Xibo Signage Channel Partner Agreement

BACKGROUND

(A) Xibo Signage is the developer, owner or exclusive rights holder of the Xibo digital signage software, comprising an open source content management system, materials and components, and native signage player that, among other features, powers digital signage networks on Windows, Android, webOS and various other smart TV and display screens.

(B) The Partner wishes to purchase, sell or distribute the Xibo Products as permitted by their Partner Status and the terms set out in the Confirmation Form and Xibo Signage agrees to the same subject to the terms and conditions of the Agreement.

AGREED TERMS

1. Interpretation

1.1

The definitions and rules of interpretation in this clause apply in this agreement

Agreement
the Confirmation, these Terms and the applicable Partner Modules, which combined set out the entire terms on which Xibo Signage will supply to a Channel Partner the Xibo Products and entitle the Channel Partner to supply any Combined Products.
AGPLv3
means the GNU Affero General Public License 3.0 details of which can be found at https://opensource.org/licenses/AGPL-3.0.
Applicable Law and Regulations
means any laws or regulations that apply to the import, export, distribution or use of the Xibo Solution or Xibo Cloud in your or any relevant jurisdiction, including any technology control or import or export restrictions.
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Hours
the period from 8.00 am to 4.30 pm on any Business Day.
Channel Partner Products
where applicable, the products of the type and specification referred to in the Confirmation.
Combined Products
where applicable, the Xibo Products and the Channel Partner Products as developed, marketed and licensed by the Partner to its End Users as more particularly described in the Confirmation.
Confidential Information
information that is proprietary or confidential and is either clearly labelled as such or otherwise identified as Confidential Information.
Confirmation
the confirmation form appended to these Signage Channel Partner Agreement Terms & Conditions which set out the Channel Partner specific information, as amended from time to time with the express written consent of Xibo Signage, and which terms will prevail in the event of a conflict with these Signage Channel Partner Agreement Terms & Conditions.
Control
the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Distributor
a Channel Partner acknowledged by Xibo Signage as a distributor and entitled to sell the Xibo Products and Combined Products in the Territory on these Terms including as further set out in the Partner Status Module at Schedule 1 - Part 2, but in compliance with any Applicable Law and Regulations and the imposition on End Users of a EULA.
Documentation
means any documentation, including online documentation, including any supporting materials in relation to the Xibo Products, the Specification, Xibo Manual and Knowledge Base, provided by us in the performance of this Agreement and as amended from time to time;
Effective Date
the date of this Agreement.
End User
a customer of the Channel Partner.
EULA
the Xibo Signage end user licence agreement regulating an End User’s use of the Xibo Products as amended from time to time and set out here.
Intellectual Property Rights
patents, 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.
Legislation
any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
Main Terms
these Terms except the Schedules.
Open Source Components
the following components of the Xibo Solution:
a) Xibo CMS
b) Xibo Message Relay (XMR)
c) Xibo Manual
d) Xibo Windows Player, and
e) Xibo Linux Player
Partner Modules
the specific terms setting out the rights and obligations of the Partner relative to its Partner Status as set out in Schedule 1 of these Terms. In the event of a conflict between the terms of these Terms and the Partner Modules the Partner Modules shall prevail.
Partner Status
the status of the Channel Partner as a Distributor, Value-Add Reseller or White Label Reseller as set out in the Confirmation and the specific rights and obligations of which, so much as they vary these Terms, are set out in the Partner Modules.
Release
means a defined version of the Xibo Product (for example, 1.8.XX, 1.9.X or 2.X.X)
Specification
the functionality and performance specifications for the Xibo Products, as set out in the Documentation
Terms
these Signage Channel Partner Agreement Terms & Conditions.
Territory
the geographical area described in the Confirmation
Trade Marks
the trade mark registrations and applications and any further trade marks which Xibo Signage may permit or procure permission for the Channel Partner by express notice in writing to use in respect of the Xibo Products, as further set out here.
White Label Reseller
a Channel Partner expressly acknowledged by Xibo Signage as a ‘white label reseller’ and only under white label branding (not using Xibo Signage or Xibo branding) expressly permitted to distribute, licence or sell Xibo Cloud or Xibo Solution solely to third parties, not for the Channel Partner’s own use, in variance of some or all of the terms of this Licence, as further set out in the Partner Status Module at Schedule 1 – Part 3, but in compliance with any Applicable Law and Regulations and the imposition on End Users of a EULA.
Value-Add Reseller
a Channel Partner expressly acknowledged by Xibo Signage as a value-add reseller and entitled to distribute the Xibo Products, including with the Partner Products, in the Territory, in variance of some or all of the terms of this Licence, as further set out in the Partner Status Module at Schedule 1 – Part 1, but in compliance with any Applicable Law and Regulations and the imposition on End Users of a EULA.
Xibo Products
all or any part(s) of any products of the type and specification listed in the Confirmation and the associated documentation relating to each of them together with any other products and related documentation developed by Xibo Signage and which Xibo Signage may permit the Channel Partner, by express notice in writing, to market pursuant to this agreement.
Xibo Product Fee
the prices payable for the Xibo Products by the Channel Partner to Xibo Signage as set out here or alternatively as set out in the Confirmation or as or as otherwise agreed in writing by Xibo Signage.
Year
the period of 12 months from the Effective Date and each consecutive period of 12 months thereafter during the term of this agreement.

1.2

Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4

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

1.5

Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8

A reference to writing or written includes faxes and e-mail.

1.9

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.

2. Appointment

2.1

Xibo Signage hereby appoints the Channel Partner according to the Channel Partner’s Partner Status as a:
2.1.1 Value-Add Reseller, on the Partner Module terms set out at Part 1 of Schedule 1; or
2.1.2 Distributor, on the Partner Module terms set out as Part 2 of Schedule 1, or
2.1.3 White Label Reseller, on the Partner Module terms set out as Part 3 of Schedule 1.

2.2

The Channel Partner shall not represent itself as an agent of Xibo Signage for any purpose, nor pledge Xibo Signage’s credit or give any condition or warranty or make any representation on the Xibo Signage’s behalf or commit Xibo Signage to any contracts. Further, the Channel Partner shall not without Xibo Signage’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Xibo Products which are inconsistent with those contained in the promotional material supplied by Xibo Signage (including, without limitation, the EULA) or otherwise incur any liability on behalf of Xibo Signage howsoever arising.

2.3

The Channel Partner shall not sell any of the Xibo Products or Products through a sales agent or to a sub-distributor or reseller without the prior express written permission of Xibo Signage. Where Xibo Signage agrees to any such appointment, including as determined by the Partner Status, the Channel Partner shall ensure that it enters into a written contract with such sales agent, sub-distributor or reseller on terms which provide at least the same level of protection to Xibo Signage as set out in this agreement. In particular, the Channel Partner shall ensure that the following provisions are flowed down mutatis mutandis in such agreement: clauses 3, 4, 7, 9, 10, 11, 13 and 15 and 17.

2.4

The Channel Partner’s appointment under this Clause 2. only grants to the Channel Partner a licence on the terms that pertain to the Partner Status, including as set out in the relevant Partner Module, and does not transfer any right, title or interest to any such Xibo Products to the Channel Partner or its End Users. Use of the terms “sell”, “license”, “purchase”, “licence fees” and “price” will be interpreted in accordance with this clause.

2.5

The Channel Partner’s appointment under this Clause 2. only grants to the Channel Partner a licence on the terms that pertain to the Partner Status, including as set out in the relevant Partner Module, and does not transfer any right, title or interest to any such Xibo Products to the Channel Partner or its End Users. Use of the terms “sell”, “license”, “purchase”, “licence fees” and “price” will be interpreted in accordance with this clause.

3. Channel Partner's Undertakings

The Channel Partner undertakes and agrees with Xibo Signage to:
a) pay the Xibo Product Fee;
b) use its best endeavours to promote the distribution and sale of the Xibo Products;
c) ensure that all orders of the Xibo Products for End Users are registered via the Xibo Signage e-commerce platform notified to and made available to the Channel Partner;
d) combine the Xibo Products with the Channel Partner Products solely in accordance with the combination instructions supplied by Xibo Signage from time to time in writing and subject to any testing requirements that Xibo Signage may reasonably impose;
e) take all reasonable steps to ensure that End Users of the Combined Products or Xibo Products are aware of and accept the terms and conditions of the EULA before using the Xibo Products;
f) refrain from amending or varying the terms of the EULA unless Xibo Signage expressly consents to varying the terms;
g) ensure that any Channel Partner Products comply with the minimum technical and performance requirements set out in the Specification;
h) unless agreed otherwise, no later than the fifth working day of each calendar month (the first such month being deemed to start on the Effective Date, the last such month being deemed to end on the date this agreement terminates for any reason) submit to Xibo Signage by such means as Xibo Signage may notify to the Channel Partner from time to time reports in the format stipulated by Xibo Signage from time to time showing details of:

  1. the number of copies made by the Channel Partner of Xibo Products during the month concerned;
  2. all sales, inventory, pre-installations and sales of Xibo Products during the month concerned;
  3. all outstanding orders; and
  4. any other information relating to the performance of its obligations under this agreement Xibo Signage may reasonably require from time to time;
i) within 14 days of a written request from Xibo Signage at any time, and from time to time, provide such information as is reasonably requested by Xibo Signage about the Channel Partner’s processes and controls to support compliance with this agreement;
j) maintain on its own account an inventory of the Combined Products and Xibo Products at levels which are appropriate and adequate for the Channel Partner to meet all End User delivery requirements for the Combined Products and Xibo Products;
k) keep full and proper books of account and records showing clearly all enquiries, quotations, transactions and proceedings relating to the Combined Products and/or the Xibo Products and allow Xibo Signage (or its nominee, including without limitation its accountants or auditors), on reasonable notice, access to all accounts and records relating to the Combined Products and/or Xibo Products for the purpose of inspection. Xibo Signage’s costs of such inspection will be borne by Xibo Signage unless it shows a shortfall exceeding 5% in respect of any period to which the inspection relates between the amount actually paid by the Channel Partner and the amount due to be paid by the Channel Partner, in which event (without affecting or prejudicing any other rights Xibo Signage may have) the Channel Partner will pay in full Xibo Signage’s costs (which for the avoidance of doubt will include any reasonable costs of the Xibo Signage’s nominee in carrying out the inspection) and the amount of the shortfall, within 14 days of the date of the Xibo Signage’s invoice for such costs and/or shortfall.
l) subject to Clause 11 and in accordance with Cause 3(c) ensure that Xibo Signage has such information including names and addresses about the Channel Partner’s End Users of the Combined Products and Xibo Products as is required by Xibo Signage for the purposes of managing and enforcing the terms of the EULAs, or agreed varied terms, with such End Users; and
m) inform Xibo Signage immediately of any changes in ownership or Control of the Channel Partner and of any change in its organisation or method of doing business which might affect the performance of the Channel Partner’s duties in this agreement.

4. Supply of Xibo Products

4.1

Xibo Signage shall supply the following in the form agreed by the parties:
a) within a reasonable period following the Effective Date the latest version of the Xibo Products direct to the Channel Partner or End User as appropriate;
b) during the term of the Agreement, such updates or new Releases to the Xibo Products as such updates or new Releases become generally commercially available; and
during the term of the Agreement and for a period of 6 months after the termination of this agreement, provide to End Users a pre- and after-sale support service in respect of the Xibo Products, including, without limitation, the provision of necessary and useful installation assistance and consultation on the use of Xibo Products; timely responses to End Users’ general questions concerning use of Xibo Products; and assistance to End Users in the diagnosis and correction of problems encountered in using Xibo Products.

4.2

The Channel Partner may request Xibo Signage to supply replacement or additional copies of Xibo Products. Xibo Signage reserves the right to make additional charges for supplying replacement or additional copies of the Xibo Products.

4.3

Xibo Signage is entitled upon giving 3 months’ written notice to the Channel Partner to vary the Confirmation to exclude from the Agreement one or more Releases of the Xibo Products as it thinks fit if for any reason the production or support of such Xibo Products has been permanently discontinued or is deemed in Xibo Signage’s sole discretion to be no longer commercially viable.

4.4

Xibo Signage is entitled to make changes to the Specification which do not, in Xibo Signage’s sole opinion, materially affect the Xibo Products or Channel Partner Products and shall give written notice of such changes to the Channel Partner as soon as reasonably practicable.

5. Xibo Signage's Undertakings

Xibo Signage undertakes:
a) to support End User and sales orders properly submitted by the Channel Partner via the Xibo Signage e-commerce platform, as notified to and made available to the Channel Partner;
b) to provide such information and support as may be reasonably requested by the Channel Partner to enable it properly and efficiently to discharge its duties under this agreement; and
to approve or reject any promotional information or material submitted by the Channel Partner within 14 days of receipt.

6. Prices and Payment

6.1

Xibo Signage shall give the Channel Partner 28 days’ notice of any changes in the Xibo Product Fee.

6.2

Any and all expenses, costs and charges incurred by the Channel Partner in the performance of its obligations under the Agreement shall be paid by the Channel Partner unless Xibo Signage has expressly agreed beforehand in writing to pay such expenses, costs and charges.

6.3

Where applicable Xibo Signage will invoice the Channel Partner in the amount shown by the report referred to at Clause 3(h) above to be due for the month concerned.

6.4

The Channel Partner shall pay the amount due to Xibo Signage in GB Sterling as it becomes due or if permitted by Xibo Signage on the terms as invoiced to the Channel Partner.

6.5

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

6.6

The Channel Partner 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 purchase, importation, sale, lease or other distribution of the Xibo Products and/or Combined Products, as permitted under this Agreement.

6.7

If the Channel Partner fails to make any payment due to Xibo Signage under this agreement by the due date for payment, then, without limiting Xibo Signage’s remedies under clause 14, the Channel Partner shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Channel Partner shall pay the interest together with the overdue amount.

7. Advertising and promotion

The Channel Partner shall:
a) be responsible for the advertising and promotion of the Combined Products or Xibo Products provided that the use by the Channel Partner of any advertising materials and promotional literature containing the Trade Marks or other references to the Xibo Products shall be subject to the prior written consent of Xibo Signage;
b) observe all reasonable directions and instructions given to it by Xibo Signage in relation to the promotion and advertisement of the Xibo Products to the extent that such promotions or advertisements refer to the Xibo Products or otherwise use the Trade Marks, and shall not make any written statement as to the quality or manufacture of the Xibo Products without the prior written approval of Xibo Signage;
c) conduct its business in a manner that reflects favourably at all times on Xibo Signage and the good name, goodwill and reputation of Xibo Signage and not enter into any contract or engage in any practice that is or may be detrimental to the interests of Xibo Signage in the Xibo Products, as determined by Xibo Signage; and
d) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to the Xibo Signage, the Xibo Products or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to the Xibo Signage or the Xibo Products.

8. Compliance with Laws and Regulations

8.1

The Channel Partner shall be responsible for obtaining any import licences or permits necessary for the use or distribution of the Xibo Products and/or Combined Products, or their delivery to the Channel Partner, and the Channel Partner shall be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Xibo Products and/or Combined Products.

8.2

The Channel Partner warrants to Xibo Signage that it has informed Xibo Signage of all Legislation affecting the manufacture, distribution and sale of the Xibo Products which are in force in the Territory or any part of it (Local Regulations) at the date of this agreement.

8.3

Xibo Signage in turn warrants to the Channel Partner that the Xibo Products comply with the all applicable laws and regulations in force in Xibo Signage’s home market at the date of this agreement.

8.4

The Channel Partner shall give Xibo Signage as much advance notice as reasonably possible of any prospective changes in the Local Regulations.

8.5

On receipt of notification from the Channel Partner under Clause 8.4, Xibo Signage shall, in its sole discretion and where commercially viable for Xibo Signage to do so, seek to ensure that the Xibo Products comply with any change in the Local Regulations as soon as is reasonably possible or in the alternative, give notice that no relevant change is commercially viable and the Xibo Product may no longer be available for such use.

9. Intellectual Property Rights

9.1

Unless otherwise agreed between the parties, all Intellectual Property Rights in and to the Xibo Products belong, and shall belong, to Xibo Signage and/or its licensors, with the exception of:
(a) any rights in the Open Source Components, any open source code or materials, or
(b) any third party code, components or materials
utilised by or incorporated into the Xibo Products or Documentation.

9.2

The Channel Partner shall, at the expense of Xibo Signage, take all such steps as Xibo Signage may reasonably require to assist Xibo Signage in maintaining the validity and enforceability of the Intellectual Property Rights of Xibo Signage during the term of this agreement.

9.3

Without prejudice to the right of the Channel Partner or any third party to challenge the validity of any Intellectual Property Rights of Xibo Signage, the Channel Partner shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of Xibo Signage and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

9.4

Xibo Signage makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Xibo Products and the Trade Marks, any Open Source Components or open source or materials, or any third party Intellectual Property Rights, nor as to whether the same infringe on any Intellectual Property Rights of third parties.

9.5

Xibo Signage grants to the Channel Partner a non-exclusive, revocable, personal licence (subject to the terms and conditions of this Agreement and any relevant Partner Module and during its term and solely for the purposes of performing the Channel Partner’s obligations under this agreement) to:
(a) make and use such reasonable copies of the Xibo Products and Documentation as may be reasonably required for internal use and for the purposes of demonstrating, marketing and selling the Combined Products or Xibo Products to End Users;
(b) make one further copy of the Xibo Products (together with a further copy to be used solely for back-up purposes) for combining with the Channel Partner Products and licensing to each of the Channel Partner’s End Users who has signed the EULA as the Combined Products; and
(c) use the Trade Marks on or in relation to the Combined Products and Xibo Products for the purpose of the promotion, advertisement and sale of the Combined Products and Xibo Products.

9.6

The Partner shall not:
(a) copy the Xibo Products or Documentation or any part of any of them, including any binary or source code, except to the extent and for the purposes expressly permitted by this agreement;
(b) modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Xibo Products or Documentation, including upload any Xibo Product source code to any third party or unsecure site or repository, and
(c) the Channel Partner acknowledges that it has received (whether as APIs (application programming interfaces) or otherwise) sufficient information to enable it to combine the Xibo Products with the Channel Partner Products and market the resulting Combined Products in the manner envisaged by this agreement, and
(d) the Channel Partner is granted no rights under this Agreement except as expressly stated and Xibo Signage expressly reserves all Intellectual Property Rights and its other rights in and to the Xibo Products and Documentation.

9.7

The Channel Partner shall ensure that each reference to, and use of, any of the Trade Marks by the Channel Partner is in a manner approved from time to time by Xibo Signage and accompanied by an acknowledgement in a form approved by Xibo Signage that the same is a trade mark (or registered trade mark) of Xibo Signage.

9.8

The Channel Partner shall not:
(a) use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Xibo Signage therein;
(b) use in relation to the Xibo Products any trade marks other than the Trade Marks without obtaining the prior written consent of Xibo Signage; or
(c) use any trade marks or trade names so resembling any trade mark or trade names of Xibo Signage as to be likely to cause confusion or deception.

9.9

Other than the licences expressly granted under this agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Channel Partner shall have no rights in respect of any trade names or trade marks used by Xibo Signage in relation to the Xibo Products or their associated goodwill, and the Channel Partner hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Xibo Signage.

9.10

At the request of Xibo Signage, the Channel Partner shall do or procure to be done all such further acts and things (including the execution of documents) as Xibo Signage shall require to give Xibo Signage the full benefit of this agreement.

9.11

The Channel Partner shall promptly give notice in writing to Xibo Signage in the event that it becomes aware of:
(a) any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights in or relating to the Xibo Products or Documentation; and
(b) any claim that any Xibo Product or the manufacture, use, sale or other disposal of any Xibo Product, whether or not under the Trade Marks, infringes the rights of any third party.

9.12

In the case of any matter falling within Clause 9.11(a):
(a) Xibo Signage shall, in consultation with the Channel Partner, determine what action if any shall be taken in respect of the matter; and
(b) Xibo Signage shall have sole control over and shall conduct any consequent action as it shall deem necessary; and
(c) the costs of any such action shall be borne, and all damages and other sums which may be paid or awarded as a result of any such action shall be shared, by the parties equally.

9.13

In the case of any matter falling within Clause 9.11(b):
(a) Xibo Signage and the Channel Partner shall consult to decide what steps shall be taken to prevent or terminate the infringement and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded in their favour or against them; and
(b) failing agreement between the parties, either party shall be entitled to take all action as it shall consider to be necessary or appropriate at its own expense to defend such a claim and shall be entitled and subject to all damages and other sums which may be recovered or awarded against it as a result of any such action.
(c) In the defence or settlement of the claim, Xibo Signage may obtain for the Channel Partner the right to continue distributing the Xibo Products in the manner contemplated by this agreement, replace or modify the Xibo Product so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement forthwith by notice in writing and without liability to the Channel Partner. Xibo Signage shall not in any circumstances have any liability if the alleged infringement is based on:
(i) the Channel Partner Products;
(ii) a modification of the Xibo Products by anyone other than Xibo Signage; or
(iii) the Channel Partner’s marketing, advertising, distribution or use of the Xibo Products in a manner contrary to the instructions given to the Channel Partner by Xibo Signage, including in the Combined Products; or
(iv) the Channel Partner’s marketing, advertising, distribution or use of the Xibo Products after notice of the alleged or actual infringement from Xibo Signage or any appropriate authority;
(v) use or combination of the Xibo Products with the Channel Partner Products in circumstances where, but for such combination, no infringement would have occurred.
(d) The foregoing states the Channel Partner’s sole and exclusive rights and remedies, and Xibo Signage’s entire obligations and liability, in the case of any matter falling under Clause 9.11(b).

9.14

Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.

10. Confidentiality

10.1

Each party may have access to Confidential Information of the other party under this agreement. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known through no act or omission of the receiving party; or
(b) was in the other party’s lawful possession prior to the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2

Subject to clause 10.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

10.3

Each party agrees to take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

10.4

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5

This Clause 10 shall survive termination of this agreement for any reason.

11. Protection and processing of Personal Data

11.1

Each party shall comply with its respective obligations under the provisions of the Data Protection Act 2018 (the Act) or superseding law or regulation, and references in this clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act, law or regulation.

11.2

Where the Channel Partner or any of its sub-contractors, as part of the fulfilment of its obligations under this agreement, processes personal data as a data processor on behalf of Xibo Signage acting as a data controller:
(a) the Channel Partner shall, and shall procure that its sub-contractors shall:
(i) act only on instructions from Xibo Signage when processing personal data provided to it under this agreement, and keep records of all such processing;
(ii) comply with Xibo Signage’s instructions in relation to the processing of personal data as such instructions are given and varied from time to time by Xibo Signage, including any data processing agreement (DPA) and Privacy Policy made known to the Channel Partner or set out as a Schedule to this agreement;
(iii) at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(iv) not transfer any personal data outside the European Economic Area without Xibo Signage’s prior written consent; and
(v) immediately notify Xibo Signage (or the Channel Partner, as applicable) if it receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data under this agreement, provide full co-operation and assistance in relation to any such complaint, notice or communication.

(b) Xibo Signage may from time to time serve on the Channel Partner an information notice or revised DPA requiring the Channel Partner, within such time and in such form as is specified in the information notice, to give to Xibo Signage such information as Xibo Signage may reasonably require relating to:
(i) compliance by the Channel Partner or by its sub-contractors with the Channel Partner’s obligations to Xibo Signage under this agreement in connection with the processing of personal data; and
(ii) the rights of data subjects, including but not limited to subject access rights.

(c) The Channel Partner shall provide to Xibo Signage on request a copy of all personal data held by it pursuant to this agreement, in the format and on the media reasonably specified by Xibo Signage, and shall promptly inform Xibo Signage if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The Channel Partner will restore such data at its own expense.

(d) The Channel Partner shall only sub-contract its data protection performance obligations under this agreement on terms that match this clause 12 and in any event such sub-contracting must be in writing and on written notice to Xibo Signage, who may reject such subcontracting at its sole discretion.

12. Warranties

12.1

Each party represents, warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) it shall comply with all applicable Legislation in the performance of its obligations under this agreement.

12.2

Xibo Signage warrants to the Channel Partner that the Xibo Products supplied or licensed by it under this agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the applicable part(s) of the Specification.

13. Limitation of Liability

13.1

Except as expressly and specifically provided in this agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement.

13.2

 Nothing in this agreement excludes the liability of Xibo Signage:
(a) for death or personal injury caused by Xibo Signage’s negligence; or
(b) for fraud or fraudulent misrepresentation.

13.3

Other than in relation to any liability under Clause 9.13(c) and subject to Clause 13.2 Xibo Signage shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(a) loss of profits; or
(b) loss of business or business interruption; or
(c) depletion of goodwill or similar losses; or
(d) loss of anticipated savings; or
(e) loss of goods; or
(f) loss of use; or
(g) loss or corruption of data or information; or
(h) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

13.4

Other than in relation to any liability under Clause 9.13, Xibo Signage’s total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall in all circumstances be limited to the amount actually paid by the Channel Partner to Xibo Signage under this agreement in the 12 months preceding the date on which the claim arose.

13.5

In the event of any breach of Xibo Signage’s warranty in Clause 12.2 (whether by reason of defective materials, production faults or otherwise) the Channel Partner’s sole remedy and Xibo Signage’s only obligation and liability to the Channel Partner shall be for Xibo Signage to:
(a) replace the Xibo Product in question; or
(b) at Xibo Signage’s option, repay any price paid for the Xibo Product.

14. Term and Termination

14.1

This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with clause 14.2 or clause 14.3 or this clause 14.1, this agreement shall continue for the Initial Term and shall automatically extend for 12-monthly periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.

14.2

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:
(a) 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; or
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party; or
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; or
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(i) 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; or
(j) 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 15.2(b) to clause 15.2(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.3

Without prejudice to any other rights or remedies to which Xibo Signage may be entitled, Xibo Signage may terminate the agreement without liability to the Channel Partner if:
(a) there is a change of control of the Channel Partner; or
(b) the Channel Partner purports to assign any of its rights or obligations under this agreement.

15. Effects of Termination

15.1

Upon termination or expiry of this agreement for any reason:
(a) the Channel Partner shall (at its sole cost) return (or at Xibo Signage’s option, destroy) all Documentation and media (subject to Clause 15.1(b)) on which the Xibo Products are held and the Channel Partner shall stop combining the Xibo Products with the Channel Partner Products;
(b) at Xibo Signage’s sole discretion, the Channel Partner shall be permitted in the Run-Off Period following termination of this agreement to sell and distribute any existing Combined Products or Xibo Products as it may at the time have in store or under its control; thereafter, the terms of Clause 15.1(a) shall apply;
(c) on the expiry of the Run-Off Period or if Xibo Signage exercises its right not to allow the Channel Partner to continue distributing the Combined Products or Xibo Products after termination or expiry of this agreement, the Channel Partner shall promptly return to Xibo Signage, or otherwise dispose of as may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers, passwords or account codes (including any online or social media accounts opened by the Channel Partner on behalf of Xibo Signage or the Xibo Products, whatsoever sent to the Channel Partner and relating to Xibo Signage’s business (other than correspondence which has passed between the parties) which the Channel Partner may have in its possession or under its control; and
(d) the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced;
(e) Subject to the foregoing provisions of this Clause 15.1, all rights and licences of the Channel Partner under this agreement shall terminate.

15.2

The termination of this agreement shall not of itself give rise to any liability on the part of Xibo Signage to pay any compensation to the Channel Partner for loss of profits or goodwill, to reimburse the Channel Partner for any costs relating to or resulting from such termination, or for any other loss or damage.

16. Force Majeure

Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Channel Partner or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party.

17. Waiver

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

18. Severance

18.1

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

18.2

If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. Entire Agreement

19.1

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.

19.2

Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

19.3

Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

19.4

Nothing in this clause shall limit or exclude any liability for fraud.

20. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21. Assignment

21.1

The Channel Partner shall not, without the prior written consent of Xibo Signage, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

Xibo Signage may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

22. No Partnership or Agency

22.1

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in Clause 2.

22.2

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23. Third Party Rights

No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

24. 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.

25. Notices

25.1

Any notice given to a party under or in connection with this contract shall be in writing and shall be emailed to the relevant contact agreed by the parties.

25.2

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.

26. Governing Law and Jurisdiction

26.1

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

26.2

The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).

Schedule 1 – Partner Modules

Part 1 - Channel Partner as Value-Add Reseller

Appointment

1.1
1.1 Where the Channel Partner is designated by Xibo Signage to be a Value-Add Reseller in the Territory in addition to the Main Terms the following additional rights and obligations shall apply to the Channel Partner, unless otherwise agreed in writing by Xibo Signage.

Channel Partner Undertakings

1.2 During the term of this agreement, the Channel Partner undertakes not to:
1.2.1 purchase the Xibo Products from any person other than Xibo Signage (or its authorised distributors for the Xibo Products);
1.2.2 unless expressly agreed with Xibo Signage operate as a White Label Reseller or Distributor, or
1.2.3 distribute or create, or install on any Channel Partner Products or Combined Products, any products which compete with the Xibo Products:
(a) where the Channel Partner offers competing products and services that are not Xibo Product based, then Xibo Products should be presented at least as favourably as the competing option (for example, a typical systems integrator will offer a range of software options from different vendors), and
(b) the Channel Partner must not, without Xibo Signage’s consent, offer competing services based on Xibo Products. (for example, offer its own cloud hosting, white labelling services, or own Android player, etc).

1.3 The Channel Partner undertakes to comply with clause 3 of the Main Agreement, except in relation to clause 3.1(e) and (f) may alternatively ensure that End Users agree to terms no less stringent than the terms of the Xibo Signage EULA in relation to their access to and use of the Xibo Solution and Xibo Cloud.

1.4 The Channel Partner may describe itself as a “Value-Add Reseller” of the Xibo Products.