HDA PRO (INSTALLER) AGREEMENT

Our Agreement with You (in plain English)

HDANYWHERE prides itself on the quality of its products and the standards of service we deliver to our shared End Users and as such we only appoint the very best Installers as our HDA PRO’s. We are pleased that in this agreement we are able to appoint you as a HDA PRO.

This agreement between us is designed to protect and secure your business interests and prevent us from coming to any undue harm. HDANYWHERE always strives for the highest of standards and so we have created this contract to ensure that we both gain the most from our relationship and are properly protected.

What this Agreement does

This agreement is designed to protect your best interests and ours. This sets out our promises to you for the quality of our products, our support to you and how we can help you if things go wrong. In return it asks you the HDA PRO to provide the best standards of care you can for our shared End Users and promote the HDANYWHERE brand and products.

Under the terms of this agreement we will grant you the right as a HDA PRO to promote and sell our products to your End Users and install them at their premises. You will also be given the right to provide pre and post installation support services to the End Users.

This agreement sets out how you can best sell our products to your End Users and provide the highest standard of support. These Standards are set out in Schedule 1 of this agreement and in our Brand and Maintenance Manuals and will help you in your support of the end user.

PARTIES

(1)
HD CONNECTIVITY LTD trading as HDANYWHERE incorporated and registered in England and Wales with company number 06046737 whose registered office is at The Haysfield, Malvern, Worcestershire, WR14 1GF (HDANYWHERE)

(2)
[INSTALLER], incorporated and registered in [COUNTRY] with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Installer or HDA PRO)

BACKGROUND TO OUR AGREEMENT

HDANYWHERE wishes to appoint you as an Installer for the promotion, sale and Installation of the HDA Products to the End Users within the Territory and to provide them with Support Services in respect to those HDA Products in accordance with the terms of this agreement.

OUR RELATIONSHIP WITH YOU

1. Subject to the terms and conditions of this agreement including any schedules incorporated herein and subject to the Installers’ fulfilment of its obligations under this Agreement, HDANYWHERE appoints the Installer as an authorised non-exclusive distributor and Installer (HDA PRO) and grants to the HDA PRO a non-exclusive, non-transferable right to;
   (a) sell, market, promote and distribute the HDA Hardware to End Users in the Territory;
   (b) Licence, market, promote and distribute the HDA Software to End Users in the Territory as part of the HDA Products;
   (c) install the HDA Products at the End Users Premises in accordance with HDANYWHERE’s instructions from time to time and the Installer Manual; and
   (d) provide pre and post installation Support Services to End User in conjunction with the HDA Products and in accordance with HDANYWHERE’s instructions from time to time and the Maintenance Manual.
2. The HDA PRO shall only complete Installation and provide copies of the Documentation to the End User, provided that the End User first signs up to HDANYWHERE’s EULA as detailed in Schedule 2.

HOW YOU SELL & SUPPLY OUR PRODUCTS

1. The Installer shall be entitled to describe itself as an “HDA PRO” but shall not represent itself as an agent of HDANYWHERE for any purpose, nor pledge HDANYWHERE’s credit or give any condition or warranty or make any representation on HDANYWHERE’s behalf or commit HDANYWHERE to any contracts or otherwise incur any liability for or on behalf of HDANYWHERE. Further, the HDA PRO shall not without HDANYWHERE’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the HDA Products which are inconsistent with those contained in the promotional material supplied by HDANYWHERE (including, without limitation, the EULA) or otherwise incur any liability on behalf of HDANYWHERE howsoever arising.
   The HDA PRO shall purchase the HDA Products only from a HDA Distributor and shall exclusively promote and advertise the HDA Products and HDANYWHERE brand, in accordance with the brand manual and HDANYWHERE’s instructions from time to time. The HDANYWHERE brand shall at all times be the first brand offered and promoted to End Users. If an End User requests installation of a different brand’s products; (a) the HDA PRO shall be permitted to install those requested products; (b) the HDA PRO must bring to the End User’s attention the HDANYWHERE brand and products prior to installation; and (c) notify HDANYWHERE within a reasonable time period of the installation.
2. The HDA PRO shall not sell or licence any of the HDA Products through a sales agent or to a sub-installer or reseller without the prior express written permission of HDANYWHERE. Where HDANYWHERE agrees to any such appointment, the HDA PRO shall ensure that it enters into a written contract with such sales agent, sub-installer or reseller on terms approved by HDANYWHERE which provide at least the same level of protection to HDANYWHERE as set out in this agreement.
3. The HDA PRO’s appointment under this Clause 3 only grants to the HDA PRO a licence to sell, distribute and install the HDA Hardware and licence, distribute and install the HDA Software as part of the HDA Products, and does not transfer any right, title or interest to any such HDA Hardware and HDA Software to the HDA PRO or its sub-installers.
4. The HDA PRO acknowledges and agrees that the HDA PRO shall be solely responsible for fulfilling its obligations to the End User and any agreement entered into with that End User.
5. All purchases from a HDA Distributor must be for specified End Users. The HDA PRO shall not be permitted to sell, resell or distribute the HDA Products to another Installer or distributor, unless authorised to do so by HDANYWHERE in writing.

OUR QUALITY GUARANTEE

1. HDANYWHERE shall use reasonable endeavours to maintain sufficient manufacturing capacity, stocks of raw materials and packaging, and stocks of HDA Products to enable it to meet End User demand.
2. The HDA Products supplied to the HDA PRO by a HDA Distributor under this agreement shall:
   (a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by HDANYWHERE or made known to the HDA PRO by HDANYWHERE;
   (b) be free from all material defects in design, material and workmanship; and
   (c) comply with all applicable statutory and regulatory requirements.
3. HDANYWHERE shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to manufacture and supply the HDA Products in accordance with the terms of this agreement.
4. HDANYWHERE undertakes to make spare parts available to the HDA PRO at HDANYWHERE’s standard list price for at least [NUMBER] years from the Acceptance Date.

HARDWARE WARRANTY

1. The warranties given in this Clause 5 are in addition to warranties given in other parts of this agreement.
2. HDANYWHERE warrants that:
   (a) the HDA Hardware will be new (except where otherwise specified in Schedule 2) and of satisfactory quality and will be suitable for the purpose for which it is intended as specified in in the Documentation; and
   (b) as far as it is able, the HDANWYHERE will pass on to the HDA PRO the benefits of any Manufacturers' Warranties.

OUR RIGHTS IN OUR SOFTWARE AND DOCUMENTATION AND HOW YOU USE THEM

1. HDANYWHERE grants, subject to the terms of this agreement, the HDA PRO the non-exclusive, non-transferable right to use the HDA Software in conjunction with the HDA Hardware and the Documentation for the purposes of Installing the HDA Software at an End Users Premises and providing the Support Services.
2. HDANYWHERE may provide Third-Party Software to the HDA PRO under the standard licence terms provided by the relevant third parties, copies of which shall be provided to the HDA PRO on request, and the HDA PRO agrees to be bound to the relevant third parties by such licence.
3. HDANYWHERE shall provide to the End User from time to time copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the HDA Products. Such Documentation may be supplied in electronic form.
4. The HDA PRO may make such further copies of the Documentation as are reasonably necessary for training the HDA PRO's personnel and for the use and maintenance of the HDA Products. The HDA PRO shall ensure that all of HDANYWHERE's proprietary notices are reproduced in any such copy.
5. The HDA Software may be used only by the HDA PRO and the End User at the End User’s Premises, except as follows:
   (a) the HDA Software may be used on any replacement for all or any part of the HDA Hardware;
   (b) if the End User moves the End User Premises permanently to another site, the HDA Software may be used at the new site by the HDA PRO and End User, provided that HDANYWHERE is informed in writing of the change of site before use of the HDA Software commences at the new site;
   (c) if the HDA Hardware becomes inoperable for any reason, the HDA Software may be temporarily used on backup equipment until the HDA Hardware is repaired or replaced; and
   (d) if the End User requires remote access support, the HDA PRO may use the HDA Software and any other remote access tools for the purposes of providing the Support Services to the End User.
6. The HDA PRO shall comply with all third party licences and shall indemnify and hold HDANYWHERE harmless against any loss or damage which it may suffer or incur as a result of the HDA PRO’s beach of such terms howsoever arising.
7. HDANYWHERE may treat the HDA PRO’s breach of any third party licence as a breach of this agreement.

HOW YOU CAN PROVIDE THE BEST SERVICE

1. The HDA PRO undertakes and agrees with HDANYWHERE that at all times during the Term it will:
   (a) Employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the HDA PRO’s obligations under this agreement;
   (b) Not resell the HDA Products at a price exceeding the maximum resale price from time to time specified by HDANYWHERE in writing;
   (c) Submit written reports at regular intervals to HDANYWHERE, showing details of sales, purchases and outstanding orders made by the HDA PRO with and any other information relating to the performance of its obligations under this agreement that HDANYWHERE may reasonably require from time to time;
   (d) Keep full and proper books of accounts and records showing clearly all enquiries, quotations, transactions and proceedings relating to the HDA Products;
   (e) Allow HDANYWHERE on reasonable notice access to its accounts and records relating to the HDA Products for inspection;
   (f) Keep all stocks of the HDA Products which it holds in conditions appropriate for their storage, and price appropriate security for the HDA Products, all at its own cost;
   (g) Inform HDANYWHERE immediately of any changes in ownership or Control of the HDA PRO, and of any change in its organisation or method of doing business that might be expected to affect the performance of the HDA PRO’s duties in this agreement;
   (h) To use its best endeavours to advertise, distribute, promote and sell the HDA Products to the End Users in the Territory and to expand the sale of the HDA Products to all potential purchasers by all reasonable and proper means and not to do anything which may hinder or interfere with such sales.

HOW TO MARKET AND ADVERTISE OUR PRODUCTS

1. The HDA PRO shall:
   (a) be responsible for the advertising and promotion of the HDA Products provided that the use by the HDA PRO of any advertising materials and promotional literature containing the Trade Marks or other references to HDA Products shall be subject to the prior written consent of HDANYWHERE;
   (b) use its best endeavours to promote and extend the HDANYWHERE brand in the Territory;
   (c) Use its best endeavours to protect and promote the goodwill and reputation in the HDANYWHERE brand in the Territory;
   (d) provide such advertising and publicity as may reasonably be expected to bring the HDA Products to the attention of as many purchasers and potential purchasers as possible; and
   (e) observe all directions and instructions given to it by HDANYWHERE in relation to the promotion and advertisement of the HDA Products to the extent that such promotions or advertisements refer to HDA Products or otherwise use the Trade Marks, and shall not make any written statement as to the quality or manufacture of the HDA Products without the prior written approval of HDANYWHERE.
2. The HDA PRO must:
   (a) conduct its business in a manner that reflects favourably at all times on HDANYWHERE and the good name, goodwill and reputation of HDANYWHERE and not enter into any contract or engage in any practice that is or may be detrimental to the interests of HDANYWHERE in the HDA Products;
   (b) avoid deceptive, misleading or unethical practices that are, or might be, detrimental to HDANYWHERE, any HDA 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 HDANYWHERE or the HDA Products;
   (c) ensure that its advertising, marketing and promotion of HDA Products shall in no way reduce or diminish the reputation, image and prestige of the Trade Marks or of HDA Products sold under or by reference to the Trade Marks;
   (d) ensure that any advertising, marketing or promotional material used, including but not limited to those materials on its website, that it uses for the sale of the HDA Products, complies with the quality standards and criteria given to it by HDANYWHERE in the Brand Manual; and
   (e) ensure that any website that it uses for the sale of the HDA Products complies with the quality standards and criteria that are set out in the Brand Manual.
3. HDANYWHERE shall:
   (a) Promote the HDANYWHERE brand and business in such manner and at such times as it shall in its absolute discretion think fit.
   (b) Promote the HDA PRO on its website and through HDANYWHERE’s installer network in such a manner at such times as it shall in its absolute discretion think fit. This promotion is conditional on the HDA PRO’s application to join the Installer Network and continued provision of the Support Services in accordance with the Brand Manual;
   (c) Provide the HDA PRO with such promotional display literature and other point-of-sale material as it, in its absolute discretion thinks fit.

HOW TO HAVE APPROVED HDA PRO EMPLOYEES

1. The HDA PRO undertakes that its employees and contractors, while at the End User’s Premises or any other premises of the End User, will comply with all relevant rules and regulations laid down by HDANYWHERE from time to time for the behaviour of its own employees and contractors, as notified to the HDA PRO in the Brand Manual or in writing by HDANYWHERE from to time. The HDA PRO shall remove any employee or contractor whom HDANYWHERE can demonstrate has failed to comply with such rules, regulations and requirements.
2. The HDA PRO alone shall be responsible for the supervision, direction, control, wages, taxes, national insurance and benefits of the Support Staff. The HDA PRO assumes full responsibility for their acts and omissions and acknowledges that they are not employees or agents of HDANYWHERE.
3. The HDA PRO shall at all times during the term employ a sufficient number and quality of employees to fulfil its obligations in this agreement, meet End User demand and comply with the Brand Manual.

PRODUCT LIABILITY AND LEVELS OF INSURANCE

1. Subject to the HDA PRO fulfilling all the conditions in this Clause 13, HDANYWHERE shall indemnify the HDA PRO against any liability incurred by HDANYWHERE in respect of damage to property, death or personal injury arising from any direct fault or defect in the materials or workmanship of the HDA Products caused by HDANYWHERE and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability (Relevant Claim), except to the extent the liability arises as a result of the action or omission of the HDA PRO.
2. The HDA PRO shall, as soon as it becomes aware of a matter which may result in a Relevant Claim:
   (a) give HDANYWHERE written notice of the details of the matter;
   (b) give HDANYWHERE access to and allow copies to be taken of any materials, records or documents as HDANYWHERE may require to take action under Clause 13.2(c);
   (c) allow HDANYWHERE the exclusive conduct of any proceedings and take any action that HDANYWHERE requires to defend or resist the matter, including using professional advisers nominated by HDANYWHERE; and
   (d) not admit liability or settle the matter without the HDANYWHERE's written consent.
3. The HDA PRO confirms that it has insurance policies in force with insurers of good standing to cover its liabilities under this agreement including, without limitation:
   (a) public liability insurance (with a limit of [ten million] pounds per claim);
   (b) employers liability (with a limit of [ten millions pounds] per claim);
   (c) product liability (with a limit of [five million pounds] per claim; and
   (d) professional liability insurance (with a limit of [two million pounds] per claim).
   The HDA PRO shall provide HDANYWHERE with a copy of such policies on written request from time to time. For the avoidance of doubt such insurance cover values do not constitute any limit of liability.
4. The HDA PRO shall during the Term and for a period of [three] years afterwards do nothing to invalidate any such insurance policy or to prejudice HDANYWHERE’s entitlement under it.
5. If the HDA PRO is in breach of this clause 13, HDANYWHERE may insure itself against any risk against which the HDA PRO has not insured, and may deduct sums equivalent to the amounts paid or payable in respect of premiums from any sums due to the HDA PRO, or recover them from the HDA PRO as debt.
6. The HDA PRO undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any HDA Products or batches of HDA Products from the retail or wholesale markets. These records shall include records of deliveries to End Users (including serial numbers, delivery date, name and address of End User, telephone number and email address).
7. The HDA PRO shall, give any assistance that HDANYWHERE shall reasonably require to recall, as a matter of urgency, the HDA Products.
8. The HDA PRO shall:
   (a) take such action, institute such proceedings and give such information and assistance as HDANYWHERE may reasonably request to: (i) dispute, resist, appeal, compromise, defend, remedy or mitigate the matter; or (ii) enforce against any person the rights of HDANYWHERE in relation to the matter; and
   (b) in connection with any proceedings related to the matter, use professional advisers nominated by HDANYWHERE and, if HDANYWHERE so requests, allow HDANWYHERE the exclusive conduct of the proceedings, in each case on the basis that HDANYWHERE shall indemnify the HDA PRO for all reasonable costs incurred as a result of any request or nomination by HDANYWHERE.

OUR INTELLECTUAL PROPERTY RIGHTS AND TRADE MARKS

1. Unless otherwise agreed between the parties, all Intellectual Property Rights in and to the HDA Products belong, and shall belong, to HDANYWHERE and/or its licensors.
2. The HDA PRO shall, at the expense of the HDANYWHERE, take all such steps as HDANYWHERE may reasonably require to assist HDANYWHERE in maintaining the validity and enforceability of the Intellectual Property Rights of HDANYWHERE during the term of this agreement.
3. Without prejudice to the rights of the HDA PRO or any third party to challenge the validity of any Intellectual Property Rights of HDANYWHERE, the HDA PRO 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 HDANYWHERE 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.
4. HDANYWHERE makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the HDA Products and the Trade Marks nor as to whether the same infringe on any Intellectual Property Rights of third parties.
5. The HDA PRO shall not:
   (a) copy the HDA Products or any part of any of them except to the extent and for the purposes expressly permitted by this agreement; or
   (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 HDA Products except and only to the extent that it is expressly permitted by applicable law.
   The HDA PRO is granted no rights under this Agreement except as expressly stated and HDANYWHERE expressly reserves all Intellectual Property Rights and its other rights in and to the HDA Products.
6. The HDA PRO shall ensure that each reference to, and use of, any of the HDA Products or Trade Marks by the HDA PRO is in a manner approved from time to time by HDANYWHERE and accompanied by an acknowledgement in a form approved by HDANYWHERE that the same is a trade mark (or registered trade mark) of HDANYWHERE.
7. The HDA PRO shall not:
   (a) use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of HDANYWHERE therein;
   (b) use in relation to the HDA Products any trade marks other than the Trade Marks in accordance with the Brand Manual and HDANYWHERE’s instructions from time to time ; or
   (c) use any trade marks or trade names so resembling any trade mark or trade names of HDANYWHERE as to be likely to cause confusion or deception.
8. 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 HDA PRO shall have no rights in respect of any trade names or trade marks used by HDANYWHERE in relation to the HDA Products or their associated goodwill, and the HDA PRO hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, HDANYWHERE.
9. At the request of the HDANYWHERE, the HDA PRO shall do or procure to be done all such further acts and things (including the execution of documents) as HDANYWHERE shall require to give HDANYWHERE the full benefit of this agreement.
10. The HDA PRO shall promptly give notice in writing to HDANYWHERE 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 HDA Products; and
    (b) any claim that any Product or the manufacture, use, sale or other disposal of any Product, whether or not under the Trade Marks, infringes the rights of any third Party.
11. In the case of any matter falling within Clause 14.10(a) HDANYWHERE shall:
    (a) in its absolute discretion determine what action if any shall be taken in respect of the matter;
    (b) have sole control over and shall conduct any consequent action as it shall deem necessary; and
    (c) pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action.
12. 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.

IF ANY PAYMENT IS EVER REQUIRED

1. Any and all expenses, costs and charges incurred by the HDA PRO in the performance of its obligations under this agreement shall be paid by the HDA PRO, unless HDANYWHERE has expressly agreed in advance in writing to pay such expenses, costs and charges.
2. The HDA PRO shall pay the full amount invoiced to it by HDANYWHERE in Pounds Sterling within [30] days of the date of invoice.
3. Neither party, may withhold payment of any amount due to the other because of any set-off, counter-claim, abatement, or other similar deduction.
4. The HDA PRO 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 HDA Products.

OUR WARRANTIES TO EACH OTHER

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.

WHO IS RESPONSIBLE WHEN THINGS GO WRONG

1. To the fullest extent permitted by law, HDANYWHERE shall not be liable to the HDA PRO for any costs, expenses, loss or damage, (whether direct, indirect, or consequential, and whether economic or other) arising from the HDA PRO’s exercise of the rights granted to ion under this agreement.
2. Except as expressly and specifically provided in this agreement, all warranties, and conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement.
3. Nothing in this agreement excludes the liability of HDANYWHERE for loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss of goods, loss of use, loss or corruption of data or information or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
4. HDANYWHERE’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 paid by the End User for the HDA Products under the particular End User Contract by within the previous twelve months.
5. The HDA PRO shall indemnify HDANYWHERE against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by HDANYWHERE arising out of or in connection with:
   (a) The HDA PRO’s exercise of its rights granted under this agreement, including any claim made against HDANYWHERE for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection therewith;
   (b) The HDA PRO’s breach or negligent performance or non-performance of this agreement, including any product liability claim relating to the HDA Products manufactured, supplied or put into use by the HDA PRO;
   (c) The enforcement of this agreement
   (d) Any claim made against HDANYWHERE by a third party for death, personal injury or damage to property arising out of or in connection with defective HDA Products to the extent that the defect in the HDA Products is attributable to the acts or omissions of the HDA PRO, its employees, agents, sub-licenses or subcontracts.
6. Nothing in this clause shall restrict or limit HDANYWHERE’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

THIS AGREEMENTS LENGTH AND HOW IT CAN BE CANCELLED

1. This agreement shall come into force on the Commencement Date and shall continue, unless terminated earlier in accordance with Clause 18.2 or Clause 18.3, until the [NUMBER] anniversary of the Commencement Date when it shall expire automatically without notice.
2. HDANYWHERE shall have the right to terminate this agreement on giving the HDA PRO not less than 14 days written notice of termination.
3. Without affecting any other right or remedy available to it, HDANYWHERE may terminate this agreement with immediate effect by giving written notice to the HDA PRO if:
   (a) the HDA PRO commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of [NUMBER] days after being notified in writing to do so;
   (b) the HDA PRO 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;
   (c) the HDA PRO 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 IA 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 IA 1986 or the HDA PRO (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
   (d) the HDA PRO 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 other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the HDA PRO with one or more other companies or the solvent reconstruction of the HDA PRO;
   (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 the HDA PRO;
   (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 HDA PRO;
   (g) the holder of a qualifying floating charge over the assets of the HDA PRO(being a company) has become entitled to appoint or has appointed an administrative receiver;
   (h) a person becomes entitled to appoint a receiver over all or any of the assets of the HDA PRO or a receiver is appointed over all or any of the assets of the HDA PRO;
   (i) a creditor or encumbrancer of the HDA PRO 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 its assets and such attachment or process is not discharged within [14] days;
   (j) the HDA PRO (being an individual) is the subject of a bankruptcy petition, application or order;
   (k) the HDA PRO (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;
   (l) any event occurs, or proceeding is taken, with respect to the HDA PRO in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 18.3(d) to Clause 18.3(k) (inclusive);
   (m) the HDA PRO suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
   (n) the HDA PRO applies for or obtains registration of any domain name in any country that consists of, or comprises, or is confusingly similar to, the Trade Marks.

EFFECTS OF THIS AGREEMENTS CANCELLATION 

1. Upon termination or expiry of this agreement for any reason:
   (a) [the HDA PRO shall (at its sole cost) return (or at HDANYWHERE’s option, destroy) all HDA Products which are held by the HDA PRO.]
   (b) [at HDANYWHERE’s option, the HDA PRO shall be permitted for a period of [NUMBER] months following termination of this agreement to sell and distribute any HDA Products that have an existing or outstanding Purchase Order;]
   (c) on the expiry of the [NUMBER]-month period under 19.1(b) or if HDANYWHERE exercises its right not to allow the HDA PRO to continue distributing the HDA Products after termination or expiry of this agreement, the HDA PRO shall promptly return to HDANYWHERE, or otherwise dispose of as HDANYWHERE may instruct, all samples, technical pamphlets, catalogues, advertising materials, specifications and other materials, documents or papers whatsoever sent to the HDA PRO and relating to HDANYWHERE’s business (other than correspondence which has passed between the parties) which the HDA PRO may have in its possession or under its control;
   (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 19.1(b), all rights and licences of the HDA PRO under this agreement shall terminate.
   (f) The termination of this agreement shall not of itself give rise to any liability on the part of HDANYWHERE to pay any compensation to the HDA PRO for loss of profits or goodwill, to reimburse the HDA PRO for any costs relating to or resulting from such termination, or for any other loss or damage.
   (g) The HDA PRO shall continue to provide support services until a suitable replacement can be found.

 HOW TO COMPLY WITH ANTI-BRIBERY LAWS

  

1. The HDA PRO shall:
   (a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010;
   (b) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010 and will enforce them where appropriate;
   (c) promptly report to HDANYWHERE any request or demand for any undue financial or other advantage of any kind received by the HDA PRO in connection with the performance of this agreement;
   (d) within [INSERT] months of the date of this agreement, and annually thereafter, certify to HDANYWHERE in writing signed by an officer of the HDA PRO, compliance with this Clause 21 by the HDA PRO and all persons associated with it and all other persons for whom the HDA PRO is responsible. The HDA PRO shall provide such supporting evidence of compliance as HDANYWHERE may reasonably request.
2. Without prejudice to Clause 21.1 the HDA PRO shall ensure that any person associated with the HDA PRO who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the HDA PRO in this Clause 21 (Relevant Terms). The HDA PRO shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to HDANYWHERE for any breach by such persons of any of the Relevant Terms howsoever arising.
3. Breach of this clause 21 be deemed a material breach, which is irredeemable.

HOW TO PROTECT EACH OTHER’S CONFIDENTIAL INFORMATION

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 receiving 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.
   
2. This clause 22 shall survive termination of this agreement for any reason including, without limitation, information relating to the disclosing Party’s products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs.
3. Each Party undertakes that it shall not at any time disclose to any person any Confidential Information, except as provided by clause 22.3
4. Before disclosure of Confidential Information to anyone other than the receiving Party, the receiving Party shall ensure that the other party executes a confidentiality agreement in a form no less onerous than the terms of this agreement. The receiving Party shall ensure that the other party, at all times complies with the confidentiality agreement.
5. No Party shall use any the other Party’s Confidential Information for any purpose other than to perform its obligations under this agreement.
6. Each Party shall have in place industry-standard policies, procedures, training programmes and draft confidentiality agreements so as to ensure that its employees are able to identify and label confidential information disclosed by the other Party and deal with it in accordance with the obligations imposed under this clause 22. Each Party will upon reasonable written notice disclose to the other on a regular basis details of its policies, procedures and standard documents relating to confidentiality.
7. The Parties shall not without the prior written consent of the other Party divulge any part of the Information to any person except:
   (a) to its own employees who need to know the same;
   (b) to its auditors, an officer of HM Revenue and Customs, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the Party and then only in pursuance of such right duty or obligation;
8. Each Party shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Information and shall give the other Party all reasonable assistance in connection with any proceedings which the other Party may institute against such person for breach of confidence.

PROTECTION AND PROCESSING OF PERSONAL DATA

1. Each Party shall comply with its respective obligations under the provisions of the Data Protection Act 1998 (the Act) and references in this clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in the Act.
2. 18.2 Where the HDA PRO 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 HDANYWHERE acting as a data controller:
   (a) the HDA PRO shall, and shall procure that its sub-contractors shall:
   (b) act only on instructions from HDANYWHERE when processing personal data provided to it under this agreement, and keep records of all such processing;
   (c) comply with HDANYWHERE’s instructions in relation to the processing of personal data as such instructions are given and provided from time to time by HDANYWHERE;
   (d) 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;
   (e) [not transfer any personal data outside the European Economic Area without HDANYWHERE’s prior written consent; and]
   (f) immediately notify HDANYWHERE (or the HDA PRO, 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.
3. HDANYWHERE may from time to time serve on the HDA PRO an information notice requiring the HDA PRO, within such time and in such form as is specified in the information notice, to give to HDANYWHERE such information as HDANYWHERE may reasonably require relating to:
   (a) compliance by the HDA PRO or by its sub-contractors with the HDA PRO’s obligations to HDANYWHERE under this agreement in connection with the processing of personal data; and
   (b) the rights of data subjects, including but not limited to subject access rights.
4. The HDA PRO shall provide to HDANYWHERE 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 HDANYWHERE, and shall promptly inform HDANYWHERE if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The HDA PRO will restore such data at its own expense.

FORCE MAJEURE – EVENTS OUT OF BOTH OF OUR CONTROL 

1. 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, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage; or 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; and fire, explosion or accident; or compliance with any law or governmental, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of HDANYWHERE’s 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 [six] months, the Party not affected may terminate this agreement by giving [30 days’] written notice to the other Party.
2. The affected Party shall:
   (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than [NUMBER] days from its start, notify the other Party in writing of the Force Majeure Event, the date on which it started, it’s likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement;
   (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations; and
   (c) as soon as reasonably possible after the end of the Force Majeure Event, notify the other Party that the Force Majeure Event has ended and resume performance of its obligations under this agreement.

GENERAL CLAUSES PROTECTING BOTH OF US

1. 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.
2. Severance. 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. If one Party gives notice to the other of the possibility that 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.
3. Assignment. The HDA PRO shall not, without the prior written consent of HDANYWHERE, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. HDANYWHERE 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.
4. 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.
5. 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.
6. Notices. Any notice given to a Party under or in connection with this contract shall be in writing and shall be:
   (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a HDANYWHERE) or its principal place of business (in any other case); or
   (b) any notice shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or 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. 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.
7. Entire agreement. 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. 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.
8. Variation. No amendment or Variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9. 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.
10. No partnership or agency. 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, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
11. Announcements. No Party shall make, or permit any person to make, any public announcement concerning this agreement 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, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12. 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.
13. 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.
14. Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
15. Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

GLOSSARY OF TERMS USED IN THIS AGREEMENT

The Parties agree that the defined terms of this agreement are:

Term	Meaning
"HDA Distributor”	means the authorized distributor of HDA Products whom you the HDA PRO purchase the HDA Products from.
"Brand Manual"	HDANYWHERE's guidelines prescribing the permitted form and manner in which the Trade Marks may be used, a copy of which is attached to this agreement and initialed by the parties for the purposes of identification, including any amendments or additions notified in writing by HDANYWHERE to the HDA PRO from time to time
"Business Day"	any day which is not a Saturday, Sunday or public holiday in the UK.
"Commencement Date"	means the date on which this Agreement becomes effective, as specified in Clause 18.
"Confidential Information"	means information of commercial value, in whatever form or medium, disclosed by the disclosing Party to the receiving Party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to End Users, pricing and marketing and, for clarity, including (in the case of HDANYWHERE’s information) information relating to the HDA Hardware, the HDA Software or any of its constituent parts, the Source Code relating to the HDA Software or any such parts.
"Control"	Shall be defined in sections 450 and 451 or section 1124 of the Corporation Tax Act 2010, so that there is a change of control whenever there is a change of control as defined in either sections 450 and 451 or section 1124 of that Act.
"End Users"	Individuals to whom you, the HDA PRO sell the HDA Products to under the End User Contract.
"End Users Contract"	the agreement between the HDA PRO and the End User for the Installation of the HDA Products and the Support Services.
"End User's Premises"	the location(s) where the HDA Products are to be Installed by the HDA PRO.
"End User's Hardware"	the End User’s hardware and any other third party hardware located at the End User’s Premises.
"Documentation"	means the Brand Manual, Installation Manual, Maintenance Manual and any other user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms supplied by HDANYWHERE to the HDA PRO as specified in Schedule 4.
"EULA"	the end user license agreement in the form set out in Schedule 3.
"Force Majeure Event"	has the meaning given in clause 24.
"HDA Hardware"	Any HDA Hardware installed by you, the HDA PRO at the End Users Premises.
"HDA Products"	means the HDA Hardware and HD Software and Support Services as listed in Schedule 2.
"HDA Software"	Any HDA Software installed by you the HDA PRO at the End Users Premises.
"Good Industry Practise"	the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.;
"Intellectual Property Rights"	means patents, utility models, rights to inventions, copyright and neighbouring and related rights, all other rights in the nature of copyright, 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, 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.
"Installation"	Installation of the HDA Hardware and HDA Software at the End User’s Premises.
"Installation Date"	means the estimated date by which the HDA PRO will complete installation of the HDA Hardware and HDA Software at the End User Premises.
"Installation Manual"	means the manual setting out the operations and procedures for Installation of the HDA Hardware and HDA Software at the End Users Premises, as updated from time to time by the HDANYWHERE.
"Installation Tests"	Any installation tests undertaken by the HDA PRO at the End User’s premises to check that Installation has been successful.
"Maintenance Manual"	means the manual setting out the operations and procedures for providing the Support Services.
"Normal Business Hours"	means the period from 9.00 am to 5.00 pm Greenwich Mean Time (GMT) on any Business Day.
"Ready for Service"	means installed, tested and having passed or deemed to have passed any Installation Tests.
"Standard of Quality"	means the specification, choice of materials, workmanship and manner of marketing as set out in writing by HDANYWHERE from time to time.
"Step In Notice"	has the meaning as set out in clause 20.
"Step in Rights"	has the meaning as set out in clause 20.
"Support Services"	means the support services to be provided by the HDA PRO under this agreement as set out in clauses 10.
"Support Staff"	means those officers, employees, agents or subcontractors of the HDA PRO connected with this agreement, including those individuals who perform the HDA PRO’s obligations under this agreement.
"Term"	Means the term of this agreement as set out in clause 20.
"Territory"	the countries specified in Schedule 5.
"Third Party Warranties"	the warranties given by any third-party manufacturer in relation to any item of the HDA Hardware.
"Third Party Software"	means the software programs proprietary to third parties, listed, which are to be provided to HDANYWHERE without modification.
"Trade Marks"	means the trade marks as specified in Schedule 6.;
"Year"	means the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter during the Term.

1. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns. 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. Words in the singular shall include the plural and vice versa. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2. A reference to any Party shall include that Party’s personal representatives, successors or permitted assigns. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to writing or written includes faxes and/or email. References to a document in agreed form are to that document in the form agreed by the parties and initialled by or on their behalf for identification. A reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule.
3. 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. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done. A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.