1.1 This Mediahawk Partner Reseller Agreement ("Agreement") is an agreement between Media Hawk Ltd ('Mediahawk') a company incorporated in England and Wales (Company number: 4432034) whose registered office is at 28–31 The Stables, Wrest Park, Silsoe, Bedfordshire, MK45 4HR and the Reseller as signed.
1.2 Mediahawk wishes to appoint the Reseller as a non-exclusive authorised reseller to promote and resell the Services provided by Mediahawk.
2.1 "Reseller Programme" shall mean the programme by which a Reseller sells Mediahawk Services directly to Customers.
2.2 "Customers" are end-users who have purchased Mediahawk products or services.
2.3 "Services" are Mediahawk's products and services made available to the reseller to sell to Customers.
3.1 Mediahawk hereby appoints the Reseller on a non-exclusive basis as one of its authorised partners to promote and sell the Services directly to Customers in accordance with Mediahawk's standard Terms and Conditions but subject to the Terms and Conditions Addendum below.
3.2 The Service and rates agreed shall remain in place under the terms of this contract provided that the Reseller introduces one client to Mediahawk under the terms of this contact within two months of the contract being signed.
3.3 The Reseller shall not have authority to vary or commit to the Services on Mediahawk's behalf.
3.4 Mediahawk reserves the right at any time and in their sole discretion to modify or remove any products or services without notice and without penalty.
4.1 The Reseller hereby undertakes and agrees that it shall:
4.1.1 actively promote and supply Mediahawk Services as its primary offering into those markets that it addresses and to positively promote Mediahawk on its web site and in any material published by the Reseller and provide at least one link from the Reseller's web site to the relevant Mediahawk web site in the format prescribed and as varied from time to time by Mediahawk;
4.1.2 not commit to supply any customer with any Service unless Mediahawk has accepted the customer's order;
4.1.3 act in the best interests of Mediahawk and ensure that customers understand their contractual obligations under Mediahawk's prevailing standard terms and conditions of service;
4.1.4 not accept orders or make contracts on behalf of Mediahawk and not make or give any promises, representations, warranties or guarantees with reference to the Services except such as are consistent with Mediahawk’s literature;
4.1.5 not incur any liability on behalf of Mediahawk;
4.1.6 promote the Services in a form and manner consistent with Mediahawk's literature and not to bring Mediahawk or its brand into disrepute;
4.1.7 inform Mediahawk immediately of any changes in the Reseller organisation or methods of doing business which might affect the performance of the Reseller obligations hereunder;
4.1.8 comply with all Mediahawk rules and regulations concerning the marketing and sale of the Services;
4.1.9 if so requested by Mediahawk within 30 days of the end of each calendar quarter throughout the duration of this Agreement furnish Mediahawk with a forecast of the anticipated volume of sales of the Services for the current and following quarterly periods;
4.1.10 in all its marketing and publicity material and in dealings with third parties, the Reseller shall make it clear that it is an authorised Reseller of Mediahawk and not otherwise connected to or associated with Mediahawk;
4.1.11 ensure that the Reseller's employees possess the necessary skills, experience and qualifications to perform their jobs in a professional manner;
4.1.12 afford Mediahawk representatives free access to customers to ensure compliance with appropriate quality criteria and proper and correct supply of the Services;
4.1.13 at all times maintain a high standard of customer service and fault handling when dealing with customer;
4.1.14 provide to Mediahawk such information in respect of customers as may be required to supply the Services;
4.1.15 take reasonable steps to ensure that their Customer’s do not breach the PhonepayPlus Code of Practices, OFCOM regulations or other prevailing regulations.
5.1 Mediahawk will use reasonable endeavours to provide the Services with reasonable skill and care.
5.2 Mediahawk will use reasonable endeavours to provide the Services for 24 hours per day throughout the year but shall not be liable for any failure to provide the Services whether this failure arises from a technical failure or otherwise.
5.3 Mediahawk shall be entitled to:
5.3.1 change the technical specification of the Services where necessary for commercial, operational, statutory or regulatory reasons;
5.3.2 suspend the Services for any reason.
6.1 The Reseller shall pay Mediahawk invoices in full within 30 days of the invoice date.
6.2 The Reseller shall purchase Services from Mediahawk at the agreed rates.
7.1 This Agreement may be terminated by either party at any time by providing one month's written notice.
7.2 Either party may terminate the Agreement immediately if the other party is in breach of its obligations.
7.3 Mediahawk has the right, without notice to the Reseller, to terminate this agreement immediately or suspend provision of any part or all of the Mediahawk Service where Mediahawk believes, in its opinion that:
7.3.1 the Reseller has failed to timely pay Mediahawk any amount due to Mediahawk under this or any other agreement between the parties;
7.3.2 the Reseller has entered into any form of insolvency or administration;
7.3.3 the Reseller has performed, or threatened to perform, any act which might undermine the technical, commercial or other viability or integrity of any of the Services;
7.3.4 the Reseller promotes products or services that are directly competing with Mediahawk to existing Mediahawk Customers;
7.4 Any such termination shall not prejudice any of Mediahawk's rights or claims.
8.1 Upon termination of this agreement the Reseller shall:
8.1.1 pay to Mediahawk any such monies which may be outstanding on the Reseller account;
8.1.2 allow Mediahawk full and free access to Customers introduced by the Reseller so that they may continue to purchase and use the Services directly from Mediahawk;
8.1.3 remove all links and graphics from its web site, and refrain from publishing same in any manner;
8.1.4 lose all rights and licenses under this agreement;
8.1.5 terminate use of any of Mediahawk's intellectual property granted under the this agreement.
9.1 Nothing in this Agreement shall exclude or limit the liability of either party for death or personal injury resulting from the negligence of that party or in respect of fraud or of any statements made fraudulently by that party, or arising under Part 1 of the Consumer Protection Act 1987 in respect of any defect in Mediahawk Services.
9.2 Subject to the exception set out above and to the extent permissible by law, Mediahawk will not be liable to the Reseller for any direct, indirect or consequential loss.
9.3 Other than as expressly set out elsewhere in this Agreement all representations, warranties, conditions and terms express or implied whether statutory or otherwise are expressly excluded by Mediahawk and by their suppliers who are participating in supplying services to the fullest extent permitted by law.
10.1 All intellectual property rights relating to the provision of Mediahawk Services are the property of Mediahawk or Mediahawk’s suppliers or other third parties that have licensed the use of such rights to Mediahawk or Mediahawk’s suppliers.
10.2 The Reseller acknowledges and agrees that content available from Mediahawk, including but not limited to web links, text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trade mark, patent, or other proprietary rights and laws, and may not be used in any manner other than on the same restricted basis as specified for the purposes of this agreement.
10.3 The Reseller will keep Mediahawk fully indemnified against all reasonable costs, claims, expenses, judgments and liabilities suffered by Mediahawk howsoever arising through the Reseller’s infringement of third party intellectual property rights which have not been caused by actions of Mediahawk.
11.1 Both parties undertake to comply with provisions of the Data Protection Act 1998 in relation to the disclosure, use and storage of any personal information as defined in the Act.
11.2 Data related to the provision of the Mediahawk Services will be put onto the Mediahawk database and processed by Mediahawk in servicing the relationship with the Reseller, including disclosure to third party suppliers and consultants. By submitting the data to Mediahawk the Reseller agrees to Mediahawk's storage, use and disclosure of that data.
11.3 The Reseller expressly agrees that data pertaining to their service, including but not limited to transaction data relating to payments can be viewed by Mediahawk and by Mediahawk's suppliers in the normal course of their commercial activities but such data cannot be made available to other parties except where required by the law or where a suitable non-disclosure agreement has been signed with such parties.
12.1 The Reseller accepts that Mediahawk will update the terms and conditions contained in this Agreement by notifying the Reseller by email.
12.2 Any additional Services or accounts for separate Customers added by the Reseller will be bound by this agreement and unless payment for services is paid directly by the end client will not be subject to additional contract signatures.
12.3 All amounts quoted are always exclusive of VAT and any other applicable tax, import duty, and all other duties which will be levied as required by law.
12.4 This agreement is made with the Reseller only. The Reseller is not permitted to transfer, assign or give away the agreement without prior written agreement of Mediahawk.
12.5 This agreement shall be governed by and construed in accordance with English and Welsh law and the parties hereby submit to the exclusive jurisdiction of the English and Welsh Courts. This Agreement contains the whole agreement between the parties in relation to the operation of the Reseller Programme and supersedes any prior written or oral agreements relating to the same.
12.6 If any provisions of this agreement are held to be invalid under any applicable statute or rule of law, they are to that extent omitted from the agreement without affecting the validity or enforceability of the remainder.
13.1 The Reseller will promote and sell the Services directly to Customers in accordance with Mediahawk's standard Terms but is entitled to the preferential Terms and Conditions Addendums.
9.0 NOTICE PERIODS
9.1 Visitor Call Tracking: this Agreement will continue unless and until it is terminated by either party giving the other 30 days' notice.
9.2 Classic: this Agreement will continue unless and until it is terminated by either party giving the other 30 days' notice (Not 120 days' notice subject to the Minimum Period)
9.3 Complete: this Agreement will continue unless and until it is terminated by either party giving the other 30 days' notice.