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D2D Chat Reseller Terms and Conditions
PLEASE READ CAREFULLY BEFORE AGREEING TO THE RESELLER TERMS AND CONDITIONS
These Reseller Terms (“the Terms”) are made and entered on the date of acceptance of these Terms by You, by and between Wemet Privacy Apps Ltd, a company organised and existing under the Companies Act, 2006, and having it’s registered office at: 3 Montpelier Avenue, Bexley, Kent, United Kingdom DA5 3AP (hereinafter referred to as “the Company” and You (“the Reseller”). The acceptance of the Terms shall act as an Agreement between the Company and the Reseller. “The Company” and “the Reseller” shall hereinafter be individually referred to as “Party” and collectively referred to as “Parties”
The Reseller is an independent contractor of the Company. No other relationship (e.g. employment, joint venture, agency, trust or partnership) exists under the Terms. The Terms do not transfer or license any Intellectual Property belonging to the Company to the Reseller, except as expressly set out in these Terms.
a.The Company agrees to engage, and the Reseller accepts engagement, to market and sell the Product in accordance with conditions laid down in the Terms.
b.Subject to the terms and conditions set forth herein, the Company hereby appoints the Reseller a non-exclusive and non-transferable right to conduct the business of selling the Company’s products for the duration of the validity of the Terms.
a.D2D Chat Feature Activation Keys: There are a number of keys available for the Reseller to sell. Each key activates a number of features within D2D Chat. The exact list of features that each key will activate is listed on www.d2dchat.com. The available keys and the features that are associated with each key may change from time to time. An updated list of features for sale may be seen on www.d2dchat.com.
b.The price at which each Product will be sold is listed on www.d2dchat.com. The price of the Product may change from time to time. For the updated price list please refer to www.d2dchat.com.
3.DUTIES OF THE RESELLER
The Reseller must, at its own expense:
a.Work diligently to promote and protect the Company’s interests, enhance and maintain the reputation of the Products and the Company, act loyally and faithfully towards the Company, including:
i.representing the Products and Brands to customers, and prospective customers in the most favourable manner at every reasonable opportunity; and
ii.Maintaining good relationships with all the Customers and prospective Customers; and
b.use its best efforts to maximize sales of the Product.
In addition to complying with its other obligations under the Terms,
a.The Reseller must conduct the business in accordance with Good Industry Practice
b.The Reseller must comply with all applicable laws, regulations, rules and professional codes of conduct or practice when conducting the Business and performing its other obligations in the Agreement; and seek reasonable guidance from the Company on the conduct of the Business;
c.The Reseller must procure all licenses, authorizations and consents necessary for the Reseller to conduct the business; and
d.The Reseller shall promptly notify the Company of:
i.any breach of the Reseller’s obligations under the Terms or any matter which may impact on the Reseller’s ability to perform its obligations under the Terms
ii.any complaint relating to the Products that is received by the Reseller, together with all available information relating to the complaint.
e.The Reseller must avoid entering into any arrangements which would result in a conflict of interest with its obligations, including reselling any software, service or other product that competes with a Product;
f.The Reseller must not directly or indirectly operate or otherwise be involved in a business that competes with the Company’s business or Products, whether as a principal, employee, partner, agent, shareholder or however else.
The Reseller must maintain accurate records in the conduct of the Business and make them available to the Company as and when required to do so.
5.FEES AND PAYMENT
a.The margin payable to the Reseller shall be as mutually discussed between the parties and calculated as a percentage of the listed price for the Product on www.d2dchat.com.
b.The fees payable by the Company to the Reseller or vice versa for the sale of product may depend on the transaction type and who has collected the payment for the Product from the customer.
c.When payment is collected from customer by Reseller, the Company will sell to the Reseller each DFAK at listed price plus any applicable taxes
6.TERM AND TERMINATION
a.Duration: Unless terminated in accordance with the provisions of these Terms, the duration of the appointment starts on the date of acceptance of these Terms and shall be in force for a period of 12 months from the date of acceptance of the Terms.
b.Notice of Termination: Either party may terminate the appointment, by giving 90 days notice in writing.
c.Termination Rights: Either party may, by notice to the other party, immediately terminate the Agreement if the other party breaches any material provision of the Terms and the breach is not:
i.remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
ii.capable of being remedied;
iii.becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
iv.is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
a.Resellers will be assigned a Specific Territory (“ the Territory”) which will be mutually agreed upon by both the parties to market, promote, sell or distribute the Product. Resellers may market, promote, sell or distribute the Products outside the Territory .
b.The Reseller will be paid in accordance to the provisions of Clause 6 only when the Reseller markets, promotes, sells or distributes the Product in the Territory.
d.Definition: For the purposes of these Terms, “Confidential Information” shall mean any and all non-public information, which includes but is not limited to, business processes, product specifications, softwares, mobile applications, computer applications, raw materials, trade secrets, market opportunity, intellectual property, product samples, inventions, technical capability, concepts, know-how, business or financial affairs of the Parties, business, technical or financial affairs of the Parties, production of legal materials, software development, and design, business or software architecture, software not yet known to the public, clients or prospective clients, internal communications, events, or meetings, or any other research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, formulas, source codes, or any part thereof, specifications, designs, drawings, data, strategies, plans, prospects, know-how, and ideas, whether tangible or intangible, and including all copies, analyses and other derivatives thereof, company intelligence, consisting of sensitive research of the parties, and mobile and contact numbers, diagnostic materials, postal addresses, and other personal information of the customers of clients of the parties, and any other technical or commercial information, disclosed directly or indirectly, in any form whatsoever (including, but not limited to, disclosure made in writing, oral or in the form of samples, models, computer programs, drawings or other instruments), Materials or use of any elements of stock photographs and images, artwork, graphics, text, tools, processes, libraries, technologies, clip art, creative work furnished by the parties under this Agreement as well as the Customer data (and prospective Customer data).
e.Security: The Reseller must, unless it has the prior written consent of the Company:
i.keep confidential at all times the Confidential Information of the Company;
ii.effect and maintain adequate security measures to safeguard the Company’s Confidential Information from unauthorised access or use; and
disclose Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that the personnel or professional advisor is aware of, and complies with, the provisions of clauses 6(a)(i) and 6(a)(ii).
f.Permitted disclosure: The obligation of confidentiality in clause does not apply to any disclosure or use of Confidential Information:
i.for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
ii.required by law (including under the rules of any stock exchange);
iii.which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
iv.which was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; or
v.by the Company if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Company enters into a confidentiality agreement with the third party on terms no less restrictive than this clause
a.Products: The Company (and its licensors) owns all Intellectual Property Rights in the Products and the Documentation. The Reseller must not contest or dispute the Company’s (or its licensors’) ownership of the Intellectual Property Rights in the Products or the Documentation.
b.New Intellectual Property: As between the parties, from the date it is created, the Company solely owns:
i.all new Intellectual Property created by the Company in the course of providing the Products or otherwise in connection with the Terms; and
ii.all new Intellectual Property in any documentation or other materials created by the Reseller, to the extent the documentation or materials relate to the Products.
c.Feedback: If the Reseller or any Customer provides the Company with ideas, comments or suggestions relating to the Products or the Documentation:
i.all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Company; and
ii.the Company may use or disclose the feedback for any purpose.
d.Restrictions: The Reseller must not:
i.use the Company’s Intellectual Property other than to carry out its obligations under the Agreement;
ii.alter, remove or otherwise interfere with any copyright or proprietary marking on the Products, their packaging, or the Documentation,
iii.except to the extent permitted by law, reverse-engineer, decompile, disassemble or modify the Products
a.Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Terms which, when accepted, will constitute binding obligations on the warranting party.
b.Products: The Company does not give any warranty to either the Reseller or any Customer relating to the Products, other than the warranties:
i.that the Company makes directly to Customers in a Customer Agreement or the Documentation: and
ii.for which the Company cannot exclude its liability.
c.Prohibition: The Reseller must not give any warranty or make any representation relating to the Products, including that the Products will be exclusively licensed or made available to the Customer or prospective Customer.
a.IP Indemnity: The Company indemnifies the Reseller from and against any claim or proceeding brought against the Reseller to the extent that claim or proceeding alleges that the sale of the Products or the use of the Brands by the Reseller in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity in this clause is subject to the Reseller:
i.promptly notifying the Company of the IP Claim;
ii.making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Company’s prior written consent; and
iii.giving the Company complete authority and information required for the Company to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Company’s account.
b.The indemnity in clause 8(a) does not apply to the extent that the IP Claim arises from or in connection with the conduct of the Business in breach of the Terms, including any warranty given or representation made by the Reseller to a Customer or prospective Customer in breach of clause 7(c).
c.Reseller indemnity: The Reseller indemnifies the Company from and against any claim, proceeding, damage, loss, liability, cost and expense (including legal costs on a solicitor and own client basis) suffered or incurred by the Company resulting from:
i.a breach of the Company’s Intellectual Property Rights by the Reseller, including any misuse of the Brands; and
ii.any warranty given or representation made by the Reseller to a Customer in breach of clause 7(c).
If any dispute arises between the Parties during the subsistence of these Terms or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of these Terms or regarding a question, including the question as to whether the termination of these Terms by any Party hereto has been legitimate, the Parties hereto shall endeavor to settle such dispute amicably. In case of such failure, any of the Parties to the dispute shall be entitled to refer the dispute to a sole arbitrator. In case of disagreement as to the appointment of the sole arbitrator, the sole arbitrator shall be appointed in accordance with the Arbitration Act, 1996 (UK). The Arbitration proceedings shall be governed by the Arbitration Act, 1996 (UK). The place of arbitration shall be London and the cost of arbitration shall be shared equally by the Parties. The arbitration proceedings and the arbitral award shall be in English. The arbitral award shall be final and binding on the Parties. The Parties hereto agree that they shall not be entitled to commence or maintain any action in any court of law for any dispute arising from or in relation to these Terms, except for the enforcement of the Arbitral award of for seeking interim relief. For the purposes of enforcing the arbitral award or seeking interim relief, the Courts of England and Wales shall have exclusive jurisdiction in the matter.
These Terms shall be governed in all respects by English Law.
a.Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
i.promptly notifies the other party and provides full information about the Force Majeure;
ii.uses best efforts to overcome the Force Majeure; and
iii.continues to perform its obligations to the extent practicable.
b.Rights of third parties: No person other than the Company and the Reseller has any right to a benefit under, or to enforce, these Terms
c.Waiver: To waive a right under the Terms, that waiver must be in writing and signed by the waiving party.
d.Severability: If any provision of the Terms is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of these Terms
e. No assignment: The Reseller may not assign, novate, subcontract or transfer any right or obligation under the Terms, without the prior written consent of the Company. The Reseller remains liable for the performance of its obligations under the Terms despite any approved assignment, subcontracting, or transfer. Any assignment, novation, subcontracting or transfer must be in writing. Any change of control of the Reseller is deemed to be an assignment for which the Company’s prior written consent is required. In this clause, change of control means any transfer of shares or other arrangement affecting the Reseller or any member of its group which results in a change in the effective control of the Reseller.