ESET Policy Hub

INTERPRETATION

1. Definitions:

   Affiliate: means, with respect to any person, any person directly or indirectly controlling, controlled by, or under common control with, such person at any time during the period for which the determination of affiliation is being made. For the purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly, or the power to direct or cause the direction of management policies of such person, whether through the ownership of voting securities or by contract or otherwise.

   BACS: means the bankers automated clearing service scheme for the electronic processing of financial transactions

   Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business

   Commencement Date: has the meaning given in clause 17 (Term)

   Confidential Information:means all information (whether in oral, written or electronic form) belonging or relating to a party and their respective business affairs or activities, which is not in the public domain and which is made available to the other party (or any of its employees, agents or associated persons) under or in connection with this agreement

   Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly

   Data Protection Legislation: the UK Data Protection Legislation and any 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

   End User Customer: means the customer of the Reseller who is an End User

   End User: the end user of the ESET Products

   Exit day: has the meaning set out in the European Union (Withdrawal) Act 2018

   ESET Products: the ESET SK’s software products of the type and specification distributed and sold under the Trade Marks and listed in Schedule 1 and any other software products developed by ESET SK and which ESET may permit the Reseller, by express notice in writing, to distribute in the Territory

   ESET SK: ESET, spol. s r. o., having its registered office at Einsteinova 24, 851 01 Bratislava, Slovak Republic

   EULA the relevant end user licence agreement applicable to the relevant ESET Product as set out at the following web page: help.eset.com/eula/ being the licence agreement to be entered into between the End User and ESET SK to regulate the End User’s use of ESET Products

   Force Majeure Event: means any circumstance not within a party's reasonable control including: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); inclement weather; and interruption or failure of utility service

   Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related 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, 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

   Mandatory Policies: ESET's mandatory policies and procedures as amended by notification to the Reseller from time to time, including its Anti-bribery and Corruption Policy, Modern Slavery and Human Trafficking Policy and Data and Privacy Policy, current copies of which can be found on the Website

   Parties: means together ESET and the Reseller and each shall be referred to as a ‘party’

   Partner Portal: the ESET online partner portal at https://portal.eset.co.uk/

   Product Card: a redeemable ESET card bearing a licence key for an End User to use in order to access the relevant ESET Product

   Product Documents: any documents concerning ESET Products, the Software and the EULA, including marketing documents whether by email, over the internet or in hard copy format

   Reseller Discount: the discount (if any) on ESET Product list prices to be applied to sales of ESET Products to the Reseller, as set out in the Partner Portal

   Reseller’s Order: the Reseller’s order (including any purchase order) for ESET Products placed with ESET from time to time during the Term

   Reseller Price: means the price to be paid by the Reseller for ESET Products, being ESET's list prices referred to in clause 9 (as notified to the Reseller by ESET from time to time) less the agreed Reseller Discount (if any)

   Reserved Territories: means (i) all countries of the world other than the Territory, being countries in respect of which ESET SK has either appointed an exclusive reseller and/or which ESET has reserved to itself; and (ii) any other countries or areas in respect of which ESET SK and / or ESET informs the Reseller by written notice that it has appointed or will appoint an exclusive reseller or has reserved to itself

   Shared Personal Data: the personal data to be shared between the parties and the employees of each party, any third parties engaged to perform obligations and any Affiliates of either party in connection with this agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject: names, addresses, location identifiers, email addresses

   Software: means the computer program or suite of computer programs, howsoever recorded comprised in or supplied for use with the ESET Products

   Term: as defined in clause 17 (Term)

   Territory: the United Kingdom, the Channel Islands and Gibraltar

   Trade Marks: the trade mark registrations listed in Schedule 2

   VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere

   Website: https://www.eset.com/uk/

2. Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
3. The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
6. This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
8. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
9. Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended or re-enacted on or after exit day.
10. A reference to writing or written includes email.
11. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
12. Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
13. References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
14. 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.

CONSIDERATION

In consideration of the mutual agreements and undertakings contained in this agreement the parties have granted the rights and accepted the obligations expressed in this agreement.

APPOINTMENT

1. Subject to the provisions of this agreement, ESET appoints the Reseller as its non-exclusive reseller with the right to market, purchase, and resell ESET Products to End User Customers in the Territory only, and the Reseller accepts the appointment on those terms.
2. ESET shall be free to and nothing in this agreement shall prevent ESET from:
   1. appointing any other distributor, reseller or agent for ESET Products within the Territory; and
   2. supplying ESET Products directly (or indirectly through an agent, reseller or distributor) to any customers in the Territory whether for use or resale.
3. The Reseller shall, subject to the terms of this agreement, purchase ESET Products for its own account for resale only to End User Customers.
4. The Reseller shall refrain from making active sales of ESET Products to customers in the Reserved Territories. For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including, but not limited to, the following actions:
   1. visits;
   2. direct mail, including the sending of unsolicited emails;
   3. advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at customers in Reserved Territories;
   4. online advertisements addressed to customers in Reserved Territories and other efforts to be found specifically by users in Reserved Territories, including use of territory-based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users in Reserved Territories; and
   5. advertising or promotion in any form, or translation of the Reseller's website into a language other than an official language of any country forming part of the Territory, that the Reseller would not reasonably carry out but for the likelihood that it will reach customers in Reserved Territories.
5. The Reseller shall not:
   1. represent itself as the exclusive reseller of the ESET Products;
   2. represent itself as an agent of ESET for any purpose;
   3. pledge ESET's credit;
   4. give any condition or warranty on ESET's behalf;
   5. make any representation on ESET's behalf;
   6. commit ESET to any contracts; or
   7. otherwise incur any liability for or on behalf of ESET.
6. The Reseller shall not, without ESET's prior written consent, make any promises or guarantees about the ESET Products beyond those contained in the Product Documents supplied by ESET.

RESELLER'S UNDERTAKINGS

1. The Reseller undertakes and agrees with ESET that at all times during the Term it will:
   1. use reasonable endeavours to actively promote and sell the ESET Products to End User Customers in the Territory and to expand the sale of ESET Products by all reasonable and proper means and not to do anything which may hinder or interfere with such sales;
   2. employ a sufficient number of suitably qualified and trained personnel to ensure proper fulfilment of the Reseller's obligations under this agreement, including the Reseller Helpdesk Support services under clause 8;
   3. when placing orders with ESET for ESET Products, place all required order data completely and accurately with ESET;
   4. in compliance with clause 14, complete and submit to ESET the Shared Personal Data so that ESET may contact the End User for the purpose of:
      1. providing the End User with ESET software updates;
      2. the provision of after sales support services; and
      3. notifying the End User of the imminent expiry of their ESET product licence;
   5. request the End User for consent to receive marketing material relating to other ESET products in such form required from time to time by ESET;
   6. refrain from amending or varying the terms of the EULA;
   7. provide such reports to ESET as ESET may reasonably request in a form as ESET may reasonably direct, showing details of all sales and any other information relating to the performance of the Reseller’s obligations under this agreement that ESET may reasonably and lawfully require from time to time;
   8. establish, implement, operate and maintain a sales system with the following properties:
      1. efficient handling of orders from the End User Customers;
      2. management of its End User Customer database;
      3. CRM functionality; and
      4. the provision of sales reports to ESET as required under clause 4.1.7;
   9. within 14 days of a written request from ESET, provide any information reasonably requested by ESET about the Reseller's processes and controls to support compliance with this agreement;
   10. keep full and accurate books of accounts and records clearly showing all enquiries, quotations, transactions and proceedings relating to the ESET Products and allow ESET, on reasonable notice during normal business hours, to inspect such accounts and records;
   11. inform ESET immediately of any changes in ownership or Control of the Reseller, and of any change in its organisation or method of doing business that might affect the performance of the Reseller's duties in this agreement;
   12. bear all costs connected with the activity of its enterprise, including the salaries of its employees, remuneration of third party services and expenses; and
   13. pay or ensure payment on the due date to ESET of all sums due to ESET for sales of the ESET Products.

SUPPLY OF ESET PRODUCTS

1. A Reseller’s Order submitted by the Reseller shall be subject to ESET’s acceptance in accordance with this clause 5.
2. Any list prices, quotations and descriptions made or referred to on the Website, the Partner Portal or in any written proposal made by ESET is subject to availability, does not constitute an offer which is capable of acceptance by the Reseller and may be withdrawn or revised at any time prior to ESET’s express acceptance of the Reseller’s Order.
3. While ESET makes every effort to ensure that items appearing on the Website and/or the Partner Portal are available, ESET cannot guarantee that all items will be immediately available when a Reseller’s Order is submitted.
4. If ESET discovers an error in the list price of the ESET Products ordered then ESET will inform the Reseller as soon as possible and give the Reseller the option of reconfirming the Reseller’s Order at the correct list price, or cancelling it. If the Reseller cancels the Reseller’s Order pursuant to this clause 5.4, but has already paid for relevant ESET Products, then ESET will refund the Reseller for those ESET Products.
5. ESET may reject a Reseller’s Order, without incurring any liability and for any reason whatsoever. Should ESET be unable to process or fulfil a Reseller’s Order, and the Reseller has already paid for the relevant ESET Products, then ESET will refund any prior payment the Reseller has made for those ESET Products.
6. The Reseller’s Order constitutes an offer by the Reseller for ESET to supply the ESET Products on the terms of this agreement and that offer shall be subject to ESET’s subsequent acceptance.
7. The Reseller is responsible for submitting the Reseller’s Order (which shall include confirmation of the Reseller Price and a description of the ESET Products to be supplied) via the Partner Portal. For the avoidance of doubt ESET is under no obligation to provide the Reseller with assistance in placing Reseller Orders on the Partner Portal.
8. The Reseller warrants that all information provided by the Reseller when placing the Reseller’s Order, including all payment details set out in any purchase order, are correct, up-to-date, accurate and sufficient for ESET to fulfil the Reseller’s Order following ESET’s acceptance of the Reseller’s Order in accordance with clause 5.6.
9. Prior to ESET’s acceptance of the Reseller’s Order, an automatic e-mail acknowledgement of the Reseller’s Order may be generated by ESET (“Order Acknowledgement”). An Order Acknowledgement does not constitute ESET’s formal acceptance of the Reseller’s Order, it merely confirms that ESET has received the Reseller’s Order.
10. ESET’s acceptance of the Reseller’s Order (“Acceptance”) shall take effect and ESET’s contract with the Reseller to supply the ESET Products will come into being at the point when ESET communicates to the Reseller its express acceptance of the Reseller’s Order. ESET will communicate its express acceptance by sending the Reseller an e-mail, including details of the licence key with Software installation instructions, or by sending the e-mail and the relevant Product Cards to the Reseller.
11. Each time that there is an Acceptance, a separate contract (“Contract”) shall come into being as between ESET and the Reseller for the supply of the ESET Products referred to in that Acceptance. ESET’s Contract to supply the ESET Products to the Reseller will be subject only to the provisions of this agreement and the EULA, to the exclusion of all other terms and conditions (including any terms or conditions which the Reseller purports to apply under the Reseller’s Order, any purchase order, confirmation of order, specification or other document, whether communicated to ESET before or after the date on which the Reseller submits the Reseller’s Order to ESET).
12. ESET shall use its reasonable endeavours to meet all orders for ESET Products forwarded to it by the Reseller as soon as practicable, but ESET may, at its discretion, refuse any order that it reasonably considers it would be impracticable to meet. The Reseller acknowledges that ESET may supply other distributors, resellers or customers in priority to the Reseller.
13. Subject to clauses 5.1 to 5.12, ESET shall deliver the ESET Products to the Reseller as follows:
    1. the ESET Products (including updates or new releases as they become generally available) shall be delivered directly to the End User in a form for download from ESET’s reserved servers and activated through the license key printed on the Product Card or the license key supplied electronically by ESET.
    2. the ESET Products are sold on a time-limited, subscription-based license basis; and
    3. unless otherwise agreed in writing, the Reseller shall not be entitled to place copies of the ESET Products on its own servers and provide the same to End Users for download.
14. Any dates quoted by ESET for delivery are estimates only and shall not be the essence of this agreement and ESET shall not be liable to the Reseller in respect of delays or failure to deliver the ESET Products within the estimated timescales.
15. Delivery of the information referred to in clause 5.13.3 shall be to a valid e-mail address submitted to ESET by the Reseller and/or the End User Customer. The Reseller is responsible for checking the accuracy of the End User Customer’s email address details and shall notify ESET without delay of any errors or omissions in such information.
16. The Reseller specifically acknowledges that online delivery of ESET Products is automated and reliant on technology. No warranty is given as to the reliability of or the speed of the technology required to effect the delivery and ESET shall be under no liability for any loss, injury, damage or expense consequent upon any delay in adhering to any delivery date from whatever cause. Delay shall not entitle the Reseller to cancel any Contract or to refuse to accept delivery of ESET Products.
17. On giving one months' notice in writing to the Reseller, ESET may vary Schedule 1 as it thinks fit to exclude one or more of the ESET Products.
18. ESET may at any time during the Term make changes to the ESET Products, provided the changes do not adversely affect the quality of the ESET Products.
19. Risk in the ESET Products shall pass to the Reseller on delivery.
20. Until payment of the Reseller Price has been received in full in cleared funds by ESET:
    1. title in the ESET Products shall remain vested in ESET (and any transfer of title upon payment of the Reseller Price shall be subject to clause 12.3);
    2. if ESET Products being supplied by ESET to the Reseller are supplied by way of Product Cards, ESET shall be entitled to enter upon the Reseller’s premises and repossess the Product Cards at any time; and
    3. ESET UK may maintain an action against the Reseller for such total price notwithstanding that title to the ESET Product has not passed or that the Contract has terminated.

ESET'S UNDERTAKINGS

ESET agrees that at all times during the Term it shall provide the Reseller with such information and support as ESET, in its sole discretion, considers appropriate to enable the Reseller to discharge its duties under this agreement properly and efficiently and shall endeavour to respond as soon as practicable to reasonable enquiries from the Reseller concerning ESET Products.

RESELLER’S DEALINGS WITH END USER CUSTOMERS

1. The ESET Products shall be licensed by ESET SK directly to End Users in the Territory under the EULA.
2. The Reseller shall ensure that it enters into a written contract with the End User Customer to regulate the supply of ESET Products to that End User Customer on terms, which provide at least the same level of protection to ESET as set out in this agreement. In particular, the Reseller shall ensure that:
   1. the following provisions are included in such agreement with the End User Customer and they apply to the End User Customer:
      1. Clause 7.3 of this agreement;
      2. Clauses 12.1, 12.3, 12.4, 12.9 and 12.17 (Intellectual Property Rights) of this agreement;
      3. that the End User Customer must ensure that all his devices have access to the internet to receive ESET’s software updates;
      4. that the End User Customer must immediately cease to use and remove the Software from his device(s) if the EULA ends for any reason;
      5. a statement that ESET and ESET SK may provide periodical updates to the Software and thus need certain information from the End User Customer to facilitate the supply of the Software, software updates and/or the provision of help-desk services, for example, a valid email address and the full name of the person(s) who will enter into the EULA and use the Software; and
      6. a statement confirming that, following the end of the EULA no further Software updates will be sent by ESET and as a consequence, the End User Customer’s device(s) may no longer be protected against viruses or malware.
3. The Reseller shall procure (and procure that the End User Customers procure) that all End Users are aware of and accept the terms and conditions of the EULA prior to the End User commencing use of the ESET Products.
4. The Reseller's appointment as a reseller under this agreement only grants to the Reseller a licence to promote and sell the ESET Products to End User Customers, and does not transfer any right, title or interest to any such ESET Products to the Reseller or its End User Customers. Use of the terms "sell", "licence", "purchase", "licence fees" and "price" will be interpreted in accordance with this clause 7.4.
5. The Reseller shall not assert or attempt to assert any authority (either in its own name or on behalf of ESET or ESET SK) to:
   1. modify or execute any EULA (whether in original or modified form); or
   2. make statements, representations or warranties concerning ESET Products or any associated services that exceed or are inconsistent with the Product Documents or the provisions of the EULA.
6. The Reseller shall not supply the ESET Products, the Software or the Product Documents to any person without first obtaining a EULA number from ESET for that person.
7. Supply of the Software to the Reseller when not an End User shall not confer on the Reseller any right, licence or interest in (including the right to use) the Software. The Reseller shall be entitled to acquire an “In-house Licence” from ESET and the Reseller shall then be treated as an End User and be required to enter into a EULA.

TECHNICAL SUPPORT

1. The Reseller shall during the Term provide after-sale first level technical helpdesk support services, where reasonably possible, to cover the ESET Products it supplies to the End User Customers (“Reseller Helpdesk Support”). Should the Reseller be unable to provide the Reseller Helpdesk Support, it shall inform ESET in advance as soon as reasonably practicable.
2. The Reseller shall provide the Reseller Helpdesk Support, covering ESET Products, to the End User Customers in an efficient and effective manner.
3. The Reseller shall procure that the Reseller Helpdesk Support is available during the Reseller’s normal business hours on Business Days to the End User Customers and that it covers the following scope:
4. a direct response in the form of email, chat and/or telephone support to End User Customers with respect to inquiries concerning the performance, functionality and/or operation of the ESET Products;
   1. 8.4.1. an initial diagnosis of problems or performance deficiencies pertaining to the ESET Products; and
   2. 8.4.2. an initial attempt to resolve any such problems or performance deficiencies pertaining to the ESET Products and malware related issues by supplying to the End User Customer the appropriate documented (known) solution(s).
5. If the Reseller is unable to resolve a problem or any performance deficiencies referred to in clause 8.3 above, then ESET shall, subject to the remaining provisions of this clause 8, offer second level support, including a help-desk service (at no charge) to assist the Reseller with any problems that the Reseller may have in relation to installing the Software, together with a technical support helpdesk service during the Term (“Helpdesk Service”). The Helpdesk Service shall be supplied during normal business hours (between 8.30am to 5:30pm BST from Monday to Friday excluding bank holidays) and shall cover only email and telephone support, which will assist in addressing ESET and malware related issues by supplying the Reseller with the appropriate documented (known) solution(s).
6. In providing the Helpdesk Service, ESET shall use its reasonable endeavours to assist the Reseller and, subject to applicable law, the Helpdesk Service shall be provided without any warranty, guarantee or representation of any kind whatsoever either to the Reseller or to the End User Customer.
7. The Reseller shall provide co-operation and support to ESET in ESET’s efforts to provide the Helpdesk Service, which shall include:
   1. Responses to ESET’s reasonable requirements, queries and communications in a timely and accurate manner; and
   2. Timely and accurate transmittal and release to ESET UK of relevant and accurate documentation and information requested by the Helpdesk Service.
8. The Reseller remains fully responsible for ensuring all backups are carried out and completed by both the Reseller and the End User Customers in relation to their data, software and programs before making use of the Helpdesk Service.
9. ESET is not obligated to provide the Helpdesk Service and reserves its rights to withdraw, suspend or to terminate the Helpdesk Service at any time without being required to serve notice on either the Reseller or the End User Customers.
10. Further, ESET is not obliged to provide the Helpdesk Service to the Reseller for:
    1. any problems resulting from any modification or customisation of the ESET Products, including manual changes of ESET Software databases not made by or authorised in writing by ESET; and/or
    2. incorrect or unauthorised use of the ESET Products or operator errors.
11. ESET does not guarantee any response times regarding enquiries made of the Helpdesk Service.
12. By using the Helpdesk Service, the Reseller agrees that, to the extent permitted by applicable law, ESET shall have no liability to the Reseller, End User Customer or any third party whatsoever for any loss or liability suffered either directly or indirectly, by the Reseller, End User Customer or any third party as a result of their use of the Helpdesk Service.
13. Further to clauses 8.9 and 8.10, should the EULA terminate for any reason, ESET shall have no obligation to provide the Helpdesk Service to the Reseller. ESET may suggest a renewal of such EULA and may provide assistance in relation to such a renewal, however ESET shall have no liability to the Reseller for any loss suffered during any period during which the EULA has terminated.
14. Should the Reseller require technical support services beyond those set out in this clause 8, then any such additional service may be supplied subject to the Reseller entering into a separate contract with ESET for the provision of its premium technical support services.

PRICES AND PAYMENT

1. The prices to be paid by the Reseller to ESET for the ESET Products (to include the EULA) shall be the Reseller Price.
2. The Reseller Price is exclusive of VAT and any other applicable taxes, which shall be paid by the Reseller.
3. In the case of those ESET Products delivered in Product Card format, the Reseller Price excludes the cost of carriage, packing and insurance (plus VAT thereon) which shall be charged in addition.
4. ESET’s list prices are applicable to up to 99 seats as at the Commencement Date and the Reseller’s Discount applicable to those list prices are set out in the Partner Portal. ESET’s list prices for the sale of ESET Products in excess of 99 seats shall be subject to ESET’s quotation and the Reseller shall be required to request ESET’s quotation prior to placing the Reseller’s Order with ESET.
5. ESET shall give the Reseller 14 days' notice in writing of increases in the list prices for ESET Products, and the revised and updated list prices shall be made available on the Partner Portal. Any list price increase pursuant to such notice shall not affect any Reseller’s Orders for which there has been an Acceptance.
6. Any and all expenses, costs and charges incurred by the Reseller in the performance of its obligations under this agreement shall be paid by the Reseller, unless expressly agreed otherwise in advance by ESET.
7. Where the Reseller has a credit account with ESET all invoices shall be paid in full by the Reseller within 30 days of the invoice date. Payments may be made by debit or credit card, BACS or cheque. Where the Reseller does not have a credit account with ESET all invoices shall be payable on a pro-forma basis by debit or credit card only.
8. The Reseller is solely responsible for the collection, remittance and payments of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, sale, importation, lease or other distribution of the ESET Products.
9. If at any time the Reseller fails to pay any amount due to ESET on the relevant due date or if the Reseller’s credit standing is at any time in the opinion of ESET impaired for any reason then, without limiting ESET’s other remedies under this agreement, ESET may by notice:
   1. demand immediate payment of all invoiced amounts unpaid at that date and those amounts shall then immediately fall due for payment by the Reseller;
   2. withhold all deliveries of ESET Products or EULA’s under any other Contract;
   3. supply the Products and the EULA’s on such terms as to payment as ESET may require;
   4. suspend the Reseller from ordering ESET Products and further EULA’s; and/or
   5. cancel any unpaid EULA’s and remove the Reseller and the relevant End User from ESET Products update servers.
10. Interest on any overdue sum owed by the Reseller will be charged in accordance with clause 40 from the due date until payment of the overdue sum, whether before or after judgment. Such interest will accrue on a daily basis.
11. No counterclaim, set-off, abatement, withholding or other similar deduction may be deducted from any payment due without ESET’s prior written consent.
12. Any extension of credit allowed by ESET to the Reseller may be changed or withdrawn at any time on notice being served on the Reseller by ESET.
13. The Reseller shall hold ESET fully indemnified and shall pay to ESET on demand all and any costs (including reasonable out-of-pocket expenses, legal and other professional costs on a full indemnity basis), charges or losses sustained or incurred by ESET (including any direct, indirect or consequential losses, loss of profit and loss of reputation and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Reseller’s failure to pay to ESET any overdue sum due under this agreement.
14. ESET reserves the right to invoice the Reseller by e-mail. E-mailed invoices shall be in PDF format and dated the last Business Day of the month in which ESET Products and the EULA were delivered to the Reseller.

VAT AND TAXES

1. All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any VAT chargeable on the supplies (at the then applicable rate) for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes.
2. Where, under this agreement, any party makes a supply to any other party (“Recipient”) for VAT purposes and VAT is or becomes chargeable on that supply for which the supplying party is required to account to the relevant tax authority, the Recipient shall, subject to the receipt of a valid VAT invoice, pay the supplying party (in addition to, and at the same time as, any other consideration for that supply) the amount of such VAT.
3. The Reseller shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the sale, lease, licence or other distribution of ESET Products and the EULA by the Reseller.
4. Where any party is required by this agreement to reimburse or indemnify any other party for any cost or expense, that first party shall reimburse or indemnify the other party for the full amount of the cost or expense, including any VAT on that amount, except to the extent that the other party is entitled to credit or repayment for that VAT from any relevant tax authority.
5. All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase or import of ESET Products shall be the responsibility of, and for the account of, the Reseller.

ADVERTISING AND PROMOTION

1. The Reseller shall:
   1. not use any advertising materials or promotional literature to promote ESET Products without ESET's consent;
   2. display advertising materials and other signs provided by ESET;
   3. observe all directions and instructions given to it by ESET for promotion and advertisement of ESET Products; and
   4. not make any written statement as to the quality of ESET Products without the prior written approval of ESET.
2. ESET shall:
   1. approve or reject, in its sole discretion, any promotional information or material or any advertising and promotional programme submitted by the Reseller within 28 days of receipt; and
   2. provide the Reseller with information on the advertising and promotion used by ESET and at the cost of the Reseller (unless ESET agrees otherwise) supply such quantities of promotional and advertising material as the Reseller shall reasonably request from time to time.

INTELLECTUAL PROPERTY RIGHTS

1. All Intellectual Property Rights in and to the ESET Products, the Software and the Product Documents belong, and shall belong, to ESET, ESET SK and/or its licensors.
2. The Reseller shall, at the expense of ESET, take all such steps as ESET may reasonably require to assist ESET and/or its licensors in maintaining the validity and enforceability of the Intellectual Property Rights of ESET and /or its licensor during the Term.
3. Neither this Agreement nor any EULA or other licence granted under this Agreement shall be construed to convey or transfer any ownership or proprietary interest in the Intellectual Property Rights in the ESET Products, the Software and the Product Documents to the Reseller, the End User or any third party.
4. Other than the licence expressly granted under this agreement, ESET grants no licence of, right in nor does it make any assignment of any of its or its licensor’s Intellectual Property Rights. In particular, except as expressly provided in this agreement, neither the Reseller nor the End User Customer shall have any rights in respect of any trade names or trade marks used by ESET and / or ESET SK in relation to ESET Products or their associated goodwill, and the Reseller hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in ESET and/or ESET SK.
5. ESET grants to the Reseller a non-exclusive, non-transferrable, revocable, personal licence (subject to the terms and conditions of this agreement and during its term and solely for the purpose of performing the Reseller’s obligations under this agreement) to:
   1. use and copy the documentation supplied by ESET in connection with ESET Products (whether in electronic, hard copy or otherwise) for the purposes of complying with its obligations under this agreement; and
   2. use the Trade Marks on or in relation to ESET Products for the sole purpose of the promotion, advertisement and sale of ESET Products and services related thereto to End User Customers only.
6. The Reseller shall market and sell ESET Products only under the Trade Marks, and not in association with any other trade mark, brand or trade name.
7. The Reseller shall comply with all rules for the use of the Trade Marks issued by ESET (including those set out in any trade marks manual issued by ESET) and shall not, without the prior written consent of ESET:
   1. alter or make any addition to the labelling or notifications of ESET Products displaying or which are relevant to the Trade Marks;
   2. make any addition or modifications to ESET Products or to any advertising and promotional materials supplied by ESET; or
   3. alter, deface or remove any reference to the Trade Marks, any reference to ESET or any other name attached or affixed to ESET Products or their packaging or labelling.
8. The Reseller shall be obliged to use the Trade Marks solely in compliance with legal regulations, good practices and by non-impeaching means. The Reseller shall be obliged to identify ESET SK as the sole owner of the Trade Marks and to protect the ownership of the Trade Marks.
9. Neither the Reseller nor the End User Customer shall sub-license, assign, transfer, charge, or otherwise encumber the right to use, reference, or designate the Trade Marks to any other party, except as otherwise expressly permitted under this agreement.
10. The Reseller shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity or reputation.
11. The Reseller shall not, at any time during or after termination of this agreement, in connection with any business similar to that of ESET, adopt, use, obtain, register or try to register without the prior written consent of ESET a word or symbol or a combination of the two similar to the Trade Marks.
12. The Reseller shall immediately on request enter into any further agreements with ESET, in a form satisfactory to ESET, necessary for the recording, registration or safeguarding of ESET's Trade Mark rights or the marketing of ESET Products under the Trade Marks.
13. The Reseller shall not:
    1. use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of ESET and/or its licensors therein;
    2. use in relation to ESET Products any trade marks other than the Trade Marks without obtaining the prior written consent of ESET;
    3. without ESET’s prior written consent register any internet domain names containing the Trade Marks or a mark which is confusingly similar to the Trade Marks and any such domain registered without ESET’s written consent shall be assigned or transferred to ESET (or its nominee) on ESET’s written notice and all costs in relation to such transfer shall be borne by the Reseller.
14. The Reseller shall use its best endeavours to protect all Intellectual Property Rights in or relating to ESET Products, the Software and the Product Documents and shall promptly give notice to ESET in writing if it becomes aware of:
    1. any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights relating to ESET Products, the Software and / or the Product Documents within the Territory; or
    2. any claim that any ESET Product or the manufacture, use, sale or other disposal of any ESET Product within the Territory, whether or not under the Trade Marks, infringes the rights of any third party.
15. In respect of any matter that falls within clause 12.14.1:
    1. ESET shall in its absolute discretion, decide what action to take in respect of the matter (if any);
    2. ESET shall conduct and have sole control over any consequent action it deems necessary and the Reseller shall on being so requested by ESET and at ESET's cost assist in taking all steps to defend the rights of ESET including the institution at ESET's cost of any actions which it deems necessary to commence for the protection of any of its rights; and
    3. ESET shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.
16. The Reseller shall not use the Trade Marks as part of the name under which the Reseller conducts its business, or any connected business, or under which it sells or services any ESET Products (except the ESET Products), or in any other way, except as expressly permitted under this agreement.
17. The Reseller undertakes and shall procure that the End User Customer undertakes that it shall not:
    1. combine the ESET Products with any other computer program without ESET’s prior written consent;
    2. copy the ESET Products or any part of any of them except to the extent and for the purposes expressly permitted by this agreement;
    3. modify, adapt, develop, reverse engineer, decompile, disassemble, make error corrections to the ESET Products in whole or in part or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the ESET Products (including its object code and installation files) except and only to the extent that it is expressly permitted by applicable law; or
    4. make or cause to be made any copy, reproduction, translation, adaptation, variation, version or modification of the ESET Products, the Software and the Product Documents without prior written consent of ESET. To the extent that such consent is obtained in writing, the Reseller hereby irrevocably assigns to ESET SK all ownership rights and irrevocably waives all other rights it may have in any modifications, enhancements, updates, error corrections, translations or other changes to the ESET Products or accompanying documentation.
18. Upon termination of this agreement for any reason, the Reseller shall immediately stop using all or any part of the Trade Marks.

COMPLIANCE WITH LAWS AND POLICIES

1. The Reseller shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
2. The Reseller shall comply with the Mandatory Policies as ESET may update them from time to time.

DATA PROTECTION

Each party acknowledges that each party will regularly disclose to the other party Shared Personal Data. Each party shall fully comply with all of its obligations under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall constitute a material breach for the purposes of clause 17.2.1.b

WARRANTY

1. The ESET Products are supplied by ESET 'as is' and all warranties, representations, conditions and other terms implied by statute or common law in respect of the sale of the ESET Products (including but not limited to those relating to quality, fitness for purpose, performance or correspondence with description) are, to the fullest extent permitted by law, excluded from this agreement.
2. ESET does not offer a warranty that use of the ESET Products will be uninterrupted or error free.
3. ESET does not offer any warranties, representations or guarantees in relation to the Software installation, configuration, error/defect correction or any help-desk services supplied by ESET.
4. ESET shall have no responsibility for the selection of the Software to achieve the End User Customer’s intended results or for the installation, use and results obtained from the Software.
5. This clause 15 and clause 16 shall apply to any repaired or replacement Software supplied by ESET.
6. ESET does not warrant that the functions of the ESET Products will meet any particular requirements or that its operation will be entirely error-free or that all program defects are capable of correction or improvement. All other warranties including any implied warranties of merchantability, satisfactory quality or fitness for purpose or ability to achieve a particular result are hereby excluded to the fullest extent permissible in law.

LIMITATION OF LIABILITY

1. The restrictions on liability in this clause 16 apply to every liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
   1. death or personal injury caused by negligence;
   2. fraud or fraudulent misrepresentation; and
   3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
   4. The total liability that ESET shall owe to the Reseller for all other loss or damage arising under or in connection with this agreement shall not exceed 100% of the aggregate of the annual fees paid by the Reseller to ESET in the immediately preceding 12 months.
   5. Subject to clause 16.2, loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and indirect or consequential loss are wholly excluded by the parties.
   6. Terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
   7. Unless the Reseller notifies ESET that it intends to make a claim in respect of an event within the notice period, ESET shall have no liability for that event. The notice period for an event shall start on the day on which the Reseller ought reasonably to have become aware of the event having occurred and shall expire 9 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
   8. For the avoidance of doubt:
   9. any refunds shall be at ESET’s sole discretion; and
   10. without limiting the generality of clause 16.7.1, no refunds shall be made by ESET where a request for a refund is made 90 days after delivery of the ESET Product.
   11. ESET shall have no liability to the Reseller if the End User Customer delays in paying or fails to pay the Reseller for the ESET Products and the Reseller shall, to the exclusion of ESET, bear all risk in its contract with the End User Customer which regulates the supply of ESET Products to the End User Customer.

TERM

1. This agreement shall commence on the date when it has been executed by the Reseller in accordance with clause 24 (the “Commencement Date”) and shall continue, unless terminated in accordance with clause 18 (Termination) or clause 22 (Force Majeure) indefinitely until terminated by either party giving at least one month's prior written notice.
2. Termination
   1. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
      2. the other party commits a material breach of this agreement (other than failure to pay any amounts due under this agreement) which breach is irremediable or (if that breach is remediable) fails to remedy that breach within 14 days after being notified in writing to do so;
      3. the other party repeatedly breaches any of the terms of this agreement 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 the terms of this agreement;
      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 (being a company or limited liability partnership) 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;
      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 any of its creditors;
      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 the other party (being a company, limited liability partnership or partnership);
      7. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
      8. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
      9. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
      10. the other party (being an individual) is the subject of a bankruptcy petition, application or order;
      11. 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. 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 17.2.1.4 to clause 17.2.1.11 (inclusive);
      13. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
      14. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation;
      15. there is a change of Control of the other party;
      16. the other party purports to assign its rights or obligations under this agreement (except in accordance with clause 27 (Assignment and other dealings);
      17. the other party breaches the provisions of clause 13 (Compliance with Laws and Policies) or clause 22.1 (Export Control); or
      18. ESET’s licence to sell the ESET Products is terminated by ESET SK.

CONSEQUENCES OF TERMINATION

1. On termination of this agreement, Clause 1 (Interpretation), Clause 12 (Intellectual Property Rights), Clause 14 (Data protection); Clause 19 (Confidentiality); Clause 25 (Entire agreement); Clause 28 (Waiver); Clause 29 (Severance); Clause 30 (Notices); Clause 31 (Third party rights); Clause 35 (Announcements); Clause 36 (Conflict); Clause 37 (Rights and remedies); Clause 39 (Set-off); Clause 40 (Interest); Clause 41 (Governing law); and Clause 42 (Jurisdiction) shall continue in force.
2. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
3. On termination of this agreement the Reseller shall:
   1. immediately pay to ESET all of ESET's outstanding unpaid invoices and interest; and
   2. return to ESET or destroy (as ESET directs) all Confidential Information and certify to ESET that to the best of its knowledge all such information has been returned or destroyed (as appropriate); and
   3. return to ESET UK or destroy (as ESET directs) the ESET Products, the Software, the Product Documents and all copies (in whole or part) in its possession or under its control and certify to ESET that to the best of its knowledge all such copies have been returned or destroyed (as appropriate).
4. The termination of this agreement shall not of itself make ESET liable to pay any compensation to the Reseller, including compensation for loss of profits or goodwill.
5. All other rights and licences of the Reseller under this agreement shall terminate on the date of termination of this agreement.
6. ESET may cancel any orders for ESET Products placed by the Reseller before termination of this agreement if delivery would fall due after termination, whether or not they have been accepted by ESET. ESET shall have no liability to the Reseller in respect of such cancelled orders.

CONFIDENTIALITY

1. Each party undertakes that it shall not at any time during this agreement, and for a period of 5 years after termination of this agreement, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 19.2.
2. Each party may disclose the other party's Confidential Information:
   1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 19; and
   2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
4. The Reseller shall keep and shall procure that its directors, employees and agents shall keep confidential and shall not unless authorised by this agreement copy or part with possession of or otherwise disclose in any manner to any other person any of the ESET Products, the Software or Product Documents supplied by ESET.

NON-SOLICTATION OF ESET EMPLOYEES

The Reseller undertakes that, for the duration of the Term and for a period of 2 years following the termination of this agreement, it shall neither directly nor indirectly offer to employ nor engage nor otherwise endeavour to entice away from ESET anyone employed or engaged by ESET nor induce nor solicit any ESET employees to terminate their employment with ESET.

FORCE MAJEURE

1. Provided it has complied with clause 21.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
2. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
3. The Affected Party shall:
   1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
   2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
4. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 12 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 14 days’ written notice to the Affected Party.

EXPORT CONTROL MEASURES

1. The parties acknowledge that the ESET Products that are distributed under this agreement may be subject to export and import control measures specified in legal regulations enacted by the governments of individual countries and territories, including without limitation the USA’s Export Administration Act of 1979 as amended, the Export Administration Regulations published by the US Department of Commerce, International Trade Administration and Office of Export Administration. Such measures of the respective governments may restrict the delivery of the ESET Products to certain countries or to certain organisations or individuals (“Export Control Measures”).
2. The Reseller acknowledges and agrees that it shall not, directly or indirectly, deliver, distribute, export, re-export or transfer the ESET Products to countries, organisations or individuals in violation of the Export Control Measures or in violation or circumvention of such measures in any other manner.
3. The Reseller undertakes to implement appropriate measures to prevent a violation of the Export Control Measures. Should the Reseller wilfully or knowingly violate the Export Control Measures, ESET shall have the right to terminate this agreement immediately.
4. The Reseller shall hold ESET and ESET SK fully indemnified and shall pay to ESET and ESET SK on demand all and any costs (including reasonable out-of-pocket expenses, legal and other professional costs on a full indemnity basis), charges or losses sustained or incurred by ESET and ESET SK (including any direct, indirect or consequential losses, loss of profit and loss of reputation and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from any breach by the Reseller of this clause 22.4. ESET SK shall have the right to enforce this clause 22.4.

FREEDOM TO CONTRACT

The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this agreement.

EXECUTION OF THIS AGREEMENT

1. This agreement shall be deemed to have been executed by the parties when:
   1. the Reseller confirms its acceptance online by clicking the “I Accept” button on the relevant product order page on the Website; or
   2. the Reseller executes the agreement by using such other electronic means including the use of an electronic signature;
   3. and the parties agree that these methods of execution shall be as conclusive of the parties’ intention to be bound by this agreement as if signed by each party’s manuscript signature.
2. The person who executes the agreement on behalf of the Reseller in accordance with clause 24.1.1 agrees that he or she has been authorised and has the authority to enter into this agreement on behalf of the Reseller and intends to sign this agreement by clicking the “I Accept” button or by applying his or her electronic signature.

ENTIRE AGREEMENT

1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
3. Without limiting the generality of clause 25.2, all recommendations and advice whether oral or written given by or on behalf of ESET to the Reseller as to any methods of using or applying the Products or the Software and the purposes to which the Products or the Software may be applied are given without liability on the part of ESET.

VARIATION

Subject to clause 5.17, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

ASSIGNMENT AND OTHER DEALINGS

1. ESET may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
2. The Reseller shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

WAIVER

1. A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
2. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

SEVERANCE

1. If any provision or part-provision of this agreement 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 this agreement.
2. If any provision or part-provision of this agreement is deemed deleted under clause 29.1 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.

NOTICES

1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
   1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
   2. sent by email to the address specified in clause 30.2 below.
2. The email address for the service of a notice shall for the respective parties be as follows:
   1. ESET: malcolm.tuck@eset.co.uk;
   2. The Reseller: as recorded on the Partner Portal.
3. Any notice shall be deemed to have been received:
   1. if delivered by hand, on signature of a delivery receipt;
   2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
   3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 30.3.3, business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
4. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

THIRD PARTY RIGHTS

1. Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

WEBSITE DISCLAIMER

1. While ESET endeavours to ensure that information and material on the Website is correct, ESET does not warrant the accuracy and completeness of the information and material on the Website. ESET may make changes to the information and material on the Website, or to the products and prices described in it, at any time without notice. The information and material on the Website may be out of date, and ESET makes no commitment to update such material.
2. The material on the Website is provided "as is", without any warranties, representations, conditions or other terms of any kind. Accordingly, to the maximum extent permitted by law, ESET provides the Reseller with the right to use the Website but on the basis that ESET excludes all warranties, representations, conditions and other terms (including the conditions implied by law of satisfactory quality, fitness for purpose and the use of reasonable care and skill which, but for this legal notice, might have effect in relation to the Website).

NO PARTNERSHIP OR AGENCY

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, employee and employer relationship in law, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

COUNTERPARTS

This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of [an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.

ANNOUNCEMENTS

No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other parties [(such consent not to be unreasonably withheld or delayed)], except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

CONFLICT

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

RIGHTS AND REMEDIES

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

FURTHER ASSURANCE

At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.

SET-OFF

All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

INTEREST

If a party fails to make a payment due to the other party under this agreement by the due date, then, without limiting the other party's remedies under clause 17.2 (Termination), the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above National Westminster Bank's recommended base rate as published from time to time, but at 1.5% a year for any period when that base rate is below 0%.

GOVERNING LAW

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

JURISDICTION

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