3.1 for death or personal injury caused by Glow’s negligence; or
  • 11.3.2 for fraud or fraudulent misrepresentation.

11.4 Subject to clause 11.2 and clause 11.3:

  • 11.4.1 Glow shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and
  • 11.4.2 Glow’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the total fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.

12. Term and termination

12.1 The Contract shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue in force unless:

  • 12.1.1 either party gives the other party written notice of its wish termination, in which case the Contract shall terminate upon the expiry of the 30 days; or
  • 12.1.2 Glow notifies the Reseller of termination on the ground that there has been no use by any End-User of the Application for more than 180 days, in which case the Contract shall terminate 14 days after the date of that notice; or
  • 12.1.3 otherwise terminated in accordance with the provisions of these Conditions.

12.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

  • 12.2.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
  • 12.2.2 the other party commits a material breach of any other term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  • 12.2.3 the other party repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions;
  • 12.2.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
  • 12.2.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • 12.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
  • 12.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
  • 12.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
  • 12.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  • 12.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
  • 12.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.4 to clause 12.2.10 (inclusive);
  • 12.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
  • 12.2.13 there is a change of Control of Reseller.

12.3 On termination of the Contract for any reason:

  • 12.3.1 all licences granted under these Conditions shall immediately terminate;
  • 12.3.2 each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
  • 12.3.3 without limiting the effect of clause 12.3.2, Glow may require the Reseller immediately to return all copies of the Application, Glow’s Confidential Information and any other materials or to erase the same from Reseller’s computer and communications systems and devices used by the Reseller (including those used by any End-User in relation to the Application), including such systems provided by third parties (to the extent technically and legally practicable) in accordance with clause 4.6.6. Reseller may, at Glow’s request, be required to confirm in writing that all such copies have been returned or so erased;
  • 12.3.4 Glow may destroy or otherwise dispose of any of Reseller Content and the Application in its possession unless Glow receives, no later than 10 days after the effective date of the termination of the Contract, a written request for the delivery to Reseller of the then most recent back-up of Reseller Content and the Application. Glow shall use reasonable commercial endeavours to deliver the back-up to Reseller within 30 days of its receipt of such a written request, provided that Reseller has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Reseller shall pay all reasonable expenses incurred by Glow in returning or disposing of Reseller Content and the Application;
  • 12.3.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
  • 12.3.6 any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract, including clause 1 (Interpretation), clause 4.4 (data protection), clause 9 (Confidentiality), clause 10 (Indemnity) and clause 12 (Term and termination), shall remain in full force and effect; and
  • 12.3.7 any outstanding monies (including but not limited to Subscription Fees) become immediately due and payable.

13. General

13.1 Force majeure. Glow shall have no liability to Reseller under these Conditions if it is prevented from or delayed in performing its obligations under these Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Glow or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Glows or subcontractors, provided that the Reseller is notified of such an event and its expected duration.

13.2 Variation. Any variation of these Conditions shall become effective when notified to the Reseller by Glow.

13.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.4 Rights and remedies. Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

13.5 Severance. If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of these Conditions is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision

13.6 Entire agreement. These Conditions, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

13.7 Each of the parties acknowledges and agrees that in entering into this Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of this Contract, other than as expressly set out in these Conditions.

13.8 Assignment The Reseller shall not, without the prior written consent of Glow, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Contract. Glow may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Contract.

13.9 No partnership or agency. Nothing in these Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.10 Third party rights. This Contract does not confer any rights on any person or party (other than the parties to this Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

13.11 Notices. Any notice required to be given under these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these Conditions, or such other address as may have been notified by that party for such purposes.

13.12 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

13.13 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

13.14 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

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